1 

STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

In re B.G. and B.C. 

No. 23-286 (Wetzel County CC-52-2022-JA-7 and CC-52-2022-JA-8) 

MEMORANDUM DECISION 

Petitioner Father D.C.1 appeals the Circuit Court of Wetzel County’s May 19, 2023, order 

terminating his parental rights to B.G. and B.C., arguing that the circuit erred by denying his 

motion for an extension of his improvement period and by terminating his parental rights.2 Upon 

our review, we determine that oral argument is unnecessary and that a memorandum decision 

affirming, in part, and vacating, in part, the circuit court’s September 26, 2022, adjudicatory order 

and May 19, 2023, dispositional order and remanding for further proceedings is appropriate, in 

accordance with the “limited circumstances” requirement of Rule 21(d) of the West Virginia Rules 

of Appellate Procedure. 

In March 2022, the DHS filed a petition alleging that the petitioner abused and/or neglected 

the children by failing to provide adequate medical care to B.C., abusing drugs, and failing to 

protect the children from the mother’s pervasive drug use. The petition alleged that B.C. was born 

drug-affected and the mother tested positive for methamphetamine and amphetamine at the 

hospital where she gave birth. The petition noted that in 2019, B.G. was also born drug-affected; 

however, the petition indicated that B.G. lived with an aunt. The petition alleged that the petitioner 

previously used methamphetamine with the mother and that he knew or should have known of her 

drug use and protected the children from it. In March 2022, the court held a preliminary hearing, 

at which the DHS represented that there were no allegations of abuse and/or neglect regarding 

B.G. In April 2022, the court entered an order stating that “as to the other child, [B.G.], there were 

no allegations.” 

1

 The petitioner appears by counsel Michael B. Baum. The West Virginia Department of 

Human Services appears by counsel Attorney General Patrick Morrisey and Assistant Attorney 

General Lee Niezgoda. Counsel David C. White appears as the children’s guardian ad litem. 

Additionally, pursuant to West Virginia Code § 5F-2-1a, the agency formerly known as 

the West Virginia Department of Health and Human Resources was terminated. It is now three 

separate agencies—the Department of Health Facilities, the Department of Health, and the 

Department of Human Services. See W. Va. Code § 5F-1-2. For purposes of abuse and neglect 

appeals, the agency is now the Department of Human Services (“DHS”). 

2

 We use initials where necessary to protect the identities of those involved in this case. 

See W. Va. R. App. P. 40(e). 

FILED 

August 7, 2024 

C. CASEY FORBES, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 
2 

Multidisciplinary team (“MDT”) meetings were held in April and June 2022, but the 

petitioner failed to attend. A Court Appointed Special Advocate report indicated that the petitioner 

violated the terms of his visitation by taking B.G. out to a store and to a friend’s home while the 

person supervising the visit was otherwise occupied. Thus, a third-party provider started 

supervising the petitioner’s visits. 

In July 2022, the circuit court held an adjudicatory hearing, at which the petitioner 

stipulated to a lone paragraph of the petition, which alleged that the petitioner knew of the mother’s 

drug use while she was pregnant with B.C. and knowingly allowed her to abuse the child by taking 

drugs while pregnant. On this basis, the court found that the petitioner was a “neglectful parent” 

as to B.G. and B.C. The petitioner later moved for a post-adjudicatory improvement period, and 

the court entered an agreed order granting the motion. The terms of the improvement period 

included, among other things, that the petitioner maintain contact with Child Protective Services 

(“CPS”), submit to random drug screens, obtain suitable housing, maintain a valid driver’s license, 

participate in parenting and adult life skills classes, and participate in supervised visitation with 

the children. In January 2023, the court held a status hearing, at which the DHS advised that the 

petitioner failed to participate in drug screens. 

In April 2023, the circuit court held a dispositional hearing, at which the petitioner and a 

CPS employee testified. The CPS worker testified that that petitioner often missed or was late to 

visits with the children. The petitioner testified that he did not participate in drug screens, did not 

keep in touch with CPS on a weekly basis, and did not implement what he learned in his life skills 

and parenting classes into his approach to parenting. He also testified that he failed to get his 

driver’s license, failed to find appropriate housing, and failed to participate in multiple visits with 

the children. The court asked the petitioner if he recognized his caseworker, who was present in 

the courtroom, or if he had ever spoken to her, and he stated that did not recognize her and had 

never spoken to her. The petitioner requested an extension of his improvement period; however, 

the court found that the petitioner failed to follow its orders, failed to drug screen, and continued 

to live in a home that was uninhabitable for the children. Thus, the court found that an extension 

would be inappropriate, given his failure to participate in his improvement period. The court 

determined that there was no reasonable likelihood that the petitioner could substantially correct 

the conditions of neglect in the near future and that the children’s best interests required 

termination. Ultimately, the court terminated the petitioner’s parental rights. It is from the 

dispositional order that the petitioner appeals.3

On appeal from a final order in an abuse and neglect proceeding, this Court reviews the 

circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re 

Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). At the outset, we must address the circuit court’s 

lack of subject matter jurisdiction to terminate the petitioner’s parental rights regarding B.G.4 We 

recently held, 

3

 The mother’s parental rights were also terminated. The permanency plan for the children 

is adoption in the current placement. 

4

 While the petitioner does not raise the issue, this Court, as more fully explained herein, 

opines that the petitioner’s adjudication regarding B.G. requires vacation due to a lack of subject 

matter jurisdiction. “Lack of jurisdiction may be raised for the first time in this court, when it 
3 

[t]o exercise subject matter jurisdiction [over a child in an abuse and neglect 

proceeding], the court must make specific factual findings explaining how each 

child’s health and welfare are being harmed or threatened by the allegedly abusive 

or neglectful conduct of the parties named in the petition. Due to the jurisdictional 

nature of this question, generalized findings applicable to all children named in the 

petition will not suffice; the circuit court must make specific findings with regard 

to each child so named. 

Syl. Pt. 3, in part, In re B.V., 248 W. Va. 29, 886 S.E.2d 364 (2023). The circuit court found in its 

preliminary hearing order that there were no allegations regarding B.G. Furthermore, in its 

September 26, 2023, adjudicatory order, the court made no specific findings regarding how the 

petitioner abused and/or neglected B.G. Instead, the order states that the petitioner admitted that 

he knew of the mother’s drug use while she was pregnant with B.C. and he knowingly allowed her 

to abuse B.C. by failing to protect the child from the mother’s drug use. Moreover, the petition 

noted that B.G. did not live with the petitioner at the time and did not include information about 

how the petitioner abused or neglected B.G. specifically and in turn, the court made no 

adjudicatory findings regarding B.G.. See W. Va. Code 49-4-601(i) (requiring that findings as to 

whether a child is abused or neglected at adjudication “must be based upon conditions existing at 

the time of the filing of the petition”). Pursuant to our direction in In re B.V. that requires specific 

findings as to how each child is abused and/or neglected in order for a court to exercise subject 

matter jurisdiction, the circuit court’s September 26, 2023, order adjudicating the petitioner as an 

abusing parent5 must be vacated as it pertains to B.G. only. Further, the circuit court lack of 

adjudicatory findings regarding B.G. resulted in a lack of jurisdiction to make a final dispositional 

decision as to B.G. As such, the court’s May 19, 2023, order terminating the petitioner’s parental 

rights must be vacated as it pertains to B.G. only, and the matter must be remanded to the circuit 

court for further proceedings, including but not limited to an order setting out whether B.G. met 

the statutory definitions of an abused or neglected child, based upon the evidence previously 

adduced and for further proceedings consistent with the applicable statutes and rules governing 

abuse and neglect proceedings. 

As to the termination of the petitioner’s parental rights to B.C., we find no error. The 

petitioner argues that the circuit court erred by denying his motion for an extension of his 

improvement period. The circuit court may extend an improvement period for a maximum of three 

months when it finds that “the [petitioner] has substantially complied with the terms of the 

improvement period; that the continuation of the improvement period will not substantially impair 

appears on the face of the bill and proceedings, and it may be taken notice of by this court on its 

own motion.” Syl. Pt. 4, in part, In re Z.H., 245 W. Va. 456, 859 S.E.2d 399. (2021) (quoting Syl. 

Pt. 3, Lewis v. Munic. of Masontown, 241 W. Va. 166, 820 S.E.2d 612 (2018)). 

5

 The court’s September 26, 2023 adjudicatory order adjudicates the petitioner as a 

“neglectful parent.” However, West Virginia Code § 49-1-201 defines the term “abusing parent” 

to mean a parent “whose conduct has been adjudicated by the court to constitute child abuse or 

neglect,” thus, in keep with the statute, we refer to the petitioner as have been adjudicated as an 

abusing parent rather than a “neglectful parent.”.
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the ability of the [DHS] to permanently place the child; and that the extension is otherwise 

consistent with the best interest of the child.” W. Va. Code § 49-4-610(6). The petitioner argues 

that, while he may not have participated enough to have the children returned to him, he did 

participate enough to merit an extension. This argument is unsupported by the record and the 

petitioner’s own testimony. The petitioner failed to participate in his improvement period, 

