STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In Re: Z.H. and N.H. January 9, 2017 

RORY L. PERRY II, CLERK No. 16-0624 (Mercer County 14-JA-172-WS & 14-JA-173-WS) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother C.H., by counsel Gerald R. Linkous, appeals the Circuit Court of 

Mercer County’s May 27, 2016, order terminating her parental, custodial, and guardianship 

rights to ten-year-old Z.H. and seven-year-old N.H. 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”), John Earl Williams Jr, filed a response on 

behalf of the children, also in support of the circuit court’s order. On appeal, petitioner argues 

that the circuit court erred in failing to require the DHHR to make a thorough effort to determine 

whether she could properly care for the children with intensive long-term assistance.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 2008 and in 2011, petitioner successfully completed two treatment plans and regained 

custody of her children. However, in 2012, the DHHR filed yet another petition for abuse and 

neglect against petitioner alleging that she failed to provide appropriate supervision for her 

children. After approximately two years of services, petitioner successfully completed her 

improvement period and the case was dismissed by order entered in May of 2014. 

Approximately seven months after the 2012 proceeding was dismissed, the DHHR 

received a referral that N.H. had an unexplained second-degree burn on his arm. During the 

investigation, N.H. told a DHHR worker that “mommy did it.” Petitioner did not admit nor deny 

burning N.H. The DHHR also noted that petitioner has a history of mental health issues. The 

referral also stated that Z.H. witnessed petitioner being sexually assaulted in the home. 

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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 on May 20, 2015. In this memorandum decision, we apply the statutes as they 

existed during the pendency of the proceedings below. It is important to note, however, that the 

abuse and neglect statutes underwent minor stylistic revisions and the applicable changes have 

no impact on the Court’s decision herein. 

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Importantly, Z.H. also told a DHHR worker that her uncle “comes into [Z.H.’s] room at night 

and tries to pull her pants down while she sleeps.” Based upon these allegations, the DHHR filed 

a petition for abuse and neglect. 

In March of 2015, the circuit court held an adjudicatory hearing during which it heard 

testimony from several witnesses. After considering the testimony and evidence, the circuit court 

held that petitioner neglected her children because she was “unable to provide a stable and 

appropriate home . . . or care for” her children.2 The circuit court held petitioner’s motion for a 

post-adjudicatory improvement period under advisement. 

In April of 2016, the circuit court held a dispositional hearing during which it heard 

testimony from the psychologist who evaluated petitioner. The psychologist testified that, given 

that petitioner received three years of services with no improvement, she had an “extremely poor 

prognosis” for “positive change with regard to her ability to parent.” The psychologist also 

explained that it’s “highly unlikely that [petitioner will] be able to provide parenting effectively 

for children[.]” By order entered on May 27, 2016, the circuit court terminated petitioner’s 

parental, custodial, and guardianship rights to his children. This appeal followed. 

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). Further, our case law provides 

that “in the context of abuse and neglect proceedings, the circuit court is the entity charged with 

weighing the credibility of witnesses and rendering findings of fact.” In re Emily, 208 W.Va. 

325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478, 

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The circuit court technically adjudicated petitioner as a “neglectful parent.” However, 

West Virginia Code § 49-1-201 defines an abusing parent as “a parent . . . whose conduct has 

been adjudicated by the court to constitute child abuse or neglect as alleged in the petition 

charging child abuse or neglect.” Because the definition of “abusing parent” encompasses 

parents who have been adjudicated of abusing or neglecting a child, and because West Virginia 

Code § 49-1-201 does not contain a definition for “neglectful parent,” we will use the term 

“abusing parent” in this memorandum decision. 

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525 S.E.2d 669 (1999)); see also Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 

531, 538 (1997) (stating that “[a] reviewing court cannot assess witness credibility through a 

record. The trier of fact is uniquely situated to make such determinations and this Court is not in 

a position to, and will not, second guess such determinations.”). 

On appeal, petitioner argues that the circuit court erred in failing to require the DHHR to 

make a thorough effort to determine whether she could properly care for the children with 

intensive long-term assistance. This Court has explained that 

[w]here allegations of neglect are made against parents based on 

intellectual incapacity of such parent(s) and their consequent inability to 

adequately care for their children, termination of rights should occur only after the 

social services system makes a thorough effort to determine whether the parent(s) 

can adequately care for the children with intensive long-term assistance. In such 

case, however, the determination of whether the parents can function with such 

assistance should be made as soon as possible in order to maximize the 

child(ren)’s chances for a permanent placement. 

Syl. Pt. 4, In re Billy Joe M., 206 W.Va. 1, 521 S.E.2d 173 (1999). Therefore, an effort to 

establish long-term assistance may be required in child abuse and neglect cases based on the 

“intellectual incapacity” of the parents. 

In the case sub judice, the DHHR was not required to make a thorough effort to 

determine whether petitioner could care for her children with intensive long-term assistance 

because this is not a case based upon intellectual incapacity. To the contrary, the psychologist 

testified that given that petitioner received three years of services with no improvement, that 

petitioner had an “extremely poor prognosis” for “positive change with regard to her ability to 

parent.” The psychologist also explained that it’s “highly unlikely that [petitioner will] be able to 

provide parenting effectively for children[.]” There is no indication in the record on appeal that 

petitioner’s mental health issues are equivalent to an intellectual incapacity as contemplated in In 

Re: Billy Joe M. Further, even assuming Syllabus Point 4 of In Re: Billy Joe M. applies to this 

case, the psychologist explained that petitioner was unlikely to make improvements after already 

receiving approximately three years of services. Therefore, given the circumstances of this case 

and the inability of intensive long-term assistance to correct the conditions of neglect or abuse, 

we find no clear error in the circuit court’s order terminating petitioner’s parental, custodial, and 

guardianship rights. 

For the foregoing reasons, we find no error in the circuit court’s May 27, 2016, order, and 

we hereby affirm the same. 

Affirmed. 

ISSUED: January 9, 2017 

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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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