FILED
August 27, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
STATE OF WEST VIRGINIA OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re B.R. and G.W.
No. 21-0185 (Kanawha County 20-JA-350 and 20-JA-610)
MEMORANDUM DECISION
Petitioner Mother A.R., by counsel Edward L. Bullman, appeals the Circuit Court of
Kanawha County’s February 12, 2021, order terminating her parental rights to B.R. and G.W. 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, Jennifer
N. Taylor, 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 parental rights without first
granting her an improvement period and in failing to impose the least-restrictive dispositional
alternative. 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 August of 2020, the DHHR filed an abuse and neglect petition after allegations of
domestic violence and other inappropriate conditions came to light during a guardianship
proceeding initiated by the maternal grandmother. At the time, B.R. was the only child involved
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’s second assignment of error makes a passing reference to the denial of post-
termination visitation with the children. Petitioner’s argument in support of this assignment of
error, however, fails to include any substantive discussion of the court’s denial of post-termination
visitation, in violation of Rule 10(c) of the Rules of Appellate Procedure. Because petitioner
provides no argument in support of this assertion, we decline to address this issue on appeal.
1
in the proceedings. According to the petition, the nine-year-old child disclosed witnessing multiple
instances of domestic violence between petitioner and her boyfriend, J.W. Child Protective
Services (“CPS”) initiated an investigation, but petitioner was uncooperative. CPS attempted to
visit her home on five separate occasions, all of them unsuccessful. Petitioner participated in a
telephone interview, however, during which she denied the allegations of domestic violence. The
child made additional allegations regarding the situation in the home, but CPS was unable to
substantiate these disclosures because of their inability to inspect the home.
Shortly after the petition’s filing, the circuit court ratified the child’s emergency removal
at the preliminary hearing. During the hearing, the DHHR indicated that petitioner became more
cooperative after the child’s removal, and CPS was able to confirm that the home was unsuitable
upon inspection. According to the DHHR, in addition to being unclean, the home had structural
issues, such as missing portions of the ceilings and floors. The home also lacked furniture of any
kind, having only an air mattress in the living room. The DHHR admitted photographs of the
home’s condition during the hearing. Further, petitioner indicated that she was pregnant at the time
of the hearing. Ultimately, the court ordered that petitioner participate in drug screens, supervised
visitation, and parenting and adult life skills classes.
The following month, the DHHR filed a court summary that indicated that providers’
attempts to set up services with petitioner, including visiting her home, took several weeks because
of her lack of communication. The DHHR also indicated that petitioner missed two drug screens.
That same month, petitioner stipulated to engaging in domestic violence at adjudication, and the
circuit court found her to be an abusing and neglecting parent. In the adjudicatory order, the court
found that it would consider an improvement period for petitioner after the DHHR reported on the
success of her participation in the services already offered. The court reiterated that the DHHR
was to provide petitioner with counseling and/or therapy, drug screens, housing assistance,
parenting and adult life skills education, prenatal care, and supervised visits contingent on negative
screens.
Subsequently, petitioner gave birth to G.W. The child’s father is petitioner’s boyfriend.
The DHHR filed an amended petition to include that child in the proceedings, and the court held
hearings on the new petition in anticipation of proceeding to disposition in regard to both children.
At a hearing in December of 2020, a DHHR worker testified that petitioner had shown little
involvement in her parenting and adult life skills services. According to the witness, petitioner
claimed to be “doing most of it on her own” and refused to meet with the provider. The witness
further testified that petitioner and her boyfriend were still in a relationship and residing together,
despite their history of domestic violence. In fact, the witness indicated that petitioner and her
boyfriend hid the birth of G.W. from the DHHR and that the boyfriend told hospital staff “that he
would take the new baby and flee.” Despite the fact that petitioner was required to notify the
DHHR of G.W.’s birth, she did not do so. The children’s maternal grandmother testified to
disclosures B.R. made, including having woken up one night to petitioner screaming and the
boyfriend holding a knife to petitioner’s throat. The child also witnessed the boyfriend hit
petitioner. Additionally, the child disclosed that the boyfriend physically abused her by smacking
her.
