STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In re: G.N. & T.N. FILED 

November 23, 2015 

No. 15-0682 (Taylor County 14-JA-4 & 14-JA-5) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father C.N., by counsel Mary S. Nelson, appeals the Circuit Court of Taylor 

County’s June 15, 2015, order terminating his parental rights to G.N. and T.N. The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel Christopher S. 

Dodrill, filed its response in support of the circuit court’s order. The guardian ad litem, Chaelyn 

W. Casteel, filed a response on behalf of the children and a supplemental appendix. On appeal, 

petitioner alleges that the circuit court erred in denying his motion for a post-adjudicatory 

improvement period and in terminating his parental rights without considering less-restrictive 

dispositional alternatives.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 against the parents. 

The petition alleged that the parents manufactured and used methamphetamine in the home for 

approximately two months while the children resided therein before abandoning the children for 

approximately one month. The children lived with relatives during the latter period. The DHHR 

further alleged that the parents’ home was unsuitable for the children, as it had not been 

remediated following the methamphetamine production, and because petitioner broke most of the 

windows in the home. The DHHR was granted emergency custody of the children. 

Shortly after the DHHR obtained emergency custody of the children, the parents 

unlawfully obtained custody of their children from their placements. As a result, the Taylor 

County Sheriff’s Department filed complaints against petitioner and the mother alleging the 

felony charge of parental kidnapping. The children were recovered on February 25, 2014, when 

1

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. 

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their paternal grandmother was found with the children in Tennessee. The DHHR regained 

custody of the children and placed them in a specialized foster home. 

In April of 2014, the circuit court held an adjudicatory hearing, during which petitioner 

stipulated to some of the allegations of abuse and neglect in the petition. Specifically, petitioner 

stipulated to a number of facts concerning his severe drug use, including the fact he used illegal 

drugs since the age of twelve; that he manufactured and used methamphetamine for over a year; 

and that because of his drug use, he regularly went without sleep for two to five days. Based on 

his testimony, the circuit court also found that petitioner’s mental health issues caused him to try 

to injure himself on at least five occasions, including pouring acid on his arms, slitting his wrists, 

and attempting to hang himself. As such, the circuit court adjudicated petitioner as an abusing 

parent. Petitioner moved for a post-adjudicatory improvement period, but the circuit court held 

the motion in abeyance. 

In July of 2014, the circuit court held a dispositional hearing, during which the DHHR 

recommended termination of petitioner’s parental rights. The circuit court then heard argument 

in support of petitioner’s motion for an improvement period. According to counsel, petitioner 

was waitlisted for an inpatient substance abuse treatment facility, and counsel requested that the 

circuit court defer ruling on the motion until petitioner was placed in the facility. The circuit 

court agreed and again held the motion in abeyance. In September of 2014, the circuit court held 

a review hearing and was informed that, although he was incarcerated, petitioner obtained an 

intake appointment at a treatment facility. However, during a December of 2014 review hearing, 

the circuit court learned that petitioner escaped from the treatment facility after being transported 

from the regional jail. 

In March of 2015, the circuit court held a review hearing, during which it found that 

petitioner had recently been sentenced to two concurrent terms of incarceration of two to ten 

years for unrelated criminal convictions. As such, the circuit court found that petitioner was 

unlikely to comply with the terms of an improvement period and denied his motion. Thereafter, 

the circuit court held a dispositional hearing in May of 2015. During the hearing, petitioner 

attempted to voluntarily relinquish his parental rights to the children, but the circuit court denied 

the request. Ultimately, the circuit court terminated petitioner’s parental rights upon his 

continued deterioration during the pendency of this case, citing his numerous violations of rules 

while incarcerated. These violations, coupled with his earlier crime of taking the children from 

their lawful custodians and his lengthy prison sentence, established that petitioner was unable to 

remedy the conditions of abuse and neglect. Petitioner appeals from the dispositional order. 

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 

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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). Upon our review, the Court finds 

no error in the circuit court denying petitioner’s motion for a post-adjudicatory improvement 

period or in terminating his parental rights. 

First, the court finds no merit to petitioner’s argument that the circuit court erred in 

denying his motion for a post-adjudicatory improvement period. Pursuant to West Virginia Code 

§ 49-6-12(b)(2), a circuit court may only grant a post-adjudicatory improvement period when the 

parent “demonstrates, by clear and convincing evidence, that the [parent] is likely to fully 

participate in the improvement period . . . .” While petitioner argues that he satisfied this burden 

by fully admitting to his substance abuse issues and completing a substance abuse treatment 

program, the Court does not agree. Petitioner’s argument on appeal ignores the numerous 

problems he exhibited during the proceedings below and the continued deterioration in the 

conditions of abuse and neglect in the home. 

