1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re J.H.

No. 20-0873 (Webster County 19-JA-29)

MEMORANDUM DECISION

Petitioner Mother K.W., by counsel Howard J. Blyler, appeals the Circuit Court of Webster 

County’s October 5, 2020, order terminating her parental rights to J.H.1 The West Virginia 

Department of Health and Human Resources (“DHHR”), by counsel James Wegman, filed a 

response in support of the circuit court’s order. The guardian ad litem, Mary Elizabeth Snead, filed 

a response on behalf of the child in support of the circuit court’s order. On appeal, petitioner argues 

that the circuit court abused its discretion in terminating her parental rights to the child.

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, 

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

Within this same assignment of error, petitioner also argues that the circuit court erred in 

denying her post-termination visitation with the child. However, petitioner’s citation to the record 

in support of her assertion that the court erred in this regard reveals that the court did not, in fact, 

rule on petitioner’s request for post-termination visitation. Instead, the court stated that “[t]he 

motion for post-termination visitation for . . . [petitioner is] taken under advisement pending [a] 

permanency hearing” that was scheduled for November 13, 2020. Petitioner did not include the 

order from this permanency hearing in the appendix record on appeal. As such, this argument is 

not properly before the Court and will not be addressed on appeal. W. Va. R. App. P. 10(c)(7) 

(“The argument must contain appropriate and specific citations to the record on appeal, including 

citations that pinpoint when and how the issues in the assignments of error were presented to the 

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

references to the record on appeal.”).

FILED

April 20, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the 

Rules of Appellate Procedure.

The proceedings below began in July of 2019, when the DHHR filed an abuse and neglect 

petition alleging that petitioner permitted her child to live in a home where he was exposed to 

pervasive drug abuse, domestic violence, and inappropriate supervision.3 According to the 

petition, at least nine adults, including petitioner, lived in a two-bedroom residence with four 

children who are not at issue in this appeal. The DHHR further alleged that the home contained 

extensive drugs and paraphernalia. According to the petition, petitioner and another individual 

who cared for the children tested positive for methamphetamine, while a third caregiver admitted 

to smoking methamphetamine but later refused to submit to a drug screen. Accordingly, the DHHR 

alleged that petitioner failed to provide the child a fit and suitable home and that her substance 

abuse negatively impacted her ability to parent. 

Petitioner later admitted to the allegations in the petition and was adjudicated as an abusive 

and neglectful parent at a hearing in September of 2019. In August and September of 2020, the 

court held dispositional hearings, during which the court heard testimony from a Child Protective 

Services (“CPS”) worker and several adult respondents, including petitioner. According to the CPS 

worker, petitioner never provided the DHHR with proof of residence. The CPS worker investigated 

at least one address where petitioner claimed she lived, but the investigation revealed that 

petitioner did not live at this address. According to the CPS worker, petitioner did not have stable 

housing that the worker was aware of during the entirety of the proceedings. Further, the CPS 

worker testified to petitioner’s failure to fully comply with drug screens, as required. This included 

a period between March of 2020 and July of 2020 for which the DHHR had no records of 

petitioner’s drug screens. Finally, the CPS worker testified that petitioner submitted to a screen on 

the day of the first dispositional hearing in August of 2020 and tested positive for 

methamphetamine. 

Based on the evidence, the court found that petitioner failed to establish that she would 

comply with an improvement period, as she requested. According to the court, petitioner had “not 

accepted any responsibility nor made any acknowledgement that she has a drug addiction problem” 

and “failed to accept responsibility for her actions.” Further, the court found that over the preceding 

fourteen months, petitioner exhibited no change in her circumstances. Most importantly, the court 

noted that it continued the August of 2020 dispositional hearing in order to give petitioner the 

opportunity to enroll in inpatient substance abuse treatment, but petitioner refused. Accordingly, 

the 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 termination of her parental rights 

was necessary for the child’s welfare.

4 It is from the dispositional order that petitioner appeals. 

The Court has previously established the following standard of review:

3

The record shows that the DHHR subsequently filed multiple amended petitions, none of 

which are relevant to the issues on appeal. 