2
Later in December of 2020, the parties held a multidisciplinary team (“MDT”) meeting,
during which the DHHR and guardian advised petitioner that their recommendation for an
improvement period was contingent on petitioner distancing herself from her boyfriend, as he
refused to participate in any services. Petitioner agreed to separate from the father and relocate to
a shelter. However, after the parties obtained a bed for petitioner, she contacted the DHHR to
refuse it. The day after this meeting, petitioner married her boyfriend.
In January of 2021, the circuit court held a dispositional hearing, during which the DHHR
presented evidence of petitioner’s refusal to separate from her husband despite their history of
domestic violence and his stated refusal to participate in services. In fact, petitioner’s husband sent
an e-mail to a service provider shortly before the dispositional hearing in which he claimed he was
not a threat to the children and had done nothing wrong. The DHHR also introduced evidence of
petitioner’s noncompliance, as she had not been in contact with any DHHR personnel for several
weeks. Petitioner testified and minimized the history of domestic violence with her
boyfriend/husband. Despite B.R. having consistently described detailed instances of domestic
violence, petitioner claimed that these incidents were remote and “mostly verbal.” Petitioner’s
husband also testified that the proceedings were “an utter waste of time. This entire thing is a
farce.” Petitioner’s counselor testified that she was treating petitioner for post-traumatic stress
disorder caused by domestic violence and her own childhood abuse. The counselor initially
indicated that petitioner had been making progress. The counselor testified, however, that she was
not aware that petitioner had recently married and that she believed “that is not the best decision.”
The counselor also indicated that petitioner’s marriage was a “significant matter that . . . should
have been disclosed” and would be “something that we will work on.” Based on the evidence, the
court found that termination of petitioner’s parental rights was not only in the children’s best
interests but was “the only viable alternative.” The court based this decision on her failure to fully
comply with services; her continued relationship with her husband; and the fact that she was not
truthful with her counselor and, in fact, actively concealed her marriage, which presented obstacles
to treatment. As such, the court found that there was no reasonable likelihood that the conditions
of abuse and neglect could be substantially corrected in the near future, terminated petitioner’s
parental rights, and denied her post-termination visitation with the children. 3 It is from the
dispositional order that petitioner appeals.
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,
3
The fathers’ parental rights were also terminated below. The permanency plan for the
children is adoption in the current foster home.
3
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 alleges that the circuit court erred in terminating her parental rights
without first granting her an improvement period. According to petitioner, she was complying with
services and making progress in her treatment such that she could remedy the conditions of abuse
and neglect. Petitioner argues that she was benefitting from therapy, and her therapist indicated
that petitioner was gaining insight and would be able to protect herself and her children. As such,
petitioner argues that additional time was necessary for her to demonstrate improvement. We do
not agree.
We have explained that a parent’s “entitlement to an improvement period is conditioned
upon the ability of the [parent] to demonstrate ‘by clear and convincing evidence that the [parent]
is likely to fully participate in the improvement period.’” In re Charity H., 215 W. Va. 208, 215,
599 S.E.2d 631, 638 (2004) (citation omitted). Here, petitioner could not satisfy this burden for
several reasons. At the adjudicatory hearing, the court indicated that it would entertain an
improvement period if the DHHR reported that petitioner complied with the services that were
already offered. While it is true that petitioner participated in some services, the record as a whole
shows that she was generally noncompliant. Indeed, at disposition, petitioner admitted that she
refused to submit to drug screens because she had not tested positive and asserted that she did not
have a drug problem. The record also demonstrates that petitioner had not been in contact with
service providers for several weeks. Further, arguably the most important issue in the proceedings
was petitioner’s history of domestic violence with her boyfriend. Although petitioner was making
progress in therapy designed to address this issue, she also willfully concealed from her therapist
the fact that she married her boyfriend. This was in spite of her agreement one day prior to the
marriage that she would separate from him, given that he refused to participate in any services
designed to remedy the domestic violence. Petitioner relies heavily on the opinion of her therapist
that she was progressing in treatment but ignores the fact that she was disingenuous during
sessions, ignored the requirement that she separate from her boyfriend, and minimized the serious
domestic violence in the home during the dispositional hearing.
