SUPREME COURT OF APPEALS
FILED
In re: J.W.
October 23, 2017
RORY L. PERRY II, CLERK
No. 17-0507 (Hampshire County 16-JA-95) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother H.W., by counsel John H. Treadway Jr., appeals the Circuit Court of
Hampshire County’s April 28, 2017, order terminating her parental rights to J.W.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Joyce
E. Stewart, filed a response on behalf of the child in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in denying her motion for post-termination
visitation.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 December of 2016, the DHHR filed a petition alleging abuse and neglect against
petitioner. The petition alleged that petitioner failed to correct the conditions of abuse and
neglect, which led to her prior involuntary terminations or voluntary relinquishments of parental
rights to her five older children. The DHHR alleged that the primary issues which led to
petitioner’s prior involuntary terminations and voluntary relinquishments were her chronically
unfit living conditions, her relationship with the children’s substance-abusing father, and her
dishonesty and lack of improvement regarding those conditions despite extensive services.
Petitioner waived her preliminary hearing.
In March of 2017, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to aggravated circumstances. The circuit court found that petitioner had purposely
deceived it regarding the parentage of the child, continued a relationship with her ex-husband
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
On appeal, petitioner does not raise a specific assignment of error regarding the circuit
court’s termination of parental rights.
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that was adverse to her and the child’s best interest, and that the physical conditions of her living
environment had not changed from the prior cases and was unfit for habitation. The circuit court
also found that the DHHR was not required to make reasonable efforts to provide services for
reunification.
In April of 2017, the circuit court held a dispositional hearing wherein it denied
petitioner’s motion for post-termination visitation and found that there was no evidence that such
contact could serve the best interest of the child. The circuit court also found that there was no
reasonable likelihood that petitioner could substantially correct the conditions of her chronic
abuse and neglect and ultimately terminated her parental rights in its April 28, 2017, order.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, 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 our review, the Court finds
no error in the proceedings below.
In her sole assignment of error, petitioner argues that the circuit court erred in terminating
her motion for post-termination visitation. In support of her argument, petitioner asserts that she
was never able to form a bond with her child because she was not allowed visitation during the
proceedings below. This court has previously held that
“[w]hen parental rights are terminated due to neglect or abuse, the circuit
court may nevertheless in appropriate cases consider whether continued visitation
or other contact with the abusing parent is in the best interest of the child. Among
other things, the circuit court should consider whether a close emotional bond has
been established between parent and child and the child’s wishes, if he or she is of
appropriate maturity to make such request. The evidence must indicate that such
3
Petitioner’s parental rights to the child were terminated below. The father of the child
voluntarily relinquished his parental rights. According to the guardian and the DHHR, the child
is in a foster home with a goal of adoption in that home.
2
visitation or continued contact would not be detrimental to the child’s well being
and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
446, 460 S.E.2d 692 (1995).
Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002). Here, the circuit court found
no evidence that post-termination visitation would serve the best interest of the child. The DHHR
established that the primary issues that led to petitioner’s prior involuntary terminations and
voluntary relinquishments were her chronically unfit living conditions, her relationship with the
children’s substance-abusing father, and her dishonesty and lack of improvement regarding these
conditions despite extensive services. Although petitioner did not have visitation with the child
during the proceedings to establish a bond with the child, we find the circuit court did not err in
denying post-termination visitation when there was no evidence that petitioner had corrected the
conditions of abuse and neglect that led to the prior involuntary terminations and voluntary
relinquishments of her parental rights to older children. Therefore, petitioner is not entitled to
relief in this regard.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 28, 2017, dispositional order is hereby affirmed.
Affirmed.
ISSUED: October 23, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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