                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                     FILED
In re K.P.-1.
                                                                                 March 12, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 17-0918 (Nicholas County 17-JA-7)                                            SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Mother, K.P.-2, by counsel Denise N. Pettijohn, appeals the Circuit Court of
Nicholas County’s September 6, 2017, order terminating her parental rights to K.P.-1.1 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 (“guardian”), Amber R.
Hinkle, filed a response on behalf of the child in support of the circuit court’s order. Petitioner
filed a reply. On appeal, petitioner argues that the circuit court erred in (1) denying her motion
for a post-adjudicatory improvement period; (2) finding that there was no reasonable likelihood
that the conditions of abuse and neglect could be substantially corrected in the near future; and
(3) finding that the length of time necessary for petitioner to correct the conditions of abuse and
neglect would have a negative impact on the child.

        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.

        On January 24, 2017, the DHHR filed a petition alleging that the infant, K.P.-1, tested
positive for methamphetamine at birth and that petitioner tested positive for opiates. The DHHR
alleged that petitioner voluntarily relinquished her parental rights to two older children due to her
drug addiction issues and that petitioner had received services including parenting and adult life
skills, drug screens, and inpatient drug rehabilitation, which were unsuccessful. In the instant
case, petitioner waived her preliminary hearing. On March 2, 2017, the circuit court held an
adjudicatory hearing wherein petitioner stipulated that her substance abuse issues impaired her
ability to care for the child and was adjudicated as an abusing parent. She moved for a post-
                                                            
              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). Additionally, because the child and petitioner have the same
initials, they will be referred to as K.P.-1 and K.P.-2, respectively, throughout this memorandum
decision.


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adjudicatory improvement period and her motion was held in abeyance until the dispositional
hearing.

         On April 20, 2017, the circuit court held a dispositional hearing wherein a psychologist
testified that petitioner was unlikely to be able to parent effectively. He further stated that no
services or interventions could reasonably be expected to improve petitioner’s parenting within a
reasonable amount of time. A child protective services (“CPS”) worker testified that in the prior
abuse and neglect case, petitioner received numerous services, including long-term drug
rehabilitation, which petitioner failed to complete. According to the CPS worker, petitioner
began another rehabilitation program in June of 2015, which she also failed to complete.

        On May 3, 2017, the circuit court held a dispositional hearing wherein petitioner testified
that she was participating in a residential drug treatment program. She further testified that she
had been in that same program before, but did not complete it. In total, petitioner entered four
drug treatment programs and completed none of them. She also testified she voluntarily
relinquished her parental rights to two children in 2016 due to her drug abuse issues and
relinquished guardianship of two other children for “personal reasons,” referring to her
involvement in operating a methamphetamine laboratory that ultimately led to her incarceration
in 2011. Petitioner also admitted that she abused drugs throughout her pregnancy with K.P.-1.
The circuit court continued the dispositional hearing to give petitioner an opportunity to obtain
documentation from the drug treatment program. On June 21, 2017, the circuit court held a
dispositional hearing at which the founder of the residential drug treatment program testified that
he believed petitioner was making progress in her treatment and that she had been sober for
nearly sixty days. He further testified that she was six months away from completing the
program. The circuit court continued the dispositional hearing for further evidence.

         On July 25, 2017, the circuit court concluded the dispositional hearing. A psychologist
testified that he received updated information from petitioner’s treatment program, but
maintained that petitioner’s prognosis for improvement remained “non-existent.” He explained
that petitioner would require months of additional treatment after her discharge from residential
treatment and estimated that petitioner may be successful with treatment after approximately
twenty months. The psychologist further explained that the child would be harmed if the circuit
court were to wait for the possibility of petitioner achieving rehabilitative success and obtaining
effective parenting skills. A different psychologist testified that petitioner has never managed
responsibilities of employment, a home, or children and further explained that there was “almost
no basis in [petitioner’s] background for her ever having established herself as a capable adult,
much less a parent.” Based upon the evidence presented, the circuit court found that due to the
unlikelihood of petitioner successfully addressing the conditions and circumstances of abuse and
neglect, and the long period of time it would take for said circumstances and conditions to be
successfully addressed, it could be harmful to permit the infant, who is less than one year old, to
establish a relationship with petitioner. Further, the circuit court found that it was in the best
interests of the child to achieve permanency. Ultimately, the circuit court denied petitioner’s




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motion for a post-adjudicatory improvement period and terminated petitioner’s parental rights in
its September 6, 2017, order.2 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.

        First, petitioner argues that the circuit court erred in denying her motion for a post-
adjudicatory improvement period because she was successfully participating in a drug treatment
program. West Virginia Code § 49-4-610(2)(B) provides that in order to be granted a post-
adjudicatory improvement period, the parent must “demonstrate[ ], by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period.” We have also
held 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).

