1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re A.F.

No. 18-0915 (Kanawha County 18-JA-34)

MEMORANDUM DECISION

Petitioner Mother R.M., by counsel Sandra K. Bullman, appeals the Circuit Court of 

Kanawha County’s September 19, 2018, order terminating her parental rights to A.F.

1 The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, 

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

B. Escue, 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 in 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 February of 2018, the DHHR filed a petition alleging that petitioner was charged with 

conspiracy after “a large amount of heroin and methamphetamine was found in her home.” 

According to the DHHR, A.F., who was then seven years old, was present in the home when 

petitioner was arrested and no suitable relatives could be found to care for the child. Further, the 

DHHR alleged that the child was not enrolled in school. Finally, the DHHR alleged that 

petitioner failed to provide the child with the necessary food, clothing, supervision, and housing. 

Petitioner waived her preliminary hearing.

The circuit court held an adjudicatory hearing in March of 2018. Petitioner did not 

appear, but was represented by counsel. The DHHR presented testimony regarding petitioner’s 

incarceration; the emotional impact of her arrest on the child; the lack of suitable relatives to 

supervise the child; petitioner’s failure to enroll the child in school; and petitioner’s inability to 

 

1Consistent 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).

FILED

March 15, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

provide the name of the child’s treating physician or a detailed treatment plan, despite statements 

that the child was autistic. The circuit court adjudicated petitioner as an abusing parent.

In July of 2018, the circuit court held a final dispositional hearing and petitioner 

appeared.2 The DHHR moved to terminate petitioner’s parental rights and introduced evidence 

that petitioner was noncompliant with drug screening with the exception of one screen she 

submitted to in May of 2018, which was positive for methamphetamine. According to the 

DHHR, petitioner was aware that visitation with the child was conditioned on random drug 

screening. Petitioner testified that she was unable to participate in drug screens due to medical 

and transportation issues, but she admitted that she did not request assistance from the DHHR. 

Petitioner further admitted to using heroin “once or twice” since she was released from 

incarceration. Petitioner explained that she used heroin as self-medicated pain relief and had used 

continually since her son was born seven years ago. Ultimately, the circuit court found that there 

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

corrected because petitioner failed to follow through with a reasonable family case plan designed 

to reduce the neglect of the child and that termination of petitioner’s parental rights was 

necessary for the welfare of the child. Accordingly, the circuit court terminated petitioner’s 

parental rights by its September 19, 2018, order. Petitioner now appeals that order.3

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). Upon our review, this Court 

finds no error in the proceedings below.

 

2Petitioner appears to have been released from incarceration between March of 2018 and 

April of 2018.

3The father’s parental rights were also terminated. According to the parties, the 

permanency plan for the child is adoption in his current foster placement.
3

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

because “the only allegation with which [she] was adjudicated was the fact that she was 

incarcerated at the time of the filing of the petition and [she] did not have someone to care for the 

child during her incarceration.” Petitioner claimed that this condition was remedied by her 

release from incarceration. However, we disagree. The record on appeal shows that the circuit 

court heard other evidence related to adjudication, including petitioner’s failure to enroll the 

child in school and follow through with seeking treatment for his possible autism spectrum 

disorder. As a result, the circuit court found that the child was a neglected child as defined by the 

West Virginia Code.4 Accordingly, petitioner’s incarceration was not the only condition that 

threatened the welfare of the child and needed to be remedied.

Further, the circuit court correctly terminated petitioner’s parental rights because she 

failed to participate in services provided by the DHHR. West Virginia Code § 49-4-604(b)(6) 

provides that circuit courts are 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 child’s welfare. West Virginia Code § 49-4-

604(c)(3) provides that a situation in which there is no reasonable likelihood the conditions of

abuse and neglect can be substantially corrected includes one in which the abusing parent “ha[s] 

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.” Petitioner failed to participate in random drug 

screening, which was necessary considering her admission to using heroin during the 

proceedings. Further, petitioner’s supervised visitations with her child were conditioned on those 

drug screens. “We have previously pointed out that the level of interest demonstrated by a parent 

in visiting his or her children while they are out of the parent’s custody is a significant factor in 

determining the parent’s potential to improve sufficiently and achieve minimum standards to 

parent the child.” In re Katie S., 198 W. Va. 79, 90, n.14, 479 S.E.2d 589, 600, n.14 

(1996)(citing Tiffany Marie S., 196 W. Va. at 228 and 237, 470 S.E.2d at 182 and 191; State ex 

rel. Amy M. v. Kaufman, 196 W. Va. 251, 259, 470 S.E.2d 205, 213 (1996)). Due to petitioner’s 

failure to drug screen, she only saw the child once since his removal. Based on petitioner’s 

failure to follow through with services, we find no error in the circuit court’s finding that there 

was no reasonable likelihood that the conditions of abuse and neglect could be remedied in the 

foreseeable future. 

Similarly, we find no error in the circuit court’s finding that termination of petitioner’s 

parental rights was necessary for the welfare of the child. Petitioner explained that she ended her 

 

4West Virginia Code § 49-1-201 defines a “neglected child” as a child

[w]hose physical or mental health is harmed or threatened by a present refusal, 

failure or inability of the child’s parent, guardian or custodian to supply the child 

with necessary food, clothing, shelter, supervision, medical care or education, 

when that refusal, failure or inability is not due primarily to a lack of financial 

means on the part of the parent, guardian or custodian.
4

substance abuse while she was incarcerated, but later admitted that she continued to use heroin 

after her release. Accordingly, the child’s welfare would continue to be threatened if he were 

returned to her care. We have held as follows:

“Termination 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(c)] 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). The circuit court did not err in 

finding that there was no reasonable likelihood that the conditions of abuse and neglect could be 

substantially corrected or in finding that termination was necessary for the welfare of the child. 

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

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

September 19, 2018, order is hereby affirmed.

Affirmed.

ISSUED: March 15, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison