STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS
 

FILED 

In re B.H. June 11, 2018 

EDYTHE NASH GAISER, CLERK 

No. 18-0127 (Randolph County 2017-JA-025) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother M.H., by counsel David C. Fuellhart, appeals the Circuit Court of 

Randolph County’s January 19, 2018, order terminating her parental rights to B.H.1 The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N. 

Felton-Ernest, filed a response in support of the circuit court’s order. The guardian ad litem 

(“guardian”), G. Phillip Davis, filed a response on behalf of the child in support of the circuit 

court’s order. On appeal, petitioner argues that the circuit court erred in denying her motion for a 

post-dispositional improvement period and terminating her parental rights when less-restrictive 

dispositional alternatives were available. 

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. 

On May 2, 2017, the DHHR filed an abuse and neglect petition against petitioner and the 

father alleging that petitioner tested positive for buprenorphine, commonly referred to as 

Suboxone, upon the delivery of B.H. The DHHR alleged that B.H. suffered severe withdrawal 

symptoms including seizures, myoclonic jerks, loose stools, and sleeping less than two hours 

after feeding. He was transferred to Ruby Memorial Hospital for further treatment. The petition 

further alleged that, although petitioner had a prescription for Suboxone, she had a history of 

substance abuse. The petition alleged that the child’s father was incarcerated on federal charges 

related to manufacturing methamphetamine. 

The petition also alleged that abuse and neglect proceedings involving petitioner’s three 

older children were initiated in 2012. During these proceedings, one of petitioner’s children was 

born addicted to cocaine and Suboxone, she was addicted to multiple substances, and abused 

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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substances in front of the children. Her parental rights to the three children were involuntarily 

terminated. In the instant petition, the DHHR alleged that it did not appear that the circumstances 

of abuse and neglect had changed since the filing of the petition in 2012. Petitioner waived the 

preliminary hearing. 

On September 25, 2017, the circuit court held an adjudicatory hearing at which the father 

was adjudicated as an abusing parent. Petitioner requested a continuance, which the circuit court 

granted. Thereafter, on November 28, 2017, petitioner stipulated to the allegations of abuse and 

neglect and was adjudicated as an abusing parent. 

On January 4, 2018, the circuit court held a dispositional hearing at which petitioner 

moved for a post-dispositional improvement period, which the circuit court ultimately denied. 

Both the guardian and the DHHR objected to petitioner’s motion and moved for termination of 

petitioner’s parental rights. A nurse from Davis Medical Center testified that petitioner and the 

child both tested positive for buprenorphine at the child’s birth and that the child suffered from 

extreme withdrawal symptoms, including seizures. Next, the DHHR presented evidence that in 

June of 2017 and July 2017, petitioner repeatedly tested positive for buprenorphine, but failed to 

bring her prescription for Suboxone multiple times. The director also testified that, in addition to 

testing positive for buprenorphine, petitioner also tested positive for methamphetamine in August 

of 2017. According to the director, petitioner admitted to snorting methamphetamine three days 

prior to that drug screen. Petitioner continued to test positive for buprenorphine through 

December of 2017, but again, many times she did not present her prescription. 

Next, a caseworker testified regarding the parents’ visits with the child. She testified that 

petitioner consistently visited the child in June of 2017 and the first part of July of 2017 and that 

petitioner arrived on time for visits when the father was in substance abuse treatment and 

transportation was arranged by the caseworker. However, according to the caseworker, after the 

father was released from incarceration, and when he was not in treatment, he and petitioner 

would often arrive late to visits or miss them altogether. The caseworker also explained that 

when the father attended visits with petitioner, she was more focused on him than she was on the 

child. The DHHR further presented testimony regarding petitioner’s prior abuse and neglect case 

wherein she abused substances and gave birth to one child who was born addicted to substances. 

Petitioner was also using Suboxone throughout the prior proceedings. According to the DHHR, 

petitioner failed to successfully complete an improvement period and her parental rights to her 

three children were involuntarily terminated. 

