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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re A.W., S.R., A.H., B.H., I.H., and E.C.

No. 20-0153 (Kanawha County 19-JA-164, 19-JA-165, 19-JA-166, 19-JA-167, 19-JA-168, and 

19-JA-346)

MEMORANDUM DECISION

Petitioner Mother N.H., by counsel Sandra K. Bullman, appeals the Circuit Court of 

Kanawha County’s January 13, 2020, order terminating her parental rights to A.W., S.R., A.H., 

B.H., I.H., and E.C.

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, Joseph H. Spano Jr., filed a response on behalf of the children 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 an improvement period or considering less-restrictive 

dispositional alternatives.

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 March of 2019, the DHHR filed an abuse and neglect petition alleging that petitioner 

had been investigated for medical neglect multiple times. According to the petition, B.H. had an 

open wound that required surgery, yet petitioner failed to obtain the necessary medical treatment. 

The petition also alleged that petitioner failed to meet B.H.’s needs, as the child was malnourished 

and suffered from severe cerebral palsy. The child was reportedly in constant pain for which he 

was prescribed pain medication. However, the DHHR alleged that petitioner called the doctor and 

informed them that the medicine “flew out of her purse on the way home” and that she needed to 

1Consistent 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). 

FILED

September 23, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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obtain a new prescription. During the DHHR’s investigation, the child’s medical providers 

indicated that petitioner often failed to bring B.H. to important medical appointments. One 

provider listed at least five missed appointments, including a surgery scheduled for February of 

2019, and expressed the opinion that petitioner’s conduct constituted medical neglect because of 

the detrimental effect to the child’s overall health. The children’s pediatrician indicated that 

petitioner failed to keep necessary appointments for the rest of the children as well. Following the 

petition’s filing, the circuit court ratified the children’s emergency removal. 

In April of 2019, the DHHR presented evidence at the adjudicatory hearing that was 

consistent with the allegations in the petition. Based on this evidence, the circuit court found that 

petitioner abused and neglected the children. Thereafter, the DHHR amended the petition to 

include child E.C., who was born during the proceedings and tested positive for methamphetamine. 

Petitioner also tested positive for methamphetamine and admitted to abusing the drug two days 

prior to E.C.’s birth. The amended petition further alleged that petitioner had ceased complying 

with services following the child’s birth.2 Petitioner then waived her hearing on the amended 

petition and later stipulated to the substance abuse allegations against her at a second adjudicatory 

hearing. After accepting the stipulation, the circuit court adjudicated petitioner as an abusing and 

neglecting parent in regard to the amended petition. 

In November of 2019, petitioner filed a motion for a post-adjudicatory improvement 

period. Thereafter, the circuit court held a dispositional hearing in January of 2020, during which 

the circuit court denied petitioner’s motion. According to the record, petitioner admitted to 

continued drug abuse and testified that she would test positive for methamphetamine. Further, 

although petitioner attempted substance abuse treatment, she was discharged as a result of her 

noncompliance. The evidence established that petitioner did not have an appropriate home for the 

children and lived in a home “with a person [she] refused to provide the name of to the [c]ourt.” 

Further, the record shows that petitioner believed she could appropriately parent the children and 

that removal from her home was unnecessary. Because of petitioner’s refusal to accept 

responsibility for her actions or otherwise meaningfully participate in services, the court found that 

petitioner had no motivation to regain custody of the children and that there was no reasonable 

likelihood that she could substantially correct the conditions of abuse and neglect in the near future. 

The court also found that termination of petitioner’s parental rights was in the children’s best 

interests. As such, the court terminated petitioner’s parental rights.

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It is from the dispositional 

order that petitioner appeals. 

The Court has previously established the following standard of review:

2The DHHR later filed a second amended petition in relation to an individual who is not a 

party to this appeal. 

3The fathers of A.W. and S.R. were dismissed from the proceedings and the permanency 

plan for those children is to remain in their father’s care. E.C.’s father’s parental rights were 

terminated and the permanency plan for that child is adoption in the current foster home. The 

fathers of A.H., B.H., and I.H. currently retain their parental rights, although respondents indicate 

that the proceedings in regard to them are ongoing. 
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“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 denying her motion for a 

post-adjudicatory improvement period. According to petitioner, she established some compliance 

with the services offered and deserved an opportunity to show the court she could remedy the 

conditions of abuse and neglect. We find, however, that the record does not support petitioner’s 

assertion that she complied during the proceedings below. 