4

The father’s parental rights were also terminated below. The permanency plan for the child 

is adoption in the current foster home. 
3

“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). 

At the outset, we note that petitioner’s brief does not comply with the requirements of this 

Court’s Rules of Appellate Procedure. Specifically, other than a standard of review, petitioner’s 

brief contains no citations to any controlling authority in support of her lone assignment of error.

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 . . . law presented . . . and citing the authorities 

relied on.” Additionally, in an Administrative Order entered on December 10, 2012, Re: Filings 

That Do Not Comply With the Rules of Appellate Procedure, the Court specifically noted that 

“[b]riefs that lack citation of authority [or] fail to structure an argument applying applicable law”

and “[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. In that order, the Court went 

on to instruct that “all of the requirements of the Rules must be strictly observed by litigants” 

because “[t]he Rules are not mere procedural niceties; they set forth a structured method to permit 

litigants and this Court to carefully review each case.” In ordering that all litigants before this 

Court must comply with the Rules of Appellate Procedure, the Court cautioned that “[p]ursuant to 

Rule 10(j), failure to file a compliant brief ‘may result in the Supreme Court refusing to consider 

the case, denying argument to the derelict party, dismissing the case from the docket, or imposing 

such other sanctions as the Court may deem appropriate.’” Here, petitioner’s brief in regard to the 

lone assignment of error is inadequate as it fails to comply with West Virginia Rule of Appellate 

Procedure 10(c)(7) and our December 10, 2012, administrative order. Nevertheless, we turn to the 

merits of the issues on appeal.

According to petitioner, the circuit court abused its discretion in terminating her parental 

rights because she demonstrated an ability to not use drugs by going for months, on two separate 

occasions, without using controlled substances. Petitioner argues that she “only used [drugs] when 

visitation was denied by the [DHHR]” and she further asserts that she informed the circuit court at 

the September of 2020 dispositional hearing that “she had not enrolled in a . . . treatment facility 

and would only do so on the condition that she got to visit with her child.” We find petitioner’s 

arguments unavailing, however, because the resolution of this matter turns entirely upon her failure 

to acknowledge the conditions of abuse and neglect at issue. 
4

As this Court has routinely 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.

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

petitioner does not challenge the circuit court’s findings that she failed to accept that she suffered 

from a drug addiction or failed to accept responsibility for her actions. As such, she cannot be 

entitled to relief because these failures are dispositive of her ability to remedy the conditions at 

issue. Even on appeal to this Court, petitioner minimizes her responsibility for her substance abuse, 

asserting that she only continued to abuse drugs because she was not permitted to visit with the 

child. It is unclear why petitioner believes this conduct was acceptable when demonstrating her 

ability to correct her substance abuse was crucial to her attempt to regain custody of the child. 

Petitioner further cites her statement to the court at the dispositional hearing that she would only 

undergo substance abuse treatment if she were permitted to visit her child, thereby further 

illustrating her refusal to take steps to remedy the conditions of abuse and neglect unless her 

demands were met. None of these facts entitle petitioner to relief. 

Further, petitioner’s refusal to acknowledge the conditions of abuse and neglect resulted in 

those conditions being untreatable, which fully supports the circuit court’s finding that there was 

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

in the near future. West Virginia Code § 49-4-604(d) defines “[n]o reasonable likelihood that 

conditions of neglect or abuse can be substantially corrected” as meaning “that, based upon the 

evidence before the court, the abusing adult or adults have demonstrated an inadequate capacity to 

solve the problems of abuse or neglect on their own or with help.” Given petitioner’s inability to 

correct the conditions of abuse and neglect due to her refusal to acknowledge them, it is clear the 

circuit court did not err in making this finding. Additionally, the court found that the child’s welfare 

required termination of petitioner’s parental rights, given her failure to acknowledge, or otherwise 

accept responsibility for, her conduct. Under West Virginia Code § 49-4-604(c)(6), a circuit court 

may terminate parental rights upon these findings. 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. 
5

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

October 5, 2020, order is hereby affirmed.

Affirmed.

ISSUED: April 20, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton