FILED
June 22, 2021
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re S.R., J.M., and T.H.
No. 21-0024 (Kanawha County 20-JA-255, 20-JA-256, and 20-JA-318)
MEMORANDUM DECISION
Petitioner Mother A.H., by counsel Edward L. Bullman, appeals the Circuit Court of
Kanawha County’s December 14, 2020, order terminating her parental, custodial, and
guardianship rights to S.R., J.M., and T.H. 1 The West Virginia Department of Health and Human
Resources (“DHHR”), by counsel S.L. Evans, filed a response in support of the circuit court’s
order. The guardian ad litem, Jennifer N. Taylor, 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
terminating her parental, custodial, and guardianship rights without first giving her additional
time to participate in an improvement period.
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 June of 2020, the DHHR filed a child abuse and neglect petition alleging that
petitioner had been pulled over for a traffic violation and both she and her boyfriend were
intoxicated. The DHHR alleged that two-year-old S.R. and three-year-old J.M. were also in the
vehicle. Law enforcement discovered heroin in petitioner’s vehicle during the traffic stop. The
DHHR further alleged that petitioner was arrested in February of 2020 “with a similar criminal
complaint.” According to the DHHR, petitioner had an extensive history with Child Protective
Services (“CPS”) regarding her history of drug abuse, including methamphetamine, alcohol
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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abuse, and heroin. Finally, the DHHR alleged that seventeen-year-old T.H. was in a legal
guardianship with his maternal grandparents, and petitioner had abandoned him.
Petitioner did not appear for the preliminary hearing, which was held in August of 2020,
but she was represented by counsel. The DHHR presented testimony that was consistent with the
allegations in the petition. The circuit court ratified the removal of the children from petitioner’s
care and their placement with the maternal grandparents.
In September of 2020, the circuit court held an adjudicatory hearing. Petitioner did not
appear but was represented by counsel. The DHHR presented testimony of a CPS caseworker
who testified that she had attempted to contact petitioner for months prior to the filing of the
petition but could not locate petitioner until she had been arrested for driving under the influence
in June of 2020. According to the caseworker, petitioner left the children with their maternal
grandparents and did not contact them while traveling out of state for an extended period of time.
The case worker further testified that petitioner admitted to abusing methamphetamine, heroin,
alcohol, and marijuana. The case worker also testified that the DHHR attempted to offer
petitioner services but had been unable to make further contact with her. The case worker
explained that the last time she had contact with petitioner was two days before the preliminary
hearing. Ultimately, the circuit court found that petitioner was an abusing parent due to her
consistent substance abuse and her failure to support her children.
The circuit court held the final dispositional hearing in December of 2020. Petitioner did
not appear but was represented by counsel. The circuit court heard testimony that petitioner had
not participated in the services offered by the DHHR. A CPS case worker testified that petitioner
did not maintain contact with the DHHR and that the last contact she had with the DHHR was in
August of 2020. Furthermore, petitioner had not visited with the children since their removal
from her care. Based on her noncompliance and her failure to remedy the conditions of abuse
and neglect, the CPS worker recommended that the circuit court terminate petitioner’s parental
rights to the children. Ultimately, the circuit court found that petitioner was unable or unwilling
to provide for the needs of the children and that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected in the near future. The circuit
court concluded that it was necessary for the children’s welfare to terminate petitioner’s parental,
custodial, and guardianship rights. Accordingly, the circuit court terminated petitioner’s parental,
custodial, and guardianship rights by its December 14, 2020, order. Petitioner now appeals this
order. 2
The Court has previously held:
2
The children’s respective fathers retained their parental rights. T.H. and his father were
dismissed from the proceedings when T.H. reached the age of majority in late December of
2020. The father of S.R. and J.M. is participating in an improvement period. According to the
parties, the permanency plan for these children is reunification with their father with a concurrent
permanency plan of adoption in their current placement.
2
“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 parental rights
without providing her additional time to participate in an improvement period. She argues that
“[g]iven the nature of long-term drug abuse, it cannot be expected that [petitioner] could turn her
life around in such a short amount of time,” referencing the four-month duration of the
proceedings. She asserts that the nature of her drug abuse “would lead to setbacks” and that,
because the children were placed with family, she should have been granted additional time to
participate in services. Petitioner’s argument fails to persuade, and we find she is entitled to no
relief on appeal.
