1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re D.R., N.R., and L.K.

No. 21-0138 (Jackson County 19-JA-129, 19-JA-130, and 19-JA-131)

MEMORANDUM DECISION

Petitioner Mother A.F., by counsel Lauren A. Estep, appeals the Circuit Court of Jackson 

County’s January 19, 2021, order terminating her parental rights to D.R., N.R., and L.K.1 The 

West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick 

Morrisey and Lee Niezgoda, filed a response in support of the circuit court’s order. The guardian 

ad litem, Nic Dalton, filed a response on behalf of the children in support of the circuit court’s 

order. The children’s maternal grandparents, A.L. and C.L., by counsel Erica Brannon Gunn, filed 

a response in support of the circuit court’s order. On appeal, petitioner argues that the circuit court 

violated her due process rights by relying on in camera testimony from the children taken in an 

earlier guardianship proceeding, granting permanent placement to the maternal grandparents, and 

denying her a post-adjudicatory improvement period.

2

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 June of 2019, the respondent grandparents initiated proceedings to obtain legal 

guardianship of the children. As the guardianship proceedings were ongoing, the grandparents 

obtained a domestic violence protective order (“DVPO”) against petitioner after petitioner 

“admitted she threatened to burn down [the grandparents’] house, where her [c]hildren were then 

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). 

2

Petitioner raises no assignment of error regarding the circuit court’s termination of her

parental rights. As such, this issue is not addressed herein. 

FILED

October 1, 2021 

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

residing.” The grandparents also obtained a DVPO against petitioner’s husband after credibly 

testifying that he threatened them with physical violence. Further, the children’s guardian ad litem 

reported during the guardianship proceedings that “the two younger children do not wish to see 

[petitioner’s husband] because they are afraid of him.” In August of 2019, the court awarded the 

grandparents temporary guardianship over the children. The children have remained in the 

grandparents’ home continuously since that time. During the guardianship proceeding, the court 

heard in camera testimony from the children in October of 2019. The children generally described 

the parents’ drug use and its effects, including the fact that the children would get themselves ready 

for school while the parents slept. D.R. also described petitioner and her husband taking the

children on “trips in the middle of the night . . . to go to a drug dealer’s house,” which resulted in 

D.R. having difficulty staying awake at school and being truant. D.R. further disclosed having 

witnessed petitioner’s husband strike petitioner and verbally abuse her, while the other two 

children described hearing the husband scream at petitioner. The children described the husband

as mean, and N.R. indicated that she did not feel safe in his custody. D.R. disclosed that petitioner 

was physically abusive, having “busted [his] lip” on one occasion. D.R. also indicated that the 

husband physically abused the children, as he suffered physical abuse himself and witnessed the 

husband “whip L.K. because she went to the refrigerator” and strike the other children with a belt. 

The month after the children’s in camera interviews, the DHHR filed a petition alleging 

that petitioner abused and neglected the children by virtue of drug abuse and exposing them to 

domestic violence. According to the DHHR, petitioner was charged with a crime related to a theft 

and “threatened the [children’s] caregivers . . . to change their testimony concerning her alleged 

crime.” Following the preliminary hearing in November of 2019, petitioner tested positive for 

marijuana and admitted to abusing the drug. As petitioner admits in her appellate brief, she 

continued to test positive for marijuana throughout the proceeding and also tested positive for 

cocaine and opiates on separate occasions. Petitioner then stipulated to substance abuse that 

negatively affected her ability to parent at an adjudicatory hearing in June of 2020. The circuit 

court adjudicated petitioner as an abusing parent. 

Eventually, the court proceeded to disposition in regard to petitioner. At one hearing in 

September of 2020, petitioner moved for in camera testimony of the children. The court deferred 

ruling on this motion. It does not appear that a ruling ever issued, although it is undisputed that the 

children did not provide in camera testimony following the motion. 