At the outset, we reiterate that the decision to grant or deny an improvement period rests 

in the sound discretion of the circuit court. 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 . . . .”). Further, we have held that a parent’s “entitlement to an improvement 

period is conditioned upon the ability of the [parent] to demonstrate ‘by clear and convincing 

evidence that the respondent is likely to fully participate in the improvement period.’” In re Charity 

H., 215 W. Va. 208, 215, 599 S.E.2d 631, 638 (2004). Contrary to petitioner’s assertion that her 

limited compliance with services established that she was likely to fully comply with an 

improvement period, we note that the record establishes that petitioner admitted to continued 

substance abuse at the dispositional hearing and was discharged from her treatment program for 

noncompliance. Even more important is the fact that petitioner failed to acknowledge the 

conditions of abuse and neglect at issue. According to the circuit court, petitioner expressed her 

belief at disposition that she could appropriately parent her children and that their removal from 

her home was unnecessary. As this Court has long held, 

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

petitioner’s failure to accept responsibility for the issues that necessitated the children’s removal, 

an improvement period would have been futile. As such, we find no error in the circuit court’s 

denial of petitioner’s motion. 

Further, the record shows that there was substantial evidence to support the circuit court’s 

termination of petitioner’s parental rights. On appeal, petitioner argues that termination was 

inappropriate because all of the children are placed with their fathers or in a relative’s home. 

Accordingly, petitioner argues that permanency could have been achieved without terminating her 

parental rights. In regard to the children who have been returned to the custody of their fathers, we 

find that this argument does not entitle petitioner to relief, as this Court has held that “simply 

because one parent has been found to be a fit and proper caretaker for [the] child does not 

automatically entitle the child’s other parent to retain his/her parental rights if his/her conduct has 

endangered the child and such conditions of abuse and/or neglect are not expected to improve.” In 

re Emily, 208 W. Va. 325, 344, 540 S.E.2d 542, 561 (2000). The assertion that a parent could avoid 

termination of their parental rights because the child is placed with a relative is similarly 

unavailing. Here, the circuit court found that there was no reasonable likelihood that petitioner 

could substantially correct the conditions of abuse and neglect in the near future and that the 

children’s welfare required termination. Petitioner does not challenge these findings on appeal. 

Because West Virginia Code § 49-4-604(c)(6) permits the termination of parental rights upon such 

findings, it is clear that petitioner is entitled to no relief. Further, as this Court has held, 

“[t]ermination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, [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 

[West Virginia Code § 49-4-604(d)] . . . 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). Accordingly, we find no error 

in the circuit court’s termination of petitioner’s parental rights. 

Lastly, because the proceedings regarding some of the children’s fathers and the children’s

permanent placement are ongoing, this Court reminds the circuit court of its duty to establish 

permanency for the children. Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect 

Proceedings requires that

[a]t least once every three months until permanent placement is achieved as defined 

in Rule 6, the court shall conduct a permanent placement review conference, 

requiring the multidisciplinary treatment team to attend and report as to progress 

and development in the case, for the purpose of reviewing the progress in the 

permanent placement of the child.
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Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of 

Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the children

within twelve months of the date of the disposition order. As this Court has stated, 

[t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules 

of Procedure[] for Child Abuse and Neglect Proceedings for permanent placement 

of an abused and neglected child following the final dispositional order must be 

strictly followed except in the most extraordinary circumstances which are fully 

substantiated in the record. 

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 6. Moreover, this Court has stated that 

[i]n determining the appropriate permanent out-of-home placement of a 

child under [West Virginia Code § 49-4-604(c)(6)], the circuit court shall give 

priority to securing a suitable adoptive home for the child and shall consider other 

placement alternatives, including permanent foster care, only where the court finds 

that adoption would not provide custody, care, commitment, nurturing and 

discipline consistent with the child’s best interests or where a suitable adoptive 

home [cannot] be found. 

Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian 

ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the child 

is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 

(1991).

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

January 13, 2020, order is hereby affirmed.

Affirmed.

ISSUED: September 23, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman 

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison