STATE OF WEST VIRGINIA FILED
SUPREME COURT OF APPEALS April 20, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re A.B. and S.R.
No. 20-0770 (Kanawha County 20-JA-163 and 20-JA-164)
MEMORANDUM DECISION
Petitioner Mother A.R., by counsel Edward L. Bullman, appeals the Circuit Court of
Kanawha County’s August 26, 2020, order terminating her parental rights to A.B. and S.R. 1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N.
Felton-Ernest, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Jennifer R. Victor, 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 and 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 March of 2020, the DHHR filed an abuse and neglect petition alleging that petitioner
failed to provide stable housing, necessary food, shelter, medical care, and hygienic needs for the
children. Specifically, the DHHR alleged that it received a referral after the police found the
children, ages five and eight, filthy, shoeless, and flagging down traffic to beg drivers for food.
The children explained that they had not seen petitioner in two days and were living in a tent. They
appeared malnourished and one child had a bloody blister on her foot. After the police officer fed
the children, petitioner and her boyfriend appeared on scene. The police officer suspected that
petitioner was intoxicated, and her subsequent breathalyzer test showed a blood alcohol content of
.078. Further, petitioner was inexplicably clean and dressed in expensive, name brand apparel and
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).
1
jewelry. The children were taken to the hospital and their blood sugar was found to be low due to
lack of food. Petitioner explained to medical staff that she had no stable home, having recently
moved between several locations, and that she had no family. It was further determined that the
children had not been regularly attending school and were educationally behind for their ages.
Finally, the DHHR alleged that petitioner was “not sufficiently motivated and organized to provide
for the needs of the infant children on an ongoing basis” and that the children had been abandoned
when the mother left them alone and unsupervised in a tent for several days. At the preliminary
hearing held the same month, the circuit court found probable cause that the children were in
imminent danger and ordered the DHHR to provide petitioner with services such as supervised
visitations, adult life skills and parentings classes, and substance abuse treatment.
The circuit court held a contested adjudicatory hearing in June of 2020. The DHHR
presented evidence consistent with the allegations of the petition. Petitioner testified that she
provided for the children’s needs and planned on finding shelter at the time of the children’s
removal. She further testified that the children lied when they told the police that they had been
alone for two days. When asked about her current living situation, she stated that she lived with
her boyfriend at his friend’s home, rent-free, and that despite knowing the friend for only a few
weeks, she considered the friend a mother-type figure. Upon hearing the evidence presented, the
circuit court adjudicated petitioner as an abusing parent.
A multidisciplinary team (“MDT”) meeting was held in early July of 2020, during which
the team discussed petitioner’s move to Kentucky to live with her boyfriend and her refusal to
return to West Virginia. The MDT members determined that petitioner had not participated in any
services except for occasional telephone calls with the children, during which she often failed to
engage in conversation and handed the phone to her boyfriend. Petitioner further stated that she
did not have employment but was seeking a job. In late July of 2020, petitioner filed a motion for
a post-adjudicatory improvement period, asserting that she claimed responsibility for the
conditions of abuse and neglect, was willing to participate in an improvement period, obtained
employment, was seeking housing, and could complete services in Kentucky.
Prior to the dispositional hearing, the guardian filed a report stating that the children’s
educational neglect was severe and that they were very behind for their ages due to the lack of
stable schooling. The guardian explained that the children’s behavior indicated long-term neglect
as they did not know how to sit at a table to eat with utensils and delighted in regular items like
blankets, baths, pajamas, meals, and their own beds. A court appointed special advocate (“CASA”)
report submitted prior to the dispositional hearing explained that the children had been enrolled in
school only three months of the prior school year and had been enrolled in schools in Florida,
Kentucky, and Ohio in the past year.
In late July of 2020, the circuit court held a dispositional hearing, wherein petitioner failed
to appear, but counsel represented her. Petitioner’s counsel proffered on the record that he had
spoken with petitioner the day before and that she knew to attend the hearing by phone. The DHHR
and the guardian moved to terminate petitioner’s parental rights. The DHHR presented evidence
that petitioner left West Virginia with no plans to return to participate in the proceedings.
Petitioner’s excuse was that she lacked housing in West Virginia, but the DHHR worker stated
2
that she offered housing assistance to petitioner. The DHHR explained that it did not have access
to service providers in Kentucky and that petitioner did not respond when asked to locate
alternative service providers in Kentucky. According to the DHHR worker, petitioner was advised
to move back to West Virginia to participate in services to regain custody of her children. The
circuit court noted that petitioner’s supervised phone calls were not productive in that they were
short, she failed to connect with the children, often gave the phone to her boyfriend, and often
missed calls. The circuit court found that petitioner “rebuffed all other services,” moved to
Kentucky without notice, and refused to return. In light of the evidence, the circuit court found
there was no reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected in the near future and that termination of petitioner’s parental rights was necessary for
the children’s welfare. 2 The circuit court entered an order reflecting its decision on August 26,
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 denying her motion for an
improvement period. According to petitioner, the “problems that arose in the petition were related
to economic factors and [petitioner] should have been given time to improve her circumstances.”