In its dispositional order, the court took judicial notice of several related proceedings, 

including the guardianship proceedings, and cited to portions of the children’s in camera testimony 

that were relevant to the abuse and neglect. The circuit court also considered that petitioner 

admitted to ongoing substance abuse, tested positive for drugs several times during the 

proceedings, but denied that she engaged in domestic violence or suffered from a substance abuse 

problem that impacted her ability to parent the children. However, the court found that whether 

petitioner and her husband “perpetrated domestic violence upon one another or upon the [c]hildren 

is ultimately of no consequence” because “[t]he overriding problem in this case is unrelenting drug 

use.” According to the circuit court, despite having stipulated to substance abuse that negatively 

impacted her parenting, petitioner claimed that she either had no drug problem or that her use of 

drugs was not a problem. Because of petitioner’s unwillingness to admit that she had a problem 

and her “utter lack of insight into [her] actions,” the court found that there was no reasonable 
3

likelihood that she could substantially correct the conditions of abuse and neglect and that 

termination of her parental rights was necessary for the children’s welfare. Therefore, the court 

terminated petitioner’s parental rights.3 It is from the circuit court’s 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 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, petitioner first argues that the circuit court erred in relying on in camera 

testimony taken during the guardianship proceeding in reaching its decision to terminate her

parental rights.4 It is important to note, however, that petitioner’s counsel agreed to a joint order 

for the circuit court to consolidate the abuse and neglect matter with several other proceedings, 

including the prior guardianship proceeding in which the court took the testimony at issue. As 

such, petitioner has waived her right to argue that the circuit court was precluded from considering 

any evidence introduced in that prior matter. See Noble, 223 W. Va. at 821, 679 S.E.2d at 653. 

To the extent that petitioner argues that the court should have granted her motion to take 

additional in camera testimony from the children, we find no error. According to petitioner, the 

3

All parents’ parental rights were terminated below, with the exception of the father of L.K. 

According to respondents, the matter against him was dismissed but he was unable to assume 

custody of the child because of health issues. The permanency plan for the children is either 

adoption or legal guardianship with the maternal grandparents. 

4

In support of this assignment of error, petitioner also asserts that the petition was somehow 

deficient because it relied on facts taken from the in camera testimony in setting forth the DHHR’s 

allegations against her. We note, however, that petitioner not only failed to challenge the 

sufficiency of the petition below, she actively stipulated to her adjudication. As such, she has 

waived this issue on appeal, and we decline to address it. Noble v. W. Va. Dep’t of Motor Vehicles, 

223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009) (“‘Our general rule is that nonjurisdictional 

questions . . . raised for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone 

Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999).”).
4

circuit court’s reliance on the children’s prior testimony from the guardianship proceeding violated 

her due process rights because it was taken at a time when she was not represented by counsel. We 

find that no such violation occurred because the plain language of Rule 8(a) of the West Virginia 

Rules of Procedure for Child Abuse and Neglect Proceedings does not require the children to 

testify again. According to that rule, 

there shall be a rebuttable presumption that the potential psychological harm to the 

child outweighs the necessity of the child’s testimony and the court shall exclude 

this testimony if the potential psychological harm to the child outweighs the 

necessity of the child’s testimony. Further, the court may exclude the child’s 

testimony if (A) the equivalent evidence can be procured through other reasonable 

efforts; (B) the child’s testimony is not more probative on the issue than the other 

forms of evidence presented; and (C) the general purposes of these rules and the 

interest of justice will best be served by the exclusion of the child’s testimony.

The record here is clear that the children were not required to testify anew because the equivalent 

evidence was available through the transcript of their prior in camera interviews. While petitioner 

alleges that due process required that her attorney be permitted to submit questions for the children, 

this argument ignores one important point: counsel is only permitted to submit questions under 

Rule 8(b) after the circuit court determines that in camera testimony is necessary under Rule 8(a). 

It is true that Rule 8(b) provides that “[t]he parties’ attorneys shall be allowed to attend such 

interviews, except when the court determines that the presence of attorneys will be especially 

intimidating to the child witness” and that “[w]hether or not the parties’ attorneys are permitted to 

attend the in camera interview, they may submit interview questions and/or topics for 

consideration by the court.” What petitioner fails to recognize, however, is that Rule 8(a) gives the 

court discretion to refuse to force a child to testify, which it properly exercised below. As such, 

petitioner, in this case and on these circumstances, did not have a right to submit questions for the 

children to answer, as she alleges on appeal. 

More importantly, the record shows that the evidence petitioner sought to introduce lacked 

any probative value. On appeal, petitioner alleges that she should have been entitled to crossexamine the children and obtain further testimony from them “to allow a full picture of the 

circumstances to come to the court’s purview” because she denied most of the allegations 

contained in the children’s testimony. However, this is not the argument petitioner advanced 

below. At the hearing in September of 2020, petitioner’s counsel explained that she 

made another motion this week, joint with counsel [for the husband], for that incamera testimony to be taken. I believe the children are here today to give that 

testimony. That would be for the limited purpose of, basically, an improvement 

period, meaning, you know, do they want to maintain a relationship with my client 

moving forward?

