STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re B.S., X.S., and N.D. FILED
December 10, 2020
No. 20-0117 (Wirt County 18-JA-13, 18-JA-14, and 18-JA-15) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother C.S., by counsel F. John Oshoway, appeals the Circuit Court of Wirt
County’s January 10, 2020, order terminating her parental rights to B.S., X.S., and N.D. 1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel James Wegman,
filed a response in support of the circuit court’s order. The guardian ad litem, Wells H. Dillon,
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 post-dispositional improvement
period and 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 September of 2018, the DHHR filed an abuse and neglect petition against petitioner
alleging that she tested positive for methamphetamine and marijuana during her pregnancy upon
the birth of N.D. The DHHR also alleged that petitioner failed to provide the children with
adequate housing and basic necessities including furniture, running water, and food. Further, the
DHHR alleged that petitioner exposed the children to inappropriate caregivers, such as convicted
felons. Petitioner waived her preliminary hearing.
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).
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The circuit court held an adjudicatory hearing in November of 2018 wherein petitioner
stipulated to abusing and neglecting the children and the court granted her a six-month post-
adjudicatory improvement period. In June of 2019, the circuit court found that petitioner was in
compliance with her improvement period and granted her an extension.
At a review hearing in September of 2019, the circuit court heard extensive evidence that
petitioner was no longer compliant with her improvement period. A DHHR caseworker testified
that the guardian accompanied her on an unannounced visit to petitioner’s home in July of 2019.
The caseworker testified the home was unkempt with trash piling in the children’s bedrooms and
lacked basic necessities, including food. The caseworker also testified that petitioner was living
with a boyfriend who was an inappropriate caregiver. According to the caseworker’s testimony,
she had previously told the petitioner to cease association with him because he was an unsuitable
caregiver for the children. The caseworker explained that the boyfriend was an unsuitable
caregiver because petitioner had spent several months with him, devoted lots of attention to him,
and she had not improved in caring for her children. The caseworker further testified that petitioner
stated during the visit, “I’m done. You can take my kids.” The caseworker also noted that petitioner
was regularly cancelling visitations with the children and missing parenting classes. In fact, the
caseworker testified that petitioner cancelled all visits with the children for several consecutive
weeks in July and August of 2019 and failed to maintain contact with the DHHR. Next, a service
provider testified that petitioner had initially done “wonderful” with her improvement period but
began to waiver and missed all of her parenting classes in July and August of 2019. The service
provider testified that petitioner claimed she missed classes due to hospital visits, job interviews,
and phone difficulties. The provider testified that she would sometimes arrive at the appointments
only to find petitioner absent and that despite their required weekly meetings, petitioner only met
with her twice. Finally, a psychologist testified that petitioner’s relationship with the boyfriend
was concerning because “it indicated she [is] not as willing to do what she needs to do to change
her life.” The psychologist went on to testify that petitioner needed to “get serious about raising
her children.” After hearing the evidence, the circuit court found that petitioner was noncompliant
with her case plan but nevertheless granted her a six-month post-dispositional improvement period.
The circuit court ordered petitioner to attend her scheduled appointments and visits and to cease
contact with the boyfriend.
In November of 2019, the circuit court held a final dispositional hearing, during which the
DHHR moved for termination of petitioner’s parental rights. At the hearing, petitioner testified
and acknowledged missing additional visits with the children and required parenting classes.
Petitioner claimed a variety of reasons for her absences, including that she had been hospitalized
for a miscarriage and that her grandmother was ill. Petitioner also testified that she had not attended
therapy in months. The DHHR presented evidence that, even accepting petitioner’s claims as true,
she did not communicate her absences to the DHHR and provided no documentation for her
hospital stays and visits. The DHHR also presented evidence that petitioner does not have a
driver’s license, although petitioner testified that she drove her grandmother to multiple hospital
visits. In light of the evidence at the dispositional hearing, the circuit court found that petitioner
“did not make an effort to attend life skills classes, counseling, a domestic battery intervention
program or make any significant effort to aid her in parenting.” Further, the circuit court found
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that petitioner “[has] failed to avail herself [of] the services provided for her, has failed to
participate in the improvement periods granted to her and has by her actions shown an intent to
abandon her parental rights.” Based upon these findings, the circuit court concluded there was no
reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in
the near future, and that it was in the best interests of the children to terminate petitioner’s parental
rights. 2 The circuit court entered an order reflecting its decision on January 10, 2020. Petitioner
appeals from this order.