Specifically, the record is clear that petitioner failed to comply with several rules and 

orders during these proceedings. Initially, petitioner unlawfully took the children from the 

DHHR’s emergency custody and arranged for their transportation to the State of Tennessee, 

resulting in criminal charges against petitioner for parental kidnapping. Further, upon learning of 

an emergency hospitalization of one of his children, petitioner escaped from the inpatient 

substance abuse treatment facility that he was released from incarceration to attend, resulting in a 

capias being issued against him. Lastly, the circuit court found that petitioner “violated numerous 

rules while . . . incarcerated at the Tygart Valley Regional Jail.” Based upon this evidence, and 

also the fact that petitioner was sentenced to a lengthy term of incarceration during the 

proceedings below, the circuit court found that petitioner was unlikely to fully participate in an 

improvement period, and the Court finds no error in this determination. Further, the Court finds 

petitioner’s argument as to the mother receiving an improvement period lacking. Simply put, the 

fact that the circuit court found that the children’s mother satisfied the applicable burden of proof 

does not mean petitioner was entitled to an improvement period. 

As to petitioner’s argument that the circuit court erred in terminating his parental rights 

without considering less-restrictive alternatives, the Court finds no error. As addressed above, 

the evidence established that petitioner failed to comply with specific directions from the circuit 

court during the proceedings, going so far as to illegally transfer custody of his children from the 

DHHR and secure their transportation to another state. And while it may be true that petitioner 

completed substance abuse treatment, the record clearly shows that he escaped from that facility 

upon learning that his child was hospitalized, resulting in a capias being issued for him. 

Pursuant to West Virginia Code § 49-4-604(c)(3), there is no reasonable likelihood the 

conditions of abuse or neglect can be substantially corrected when “[t]he abusing parent . . . [has] 

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not responded to or followed through with a reasonable family case plan or other rehabilitative 

efforts of social, medical, mental health or other rehabilitative agencies designed to reduce or 

prevent the abuse or neglect of the child.”2 Here, the circuit court was presented with sufficient 

evidence to make this finding in regard to petitioner based upon the evidence outlined above. 

Simply put, petitioner’s addiction and mental health issues persisted throughout these 

proceedings, as evidenced by his failure to comply with specific directions and rules regarding 

his incarceration, his completion of substance abuse treatment notwithstanding. The circuit court 

also found that termination of petitioner’s parental rights was in the children’s best interests. 

Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate parental 

rights upon these findings. Further, we have previously held that 

“[c]ourts are not required to exhaust every speculative possibility of 

parental improvement . . . where it appears that the welfare of the child will be 

seriously threatened, and this is particularly applicable to children under the age 

of three years who are more susceptible to illness, need consistent close 

interaction with fully committed adults, and are likely to have their emotional and 

physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re 

R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980). 

Syl. Pt. 4, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). As such, it was not error for the 

circuit court to terminate petitioner’s parental rights instead of imposing a less-restrictive 

dispositional alternative. 

Moreover, the Court finds no error in regard to petitioner’s allegation that child T.N.’s 

middle initial was reflected inaccurately throughout these proceedings. Petitioner alleges that 

because the child’s correct middle initial was not included below, that the Court should reverse 

the dispositional order. We do not agree. While it may be true that the child’s middle initial was 

incorrectly listed in the style of the proceedings below, it is uncontested that petitioner has only 

two children, both male, and that the circuit court terminated his parental rights to those children. 

As such, it is clear, absent a correct middle initial, that the circuit court terminated petitioner’s 

parental rights to his two sons. We have previously held that 

“[w]here it appears from the record that the process established by the 

Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes 

for the disposition of cases involving children [alleged] to be abused or neglected 

has been substantially disregarded or frustrated, the resulting order . . . will be 

vacated and the case remanded for compliance with that process and entry of an 

appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621, 

558 S.E.2d 620 (2001). 

2

Because the dispositional hearing in this matter took place on May 20, 2015, the day the 

new version of West Virginia Code §§ 49-1-101 through 49-7-304 went into effect, the Court 

will apply the revised versions of those statutes on appeal. 

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Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). Our review of the record shows 

that the error of which petitioner complains is not of such significance that it warrants a reversal 

of the resulting order. 

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

June 15, 2015, order is hereby affirmed. 

Affirmed. 

ISSUED: November 23, 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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