The children’s guardian, however, correctly pointed out that the probative value of this testimony 

could not outweigh the presumed harm to the children, especially considering that the guardian 

had repeatedly expressed that N.R. and L.K. wanted to see petitioner. The guardian also indicated 

that he spoke with D.R. again the day before the hearing and that “he does want contact.” Given 
5

that the guardian was willing to stipulate to the limited facts that petitioner sought to establish 

through additional in camera testimony, it is clear that the same was unnecessary. As such, we find 

no error in the circuit court’s refusal to grant petitioner’s motion to require such testimony. 

Next, petitioner argues that the circuit court erred in permitting the children to remain in 

the maternal grandmother’s home after evidence established that the grandmother had a substantial 

history of abuse and neglect allegations against her and that such placement was not in the 

children’s best interests. In short, we find it unnecessary to address this argument because it entitles 

petitioner to no relief. Indeed, in her brief to this Court petitioner fails to explain how this alleged 

error in any way affects her position. Even if this Court were to assume that petitioner is correct 

that the maternal grandmother is not a fit permanent placement for the children, the fact remains 

that this does nothing to undermine the termination of petitioner’s parental rights. We find, 

however, that the record does not support petitioner’s assertion that either maternal grandparent is 

unfit to care for the children. On the contrary, the circuit court heard extensive testimony in this 

regard in both the guardianship proceeding and the resulting abuse and neglect proceeding. 

Petitioner predicates her argument, in part, on her own testimony, in which she accused the 

maternal grandmother of engaging in abuse and neglect when petitioner was a child. However, the 

record shows that petitioner consented to the maternal grandparents caring for the children earlier 

in the guardianship proceedings. The circuit court also heard evidence of the DHHR’s 

substantiation of abuse and/or neglect in the grandmother’s home many years ago in making its 

decision. Ultimately, petitioner’s arguments in support of this assignment of error come down to 

credibility determinations that we decline to disturb on appeal. State v. Guthrie, 194 W. Va. 657, 

669 n.9, 461 S.E.2d 163, 175 n.9 (1995) (“An appellate court may not decide the credibility of 

witnesses or weigh evidence as that is the exclusive function and task of the trier of fact.”). As 

such, petitioner is entitled to no relief. 

Finally, petitioner argues that the circuit court erred in denying her motion for a postadjudicatory improvement period because she established that she was likely to fully comply. 

According to petitioner, she participated in parenting services and was engaged and focused on 

remedying the conditions of abuse and neglect. Petitioner also cites to testimony from a provider 

who indicated that petitioner “was confused and upset that she wasn’t having visits with her 

children” and “believed that having visits would be highly recommended to implement the things 

learned in parenting classes.” It is curious that petitioner would question why she was not receiving 

visits, however, because the court was clear that visits were dependent on petitioner providing 

negative screens. Despite this requirement, the court found in its dispositional order that “[w]ith 

one lone exception, . . . [petitioner] failed every single drug test in this case for marijuana, once . 

. . for oxycodone, and one . . . for cocaine.” Because of petitioner’s continued drug use, she was 

denied visits with the children. In this regard, we have explained that “the level of interest 

demonstrated by a parent in visiting his or her children while they are out of the parent’s custody 

is a significant factor in determining the parent’s potential to improve sufficiently and achieve 

minimum standards to parent the child.” In re Katie S., 198 W. Va. 79, 90 n.14, 479 S.E.2d 589, 

600 n.14 (1996) (citations omitted). Given petitioner’s refusal to cease her substance abuse in order 

to visit the children, it is clear that an improvement period was not proper. 

Further, petitioner not only continued to abuse drugs but asserted in the face of this 

evidence that she did not, in fact, have a drug problem. As this Court has explained, 
6

[i]n order to remedy the abuse and/or neglect problem, the problem must first be 

acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth 

of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator 

of said abuse and neglect, results in making the problem untreatable and in making 

an improvement period an exercise in futility at the child’s expense.

In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted) (emphasis 

added). Based on the foregoing, we find no abuse of discretion in denying petitioner’s motion for 

a post-adjudicatory improvement period. See In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 

345 (2015) (“West Virginia law allows the circuit court discretion in deciding whether to grant a 

parent an improvement period.”); Syl. Pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 

(1996) (“It is within the court’s discretion to grant an improvement period within the applicable 

statutory requirements . . . .”).

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

January 19, 2021, order is hereby affirmed.

Affirmed.

ISSUED: October 1, 2021 

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton