STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED In re: D.W., Jr., & S.W. 

November 23, 2015 

RORY L. PERRY II, CLERK No. 15-0671 (Mercer County 13-JA-460 & 13-JA-461) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother K.W., by counsel Gerald Linkous, appeals the Circuit Court of Mercer 

County’s June 24, 2015, order terminating her parental rights to D.W. Jr. and S.W. The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed 

its response in support of the circuit court’s order. The guardian ad litem (“guardian”), Thomas 

L. Fuda, filed a response on behalf of the children that supported the circuit court’s order. On 

appeal, petitioner alleges that the circuit court erred in terminating her parental rights.1 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

In October of 2013, the DHHR filed an abuse and neglect petition alleging that D.W., Jr., 

and S.W. were truant from school. The petition contained additional allegations that the children 

were also tardy from school without excuses. The petition was later amended to include 

allegations of substance abuse and domestic violence. 

In January of 2014, the circuit court held an adjudicatory hearing wherein petitioner 

stipulated to the allegations in the petition and to neglecting her children “by virtue of substance 

abuse or domestic violence.” The circuit court accepted the stipulation and petitioner was 

adjudicated as neglecting the children. Petitioner made a motion for a post-adjudicatory 

improvement period which the circuit court granted. The terms of the improvement period 

included detoxification and long-term in-patient treatment for substance abuse, individualized 

parenting classes, life skills classes, and home maintenance classes. Petitioner was also ordered 

to submit to random substance abuse screenings at least two times per week. 

1

We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and 

recodified during the 2015 Regular Session of the West Virginia Legislature. The new 

enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and 

became effective ninety days after the February 19, 2015, approval date. In this memorandum 

decision, we apply the statutes as they existed during the pendency of the proceedings below. 

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In March of 2014, the circuit court held a status hearing at which the DHHR reported that 

petitioner had completed applications for substance abuse detoxification treatment programs, that 

she had participated in all random substance abuse screenings, and that her visits with the 

children were going well. The circuit court extended petitioner’s improvement period. Petitioner 

continued to comply with the terms of her improvement period until March of 2015. In March of 

2015, the circuit court held a status hearing at which the DHHR reported that petitioner was not 

complying with the terms of her improvement period. Specifically, petitioner was not visiting the 

children consistently and there was no electricity at her home. The circuit court set the matter for 

disposition. 

In June of 2015, the circuit court held a dispositional hearing2 and noted that the case had 

been pending for approximately eighteen months. The DHHR reported that petitioner failed a 

random drug screen and tested positive for opiates and marijuana, and that she did not 

successfully complete any substance abuse treatment program. The DHHR reported that 

petitioner was not complying with in-home services, that petitioner did not have electricity in her 

home, and several of the windows in the home were broken or missing. The DHHR also reported 

that the children were bonded with petitioner. At the close of the hearing, the circuit court found 

that petitioner failed to comply with the terms of her improvement period. The circuit court also 

noted that petitioner did not have a home in which the children could safely live. The circuit 

court terminated petitioner’s parental rights by order entered June 24, 2015. Petitioner appeals 

from the dispositional order. 

The Court has previously established the following standard of review: 

“Although conclusions of law reached by a circuit court are subject to de 

novo review, when an action, such as an abuse and neglect case, is tried upon the 

facts without a jury, the circuit court shall make a determination based upon the 

evidence and shall make findings of fact and conclusions of law as to whether 

such child is abused or neglected. These findings shall not be set aside by a 

reviewing court unless clearly erroneous. A finding is clearly erroneous when, 

although there is evidence to support the finding, the reviewing court on the entire 

evidence is left with the definite and firm conviction that a mistake has been 

committed. However, a reviewing court may not overturn a finding simply 

because it would have decided the case differently, and it must affirm a finding if 

the circuit court’s account of the evidence is plausible in light of the record 

viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 

470 S.E.2d 177 (1996). 

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, the Court finds 

no error in the circuit court’s termination of petitioner’s parental rights. While petitioner argues 

that the circuit court erred in terminating her parental rights because she has a positive bond with 

2

Because the dispositional hearing in this matter took place on May 20, 2015, the day the 

new version of West Virginia Code §§ 49-1-101 through 49-7-304 went into effect, the Court 

will apply the revised versions of those statutes on appeal. 

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her children, the Court finds that the circuit court properly terminated petitioner’s parental rights 

upon a finding that she could not substantially correct the conditions of abuse and neglect. 

Pursuant to West Virginia Code § 49-4-604(c)(3), a situation in which there is no reasonable 

likelihood that the conditions of abuse or neglect can be substantially corrected includes one in 

which 

[t]he abusing parent . . . [has] not responded to or followed through with a 

reasonable family case plan or other rehabilitative efforts of social, medical, 

mental health or other rehabilitative agencies designed to reduce or prevent the 

abuse or neglect of the child, as evidenced by the continuation or insubstantial 

diminution of conditions which threatened the health, welfare or life of the child. 

The circuit court specifically made this finding in regard to petitioner, based upon the evidence 

above of her non-compliance with the circuit court’s orders and her failure to correct the 

conditions of abuse and neglect. 

At the dispositional hearing, the circuit court was presented with sufficient evidence to 

make this finding as petitioner tested positive for opiates and marijuana, and did not successfully 

complete any substance abuse treatment program. Petitioner also failed to comply with required 

in-home services. Specifically, petitioner acknowledged that having a suitable home for the 

children was part of her parenting education classes and further testified that “we’ll have a 

suitable home as soon as the electricity gets turned on.” Evidence also established that, 

approximately three weeks prior to the dispositional hearing, petitioner’s home had no beds for 

the children. The circuit court further found that petitioner did not have electricity in her home 

and several of the windows in the home were broken or missing, which made the home 

uninhabitable for the children. Based on this evidence, the circuit court correctly found that 

petitioner did not comply with the terms of her improvement period. The circuit court also noted 

that the case had been pending for approximately eighteen months and petitioner failed to make 

positive progress since the initiation of the abuse and neglect proceedings. 

As noted above, the circuit court was presented with sufficient evidence to find that there 

was no reasonable likelihood that petitioner could substantially correct the conditions of abuse 

and neglect and that termination was necessary for the children’s best interests. Pursuant to West 

Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate parental rights upon these 

findings. We have also held as follows: 

“Termination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, W. Va.Code [§] 

49-6-5 . . . may be employed without the use of intervening less restrictive 

alternatives when it is found that there is no reasonable likelihood under W. 

Va.Code [§] 49–6–5(b) . . . that conditions of neglect or abuse can be substantially 

corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980). 

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Because the circuit court was 

presented with sufficient evidence to find that there was no reasonable likelihood that petitioner 

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could substantially correct the conditions of abuse and neglect, termination of her parental rights 

to both children was not error. 

For the foregoing reasons, the circuit court’s June 24, 2015, termination order is hereby 

affirmed. 

Affirmed. 

ISSUED: November 23, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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