Petitioner testified regarding her addiction to substances and explained that she traveled 

to Maryland to see a doctor and obtain her prescription for Suboxone. Petitioner denied any 

illegal use of substances. She also explained that she and the father missed visits in December of 

2017 because there was a miscommunication and a change in the caseworker that supervised the 

visits. Petitioner also testified that she allowed multiple individuals to stay in her home and that 

they brought drugs and needles into the home. 

Following the parties’ testimony, the circuit court noted that petitioner used Suboxone 

throughout the proceedings and the prior abuse and neglect proceedings, but never attempted to 

complete a long-term rehabilitation program or stop her use of Suboxone. The circuit court also 

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noted that the evidence demonstrated that petitioner’s circumstances had not changed since her 

prior termination. The circuit court found that there was no reasonable likelihood that petitioner 

could correct the conditions of abuse and neglect, and specifically, the parents “don’t want to do 

what is in the child’s best interest as to drug use” and lifestyle. In light of the child’s young age, 

the circuit court found it was in his best interests for petitioner’s and the father’s parental rights 

to be terminated. Ultimately, the circuit court terminated petitioner’s parental rights in its 

January 19, 2018, order.2

 It is from this 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 

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, this Court 

finds no error in the proceedings below. 

First, petitioner argues that the circuit court erred in denying her motion for a postdispositional improvement period. In support of this argument, petitioner asserts that her actions 

throughout the proceedings demonstrated by clear and convincing evidence that she would fully 

comply with a post-dispositional improvement period. We do not find her arguments persuasive. 

West Virginia Code § 49-4-604(b)(7)(C) states that “[f]or purposes of the court’s 

consideration of the disposition custody of a child pursuant to this subsection, the [DHHR] is not 

required to make reasonable efforts to preserve the family if the court determines . . . [t]he 

parental rights of the parent to another child have been terminated involuntarily[.]” Additionally, 

“West Virginia law allows the circuit court discretion in deciding whether to grant a parent an 

improvement period.” In re M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015). Despite the 

fact that the DHHR was not required to provide services to petitioner in these proceedings, 

petitioner received drug screening services and visitation with the child. While petitioner argues 

that she consistently tested negative for substances other than those prescribed to her, the record 

shows that petitioner repeatedly failed to provide her prescription for Suboxone at drug screens. 

Further, petitioner admitted to snorting methamphetamine during the proceedings. 

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The father’s parental rights were also terminated. According to the parties, the 

permanency plan for the child is adoption by his maternal grandmother. 

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Also, petitioner argues that she attended “the vast majority of her scheduled visits” and 

that her “active and consistent” visitation showed that she was likely to participate in an 

improvement period. However, according to the record, petitioner was often late to visits or 

missed them completely, especially when the father was with her. Accordingly, we find no error 

in the circuit court’s denial of petitioner’s motion for a post-dispositional improvement period. 

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

West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental rights 

upon findings that there is “no reasonable likelihood that the conditions of neglect or abuse can 

be substantially corrected in the near future” and that termination is necessary for the children’s 

welfare. West Virginia Code § 49-4-604(c)(3) provides that no reasonable likelihood that the 

conditions of abuse or neglect can be substantially corrected exists when “[t]he abusing parent . . 

. ha[s] not responded to or followed through with a reasonable family case plan or other 

rehabilitative efforts[.]” 

As discussed above, although the DHHR was not required to provide services, petitioner 

was afforded drug screening services and visitation. However, during the proceedings, petitioner 

admittedly snorted methamphetamine, failed to provide her prescriptions for Suboxone at 

numerous drug screens, was often late for visits, and missed visits with the child. Further, despite 

the fact that her use of Suboxone caused the child severe withdrawal symptoms after his birth, 

petitioner did not take any steps to cease the use of this substance. While petitioner argues that 

the circuit court erred in terminating her parental rights instead of employing a less-restrictive 

dispositional alternative such as guardianship with the maternal grandmother or participation in 

an improvement period, we have 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). Based on the evidence 

presented below, the circuit court found no reasonable likelihood that petitioner could 

substantially correct the conditions of abuse and neglect in the near future, and that due to the 

child’s young age, termination of petitioner’s parental rights was in the child’s best interests. 

Accordingly, 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 19, 2018, dispositional order is hereby affirmed. 

Affirmed. 

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ISSUED: June 11, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

Justice Elizabeth D. Walker 

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