STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In re: X.D. September 5, 2017 

RORY L. PERRY II, CLERK 

No. 17-0376 (Randolph County 16-JA-089) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother Y.D., by counsel David C. Fuellhart III, appeals the Circuit Court of 

Randolph County’s March 16, 2017, order terminating her parental rights to X.D.1 The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, 

filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), G. 

Phillip Davis, filed a response on behalf of the child in support of the circuit court’s order. On 

appeal, petitioner argues that the circuit court erred by terminating her postadjudicatory 

improvement period, denying her request for a postdispositional improvement period, and 

terminating her parental rights. 

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 September of 2016, the DHHR filed an abuse and neglect petition against petitioner 

alleging that the child’s biological father is a registered sex offender who had his rights to two 

other children involuntarily terminated. The DHHR attempted to provide petitioner with services 

designed to assist her in protecting the child. According to the petition, petitioner acknowledged 

the father’s history of child sexual abuse but stated that she did not believe that he committed 

any such crimes. The petition also alleged that petitioner stated that she would not end her 

relationship with the father even if it meant that the child might be removed. The petition further 

alleged that petitioner knowingly exposed the child to harm by continuing her relationship with 

the father. Also in September of 2016, petitioner waived her right to a preliminary hearing. The 

child was removed from petitioner’s home but she was granted supervised visitation with the 

child. 

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). 

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In October of 2016, the circuit court held an adjudicatory hearing during which petitioner 

stipulated to the allegations contained in the petition, specifically that she exposed the child to a 

threat of harm by continuing her relationship with the father. The circuit court also granted 

petitioner a postadjudicatory improvement period. The circuit court ordered that petitioner 

submit to random drug screening, parenting education classes, and to have no contact with the 

father. 

In November of 2016, the circuit court held a status hearing to review petitioner’s 

improvement period. The DHHR expressed concerns regarding petitioner’s lack of participation 

in visits with the child and services and her continued contact with the father. The DHHR did not 

object to the continuation of petitioner’s improvement period and the circuit court continued the 

same. In January of 2017, the circuit court held a second status hearing on petitioner’s 

improvement period. At the hearing, two service providers and a DHHR caseworker testified that 

petitioner (1) did not substantially comply with visitation and parenting services; (2) did not 

complete all of the court-ordered parenting education classes; and (3) was in contact with the 

father on multiple occasions. Based on the evidence presented, the circuit court found that 

petitioner did not comply with the terms of her improvement period, terminated her improvement 

period, and scheduled the case for disposition. 

In March of 2017, the circuit court held a dispositional hearing wherein petitioner moved 

the circuit court for a postdispositional improvement period. However, petitioner refused to 

testify on her own behalf. The circuit court found that, based on the evidence previously 

presented and petitioner’s silence, she does not “appreciate the danger [the father] represents to 

her child [nor does] she intend[] [to] stay away from him for the protection to her child.” The 

circuit court also found that there was no reasonable likelihood that petitioner could substantially 

correct the conditions of abuse and neglect in the near future. Ultimately, the circuit court 

terminated petitioner’s parental rights by order dated March 16, 2017. It is from this order that 

petitioner now appeals. 

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). 

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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 proceedings below. 

On appeal, petitioner argues that the circuit court erred in terminating her 

postadjudicatory improvement period. Petitioner contends that she substantially complied with 

the terms of her improvement period and the continuation of her improvement period was in the 

child’s best interests. We disagree. With regard to the termination of improvement periods, West 

Virginia Code § 49-4-610 provides that a circuit court has discretion to grant, extend, or 

terminate an improvement period. Further, West Virginia Code § 49-4-610(7) requires the 

termination of an improvement period “when the court finds that [a parent] has failed to fully 

participate in the terms of the improvement period.” Additionally, we have long held that “[i]t is 

within the court’s discretion . . . to terminate the improvement period . . . if the court is not 

satisfied that the [parent] is making the necessary progress.” Syl. Pt. 2, In re Lacey P., 189 

W.Va. 580, 433 S.E.2d 518 (1993). 

In this case, contrary to her claims on appeal, petitioner clearly failed to make the 

necessary progress in her improvement period. As previously stated, petitioner did not complete 

all of her court-ordered parenting education classes and remained in frequent contact with the 

father, a registered sex offender despite the circuit court’s no contact order. According to the 

record, there was no evidence that petitioner appreciated the danger that the father represented to 

the child or that she intended to end her relationship with a registered sex offender for the 

protection of the child. As such, we find no error in the circuit court’s decision to terminate 

petitioner’s improvement period based on unsatisfactory progress. 

Petitioner also argues that the circuit court erred in denying her request for a 

postdispositional improvement period. In support of her argument, petitioner again contends that 

she substantially complied with the terms of her postadjudicatory improvement period. Upon our 

review, we find that petitioner failed to satisfy the applicable burden to obtain an improvement 

period. We have also 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). Furthermore, we have oft noted 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) (stating that “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) (holding that “[i]t is within the 

court’s discretion to grant an improvement period within the applicable statutory requirements”). 

Here, it is clear from the record that petitioner failed to demonstrate her ability to fully 

participate in an improvement period. The circuit court was presented with evidence that 

petitioner failed to comply with the terms of her postadjudicatory improvement period and 

continued her relationship with the father, despite admitting that she exposed the child to a threat 

of harm by continuing her relationship with him. 

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 

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abuse and neglect, results in making the problem untreatable and in making an 

improvement period an exercise in futility at the child’s expense. 

In re Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting Charity H., 215 W.Va. 

at 217, 599 S.E.2d at 640). It is clear that petitioner failed to demonstrate that, since her initial 

improvement period, she has experienced a substantial change in circumstances or, due to that 

change in circumstances, that she is likely to fully participate in a postdispositional improvement 

period. As such, the circuit court did not err in denying petitioner’s motion. Accordingly, we find 

no error below. 

Finally, petitioner argues that the circuit court erred in terminating her parental rights to 

the child because there were alternate dispositions available and that were more appropriate. We 

disagree. West Virginia Code § 49-4-604(b)(6) directs circuit courts to terminate parental rights 

upon 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 children’s 

welfare. West Virginia Code § 49-4-604(c)(3) provides that “no reasonable likelihood that 

conditions of abuse or neglect can be substantially 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[.]” 

In this case, petitioner failed to comply with the terms of her improvement period. She 

failed to complete parent education classes and continued to maintain a relationship with the 

father. Given petitioner’s lack of improvement during these proceedings, we find no error in the 

circuit court’s termination order. The circuit court properly found that petitioner was not 

reasonably likely to substantially correct the conditions of abuse and neglect in the near future, 

and it is clear from the record that the child’s welfare necessitated the termination of petitioner’s 

parental rights. 

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

March 16, 2017, order is hereby affirmed. 

Affirmed. 

ISSUED: September 5, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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