STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED In re: I.W. 

June 16, 2017 

No. 17-0166 RORY L. PERRY II, CLERK (Raleigh County 15-JA-166-B) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother C.W., by counsel P. Michael Magann, appeals the Circuit Court of 

Raleigh County’s January 20, 2017, order terminating her parental rights to I.W.1 The West 

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

response in support of the circuit court’s order and a supplemental appendix. The guardian ad 

litem (“guardian”), David A. Kirkpatrick, filed a response on behalf of the child in support of the 

circuit court’s order and a supplemental appendix. On appeal, petitioner argues that the circuit 

court erred in denying her motion for an improvement period at disposition and in terminating 

her parental rights. 

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 2015, the DHHR filed an abuse and neglect petition against petitioner. 

According to the petition, the DHHR received a referral that the child would often discuss 

petitioner’s abuse of sleeping medicine. The petition further alleged that petitioner failed to 

ensure the child’s proper hygiene and that the child often fell asleep at school. The child 

indicated that he often did not eat dinner and that petitioner would give him a sleeping pill at 

night. The DHHR also alleged that petitioner was observed slumped over the steering wheel of 

her car. In addition, the petition included allegations that petitioner was arrested on criminal 

charges of delivery of controlled substances, possession of controlled substances, and trafficking. 

Further, petitioner admitted to a Child Protective Services (“CPS”) worker that she abused 

prescription medications, including Oxycodone and Xanax. 

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va. 

254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013); 

State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 

W.Va. 641, 398 S.E.2d 123 (1990). 

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In December of 2015, the circuit court held an adjudicatory hearing, during which 

petitioner stipulated to abusing the child as a result of her substance abuse. The circuit court 

granted petitioner a post-adjudicatory improvement period, which required that she (1) not be 

arrested or charged with a crime; (2) submit to random drug screens; (3) submit to inpatient 

substance abuse treatment; (4) participate in substance abuse counseling; (5) participate in grief 

counseling; and (6) participate in parenting and adult life skills, among other requirements. 

In May of 2016, petitioner checked into a detoxification program at Southern Highlands 

Community Mental Health Center. Four days later, petitioner checked herself out of the program 

against medical advice. In July of 2016, the circuit court held a review hearing during which it 

found that petitioner was not progressing in her improvement period. However, the circuit court 

granted petitioner an extension of her improvement period upon her agreement to enter a 

substance abuse treatment program. Petitioner entered the Mother’s Program but was later 

discharged for noncompliance with the program’s rules and regulations. The DHHR then filed a 

motion to terminate petitioner’s parental rights. 

In December of 2016, the circuit court held a dispositional hearing, during which 

petitioner moved for an improvement period as disposition. The DHHR presented multiple 

witnesses in support of its motion to terminate petitioner’s parental rights. According to these 

witnesses, petitioner failed to comply with several aspects of her post-adjudicatory improvement 

period. Specifically, the circuit court heard evidence that petitioner stopped submitting to drug 

screens and attending counseling. In fact, one provider testified that petitioner missed roughly 

ninety percent of her scheduled drug screens, despite the fact that the testing location was within 

walking distance of petitioner’s residence. The circuit court also heard evidence about 

petitioner’s two failed attempts at substance abuse detoxification and/or rehabilitation. 

Testimony established that petitioner’s only compliance leading up to the dispositional hearing 

was sporadic participation with parenting and adult life skills education and some visitation with 

the child. However, between July of 2016 and October of 2016, petitioner did not attend any 

visits with the child. Further, one provider testified that petitioner’s missed visits had a 

detrimental effect on the child. Petitioner would tell the child she was going to attend a visit and 

then fail to show up, resulting in the child being “upset for days at a time . . . .” According to 

testimony, the child’s disappointment would manifest itself physically, with the child reporting 

headaches and sickness as a result of the missed visits. Ultimately, the circuit court denied 

petitioner’s motion for an additional improvement period and terminated her parental rights to 

the child.2 It is from the dispositional order that petitioner appeals. 

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 

2

Petitioner’s parental rights to the child were terminated below. The child’s father is 

deceased. According to the DHHR, the child is placed in the home of his paternal grandparents 

with a goal of adoption therein. 

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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 proceedings below. 

First, the Court finds no error in the circuit court’s denial of petitioner’s motion for an 

improvement period at disposition. Pursuant to West Virginia Code § 49-4-610(3)(D), a circuit 

court may grant a parent an improvement period at disposition if, “the [parent] demonstrates that 

since the initial improvement period, the [parent] has experienced a substantial change in 

circumstances. Further, the [parent] shall demonstrate that due to that change in circumstances, 

the [parent] is likely to fully participate in the improvement period . . . .” Here, petitioner was 

previously granted a post-adjudicatory improvement period. However, the record is clear that 

petitioner could not establish a substantial change in circumstances since her initial improvement 

period or that she was likely to fully participate in a new improvement period. 

At disposition, the circuit court was presented with ample evidence of petitioner’s 

noncompliance with the terms and conditions of her post-adjudicatory improvement period. This 

evidence included her failure to submit to drug screening and counseling, her failure to complete 

inpatient substance abuse treatment, and her inconsistent visitation with the child. While 

petitioner argues on appeal that she made sufficient progress and improvement to warrant an 

additional improvement period, the Court finds nothing in the record to support this assertion. On 

the contrary, the evidence overwhelmingly supports the circuit court’s determination that 

petitioner established “a failure to comply with the family case plan.” Simply put, the issues of 

abuse and neglect in the home continued unabated throughout the proceedings such that 

petitioner could not establish a substantial change in circumstances to warrant an additional 

improvement period. Moreover, her failure to comply with the terms and conditions of her postadjudicatory improvement period also showed that she was unlikely to fully comply with an 

additional improvement period. For these reasons, we find no error in the circuit court’s denial of 

petitioner’s motion for an improvement period at disposition. 

Finally, we find no error in the circuit court’s termination of petitioner’s parental rights. 

On appeal, petitioner argues that there was insufficient evidence upon which to terminate her 

parental rights, but we find this argument to be without merit. As noted above, the circuit court 

specifically found that petitioner failed to comply with the terms and conditions of her family 

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

reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes 

one in which 

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[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 . 

. . . 

Based upon the evidence outlined above, it is clear that there was no reasonable likelihood 

petitioner could substantially correct the conditions of abuse and neglect. The circuit court 

further found that termination of petitioner’s parental rights was necessary for the child’s welfare 

because the child required permanency in his placement. Pursuant to West Virginia Code § 49-4­

604(b)(6), circuit courts are directed to terminate a parent’s parental rights upon such findings. 

Moreover, we have previously held that 

“[t]ermination of parental rights, the most drastic remedy under the 

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

49-6-5 [now West Virginia Code § 49-4-604] . . . 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) [now West Virginia Code 

§ 49-4-604(c)] . . . 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). For these reasons, we find no 

error in the circuit court’s termination of petitioner’s parental rights. 

For the foregoing reasons, we find no error in the decision of the circuit court, and its 

January 20, 2017, order is hereby affirmed. 

Affirmed. 

ISSUED: June 16, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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