As we have explained, the decision to grant or deny an improvement period rests in the
sound discretion of the circuit court. See In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345
(2015) (“West Virginia law allows the circuit court discretion in deciding whether to grant a parent
an improvement period.”); Syl. Pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996)
(“It is within the court’s discretion to grant an improvement period within the applicable statutory
requirements . . . .”). We find no abuse of this discretion, given that petitioner not only failed to
fully participate in services below, but worsened her position during the proceedings by marrying
her boyfriend one day after agreeing to leave his home. As such, petitioner is entitled to no relief.
This same evidence also supports the circuit court’s termination of petitioner’s parental
rights. On appeal, petitioner argues that she demonstrated that her parenting skills were not
4
impaired and, thus, should have been entitled to additional time to demonstrate improvement prior
to termination of her parental rights. This argument is flawed, however, as the record clearly shows
that petitioner’s parenting skills were impaired, as demonstrated by the extensive history of
domestic violence in the home and petitioner’s minimization of its severity and impact on the
children. Contrary to petitioner’s argument, “courts are not required to exhaust every speculative
possibility of parental improvement . . . where it appears that the welfare of the child will be
seriously threatened.” Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4, in part (citation
omitted). Here, petitioner’s claims that she would improve if given time are purely speculative,
given that she already failed to demonstrate compliance by continuing her relationship with her
husband, an individual who expressly refused to participate in any services designed to remedy
the conditions of abuse and neglect in the home. Simply put, petitioner’s refusal to extricate herself
from this relationship—and, in fact, worsening the situation by marrying her abuser—resulted in
continued threat of harm to the children if returned to the home.
Based on this evidence, it is clear that termination was appropriate under West Virginia
Code § 49-4-604(c)(6), given that there was no reasonable likelihood that the conditions of abuse
and neglect could be substantially corrected in the near future and that termination was necessary
for the children’s welfare. Pursuant to West Virginia Code § 49-4-604(d)(3), a situation in which
there is no reasonable likelihood that the conditions of abuse and neglect can be substantially
corrected includes one in which the parent has “not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts . . . designed to reduce or prevent the
abuse or neglect of the child.” As made clear above, despite some compliance on her part,
petitioner failed to follow through with the reasonable family case plan by not only ignoring the
requirement that she end her relationship with her boyfriend, but by taking the affirmative step of
marrying him the day after she agreed to this term. As such, it is clear that the circuit court had
sufficient evidence upon which to base this finding. Further, the court found that termination of
petitioner’s parental rights was necessary for the children’s welfare. Pursuant to West Virginia
Code § 49-4-604(c)(6), a circuit court may terminate parental rights upon such findings. Further,
as this Court has held,
“[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). Importantly, several of
petitioner’s arguments on appeal illustrate her continued failure to place the children’s needs above
her own as she suggests that their permanency should have been delayed in order for her to
demonstrate improvement. This includes her assertions that termination was inappropriate because
the father had not yet been adjudicated or because the children could have been placed in a legal
guardianship with the grandmother so that petitioner could later petition for reinstatement of her
parental rights. We do not find these arguments availing, however, because the circuit court made
the requisite findings to proceed to termination of petitioner’s parental rights in the children’s best
5
interests. Based on the overwhelming evidence in support of these determinations, we find no error
in the circuit court’s termination of petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 12, 2021, order is hereby affirmed.
Affirmed.
ISSUED: August 27, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
6