STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

January 17, 2014 In Re: K.H. II, E.M., and E.L.M. RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 No. 13-0835 (Ritchie County 12-JA-1, 12-JA-2, and 12-JA-16) 

MEMORANDUM DECISION 

Petitioners Mother and Father filed this joint appeal by their respective counsel, Paul V. 

Morrison II and Joseph W. McFarland Jr. Their appeal arises from the Circuit Court of Ritchie 

County, which terminated their parental rights to the subject children by order entered on August 

12, 2013. The guardian ad litem for child K.H. II, B. Scott Wolfe, filed a response in support of 

the circuit court’s order. The guardian ad litem for children E.M. and E.L.M., Jessica E. Myers, 

also filed a response in support of the circuit court’s order. The Department of Health and 

Human Resources (“DHHR”), by its attorney Lee A. Niezgoda, also filed a response in support 

of the circuit court’s order. Petitioners argue that the circuit court erred in (1) finding that they 

failed to substantially comply with their post-adjudicatory improvement period, (2) denying their 

motion for a dispositional improvement period, and (3) terminating their 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 January of 2012, the DHHR filed an abuse and neglect petition against petitioners, 

with regard to children K.H. and E.M. The petition alleged that Petitioner Father physically 

restrained K.H., who was then four years old, in a head lock, busted his lower lip, and shook 

him. The petition also alleged unsafe and unsanitary home conditions, such as (1) lack of hot 

water, (2) chain saws and other potentially dangerous items within reach of the children, (3) 

fresh and dried animal feces strewn about the home and smeared on the bedding, (4) the 

children’s exposure to lead paint and their positive tests for lead poisoning, (5) the inadequate 

amount of heat in the home to the degree that the children were cold to the touch, (6) a hole in 

the floor upstairs with nothing to prevent the children from falling through it, and (7) the children 

were filthy. The petition further alleged that petitioners did not acknowledge the home conditions 

as a threat to the children and that Petitioner Mother did not acknowledge that Petitioner Father’s 

violence and aggression toward the children was a threat. At adjudication, petitioners stipulated 

to neglect by their failure to provide a safe and healthy home to the children and through their 

improper care and supervision of them. The circuit court granted petitioners a post-adjudicatory 

improvement period with conditions that included maintaining a safe and appropriate home, 

participating in parenting and adult life skills classes, and submitting to a psychological 

evaluation. The circuit court also ordered that Petitioner Father complete anger management 

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classes. During the course of their improvement period, the DHHR found a trailer for petitioners 

to move into, but they refused to do so. 

After E.L.M.’s birth in September of 2012, the DHHR filed an amended petition to 

include him in the instant case. At petitioners’ adjudicatory hearing on E.L.M., the circuit court 

found that petitioners were neglectful based on the continuing unfit condition of the home. 

Petitioners received an extension to their improvement period. 

Throughout the months prior to the dispositional hearing in July of 2013, the DHHR 

attempted to make scheduled home visits to the family’s home. However, on one occasion, 

petitioners cancelled and another time, petitioners were not at home. In March of 2013, the 

DHHR visited and found that the home was inappropriate and that petitioners had made little 

progress in making improvements to the home. At the dispositional hearing on July 19, 2013, the 

circuit court heard testimony from the family’s DHHR worker, a counselor and supervisor from 

Eight Brothers Counseling and Mediation, Petitioner Mother, and Petitioner Father. The circuit 

court denied petitioners’ motion for a dispositional improvement period and terminated their 

parental rights to all three children after finding that the home remained unfit for the children 

throughout the case. For instance, at the time of disposition, the home had open upstairs windows 

without screens, the wall-mounted gas heaters remained open and accessible to the children, only 

one exit of the home was unobstructed, and the stairwell “wall” was incomplete. The circuit 

court found that petitioners demonstrated an unwillingness to make the efforts necessary to 

remedy the subject deficiencies and that they continually blamed others for their lack of 

progress. From this termination order, petitioners jointly appeal. 

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). 

Petitioners raise three assignments of error on appeal. First, they argue that the circuit 

court erred in finding that neither of them substantially complied with the terms of their postadjudicatory improvement period. They assert that they remedied nearly all of the safety 

concerns, completed all parenting and life skills classes offered by the DHHR, and had regular 

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visitation with the children. Second, petitioners argue that the circuit court erred in denying their 

motion for a dispositional improvement period. They contend that they should have received 

another improvement period because they had remedied nearly all of the dangerous conditions 

that were previously identified in their home. Lastly, petitioners argue that the circuit court erred 

in terminating their parental rights because they remedied the conditions present at the time the 

DHHR filed the petition. 

Upon our review of the record, we find no error by the circuit court. Pursuant to West 

Virginia Code § 49-6-12(d), once a parent is granted an improvement period, he or she is 

responsible for the initiation and completion of all terms of the improvement period. In the order 

on appeal, the circuit court found that petitioners waited until a week before the dispositional 

hearing to remedy unsafe and unsanitary conditions of the home. Petitioners contend that this 

finding was in error. We disagree. Our review of the record reveals that petitioners failed to 

make consistent and diligent efforts to maintain an appropriate home. At the dispositional 

hearing, Petitioner Father admitted that the home was not suitable for his children until 

“yesterday,” the day before the hearing. Petitioner Father also testified that the open windows 

still lacked screens and that the hot water tank had an exposed valve. 

We also find no error by the circuit court in denying petitioners’ motion for a 

dispositional improvement period. Pursuant to West Virginia Code § 49-6-12, a parent who 

wishes to participate in an improvement period must file a written motion and demonstrate by 

clear and convincing evidence that he or she will substantially comply with the terms of an 

improvement period. The circuit court has the discretion to grant or deny such a motion. Our 

review of the record indicates that petitioners did not meet their burden in proving by clear and 

convincing evidence that they would substantially comply with another improvement period. For 

instance, the DHHR worker testified at the dispositional hearing that she did not believe that the 

house was currently a safe environment for the children or that the children could be protected 

despite the in-home services that had been provided to petitioners. Petitioners’ counselor testified 

that petitioners tended to make a concerted effort right before an inspection so that the house was 

clean at the time of the inspection but quickly reverted to its dirty state thereafter. 

Lastly, we find no error by the circuit court by ordering termination. “‘Although parents 

have substantial rights that must be protected, the primary goal in cases involving abuse and 

neglect, as in all family law matters, must be the health and welfare of the children.’ Syl. Pt. 3, In 

re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W.Va. 44, 

743 S.E.2d 352 (2013). Petitioners argue that the circuit court made no findings upon which to 

base termination of parental rights. We find this contention without merit. West Virginia Code § 

49-6-5(b)(3) provides that a parent’s failure to follow through with a reasonable family case plan 

constitutes circumstances in which there is no reasonable likelihood that conditions of neglect or 

abuse can be substantially corrected. The evidence and testimony provided in the dispositional 

hearing support the circuit court’s findings that, after more than a year, petitioners failed to 

substantially comply with the terms of their improvement period. Upon our review, we find that 

the circuit court’s findings support its conclusions that there was no reasonable likelihood to 

believe that conditions of abuse and neglect could be substantially corrected in the near future, 

and that termination was necessary for the children’s welfare. Pursuant to West Virginia Code § 

49-6-5(a)(6), circuit courts are directed to terminate parental rights upon such findings. 

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For the foregoing reasons, we affirm. 

ISSUED: January 17, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

Affirmed. 

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