STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re W.W., J.W., and B.W. November 4, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 20-0071 (Randolph County 19-JA-79, 19-JA-80, and 19-JA-81) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother A.W., by counsel Morris C. Davis, appeals the Circuit Court of Randolph
County’s December 30, 2019, order terminating her parental rights to W.W., J.W., and B.W. 1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Katherine A.
Campbell, filed a response in support of the circuit court’s order and a supplemental appendix. The
guardian ad litem, Heather M. Weese, 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 denying her motion
for a post-adjudicatory improvement period. 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,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
In July of 2019, the DHHR filed a child abuse and neglect petition alleging that the parents’
substance abuse negatively affected their ability to parent the children. According to the DHHR,
four-year-old W.W. disclosed witnessing his parents crush and snort pills and reported that they
would “nod off, but they always wake up.” The DHHR amended the petition in August of 2019 to
include allegations that the parents engaged in domestic violence in the presence of the children
and that the children were maltreated and unsupervised.
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
Petitioner assigns no error to the termination of her parental rights.
1
The circuit court held an adjudicatory hearing in November of 2019, and petitioner failed
to appear. Her counsel moved for a continuance, which the circuit court denied. The DHHR
presented testimony from two Child Protective Service (“CPS”) workers and a law enforcement
officer who assisted in the removal of the children. The circuit court adjudicated petitioner as an
abusing parent based on the evidence that petitioner was “impaired and incoherent” at the time the
children were removed, W.W.’s observations of petitioner’s drug use, and the evidence of
domestic violence in the home.
In December of 2019, the circuit court held a dispositional hearing. Petitioner moved for a
post-adjudicatory improvement period and testified that she would fully participate in remedial
services. However, petitioner admitted that she had failed to submit to court ordered drug screens
since September of 2019, and that she did not take her Suboxone as prescribed. Petitioner could
not provide her doctor’s name or location, only that he was out-of-state. Further, petitioner denied
that she was impaired at the time the children were removed from her custody. In contrast to
petitioner’s assertion that she would participate in services, the DHHR presented testimony that
she was offered parenting and adult life skills classes but she failed to participate. A service
provider testified that she set up an initial meeting with petitioner after several attempts, but that
petitioner later cancelled the meeting. Despite other contacts from the provider, petitioner did not
participate in a single parenting or adult life skills session. Additionally, the DHHR presented
evidence that petitioner consistently tested positive for buprenorphine from July to August of 2019,
at which time she ceased participating in drug screens and, therefore, missed thirty-seven
subsequent opportunities to drug screen. The Executive Director of North Central Community
Corrections testified that when participants test positive for controlled substances, they are
expected to provide a valid prescription. However, petitioner never provided a prescription to
justify her positive drug screen results. The circuit court ordered petitioner to submit to a drug
screen on the day of the dispositional hearing; she complied and again tested positive for
buprenorphine without a prescription.
Ultimately, the circuit court found that petitioner had “demonstrated no effort to address
[her] deficiencies in parenting thus far” and failed to comply with the services to remediate those
deficiencies. Further, the circuit court found that petitioner failed to acknowledge her parenting
deficiencies. The circuit court concluded that petitioner failed to demonstrate that she was likely
to fully participate in a post-adjudicatory improvement period and denied her motion for a post-
adjudicatory improvement period. Additionally, the circuit court found that there was no
reasonable likelihood that the conditions of neglect and abuse could be substantially corrected in
the near future and that it was necessary for the welfare of the children to terminate petitioner’s
parental rights. The circuit court terminated petitioner’s parental rights by its December 30, 2019,
order. 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
3
The father’s parental rights were terminated below. According to the parties, the
permanency plan for the children is adoption in their current foster placement.
2
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 review, this Court finds no
error in the proceedings below.
On appeal, petitioner argues that the circuit court erred in denying her motion for a post-
adjudicatory improvement period. She asserts that she accepted responsibility of her parental
deficiencies, recognized that her substance abuse was an issue, and, if offered another opportunity
to do so, would participate in services to rectify those issues. Based on her testimony alone,
petitioner argues that the circuit court erred in finding that she would not fully participate in an
improvement period. Upon our review, we find petitioner is entitled to no relief.
West Virginia Code § 49-4-610(2)(B) provides that a circuit court may grant a parent a
post-adjudicatory improvement period when she “demonstrates, by clear and convincing evidence,
that [she] is likely to fully participate in the improvement period.” 4 It is well established that “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).
“Additionally, if a parent is unable to demonstrate an ability to correct the underlying conditions
of abuse and/or neglect in the near future, termination of parental rights may proceed without the
utilization of an improvement period.” In re Charity H., 215 W. Va. 208, 216, 599 S.E.2d 631,
639 (2004). Here, petitioner failed to demonstrate that she was likely to fully participate in an
improvement period. The circuit court ordered petitioner to participate in parenting and adult life
skills classes, and she clearly failed to do so. Additionally, petitioner continued to abuse Suboxone
without a valid prescription, even testing positive for that substance on the day of the dispositional
hearing. Although petitioner testified that she would fully participate in services, her actions did
not support that finding. We have previously held that
“[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
4
Notably, West Virginia Code § 49-4-610(2)(A) requires a parent to file “a written motion
requesting the improvement period.” According to the record, petitioner failed to file such a
motion.
3
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 noted by the circuit court, the children
at issue in this appeal were under six years of age – J.W. and B.W. are now just two and one,
respectively. Due to their tender age and petitioner’s demonstrated noncompliance with services
prior to the dispositional hearing, we find no error in the circuit court’s denial of petitioner’s
motion for a post-adjudicatory improvement period.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 30, 2019, order is hereby affirmed.
Affirmed.
ISSUED: November 4, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
4