A. Precedents Cited and Their Influence

1. Standard of Review: In re Cecil T.

The Court began by reiterating the familiar standard of review from Syllabus Point 1 of In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011):

• Findings of fact in abuse and neglect cases are reviewed for clear error;
• Conclusions of law are reviewed de novo.

This framework matters because Mother’s appeal attacked both factual determinations (e.g., whether she accepted responsibility, whether conditions were likely to be corrected) and legal/evidentiary rulings (admission of expert report, interpretation of statutes on improvement periods and reasonable efforts).

2. Evidentiary Discretion: In re J.S.

The Court relied on Syllabus Point 3 of In re J.S., 233 W. Va. 394, 758 S.E.2d 747 (2014), which emphasizes that:

The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence . . . are committed to the discretion of the trial court.

This precedent sets the high bar for overturning evidentiary rulings on appeal—particularly relevant to Mother’s attempt to exclude the forensic psychological evaluation.

In re J.S. was also invoked for another key principle: in a bench trial, the circuit judge is presumed to know and apply the law correctly, and to weigh evidence appropriately. Thus, even if an expert relies on contested data, the judge is presumed capable of discounting portions he or she deems unreliable.

3. Expert Opinion Bases and Hearsay: Mayhorn v. Logan Medical Foundation

Mayhorn, 193 W. Va. 42, 454 S.E.2d 87 (1994), interprets Rule 703 and allows experts to base opinions on:

• Personal observations;
• Facts or data admissible in evidence provided at or before trial;
• Information otherwise inadmissible (including hearsay), if reasonably relied upon by experts in the field.

Mayhorn explicitly recognizes that expert opinions often rest on reports and observations of others—even if that means the expert is, in a sense, basing opinions on hearsay. The key is that:

[I]t is the expert's opinion, rather than the underlying unadmitted hearsay, which constitutes the primary evidence.

The Court here draws on Mayhorn to reject Mother’s contention that the presence of “hearsay within hearsay” in the sources relied upon by Dr. Saar rendered his evaluation inadmissible. Instead, such materials are precisely the sort of information experts in forensic psychology reasonably rely upon.

4. Broad Admissibility and Weight vs. Admissibility: Rozas, Gentry, and Wendy’s

Several precedents are marshaled to underscore the generous approach West Virginia takes to expert testimony under Rule 702:

• Rozas v. Rozas, 176 W. Va. 235, 342 S.E.2d 201 (1986), establishes that expert testimony is admissible when the expert’s specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, and that trial judges have “broad discretion” under Rule 702.
• Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171 (1995), emphasizes that:
  • There is a strong preference for admitting expert testimony;
  • Disputes over methodology, credentials, or lack of textual authority typically go to weight, not admissibility;
  • “Conventional devices” such as cross‑examination and rebuttal evidence are the primary tools for challenging expert testimony.
• San Francisco v. Wendy's Int'l, Inc., 221 W. Va. 734, 656 S.E.2d 485 (2007), further articulates the two‑part Rule 702 inquiry—expert qualification and reliability/relevance—and again stresses the strong preference for admitting evidence that may assist the factfinder.

These cases collectively underpin the Court’s conclusion that:

• It was not an abuse of discretion for the circuit court to admit the Saar report despite alleged deficiencies; and
• The circuit court appropriately treated Mother’s criticisms of the report as issues affecting weight and credibility, explored via cross‑examination.

5. Acknowledgment of Problems and Improvement Periods: In re Timber M., In re Tonjia M., and In re Z.D‑1

The Court reiterates a central theme from In re Timber M., 231 W. Va. 44, 743 S.E.2d 352 (2013):

Failure to acknowledge the existence of the problem . . . makes the problem untreatable and [makes] an improvement period an exercise in futility at the child's expense.

This principle directly supports the denial of an improvement period. Because Mother continued to blame B.P. and minimized her own role, the Court agreed that she had not meaningfully acknowledged the problem.

In re Tonjia M., 212 W. Va. 443, 573 S.E.2d 354 (2002), is cited for the proposition that courts have discretion to deny improvement periods “when no improvement is likely.” The two psychological evaluations—both concluding a poor prognosis for change—made that standard particularly easy to meet here.

Finally, the Court relies on In re Z.D‑1, 251 W. Va. 743, 916 S.E.2d 375 (2025), for the current statutory standard under West Virginia Code § 49‑4‑610:

[A] parent respondent may be granted an improvement period upon a showing by clear and convincing evidence that he or she is likely to fully participate.

This is critical, because Mother argued under an outdated pre‑2015 standard suggesting that improvement periods “shall be allowed” absent compelling reasons to deny them. The Court makes clear that such reliance is legally incorrect.

6. Credibility Determinations: Michael D.C. v. Wanda L.C.

Michael D.C. v. Wanda L.C., 201 W. Va. 381, 497 S.E.2d 531 (1997), is cited for a basic but important rule: appellate courts do not reweigh witness credibility. That is the trial court’s domain.

Thus, when the circuit court found that Mother’s testimony did not reflect meaningful acceptance of responsibility, the Supreme Court deferred to that judgment.

7. Termination Without Lesser Alternatives: In re Kristin Y.

Syllabus Point 5 of In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), is invoked for the proposition that:

Termination of parental rights . . . may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood . . . that conditions of neglect or abuse can be substantially corrected.

Having affirmed the “no reasonable likelihood” finding under § 49‑4‑604(d), the Court had no difficulty affirming termination as the appropriate and necessary disposition.

B. The Court’s Legal Reasoning

1. Admissibility of the Forensic Psychological Evaluation (Rules 702 and 703)

a. Mother’s Challenges

Mother argued the Saar report should have been excluded because:

• It relied on “hearsay within hearsay,” including a nurse’s report to CPS about B.P.’s statements;
• It allegedly relied on speculation and inaccuracies in the DHS family functioning assessment;
• It supposedly mischaracterized the prior Wood County case as involving failure to supervise;
• It claimed Mother had received “years” of services when she asserts she had only “nine months”;
• It emphasized a video of Husband attacking B.P. that Saar initially had not personally viewed.

Mother framed these arguments under Rule 703 (bases of expert opinion), and notably did not challenge admissibility under Rule 702 (qualification, relevance, reliability).

b. Rule 703: Permissible Reliance on Hearsay

The Court first addressed Rule 703. Under that rule, an expert may base an opinion on facts or data the expert has been made aware of, including information that would itself be inadmissible at trial, if experts in that field would reasonably rely on such data.

Applying Mayhorn, the Court held:

• An expert’s use of second‑hand reports—such as summaries from medical staff or CPS workers—is not a basis for exclusion as long as such reliance is standard in the field;
• The key “evidence” is the expert’s opinion itself; the underlying hearsay does not become substantive evidence merely by being referenced.

Therefore, even if some underlying data were hearsay, that did not render the expert’s opinion inadmissible.

c. Factual Inaccuracies and Weight vs. Admissibility

For alleged factual errors (e.g., whether the prior case included failure to supervise, or whether services lasted “years” vs. “nine months”), the Court concluded these go to the weight of the expert’s opinion, not its admissibility.

Several points are significant:

• The Court independently examined the prior Wood County petition and Mother’s own testimony and concluded that the earlier matter did, in fact, implicate supervision concerns—undercutting Mother’s claim that this was a “false” premise.
• Discrepancies about the exact duration of services did not undermine the core conclusion that Mother had previously received services and failed to internalize them.
• Once Saar later watched the video in court, he testified that it was as described in the written materials and that his opinion remained unchanged.

d. Rule 702 and the Trial Court’s Gatekeeping Role

Although Mother did not raise Rule 702, the Court still considered its application and reiterated:

• Under Rule 702 and cases like Rozas, Gentry, and Wendy’s, trial judges have broad discretion to admit expert testimony;
• There is a “strong and undeniable preference” for admitting evidence that may assist the judge;
• Traditional adversarial tools—cross‑examination and competing experts—are the primary means to test reliability.

Here, the circuit court:

• Allowed extensive cross‑examination of Saar about his sources and assumptions;
• Considered the defense‑retained second evaluation (which, importantly, largely agreed with Saar on poor prognosis);
• Explicitly stated that any issues would affect the weight assigned to the report.

The Supreme Court, applying In re J.S., presumed the circuit judge understood and complied with the evidentiary rules, especially in a bench trial. Because the record contained no indication that the circuit court misapplied the law or abdicated its gatekeeping role, there was no abuse of discretion.

2. Denial of a Post‑Adjudicatory Improvement Period

a. Old vs. New Statutory Standard

Mother argued under older case law (e.g., State ex rel. WVDHS v. Cheryl M., 177 W. Va. 688, 356 S.E.2d 181 (1987), and In re Emily, 208 W. Va. 325, 540 S.E.2d 542 (2000)) that improvement periods should be granted absent compelling circumstances to deny them.

The Court corrected this misstatement:

• The old statute, then codified at § 49‑6‑2(b), was repealed in 2015.
• The current statute, § 49‑4‑610, as construed in In re Z.D‑1, places the burden squarely on the parent to show by clear and convincing evidence that he or she is likely to fully participate in an improvement period.

