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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re A.H., A.M., K.W.-1, K.W.-2, and R.H.

No. 21-0880 (Kanawha County 19-JA-718, 20-JA-105, 20-JA-106, 20-JA-107, and 18-JA-137)

MEMORANDUM DECISION

Petitioner Mother N.S., by counsel Sandra K. Bullman, appeals the Circuit Court of 

Kanawha County’s September 23, 2021, order terminating her parental rights to A.H., A.M., K.W.-

1, K.W.-2, and R.H.

1 The West Virginia Department of Health and Human Resources (“DHHR”), 

by counsel Patrick Morrisey and Steven R. Compton, filed a response in support of the circuit 

court’s order. The guardian ad litem, Bryan B. Escue, filed a response on behalf of the children in 

support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in 

terminating her parental rights without first granting her an improvement period.

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.

The history of petitioner’s involvement with Child Protective Services (“CPS”), her prior 

abuse and neglect proceedings, and the various petitions filed in the matter currently on appeal are

protracted and convoluted. Relevant to the issues on appeal, it is important to note that petitioner 

was involved in abuse and neglect proceedings in 2010 in regard to A.H. and R.H., and that R.H. 

was later placed in DHHR custody through a matter filed in 2018 and appears to have remained in 

the DHHR’s custody throughout the pendency of the proceedings currently on appeal. Further 

relevant to this appeal is the fact that several adult respondents lived in the home and were involved 

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). Additionally, because two children share the same initials, they 

will be referred to as K.W.-1 and K.W.-2, respectively, throughout this memorandum decision. 

FILED

April 14, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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in the proceedings. According to the record, CPS reported approximately seventy investigations 

into various members of this household prior to the initiation of the matter currently on appeal.

In regard to petitioner and the issues currently before the Court, the DHHR filed its initial 

petition in November of 2019 and then filed several amended petitions over the course of the 

proceedings. The petitions alleged that petitioner abused drugs, left the children with inappropriate 

caregivers, and suffered from mental health issues. Specifically, the petitions described petitioner 

engaging in bizarre behavior, including her repeated assertions that bugs and worms were 

emanating from her body. The petitions also indicated that petitioner refused to submit to drug 

screens, as ordered. According to one petition, petitioner was explicit that after having submitted 

to a drug screen in court, “she would not take more than one screen.” 

Because of the various amendments to the petition and other continuances, the matter did 

not come on for adjudication until October of 2020. A CPS worker testified to the facts contained 

in the petitions. According to the witness, petitioner appeared to be under the influence when CPS 

arrived at the home and was “acting very bizarre, very paranoid.” The witness testified that 

petitioner was sitting on a toilet naked and refused to leave the bathroom. Petitioner’s mother “had 

to keep going into the bathroom to try to get [petitioner] dressed, to try to get her to come out of 

the bathroom.” When petitioner eventually exited, “she was saying there were worms and bugs 

coming out of her, and she had taken some toilet paper to wipe herself so that everybody could see 

the worms and bugs coming out of her.” According to the witness, she ultimately had to call 

emergency services to address petitioner’s conduct. When emergency personnel arrived, they

informed the CPS worker that “they had been to the house multiple times for [petitioner’s] drug 

use and issues regarding that.” The court then took the matter of adjudication under advisement. 

In January of 2021, adjudication resumed. The DHHR moved for petitioner’s adjudication 

based on the testimony from the prior hearing. Petitioner objected and then testified on her own 

behalf. Petitioner accused the DHHR’s witness of lying and denied having abused drugs prior to 

the children’s removal, although she admitted that she “did get on drugs after they took the kids.” 

Petitioner testified that she “sought out help about three months ago to get on something to help . 

. . with [her] drug addiction” and was taking prescribed Subutex. According to petitioner, she was 

awaiting instructions on placement into a different treatment program. Petitioner also admitted that 

she had not yet submitted to a single drug screen as required, although she indicated that she had 

been incarcerated for a portion of the proceedings. When asked why she was incarcerated, 

petitioner responded, “I prefer not to say because I didn’t do it.” Ultimately, petitioner admitted 

that she had been incarcerated for domestic battery and obstructing an officer. Based on the 

evidence, the court found that petitioner lacked credibility in regard to the conditions at the time 

of the petition’s filing. As such, the court adjudicated her as an abusing parent. 

In April of 2021, the matter proceeded to a dispositional hearing. A DHHR caseworker

testified that petitioner’s participation in services was “very sporadic” and that providers 

repeatedly tried to contact her by phone and by appearing at the address she had provided. 

According to the witness, from March to December of 2020, the DHHR was “never able to provide 

services for [petitioner]” because of her refusal to remain in contact with the Department. The 

witness also explained the steps the DHHR took to try to accommodate petitioner, including 

arranging for her to report for drug screens in another county upon petitioner’s request. Despite 
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these accommodations, petitioner still refused to comply with required screening. The witness 

further acknowledged that petitioner was presently in substance abuse treatment and had been for 

“some time now.” The witness also clarified that the DHHR did not offer petitioner services 

following her adjudication, despite petitioner having requested the same. Finally, the witness 

addressed the length of time petitioner’s children had been in foster care. Although it varied by 

child, the witness indicated that R.H. had been in DHHR custody since 2018, and that several of 

the children had been in foster care for at least fifteen months. 