        Although petitioner and the founder of her treatment program testified that petitioner
was, at the time of the dispositional hearing, successfully participating in her drug abuse
treatment program and sober for sixty days, the evidence shows that petitioner was never
successful in completing treatment, despite entering programs four different times. Each time she
left a treatment program, she began abusing drugs again, and continued to abuse drugs
throughout her pregnancy with K.P.-1. Further, petitioner failed to benefit from services that
were offered to her as a result of an abuse and neglect case involving two of her older children.
Petitioner voluntarily relinquished her parental rights to the two children due to her continued
drug abuse. Based on this evidence, petitioner did not meet the applicable burden to be granted a
post-adjudicatory improvement period. Therefore, we find the circuit court did not abuse its
discretion in denying petitioner’s motion for a post-adjudicatory improvement period.


                                                            
              2
         The father’s parental rights were also terminated below. According to the guardian and
the DHHR, the child is placed in foster care with her siblings and the permanency plan for the
child is adoption in that home.
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        Next, petitioner argues that the circuit court erred in finding that there was no reasonable
likelihood that she could correct the conditions of abuse and neglect in the near future. Petitioner
further argues that pursuant to West Virginia Code § 49-4-605,3 the DHHR should not have
moved for termination of her parental rights because, if she successfully completed drug
treatment in December of 2017, she would “still have five more months before the mandatory
requirements of section 49-4-605 were triggered.” However, petitioner fails to recognize that the
statute simply mandates circumstances in which the DHHR is required to seek termination and
does not prevent the DHHR from moving to terminate parental rights before the child has been in
foster care for fifteen months.

        West Virginia Code § 49-4-604(c)(3) provides that no reasonable likelihood that the
conditions of abuse or neglect can be substantially corrected exists when “[t]he abusing parent . .
. ha[s] not responded to or followed through with a reasonable family case plan or other
rehabilitative efforts[.]”

        As discussed above, petitioner had a history of substance abuse which led her to enter,
but fail to complete, drug treatment programs four times prior to these proceedings. At the time
of the dispositional hearing, petitioner was six months away from completing her treatment
program. If she completed the program, there is no evidence that petitioner could support herself
and her child, as she has never been able to support herself or children. Prior to this case,
petitioner voluntarily relinquished her parental rights to two children and her guardianship rights
to two other children. According to the psychologist, petitioner’s prognosis for improvement was
“non-existent.” Due to her poor prognosis for improvement, the circuit court found it necessary
to establish permanency for the child, rather than delay disposition of the proceedings to wait for
petitioner’s possible rehabilitative success. Therefore, we find no error in the circuit court’s
finding that there was no reasonable likelihood that petitioner could correct the conditions of
abuse and neglect in the near future and terminating petitioner’s parental rights.

       Finally, petitioner argues that the circuit court erred in finding that the length of time
necessary for petitioner to correct the conditions of abuse and neglect would have a negative
impact on the child. Petitioner again argues that under West Virginia Code § 49-4-605(a)(1), the
DHHR should not have moved to terminate petitioner’s parental rights. However, as discussed
above, that statute does not apply here. Petitioner further asserts that the estimated twenty
months for petitioner to achieve rehabilitative success is an “impossible standard.” We disagree.
              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
                                                            
              3
                  West Virginia Code § 49-4-605(a)(1) provides that

              the department shall file or join in a petition or otherwise seek a ruling in any
              pending proceeding to terminate parental rights: (1) If a child has been in foster
              care for fifteen of the most recent twenty-two months as determined by the earlier
              of the date of the first judicial finding that the child is subjected to abuse or
              neglect or the date which is sixty days after the child is removed from the home.
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       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
       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).
Syl. Pt. 4, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). A psychologist testified at the
dispositional hearing that it was not possible for petitioner to acquire the skills necessary to
effectively parent her child. Further, even if petitioner successfully completed her treatment
program, her child would have been in foster care for the first year of her life and the circuit
court found that it was in the child’s best interests to achieve permanency in a foster home with
her siblings. We have further held that, “[i]n making the final disposition in a child abuse and
neglect proceeding . . . [t]he controlling standard that governs any dispositional decision remains
the best interests of the child.” Syl. Pt. 4, In re B.H., 233 W.Va. 57, 754 S.E.2d 743 (2014). Here,
the circuit court found that due to the unlikelihood of petitioner to succeed in treatment and to
address the issues of abuse and neglect, termination of petitioner’s parental rights was in the
child’s best interests and we agree.
      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 6, 2017, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: March 12, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
 
 




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