1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re L.W. and M.B.

No. 21-0494 (Taylor County 19-JA-99 and 19-JA-100)

MEMORANDUM DECISION

Petitioner Mother C.B., by counsel Ashley Joseph Smith, appeals the Circuit Court of

Taylor County’s May 20, 2021, order terminating her parental rights to L.W. and M.B.

1 The 

West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick 

Morrisey and James W. Wegman, filed a response in support of the circuit court’s order. The 

guardian ad litem, Mary S. Nelson, filed a response on the children’s behalf in support of the 

circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying her 

motion for a post-dispositional improvement period and in terminating her parental rights rather 

than imposing a less-restrictive dispositional alternative.

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 October of 2019, the DHHR filed a child abuse and neglect petition and alleged that 

petitioner had exposed the children to domestic violence and failed to provide the children with 

adequate care due to her substance abuse. At the time the petition was filed, petitioner was living 

with L.W.’s father, who also exercised partial custody of two older children from a prior 

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

January 12, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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relationship.2 The two older children disclosed that they witnessed petitioner beat L.W.’s father. 

Additionally, these children witnessed petitioner attack their mother, S.W., who later filed for a 

domestic violence protective order against petitioner. The DHHR also stated that then six-yearold M.B. was born with a “tethered spine,” which required her to be catharized every four to six 

hours and required diapering as the child had no control over her bowels. The DHHR alleged 

that petitioner failed to address M.B.’s special needs, asserting that M.B. suffered from vaginal 

irritation due to petitioner’s neglect. Finally, the DHHR alleged that, during its worker’s 

interaction with petitioner, petitioner’s “pupils were very small, and she was unable to sit still or 

focus.” Petitioner was instructed to submit to a drug screen, but was unable to produce a sample, 

even after three hours of waiting and “plenty of water.” Petitioner was also instructed as to how 

to complete a mouth swab in lieu of a urine drug screen but would not complete that screen.

Petitioner waived her preliminary hearing, and the circuit court ordered her to participate in 

random drug screening and supervised visitation with the children.

The circuit court convened for an adjudicatory hearing in December of 2019, and 

petitioner stipulated to the allegations contained in the petition. The circuit court adjudicated 

petitioner as an abusing parent and the children as neglected children. Petitioner moved for a 

post-adjudicatory improvement period, which the circuit court granted.

The DHHR subsequently filed two amended petitions of child abuse and neglect. In 

August of 2020, the DHHR alleged that L.W.’s father allowed petitioner to have unsupervised 

contact with L.W., despite knowing that she was not permitted to have contact with the child 

outside the supervision of a third party. In October of 2020, the DHHR alleged that M.B. 

disclosed that petitioner choked her and used excessive corporal punishment against her.

The circuit court held a second adjudicatory hearing on the amended petitions in 

November of 2020. The evidence showed that M.B. submitted to a forensic interview, during 

which she disclosed that petitioner “would grab her by the throat, put her hands around her throat 

and squeeze.” M.B. stated that petitioner was “angry when she put her hands around her throat.”

According to the DHHR worker for the case, M.B. was “very vocal and expressed concern 

regarding her safety with [petitioner.]” M.B. stated that “she would die young,” if left in 

petitioner’s care because petitioner choked her. M.B. also stated that petitioner would discipline 

her with a belt. M.B.’s forensic interview was admitted as evidence. Petitioner denied that she 

choked M.B. and asserted that the child was coerced into making the allegations by her current 

familial placement. 

Petitioner and L.W.’s father admitted that petitioner had unsupervised contact with L.W. 

Petitioner testified that she had fewer than ten instances of unsupervised contact with the child.

Petitioner denied that she was abusing controlled substances, despite the circuit court confronting 

her with an October of 2020 drug screen that was positive for methamphetamine. Petitioner also 

asserted that she had submitted to drug testing at a local hospital, despite the circuit court’s order 

2Petitioner asserts no parental or custodial rights to these children, and they are not at 

issue in this appeal.
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to submit to testing at community corrections. The DHHR noted that since petitioner’s positive 

drug screen in October of 2020, she had not submitted to a drug screen at the community 

corrections location.

The circuit court ultimately found that petitioner was not credible. The court noted that 

while petitioner had previously denied having unsupervised contact with L.W., she subsequently 

admitted to such contact but minimized that contact. The court further found that M.B.’s 

statements during the forensic interview were consistent with the statements made to the DHHR 

worker. The court found no evidence that M.B. was coached into making the allegations. The 

circuit court adjudicated petitioner as an abusing parent based on its findings and adjudicated the 

children as abused and neglected children. Further, the circuit court ordered petitioner to submit

to a drug screen immediately following the hearing and reiterated its prior order that petitioner

submit to drug screening at the community corrections location.

In May of 2021, the circuit court held the final dispositional hearing. The DHHR 

presented testimony from petitioner’s caseworker and the director of community corrections. 

