STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In re: B.S. and R.S. November 14, 2016 

No. 16-0648 RORY L. PERRY II, CLERK (Mercer County 15-JA-6-D3 & 15-JA-7-D3) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother A.F., by counsel John G. Byrd, appeals the Circuit Court of Mercer 

County’s June 15, 2016, order terminating her parental rights to six-year-old B.S. and two-yearold R.S.1 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”), Andrea P. Powell, filed a response on behalf of the children also in support of the 

circuit court’s order. On appeal, petitioner argues that (1) she was erroneously penalized for 

relying on the requirements of the multidisciplinary team (“MDT”), and (2) the circuit court 

erred in terminating her parental rights to the children without employing a less-restrictive 

dispositional alternative.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 January of 2015, the DHHR filed an abuse and neglect petition against petitioner. In its 

petition, the DHHR alleged that petitioner abused controlled substances and, while driving 

intoxicated, wrecked her vehicle carrying her young children. The DHHR further alleged that, 

following the accident, petitioner was arrested for driving while intoxicated, child neglect 

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

We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and 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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creating risk of injury, possession of a controlled substance, and other related offenses. At the 

time the petition was filed, petitioner was incarcerated on those charges. According to the 

DHHR, the arresting officer discovered needle marks on petitioner’s arm and claimed that 

petitioner admitted to using drugs the night before the accident and earlier the same day. 

Following her arrest, petitioner tested positive for opiates and oxycodone. 

In March of 2015, the circuit court held an adjudicatory hearing. At that hearing, 

petitioner stipulated to the abuse and neglect of her children. Thereafter, petitioner was granted a 

six-month, post-adjudicatory improvement period primarily designed to correct petitioner’s 

substance abuse problem. To achieve that goal, petitioner was accepted into and began a 

substance abuse treatment program at the Redemption House in McDowell County, West 

Virginia. 

In June of 2015, at a three-month review hearing on petitioner’s improvement period, the 

DHHR worker, the guardian, and other parties, raised concerns about a lack of communication 

between the staff at Redemption House and the DHHR. Further, the DHHR worker stated that 

she had received an email from the Redemption House staff indicating that petitioner had been 

removed from their program, but that Redemption House staff later stated that petitioner was 

going to remain in the program. At the hearing, the circuit court inquired of petitioner whether 

she wished to remain at Redemption House or find a new program to continue her substance 

abuse treatment. Petitioner stated that she did not want to lose the three months she had in the 

program at Redemption House, but if she stayed, she was “about to have a nervous breakdown” 

due to unspecified “drama” with other patients there. The guardian stated that she did not feel 

like petitioner was making progress at Redemption House and should be relocated. In response 

to petitioner’s concern, the circuit court stated that if petitioner was not using drugs during her 

time at Redemption House, then her three months there would not be “lost” because three clean 

months would inure to her benefit in her on-going improvement period. At the conclusion of the 

hearing, the circuit court permitted the parties to decide whether to relocate petitioner to a new 

treatment program. 

In September of 2015, the DHHR noted in a court summary that petitioner had started a 

new treatment program in August of 2015 at New Beginnings. The DHHR claimed that “it has 

been reported that she is doing very well” in the New Beginnings program. The circuit court held 

another review hearing in December of 2015. At that hearing, the parties informed the circuit 

court that petitioner was discharged from the New Beginnings program after she and another 

patient were married, which was reportedly in violation of a program rule. According to the 

DHHR worker, New Beginnings would not provide petitioner with a certificate of completion 

due to her discharge. Petitioner argued that she had been drug-free for more than one year and 

was working full time at Pizza Hut. Given the circumstances, the circuit court granted petitioner 

a dispositional improvement period. 

In March of 2016, the circuit court held a review hearing.3 In its court summary prepared 

prior to the hearing, the DHHR indicated the petitioner remained employed at Pizza Hut and that 

3

While the table of contents in the appendix record lists the transcript of the March 18, 

2016, review hearing, the transcript does not actually appear in the appendix contents. 

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visits between petitioner and the children were going well. At the hearing, however, while the 

DHHR worker stated that petitioner “appeared to be doing well,” evidence was presented that 

there was an unsubstantiated concern that petitioner was using drugs. Further, it was reported 

that petitioner had, in fact, been terminated from her employment. The circuit court did not 

extend her improvement period and scheduled the matter for disposition. At the date of the 

hearing, petitioner was screened for drug. 

At the dispositional hearing held in May of 2016, the circuit court heard evidence that 

petitioner tested positive for cocaine on March 18, 2016. Further, there was evidence that 

petitioner refused to submit to a drug screen on at least one other occasion in March of 2016. 

Petitioner admitted at the hearing that she avoided a drug screen in March of 2016 because she 

knew she would test positive. Evidence also established that petitioner was incarcerated at the 

time of the hearing due to a probation revocation proceeding. She allegedly failed to report to the 

probation department on multiple occasions and failed to report a change of address as required. 

It was shown that if her probation were revoked, petitioner faced a potential sentence of one to 

three years in prison. The DHHR also presented evidence that petitioner had a prior abuse and 

neglect proceeding involving the oldest child, B.S., but after extensive services, the child was 

returned to her. By order entered on June 15, 2016, the circuit court found that clear evidence 

supported the termination of petitioner’s parental rights to the children. The circuit court noted 

that petitioner had twenty-one months of services in her prior abuse and neglect proceeding and 

that she had fourteen months of services in this proceeding. The circuit court concluded that, 

despite the years of parental-improvement services she had received, petitioner’s treatment was 

not successful. As such, petitioner’s parental rights to both children were terminated. 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 is clear 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, 

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

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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 first argues that her termination of parental rights should be 

reversed because she was penalized for relying on the MDT’s requirement that she attend 

Redemption House, which was a program that she claims offered ineffective treatment through 

no fault of her own. Petitioner claims that she lost three months of her improvement period when 

she relocated from Redemption House to a new facility. Initially, we note that petitioner provides 

no authority in support of this assignment of error, with the exception of the standard of appellate 

review. Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires that 

[t]he brief must contain an argument exhibiting clearly the points of fact and law 

presented, the standard of review applicable, and citing the authorities relied on . . 

. [and] must contain appropriate and specific citations to the record on appeal[.] 

The Court may disregard errors that are not adequately supported by specific 

references to the record on appeal. 

Additionally, in an Administrative Order entered December 10, 2012, Re: Filings That Do Not 

Comply With the Rules of Appellate Procedure, Chief Justice Menis E. Ketchum specifically 

noted that “[b]riefs with arguments that do not contain a citation to legal authority to support the 

argument presented” are not in compliance with this Court’s rules. 

Moreover, we find no evidentiary support in the record on appeal that petitioner was 

“penalized” for her time at Redemption House. Although concerns were raised as to the 

effectiveness of that program at the June of 2015 review hearing, the circuit court informed 

petitioner that her drug-free three months in that program would continue to provide her a benefit 

as they would demonstrate her ability to remain “clean.” Importantly, however, petitioner did not 

remain clean during the lengthy services and drug treatment she received after relocating from 

Redemption House. In the time between her discharge from Redemption House in the summer of 

2015 and her ultimate termination of parental rights in June of 2016, petitioner failed to complete 

a second drug treatment program due to her voluntary decision to marry another patient of that 

program and she tested positive for cocaine. Based on our review, we find no factual support for 

petitioner’s contention that she “lost” three months on her improvement period while attending 

Redemption House given that she was provided lengthy services thereafter, which she failed. As 

petitioner’s claim lacks factual support, we find no merit to her first assignment of error. 

Petitioner’s second assignment of error is that the circuit court erred in terminating her 

parental rights to the children without employing a less-restrictive dispositional alternative. 

While petitioner argues that the circuit court should have terminated only her custodial and 

guardianship rights, the Court does not agree. In addressing a circuit court’s termination of 

parental rights, we have held that “[t]ermination . . . may be employed without the use of 

intervening less restrictive alternatives when it is found that there is no reasonable likelihood . . . 

that conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 7, in part, In re Katie 

S., 198 W.Va. 79, 479 S.E.2d 589 (1996). Further, West Virginia Code § 49-4-604(c)(3) 

provides that no reasonable likelihood that the conditions of abuse or neglect can be substantially 

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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[.]” Upon making the 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 welfare of the children, circuit court 

are directed to “terminate the parental, custodial and guardianship rights and responsibilities of 

the abusing parent[.]” Id. at § 49-4-604(b)(6). 

In this case, petitioner had more than one year of services and drug treatment in which 

time she could have substantially corrected the conditions of neglect and abuse herein. However, 

during that time, petitioner voluntarily chose to violate the rules of her drug treatment program 

by marrying another patient, for which she was discharged from that program without having 

completed it. While petitioner was free to make such a decision, the circuit court was similarly 

within its discretion to consider the same at the time of disposition. There was also evidence at 

the dispositional hearing that petitioner tested positive for cocaine while on her improvement 

period; intentionally avoided another drug screen because she knew she would test positive; was 

incarcerated pending a probation revocation proceeding for multiple alleged probation violations; 

was potentially facing a three-year prison term for criminal child neglect; and was terminated 

from her employment. Given these circumstances, the evidence clearly established that there was 

no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected 

in the near future and that the children’s welfare required termination for the purpose of 

achieving their permanent placement. Accordingly, we find no error in the termination of 

petitioner’s parental rights below. 

For the foregoing reasons, we hereby affirm the circuit court’s June 15, 2016, order. 

Affirmed. 

ISSUED: November 14, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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