Petitioner testified concerning her participation in substance abuse treatment for 

approximately two months and indicated that she had approximately six months of treatment left. 

She also indicated that she had recently gained employment. Petitioner testified in support of her 

earlier filed motion for an improvement period, indicating that she would be willing to participate 

in any services offered. She also admitted to having relapsed in January of 2021. The DHHR and 

guardian then moved to terminate petitioner’s parental rights. 

Ultimately, the court found that there was no reasonable likelihood that petitioner could 

substantially correct the conditions of abuse and neglect in the near future because she made 

inadequate efforts to remedy the conditions of abuse and neglect and failed to follow through with 

the reasonable family case plan or other services to remedy the issues. The court noted that “[i]t 

certainly . . . [took] a long time for [petitioner] to come to terms herself with what she needed to 

do, but in the meantime we have had children reach stability of sorts.” The court also found that 

the children’s best interests required termination of her parental rights, as this would provide the 

children with consistency and stability. As such, the court terminated petitioner’s parental rights.2

It is from the dispositional order that petitioner 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). 

Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). 

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All parents’ parental rights were terminated below, with the exception of R.H.’s father. 

The permanency plan for R.H. is to remain in the father’s custody. The permanency plan for the 

remaining children is adoption in their current foster homes. 
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On appeal, petitioner’s lone argument is that termination was inappropriate because she 

should have been granted an improvement period. Petitioner cites to her late participation in 

substance abuse treatment as a basis to have granted her an improvement period, but this argument 

ignores her extended noncompliance with services and the fact that further delay to the 

proceedings, and the children’s permanency, was not appropriate. 

While it may be true that petitioner requested services following her adjudication in 

January of 2021, the record shows that she was not compliant with services prior to that hearing 

as a result of her refusal to stay in contact with the DHHR or otherwise submit to drug screens as 

ordered. Essentially, petitioner did nothing for the first fourteen months of the proceedings and 

then demanded that she be permitted to participate in services after the DHHR’s repeated attempts 

to provide those same services were ignored. On appeal, petitioner argues that she “was never 

granted an improvement period in order to show the [c]ourt that she could comply.” This argument 

is entirely unavailing, as petitioner was given over a year in which to demonstrate her ability to 

comply with services, yet she willfully refused. 

Further, while petitioner’s participation in substance abuse treatment is commendable, she 

admitted that her treatment would not be completed for another six months beyond the 

dispositional hearing, at which point the proceedings would have been ongoing for over twentyfive months and the children would have remained in foster care in excess of two years. According 

to West Virginia Code § 49-4-610(9), 

no combination of any improvement periods or extensions thereto may cause a 

child to be in foster care more than fifteen months of the most recent twenty-two 

months, unless the court finds compelling circumstances by clear and convincing 

evidence that it is in the child’s best interests to extend the time limits contained in 

this paragraph.

The record here is devoid of any findings that granting petitioner an improvement period that 

would have resulted in the children’s continued placement in foster care would have been in their 

best interest. To the contrary, the court found that the children deserved the permanency and 

stability that terminating petitioner’s parental rights would provide. Additionally, on appeal to this 

Court, petitioner fails to set forth any compelling circumstances that would have justified such a 

significant extension of the applicable timeframes. Considering that petitioner created a substantial 

delay through her refusal to participate in services from the outset of the case, we find no abuse of 

discretion in the circuit court’s denial of her motion for an improvement period. See In re M.M., 

236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia law allows the circuit court 

discretion in deciding whether to grant a parent an improvement period.”).

Finally, petitioner argues that the circuit court erred in finding that there was no reasonable 

likelihood that she could substantially correct the conditions of abuse and neglect in the near future. 

According to petitioner, she demonstrated her ability to correct the conditions because she had 

been drug-free for over two months and wanted to continue on a path of sobriety. Again, while it 

is commendable that petitioner submitted to substance abuse treatment, the record nonetheless 

supports the circuit court’s finding. According to West Virginia Code § 49-4-604(d), “‘[n]o 
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reasonable likelihood that conditions of neglect or abuse can be substantially corrected’ means 

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.” While it 

is true that petitioner demonstrated limited sobriety late in the proceedings, the overwhelming 

evidence below supports the circuit court’s finding that petitioner was unlikely to substantially 

correct the conditions of abuse and neglect. For over one year, petitioner demonstrated not only an 

inadequate capacity to solve the problems, but a willful refusal to even attempt to correct them. 

Further, petitioner acknowledges that she required six additional months to complete her 

treatment, thereby demonstrating that her issues with substance abuse had not yet been resolved. 

As we have explained,

“[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).

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4. As outlined above, the timeframe for 

petitioner to participate in an improvement period had expired. As such, her argument that the 

court should have exceeded this timeframe upon speculation that she would successfully complete 

her substance abuse treatment and remedy the conditions of abuse and neglect was not appropriate. 

Accordingly, we find no error in the circuit court’s termination of her parental rights. 

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

September 23, 2021, order is hereby affirmed.

Affirmed.

ISSUED: April 14, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice Alan D. Moats sitting by temporary assignment