Thus, the modern presumption is not in favor of an improvement period; instead, the parent must affirmatively prove

b. Failure to Accept Responsibility as a Barrier to Improvement Periods

The Court adopted the circuit court’s reliance on Timber M.: a parent’s refusal to acknowledge core problems renders an improvement period futile and “untreatable.”

Here, the circuit court found—and the Supreme Court affirmed—that:

• Mother persisted in blaming B.P. for her meth abuse and for the circumstances leading to DHS involvement;
• She minimized her own responsibility for leaving the children unsupervised and failing to protect B.P. from Husband’s violent assault;
• Her testimony at disposition confirmed she had not internalized the seriousness of her conduct.

These credibility findings are “virtually unreviewable” on appeal under Michael D.C. The Court thus concluded Mother had not met her clear‑and‑convincing burden to show she would fully participate in and benefit from a new improvement period.

c. Prior Services and Poor Prognosis

The Court also emphasized:

• Mother had already participated in services in the prior Wood County case (including parenting classes and drug screens) and had “successfully completed” that improvement period;
• Yet, within about a month—while services were still in place—she admitted using methamphetamine and leaving the children unsupervised as she slept, leading directly to the house fire;
• Both Saar and the independent evaluator from Hudson Forensic Psychology concluded that her prognosis for improved parenting was poor or extremely poor.

These factors allowed the circuit court to reasonably conclude that “no improvement is likely,” justifying denial of another improvement period under Tonjia M.

3. Termination of Parental Rights

a. Statutory Framework: § 49‑4‑604(c)(6) and (d)

West Virginia Code § 49‑4‑604(c)(6) allows termination when:

• There is no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected in the near future; and
• Termination is necessary for the child’s welfare.

Section 49‑4‑604(d) explains that “no reasonable likelihood” exists where the parent has shown an inadequate capacity to solve the problems of abuse/neglect on their own or with help.

b. Application to the Facts

The Court found ample evidence supporting the circuit court’s “no reasonable likelihood” finding, including:

• Mother’s repeated and serious failures of supervision, culminating in a seven‑year‑old accessing a gas can and torch lighter to burn down the house;
• Her methamphetamine use in the home while the children were present;
• Her failure to protect B.P. from Husband’s “violent” physical assault, captured on video while she lay in bed nearby;
• Her decision to continue leaving B.P. in Husband’s care even after Husband pled guilty to assaulting him;
• Evidence that she had previously received services, “successfully completed” them, and yet relapsed into even more dangerous behavior almost immediately afterward;
• Two consistent expert evaluations concluding a poor or extremely poor prognosis for improved parenting within the relevant timeframe;
• Recommendations from the CASA, guardian ad litem, and CPS case manager all favoring termination.

In this context, the Court held that the circuit court’s findings were not clearly erroneous, and thus permissible under § 49‑4‑604(c)(6) and (d).

Relying on Kristin Y., the Court reaffirmed that once such findings are made, termination may proceed without resort to less restrictive alternatives (such as long‑term guardianship or another improvement period).

4. Reasonable Efforts and “Aggravated Circumstances”

a. The Statutory Text

Under § 49‑4‑604(c)(7)(A), DHS is generally required to make “reasonable efforts” to preserve and reunify the family. However, that duty is excused when the court determines that the parent has subjected the child to “aggravated circumstances,” which:

include, but are not limited to, abandonment, torture, chronic abuse, and sexual abuse.

The opinion emphasizes the non‑exhaustive nature of this list.

b. Totality of the Circumstances in This Case

The circuit court did not formally label the conduct as abandonment, torture, chronic abuse, or sexual abuse, but treated the situation as aggravated under a “totality of the record” analysis. A CPS supervisor testified that this was an “aggravated circumstances” case because:

• There had been serious physical abuse of B.P.;
• Mother had already been given services in the Wood County case, yet her parenting did not improve;
• Instead, circumstances escalated to meth use in the home, unsafe supervision, and a house fire set by a young child.

The Supreme Court agreed, characterizing the aggravated circumstances as arising from:

• The “egregious nature” of Mother’s conduct;
• Her methamphetamine use in the home with children present;
• Her failure to supervise, leading to a catastrophic fire;
• The recency and ineffectiveness of prior services.

c. Legal Significance

By affirming this reasoning, the Court effectively:

• Confirms that “aggravated circumstances” is a flexible standard not confined to the enumerated examples;
• Signals that repeat involvement with CPS, combined with life‑threatening safety incidents after services have been provided, can qualify as aggravated circumstances;
• Permits DHS, in such scenarios, to move more quickly toward termination without being required to offer further reasonable efforts at reunification.

This interpretation aligns with the goals of the federal Adoption and Safe Families Act (ASFA), which encourages states to forgo reunification efforts where children have been exposed to particularly grave or repeated harm and where prior services have failed.