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).
On appeal, petitioner argues that the circuit court erred in terminating her post-dispositional
improvement period despite her substantial compliance. Further, petitioner argues that she is very
young and coping with the demands of parenting with little to no participation from the children’s
respective fathers. Petitioner argues that the circuit court failed to take such circumstances into
account when petitioner was “coping with difficult life circumstances which would be challenging
to a mature adult.” Finally, petitioner argues that she could have completed her improvement
period while the children are safe in a kinship placement. We find petitioner’s arguments
unavailing.
Pursuant to West Virginia Code § 49-4-610(7), a circuit court may terminate a parent’s
improvement period if she “has failed to fully participate in the terms of the improvement period.”
Here, the record is clear that petitioner failed to fully comply with the terms and conditions of her
post-dispositional improvement period. The evidence establishes that she failed to attend parenting
and adult life skills classes, participate in counseling and a domestic battery intervention program,
or maintain regular communication with her caseworkers throughout her improvement period.
The fathers’ parental rights also were terminated during the proceedings below. None of
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the children’s fathers have filed appeals. According to the parties, the permanency plan for the
children is adoption in their current foster placement.
3
Further, it is within “the court’s discretion to terminate the improvement period before the . . . time
frame has expired if the court is not satisfied that the [parent] is making the necessary progress.”
Syl. Pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996).
Although there were points in time when petitioner complied with services generally and
even appeared to resolve her substance abuse, she fails to address the fact that she did not complete
many of the other terms required by her family case plan. Petitioner argues that “as time passed
the juggling of obligations[] became a herculean task for her.” However, the record below reflects
that petitioner repeatedly failed to stay in contact with her caseworker and often cancelled visits
and services without attempts to reschedule. Additionally, petitioner showed a resistance to
complying with other portions of her case plan, such as the requirement to cease contact with an
inappropriate caregiver for the children. Petitioner argues that the DHHR’s requirement to
disassociate and avoid relationships with certain individuals “created an extremely hostile
environment in which petitioner was bound to fail.” Ultimately, however, petitioner bore the
responsibility of completing the goals of her family case plan, and she does not address her failure
to complete its terms other than arguing that she was still young and immature. “When any
improvement period is granted to a respondent [parent] . . . the [parent] shall be responsible for the
initiation and completion of all terms of the improvement period.” W. Va. Code § 49-4-610(4)(A).
Accordingly, we find that the overwhelming evidence supports the circuit court’s finding that
petitioner failed to complete the terms of her improvement period and that termination of her post-
dispositional improvement period was appropriate.
Finally, based on the evidence of petitioner’s sporadic compliance and her failure to attend
her parenting classes, counseling, or a domestic battery program, the circuit court found that
petitioner failed to follow through with the DHHR’s rehabilitative services. Importantly, this
constitutes a situation in which there is no reasonable likelihood that the conditions of abuse and
neglect can be substantially corrected in the near future under West Virginia Code § 49-4-
604(d)(3). On appeal, petitioner asserts that the circuit court’s decision to terminate her parental
rights was not in the spirit of the law, that courts should take a more compassionate view, and
courts should work harder to render aid when a parent is trying to comply. We find this argument
to be without merit and refuse to accept petitioner’s position that the DHHR did not try to remedy
her alleged difficulties. Petitioner was provided several opportunities, including a prior post-
adjudicatory improvement period. Despite her noncompliance in the first improvement period, the
circuit court granted petitioner a post-dispositional improvement period and warned petitioner that
she needed to fully comply. Ultimately, the circuit court enumerated several areas in its
dispositional order where petitioner failed to make progress as the basis for the termination of her
parental rights. The circuit court’s findings are based on substantial evidence that petitioner was
never fully compliant in her improvement periods and failed to avail herself of many of the services
offered. Moreover, the circuit court found that termination of petitioner’s parental rights was in
the children’s best interests. According to West Virginia Code § 49-4-604(c)(6), circuit courts may
terminate parental rights upon these findings. Further, we have long held that
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [West Virginia
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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). The record shows that the circuit
court had ample evidence upon which to base these findings, and we decline to disturb them on
appeal.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 10, 2020, order is hereby affirmed.
Affirmed.
ISSUED: December 10, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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