including, critically, his failure to obtain appropriate housing. Based on his unwillingness to 

comply with the terms of his improvement period, an extension would have been an exercise in 

futility. See In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002) (“The circuit court 

has discretion to refuse to grant an improvement period when no improvement is likely.”). We find 

no error in the circuit court’s denial of the petitioner’s motion for an extension of his improvement 

period.6

The petitioner also argues that termination of his parental rights was error because the DHS 

failed to properly manage his case. To support his argument, the petitioner asserts that he had four 

different caseworkers during the pendency of the proceedings below, which confused him and 

rendered him unable to contact the DHS on a weekly basis. However, there were two caseworkers 

during the petitioner’s improvement period and the petitioner testified that he made no attempt to 

contact either caseworker during his improvement period. We find the petitioner’s argument 

meritless, as “the [petitioner] shall be responsible for the initiation and completion of all terms of 

the improvement period.” W. Va. Code § 49-4-610(4)(A). In further support of his argument, the 

petitioner claims that the DHS did not fulfill its responsibility to monitor his improvement period 

pursuant to West Virginia Code § 49-4-610(5)7 and should have held a further MDT meeting. 

However, West Virginia Code § 49-4-610(5) does not specify how the DHS must monitor the 

petitioner’s improvement period and West Virginia Code § 49-4-610(4)(A) places responsibility 

upon the petitioner to complete the terms of his improvement period. The petitioner’s assertion 

that the DHS failed to properly manage his case is unsupported by the record, as the DHS filed 

case plans and periodic reports detailing the petitioner’s participation, or lack thereof, in his 

improvement period. The record demonstrates that the petitioner failed to meaningfully participate 

in his improvement period. We find no error in the circuit court’s termination of the petitioner’s 

parental rights as to B.C. 

6

 The petitioner presents an additional assignment of error in which he argues that because 

the court erred in denying him an extension of his improvement period, it also erred in finding that 

there was no reasonable likelihood that he could substantially correct the conditions of neglect in 

the near future. Having concluded that there was no error in the denial of the petitioner’s request 

to extend his improvement period, the petitioner is entitled to no relief predicated on this argument. 

7

 West Virginia Code § 49-4-610(5) reads as follows: 

When any respondent is granted an improvement period pursuant to this article, the 

department shall monitor the progress of the person in the improvement period. 

This section may not be construed to prohibit a court from ordering a respondent to 

participate in services designed to reunify a family or to relieve the department of 

any duty to make reasonable efforts to reunify a family required by state or federal 

law. 
5 

For the foregoing reasons, we vacate, in part, the circuit court’s September 26, 2022, 

adjudicatory order as it relates to the petitioner’s adjudication of B.G. only; vacate, in part, the 

May 19, 2023, order terminating the petitioner’s parental rights as it pertains to B.G. only;8 and 

remand this matter to the circuit court for further proceedings, including but not limited to the entry 

of an order setting out the requisite findings as to whether B.G. met the statutory definitions of an 

abused or neglected child, based upon evidence previously adduced. See W. Va. Code § 49-1-201. 

To the extent that evidence does not support such a determination, we further direct the circuit 

court to undertake such proceedings, consistent with this opinion, as may be necessary to ascertain 

whether the child met the statutory definitions of an abused or neglected child, so that the circuit 

court might properly exercise jurisdiction. The circuit court is further directed to undertake any 

additional proceedings consistent with the applicable rules and statutes. The Clerk is directed to 

issue the mandate contemporaneously herewith. 

Affirmed, in part; vacated, in part; and remanded, with directions. 

ISSUED: August 7, 2024 

CONCURRED IN BY: 

Justice Elizabeth D. Walker 

Justice John A. Hutchison 

Justice William R. Wooton 

Justice C. Haley Bunn 

CONCURRING, IN PART, AND DISSENTING, IN PART: 

Chief Justice Tim Armstead 

ARMSTEAD, Chief Justice, concurring, in part, and dissenting, in part: 

I agree with the majority’s decision affirming the termination of the petitioner’s parental 

rights to B.C. However, I dissent to the majority’s decision to vacate the circuit court’s adjudication 

and termination of the petitioner’s rights to B.G. for lack of subject matter jurisdiction. I would 

have set this case for oral argument to thoroughly address the issue of subject matter jurisdiction. 

Having reviewed the parties’ briefs and the issues raised therein, I believe a formal opinion of this 

Court was warranted, not a memorandum decision. Accordingly, I respectfully dissent. 

8

 The vacation of these orders applies only to the petitioner. The orders included certain 

provisions relating to the other parent. Accordingly, the portions of the orders concerning the other 

adult respondent remain in full force and effect.