STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

January 17, 2014 

RORY L. PERRY II, CLERK In Re: M.M. and M.M. 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Nos. 13-0819 and 13-0830 (Kanawha County 11-JA-181 and 12-JA-218) 

MEMORANDUM DECISION 

Petitioners Mother and Father filed appeals by their respective counsel, Jennifer R. Victor 

and Shawn D. Bayliss, from the Circuit Court of Kanawha County, which terminated their 

parental rights to the subject children1 by order entered on July 22, 2013.2 The guardian ad litem 

for the children, Sharon K. Childers, filed a response supporting the circuit court’s order. The 

Department of Health and Human Resources (“DHHR”), by its attorney Michael L. Jackson, has 

also filed a response in support of the circuit court’s order. Petitioners argue that the circuit court 

erred in terminating their post-adjudicatory improvement periods, denying their motions for 

dispositional improvement periods, and in terminating their 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. 

Petitioner Mother had her parental rights terminated to five other children in 2008. The 

DHHR filed the petition in the instant abuse and neglect case in September of 2011 against both 

parents, alleging their failure to provide M.M.-1 with necessary food, clothing, supervision, and 

housing. The petition also alleged that Petitioner Mother denied any wrongdoing during the 

pendency of the 2008 abuse and neglect case.3 In April of 2012, the circuit court adjudicated 

1 Because the children in this case have the same initials, M.M., we have distinguished each of 

them using numbers 1 and 2 after their initials in this memorandum decision. 

2 Subsequent to petitioners’ separate notices of appeal, the parties filed a motion to consolidate 

their cases. We granted this motion and now address their appeals together. 

3 Notes from Petitioner Mother’s psychological evaluation provide that in Petitioner Mother’s 

prior case, a referral was made to the DHHR in 2007 after her daughters had missed one month 

of school. Their absence was due to the failure of Petitioner Mother and her former husband to 

wake their children up on time. Upon investigation, feces were found on the walls and floors of 

the children’s bedrooms, and mold, debris, and stagnant water filled the living room. It was also 

revealed that, among other forms of inappropriate discipline, Petitioner Mother would lock her 

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both parents, with regard to M.M.-1, as abusing parents, finding that there was a continuing 

pattern of neglectful, unhealthy living conditions in the home. The circuit court granted 

petitioners an improvement period with services, which included parenting education and 

supervised visitation. After M.M.-2’s birth in September of 2012, the DHHR filed an amended 

petition to include him. The petition also added that Petitioner Mother did not seek prenatal care 

during her pregnancy with M.M.-2 until she was seven months pregnant. In November of 2012, 

the circuit court adjudicated petitioners as abusing parents with regard to M.M.-2. In January of 

2013, after learning that there had been a lapse in services from the DHHR, the circuit court 

extended petitioners’ improvement period for another three months. Upon their lack of progress, 

however, the circuit court terminated this latest period of improvement in April of 2013. In July 

of 2013, the circuit court terminated both parents’ parental rights. From this order, petitioners 

now appeal. 

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). 

On appeal, petitioners argue that the circuit court erred by (1) terminating their postadjudicatory improvement period, (2) denying their motions for a dispositional improvement 

period, and (3) terminating their parental rights to M.M.-1 and M.M.-2. Petitioners argue that 

they were making progress, albeit slowly, throughout the duration of the case and, therefore, 

should have been allowed to continue their improvement period rather than have their parental 

rights terminated. 

Upon our review of the record, we find no clear error by the circuit court. Pursuant to 

West Virginia Code § 49-6-12, the subject parent bears the burden of proving by clear and 

convincing evidence that he or she will substantially comply with the terms of an improvement 

period. The circuit court thereafter has the discretion to grant or deny such a motion for an 

improvement period. Where the circuit court grants a parent’s motion for an improvement 

period, West Virginia Code § 49-6-12(f) provides: 

children in their bedrooms and would make them remain in soiled clothing as a form of 

punishment after toileting accidents. 

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When any respondent is granted an improvement period pursuant to the 

provisions of this article, the department shall monitor the progress of such person 

in the improvement period. When the respondent fails to participate in any service 

mandated by the improvement period, the state department shall initiate action to 

inform the court of that failure. When the department demonstrates that the 

respondent has failed to participate in any provision of the improvement period, 

the court shall forthwith terminate the improvement period. 

We also bear in mind the following: 

“[C]ourts are not required to exhaust every speculative possibility of parental 

improvement . . . where it appears that the welfare of the child will be seriously 

threatened, and this is particularly applicable to children under the age of three 

years who are more susceptible to illness, need consistent close interaction with 

fully committed adults, and are likely to have their emotional and physical 

development retarded by numerous placements.” Syl. Pt. 1, in part, In re R.J.M., 

164 W.Va. 496, 266 S.E.2d 114 (1980). 

Syl. Pt. 4, 228 W.Va. 89, 717 S.E.2d 873 (2011). Our review of the DHHR’s reports shows that 

petitioners failed to substantially comply with supervised visitation appointments and directions 

to maintain a sanitary and healthy home. We note that the record also provides that the DHHR 

conceded to the circuit court that, due to a series of miscommunications with its service provider, 

petitioners did not receive three months of services. Nevertheless, during times in which the 

DHHR was diligent with services, neither parent substantially complied with counseling or 

supervised visitation with their young children, who are now one and two years old. Further, 

despite Petitioner Mother’s prior involvement with CPS and her prior termination of parental 

rights, she and Petitioner Father failed to improve the conditions of the home for the subject 

children. The record indicates that during a home visit as recent as January of 2013, the DHHR 

caseworker was greeted by cockroaches scampering about the home and in April of 2013, 

petitioners told the caseworker they had been “lazy” in getting the home cleaned up, leaving bags 

of items scattered throughout the premises. Petitioner Mother continued to smoke cigarettes 

throughout her pregnancy with M.M.-2, despite discussions with the DHHR to eliminate this 

habit and, later, a physician diagnosed the children with bronchitis as a result of thirdhand 

cigarette smoke. As for Petitioner Father, he expressed that Petitioner Mother’s prior termination 

of parental rights to other children did not concern him and that he believed Petitioner Mother 

was capable of caring for the subject children. Petitioner Father also expressed that he would be 

unwilling to leave Petitioner Mother, even if it meant the return of his children. Finally, when 

Petitioner Mother was unable to accompany Petitioner Father to visits with their children, 

Petitioner Father would cancel the visit. 

From our review, petitioners’ failure to substantially comply with their post-adjudicatory 

improvement period supports the circuit court’s decision to terminate their adjudicatory 

improvement period and to deny their motions for a dispositional improvement period. The 

record and the circuit court’s findings support its conclusions that there was no reasonable 

likelihood to believe that conditions of abuse and neglect could be substantially corrected in the 

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near future, and that termination was necessary for the children’s welfare. Pursuant to West 

Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon such 

findings. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: January 17, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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