Petitioner’s caseworker testified that petitioner completed parenting and adult life skills classes 

and a parental fitness evaluation. Petitioner also “faithfully” participated in random drug 

screening when she was on “demand” status, but petitioner failed to participate when she was 

placed on the random drug screening schedule, which occurred in mid-2020. The caseworker 

believed petitioner continued to abuse controlled substances and reminded the circuit court of 

petitioner’s drug screen in October of 2020 that was positive for methamphetamine. The 

caseworker testified that near in time to this positive test, petitioner appeared to be under the 

influence when meeting with the caseworker and during a supervised visitation with the children. 

The caseworker testified that visitation had not resumed since that time because petitioner failed

to consistently participate in random drug screening at community corrections after October of

2020. The caseworker explained that petitioner asserted she was participating in drug testing at a 

local hospital, despite the circuit court’s order for her to participate at the community corrections 

location. Nevertheless, the caseworker requested that petitioner sign a release so that the alleged 

hospital drug screen results could be obtained. Petitioner did not sign the release. The director of 

community corrections confirmed that petitioner failed to submit to a drug screen following the 

November of 2020 hearing, as directed by the circuit court.

The caseworker testified that petitioner had not been honest with the multidisciplinary

treatment team (“MDT”), and that petitioner’s dishonesty was a barrier for treatment. The 

DHHR discovered that petitioner was living with L.W. from October of 2019 until May of 2020, 

even though the circuit court ordered that she have no unsupervised contact with L.W. The 

caseworker further testified that, when the DHHR took emergency custody of M.B., that child’s 

social security benefits were ordered to be paid to the DHHR. However, the DHHR discovered 

that petitioner rerouted the payments back to herself soon after M.B.’s removal. The DHHR did 

not discover the discrepancy until March of 2020, at which point petitioner had received some 

$2,300 dollars in benefits. Although petitioner was notified of the issue, she had not provided 

those funds to the DHHR for M.B.’s care. 

The caseworker further testified that M.B. continued to express that she was afraid of 

petitioner. Although M.B. was observed to be happy at supervised visitations, the caseworker 
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testified that M.B. stated she was excited to see L.W., not petitioner. Finally, the caseworker 

testified that petitioner had no insight into how her conduct constituted abuse or neglect of the 

children. The caseworker confirmed that petitioner completed requested services but believed 

there had been no internal shift in her thought process or insight into her own behavior.

Petitioner acknowledged that she was aware she was not permitted to live with L.W. 

during the proceedings and admitted that she had lived in the home for a period of ten months. 

During this period, she supervised the child alone for the majority of the week due to the father’s 

work schedule. Petitioner asserted that the DHHR never asked her to provide proof of her drug 

screens to which she submitted at the local hospital. Further, petitioner admitted that she received 

M.B.’s social security benefits and had not provided those funds to the DHHR as requested. 

Petitioner stated that she did not understand that the circuit court had required her to drug screen 

following the November of 2020 hearing.

Ultimately, the circuit court found that petitioner’s testimony was not credible based on 

her admission that she was living with L.W., which was contrary to her prior testimony that she 

had only a few unsupervised contacts with that child. The court further considered that it directed 

petitioner to drug screen after the November of 2020 hearing and found it was incredulous that 

she did not understand that order. The court found that petitioner failed to submit to random drug 

screening as directed and failed to address her substance abuse addiction. The circuit court also 

found that petitioner had not visited with the children since October of 2020 due to her failure to 

consistently submit to random drug screening. The circuit court denied petitioner’s motion for a 

post-dispositional improvement period because of her failure to comply with random drug 

screening. Moreover, the circuit court denied petitioner’s motion for termination of her custodial 

rights only due to the children’s need for permanency. Finally, the circuit court found that there 

was no reasonable likelihood that petitioner could substantially correct the conditions of neglect 

and abuse in the near future and that termination of petitioner’s parental rights was necessary for 

the welfare of the children. Accordingly, the circuit court entered its May 20, 2021, order, 

terminating petitioner’s parental rights. Petitioner now appeals that order.3

The Court has previously held:

“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 

3M.B.’s father voluntarily relinquished his parental rights to the child. According to the 

parties, M.B.’s permanency plan is adoption by a relative. L.W.’s father is currently participating 

in an improvement period, and the child’s permanency plan is reunification with his father.
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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). 

On appeal, petitioner argues that the circuit court erred in denying her motion for a postdispositional improvement period. She argues that the evidence showed she had been drug 

screening regularly at the local hospital, maintained full time employment, completed parenting 

classes, and was willing to participate in other services to regain custody of her children. 

Petitioner asserts that during her post-adjudicatory improvement period, she participated in all 

the services offered by the DHHR “excluding drug screening at [the] community corrections 

[location] after September of 2020.” We find petitioner is entitled to no relief on appeal. 

