STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In Re: A.L. FILED 

June 15, 2015 

No. 14-1127 (Raleigh County 14-JA-36) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother A.B, by counsel Michael P. Cooke, appeals the Circuit Court of 

Raleigh County’s September 26, 2014, order terminating her parental rights to fifteen-year-old 

A.L. 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”), Colleen M. Brown-Bailey, filed a response on behalf of the child also in support of 

the circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating 

her parental rights without granting her a post-adjudicatory or dispositional improvement 

period.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 February of 2014, the DHHR filed an abuse and neglect petition based on the child’s 

allegations that petitioner and her husband, the child’s stepfather, were “injecting drugs” daily; 

that they got into “physical domestics” often; and that the child was absent forty days from 

school during the 2013-2014 school year. Although represented by counsel, who was present on 

her behalf, petitioner did not appear in person at the adjudicatory hearing held in March of 2014; 

petitioner contended that her failure to appear was due to inclement weather.2 To provide 

petitioner the opportunity to be present in person, the circuit court continued the adjudicatory 

hearing for thirty days. 

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We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and 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 ninety days after the February 19, 2015, approval date. In this memorandum 

decision, we apply the statutes as they existed during the pendency of the proceedings below. 

2

The DHHR also states in its brief to this Court that petitioner failed to appear at the 

preliminary hearing held in February of 2014. However, the circuit court’s order from that 

hearing notes her appearance. 

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In April of 2014, the circuit court held the continued adjudicatory hearing. Petitioner 

again failed to appear in person, but appeared by counsel. The circuit court heard evidence from 

the DHHR that supported the allegations in the petition as to petitioner’s drug use and the child’s 

absences from school. Based on the same, the circuit court found that petitioner abused and 

neglected the child. 

Between June and August of 2014, the circuit court held three dispositional hearings. 

Petitioner appeared in person at both the first and the last of these three dispositional hearings, 

but she did not appear at the second such hearing because she was admitted, voluntarily, into a 

detoxification program that day. At the first dispositional hearing, the DHHR presented evidence 

that petitioner failed two recent drug screens and failed to place her name on the waiting list at a 

substance abuse treatment facility, as directed by the DHHR. At that hearing, petitioner moved 

for a post-adjudicatory improvement period, but the circuit court deferred ruling on that motion 

and granted a thirty-day continuance to provide petitioner time to attend substance abuse 

treatment and demonstrate her improvement. At the second dispositional hearing in July of 2014, 

the DHHR presented evidence that petitioner again failed a drug screen in June of 2014. Despite 

the DHHR’s motion to terminate her parental rights, the circuit court granted petitioner an 

additional thirty-day continuance to allow her more time to complete the detoxification program 

and then attend inpatient substance abuse treatment. 

At the final dispositional hearing in August of 2014, the circuit court heard proffers of 

counsel that petitioner completed the seven-day detoxification program, but petitioner had failed 

to pursue inpatient substance abuse treatment or otherwise demonstrate any improvement since 

her completion of detoxification. Petitioner admitted that she would have to repeat the 

detoxification program to participate in inpatient treatment and moved for an additional fortyfive days to do so. The DHHR moved for termination of petitioner’s parental rights, arguing that 

she had “essentially done nothing” since completing the detoxification program weeks prior to 

the final hearing. The circuit court denied petitioner’s motion and found that she had a severe 

drug addiction; that she failed to demonstrate any improvement, despite two continuances to do 

the same; that she could not correct the issue in the near future; and that the child required 

permanency. By order entered on September 26, 2014, the circuit court terminated petitioner’s 

parental rights to the child. 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 

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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 assigns error to the circuit court’s termination of her parental rights 

without granting her a post-adjudicatory or dispositional improvement period. West Virginia 

Code §§ 49-6-12(b)-(c) and 49-6-5(c) provide circuit courts discretion in granting postadjudicatory and dispositional improvement periods upon a showing that the parent is likely to 

fully participate in the same. In the case sub judice, the only evidence that petitioner was likely 

to fully participate in an improvement period was her counsel’s proffer as to her intentions. The 

record on appeal clearly indicates that the child witnessed petitioner injecting intravenous drugs 

and that petitioner failed multiple drug screens even after the first dispositional hearing. Despite 

the circuit court’s many attempts to provide petitioner with more time to demonstrate 

improvement, petitioner failed to remain drug-free or complete inpatient substance abuse 

treatment. Based upon our review of the record on appeal, we find no error in the circuit court’s 

termination of petitioner’s parental rights without granting her an improvement period. 

For the foregoing reasons, we find no error in the circuit court’s September 26, 2014, 

order, and we hereby affirm the same. 

Affirmed. 

ISSUED: June 15, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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