West Virginia Code § 49-4-610(2), which governs post-adjudicatory improvement
periods, requires the parent to file “a written motion requesting an improvement period” and
“demonstrate[], by clear and convincing evidence, that [they are] likely to fully participate in the
improvement period.” Further, 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); see also In re Tonjia M., 212 W. Va. 443, 448,
573 S.E.2d 354, 359 (2002) (holding that a circuit court has the discretion to deny a motion for
an improvement period when no improvement is likely).
While petitioner argues that the circuit court failed to provide her additional time to
participate in an improvement period, it appears from the record that she never requested such an
improvement period. Moreover, her counsel made no argument below to delay termination of her
parental, custodial, and guardianship rights to provide her additional time to comply with
services. “‘Our general rule is that nonjurisdictional questions . . . raised for the first time on
appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20,
524 S.E.2d 688, 704 n. 20 (1999).” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818,
821, 679 S.E.2d 650, 653 (2009). Nevertheless, it is clear on appeal that petitioner could not have
proven that she was likely to fully comply with an improvement period, even if she had filed
such a request. Petitioner presented no evidence to support such a conclusion. Rather, the
evidence presented provides that she failed to participate in any services, failed to maintain
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contact with the DHHR, and failed to even visit with the children after they were removed from
her custody. Accordingly, we find petitioner is entitled to no relief in this regard.
Furthermore, although petitioner does not directly challenge the termination of her
parental, custodial, and guardianship rights, we nevertheless find that circuit court’s order was
not in error. West Virginia Code § 49-4-604(c)(6) provides that a circuit court may terminate a
parent’s parental, custodial, and guardianship 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 of parental rights is necessary for the welfare of the children. West
Virginia Code § 49-4-604(d) sets forth that there is no reasonable likelihood that the conditions
of neglect or abuse can be substantially corrected in the near future when the parent has
“demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own or
with help.” Notably, West Virginia Code provides that such conditions exist 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.
Id. § 49-4-604(d)(3).
Here, petitioner failed to follow through with the services offered by the DHHR to
reduce or prevent the abuse and neglect of the children. She did not participate in any of the
services offered by the DHHR and did not maintain contact with her case worker or service
providers. Based on this evidence, the circuit court found that there was no reasonable likelihood
that petitioner could substantially correct the conditions of abuse and neglect because she would
not avail herself of these services. Petitioner does not challenge that finding on appeal, and, upon
our review, we find no error in that finding.
In further support, we reiterate that petitioner failed to even avail herself of visitation
with the children during the proceedings. “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) (citations omitted). Notably, petitioner argues that the children “had
a relationship with [petitioner],” but does not mention that she made no attempt to even see them
once they were removed. S.R. and J.M are young children of tender years, and we have
previously emphasized the importance of providing children permanency and stability early in
life. To that end, we have 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
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physical 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. Essentially, petitioner is arguing for an
indeterminate amount of time so that she might begin to participate in the proceedings, or the
services offered by the DHHR. We find such a request unconscionable in light of her total
noncompliance during the proceedings and the ages of S.R. and J.M.
Finally, we have 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). Because the record fully
supports the requisite findings, we find no error in the circuit court’s termination of petitioner’s
parental, custodial, and guardianship rights rather than the imposition of a less-restrictive
dispositional alternative, such as the granting of an improvement period sua sponte.
Lastly, because the proceedings regarding S.R. and J.M’s father are ongoing, this Court
reminds the circuit court of its duty to establish permanency for the children. Rule 39(b) of the
Rules of Procedure for Child Abuse and Neglect Proceedings requires:
At least once every three months until permanent placement is achieved as
defined in Rule 6, the court shall conduct a permanent placement review
conference, requiring the multidisciplinary treatment team to attend and report as
to progress and development in the case, for the purpose of reviewing the progress
in the permanent placement of the child.
Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the
children within twelve months of the date of the dispositional order. As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia
Rules of Procedure[] for Child Abuse and Neglect Proceedings for permanent
placement of an abused and neglected child following the final dispositional order
must be strictly followed except in the most extraordinary circumstances which
are fully substantiated in the record.
Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 6. Moreover, this Court has stated that
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[i]n determining the appropriate permanent out-of-home placement of a
child under [West Virginia Code § 49-4-604(c)(6)], the circuit court shall give
priority to securing a suitable adoptive home for the child and shall consider other
placement alternatives, including permanent foster care, only where the court
finds that adoption would not provide custody, care, commitment, nurturing and
discipline consistent with the child’s best interests or where a suitable adoptive
home [cannot] be found.
Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W. Va. 648, 408
S.E.2d 400 (1991).
For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 14, 2020, order is hereby affirmed.
Affirmed.
ISSUED: June 22, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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