Petitioner asserts that she and the children were homeless and travelled from state to state seeking
employment and housing. Petitioner attempted to obtain employment in West Virginia but was
unable to do so. She had a support system in Kentucky whereas she had no friends or family in
West Virginia to help her obtain employment and housing. Petitioner contends that the DHHR
should have offered her assistance, regardless of her leaving West Virginia. We find petitioner’s
arguments unavailing.
West Virginia Code § 49-4-610(2)(B) provides that the circuit court may grant a parent a
post-adjudicatory improvement period when the parent “demonstrates, by clear and convincing
2
The respective fathers’ parental rights were terminated below. The permanency plan for
the children is adoption by their current foster family.
3
evidence, that the [parent] is likely to fully participate in the improvement period.” “This Court
has explained that ‘an improvement period in the context of abuse and neglect proceedings is
viewed as an opportunity for the . . . parent to modify his/her behavior so as to correct the
conditions of abuse and/or neglect with which he/she has been charged.’” In re Kaitlyn P., 225 W.
Va. 123, 126, 690 S.E.2d 131, 134 (2010) (citation omitted). Finally, the circuit court has discretion
to deny an improvement period when no improvement is likely. In re Tonjia M., 212 W. Va. 443,
448, 573 S.E.2d 354, 359 (2002).
We find that petitioner failed to demonstrate that she was likely to fully participate in an
improvement period. While petitioner contends that the DHHR should have provided her with
services in Kentucky, the DHHR explained to her that it could only provide services in West
Virginia. In her brief, petitioner concedes that she was asked to return to West Virginia to
participate in services, and she refused to do so. She further concedes that she failed to respond to
the DHHR when asked to locate services on her own in Kentucky. Petitioner’s excuse for
abandoning the proceedings and refusing to participate in services offered by the DHHR in West
Virginia was her lack of a support system. Petitioner claims that she found such a support system
in Kentucky with her boyfriend’s friends. However, petitioner ignores the fact that the DHHR
offered her support in West Virginia. At the dispositional hearing, the DHHR worker testified that
she offered to help petitioner with housing assistance and petitioner refused. Further, at the
preliminary hearing, the DHHR was ordered to provide petitioner with supervised visitations, adult
life skills and parentings classes, and substance abuse treatment. Petitioner chose not to stay and
participate in proceedings designed to reunify the family. Petitioner failed to avail herself of
services offered by the DHHR to help her correct the conditions of abuse and neglect, and she
failed to cooperate with the DHHR to locate and obtain services in Kentucky. Moreover, petitioner
never demonstrated a genuine interest in having contact with the children as shown by her missed
visitation phone calls and inability to engage with the children during the few calls in which she
participated. See In re Katie S., 198 W. Va. 79, 90 n.14, 479 S.E.2d 589, 600 n.14 (1996) (“[T]he
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
. . . .”). In light of the overwhelming evidence that petitioner was unlikely to participate in the
terms and conditions of an improvement period, we find no error.
The above evidence likewise supports the termination of petitioner’s parental rights. West
Virginia Code § 49-4-604(c)(6) provides that circuit courts are to terminate 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 children’s
welfare. West Virginia Code § 49-4-604(d) provides that a circuit court may find that there is no
reasonable likelihood that the conditions of abuse and neglect can be substantially corrected when
the abusing parent has “demonstrated an inadequate capacity to solve the problems of abuse or
neglect on [her] own or with help.”
The record establishes that petitioner demonstrated an inadequate capacity to solve the
problems of abuse or neglect either on her own or with help. As noted above, petitioner was offered
numerous services, including housing assistance, aimed at correcting her parenting deficits,
chronic homelessness, and substance abuse problem. While petitioner contends that she could not
4
find employment in West Virginia, her testimony at the adjudicatory hearing was that she remained
unemployed in Kentucky. 3 Petitioner failed to participate in parenting and adult life skills classes
offered in West Virginia and failed to seek alternative services in Kentucky. Most importantly, she
wholly failed to address her substance abuse problem. By continuing to constantly move from one
location to another with no plans for the children’s care and education and choosing her
relationship with her boyfriend over the welfare of her children, petitioner has demonstrated that
the conditions of abuse and neglect remain unabated.
Though petitioner claims that she should have been given more time in an improvement
period to seek services, employment, and housing in Kentucky, we have held that “courts are not
required to exhaust every speculative possibility of parental improvement before terminating
parental rights where it appears that the welfare of the child will be seriously threatened.” Syl. Pt.
1, in part, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980). Based on this evidence, we cannot
find that the circuit court erred in concluding that there was no reasonable likelihood that petitioner
could correct the conditions of abuse or neglect in the near future, as petitioner demonstrated an
inadequate capacity to solve the problems of abuse and neglect on her own or with help. We
likewise find that termination of petitioner’s parental rights was necessary for the children’s
welfare as their educational and general neglect would likely continue if placed back in the
mother’s care due to her failure to address her substance abuse problem and inability to provide a
stable and safe home environment for the children.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 26, 2020, order is hereby affirmed.
Affirmed.
ISSUED: April 20, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
3
Petitioner’s motion for a post-adjudicatory improvement period asserted that petitioner
obtained employment, but there is no evidence in the record of said employment.
5