West Virginia Code § 49-4-610(3)(B) requires that, to be granted a post-dispositional 

improvement period, a parent must “demonstrate, by clear and convincing evidence, that [she] is 

likely to fully participate in the improvement period.” Further, in circumstances where a parent 

was previously granted an improvement period, the parent must prove that “since the initial 

improvement period, the [parent] has experienced a substantial change in circumstances” and

that due to the change in circumstances, the parent “is likely to fully participate in the

improvement period.” W. Va. Code § 49-4-610(3)(D). “West Virginia law allows the circuit 

court discretion in deciding whether to grant a parent an improvement period.” In re M.M., 236 

W. Va. 108, 115, 778 S.E.2d 338, 345 (2015).

Upon our review, we find that petitioner’s argument misstates the record. Petitioner 

asserted below that she continued to participate in drug screening through the local hospital and

that the DHHR had never requested the records from the hospital. However, petitioner’s 

caseworker testified that she requested that petitioner sign a release to obtain those records and 

petitioner failed to comply with that request. The circuit court deemed petitioner to be not 

credible in many aspects of her testimony. We have previously held that “[a] reviewing court 

cannot assess witness credibility through a record. The trier of fact is uniquely situated to make 

such determinations and this Court is not in a position to, and will not, second guess such 

determinations.” Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997).

Moreover, the evidence below showed that petitioner tested positive for methamphetamine in 

October of 2020 and was believed to be under the influence during her interactions with the 

caseworker and her children. This evidence, as well as petitioner’s disregard for the circuit 

court’s order to submit to a random drug screen following the November of 2020 hearing, was

sufficient, in our view, for the circuit court to deny petitioner’s motion for a post-dispositional 

improvement period. Furthermore, petitioner fails to assert that she experienced a substantial 

change in circumstances that rendered her likely to fully participate in an additional 

improvement period, and it appears that no such change had occurred. In sum, we find no error 

in the circuit court’s denial of petitioner’s post-dispositional improvement period upon these 

circumstances.
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Petitioner also argues that the circuit court erred in terminating her parental rights rather 

than imposing a less-restrictive dispositional alternative. Petitioner briefly challenges 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. Petitioner also asserts that the children were in 

familial placements and, therefore, permanency for those children would not be delayed if the 

circuit court terminated only petitioner’s custodial rights. We find petitioner is entitled to no 

relief.

Pursuant to West Virginia Code § 49-4-604(c)(6), a circuit court may terminate a parent’s 

parental rights upon finding 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 welfare of the children. West Virginia Code § 49-4-604(d)(3) provides that there is no

reasonable likelihood that the conditions of neglect or abuse can be substantially corrected when 

[t]he abusing parent or parents have 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, as evidenced by the continuation or insubstantial 

diminution of conditions which threatened the health, welfare, or life of the 

child[ren].

Here, the circuit court properly found that there was no reasonable likelihood that 

petitioner could substantially correct the conditions of neglect or abuse in the near future because

she did not respond to a reasonable family case plan as evidenced by the continuation of the 

conditions of neglect and abuse. As noted above, petitioner tested positive for controlled 

substances in October of 2020 and was observed to be under the influence. This positive test 

occurred near the natural termination of petitioner’s post-adjudicatory improvement period.

Thereafter, petitioner did not consistently participate in random drug screening, which directly 

resulted in the suspension of her supervised visitations with the children. The circuit court found 

that petitioner had not visited with the children since October of 2020. We agree with the circuit 

court that there is clear evidence that petitioner continued to abuse controlled substances and had 

failed to remedy her addiction.

In support of her argument concerning the termination of her parental rights, petitioner

argues that her circumstances were similar to In re B.S., 242 W. Va. 123, 829 S.E.2d 754 (2019), 

wherein this Court declined to reverse a circuit court’s order that terminated a mother’s custodial 

rights, rather than her parental rights. Like petitioner, the mother in B.S. also suffered from 

substance abuse addiction, and that mother attempted to remedy her addiction through a sober 

living program. Id. at 126-27, 829 S.E.2d at 757-58. However, when the mother in B.S. moved 

out of the facility, she relapsed into substance abuse and ceased participating in services. Id. The 

circuit court considered the mother’s attempt at obtaining sobriety and ultimately decided to 

terminate her custodial rights only based on its finding that termination was not in the child’s 

best interests. Id. at 128, 829 S.E.2d at 759. In B.S., this Court stressed the “predominately fact 

bound enterprise” of child abuse and neglect proceedings and emphasized that “absent a mistake 

of law, an appellate tribunal should disturb a circuit court’s determination only if it is clearly 

erroneous.” Id. at 130, 829 S.E.2d at 761 (quoting Tiffany Marie S., 196 W.Va. at 237, 470 
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S.E.2d at 191). Just as in B.S., we decline to disturb the circuit court’s decision in this case. The 

circuit court’s finding that there was no reasonable likelihood that petitioner could substantially 

correct the conditions of neglect or abuse in the near future and that termination was necessary 

for the children’s welfare is not clearly erroneous upon our review of the record.

Finally, this Court has held that

“[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). As the circuit court’s finding

is supported by the record, it was within its discretion to terminate petitioner’s parental rights. 

We find no error in the circuit court’s order on appeal.

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

May 20, 2021, order is hereby affirmed.

Affirmed.

ISSUED: January 12, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice William R. Wooton