STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In Re: K.J. FILED 

June 2, 2014 

No. 14-0019 (Mercer County 13-JA-065) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother filed this appeal by her counsel, Michael P. Cooke, from an order 

entered December 13, 2013, in the Circuit Court of Mercer County, which terminated her 

parental rights to twenty-month-old K.J. The guardian ad litem for the child, Patricia Kinder 

Beavers, filed a response in support of the circuit court’s order. The Department of Health and 

Human Resources (“DHHR”), by its attorney, Michael L. Jackson, also filed a response in 

support of the circuit court’s order. Petitioner argues that the circuit court erred when it failed to 

grant her 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. 

Late in the evening on May 30, 2013, Petitioner Mother requested her friend J.C. care for 

the child. Upon retrieving the child from Petitioner Mother’s home and returning to her own 

home, J.C. observed that the child had a black eye and other marks on her face and body. After 

receiving a referral based on these injuries, the DHHR visited petitioner’s home, which smelled 

of alcohol and had a bucket of empty beer bottles on the front porch. While the child was 

examined at the hospital, petitioner kept falling asleep and later left the hospital without the child 

and without inquiring about the child’s test results or care. The DHHR’s abuse and neglect 

petition followed, alleging these events and that the cause of the child’s multiple facial 

contusions, bodily injuries, bruises, and cuts were unknown; that when asked about the child, 

petitioner gave the child’s incorrect age; that when petitioner observed the child’s facial injuries, 

she stated that she “didn’t do [that]”; and that petitioner agreed to a temporary protection plan for 

the child to stay with a relative. Petitioner waived her right to a preliminary hearing. 

At the adjudicatory hearing in September of 2013, petitioner’s caseworkers testified that 

petitioner had been testing positive for cocaine and opiates in all of her drug screens and had 

been missing her visits with the child. Petitioner testified that she had no knowledge of the cause 

of her child’s injuries and that she would be willing to go to treatment for her drug addiction. 

Petitioner also testified that she had been working construction jobs for a man she depended on 

for housing. This man testified that he had not observed any injuries on the child and that he was 

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arrested for cocaine possession about a year prior. Petitioner’s brother testified that petitioner 

previously lost custody to two other children. 

After considering this evidence along with a physician’s letter that opined that the child’s 

injuries were highly suspicious and were sustained as a result of physical assault, the circuit court 

adjudicated the child as abused and neglected and found that her serious bodily injuries 

constituted aggravated circumstances under West Virginia Code § 49-6-3(d)(1). The circuit court 

subsequently denied petitioner’s written motion for a post-adjudicatory improvement period. 

Ultimately, in December of 2013, after hearing further testimony at petitioner’s dispositional 

hearing, the circuit court terminated petitioner’s parental rights to the child. Petitioner now 

brings this appeal. 

This 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). 

Petitioner’s sole argument on appeal is that the circuit court erred when it failed to grant 

her a post-adjudicatory improvement period. Petitioner asserts that she openly admitted to having 

a drug problem and that she would participate in substance abuse treatment. Petitioner asserts 

that these admissions provided clear and convincing evidence that she would have complied with 

the terms of an improvement period. 

Upon our review of the record, we find no error by the circuit court. West Virginia Code 

§ 49-6-12(b) directs that a circuit court has the discretion to grant a post-adjudicatory 

improvement period if the subject parent has filed a written motion for an improvement period 

that demonstrates by clear and convincing evidence that he or she is likely to fully participate in 

the improvement period. We have also held as follows: 

“[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 

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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). Under West Virginia Code § 

49-6-3(d)(1), the DHHR is also not required to make reasonable efforts to preserve the family if 

the circuit court has determined that aggravated circumstances exist. 

Our review of the record reveals that petitioner made no efforts to treat her drug abuse 

while this case was open. Specifically at the adjudicatory hearing, after which petitioner filed her 

motion for an improvement period, several caseworkers and other witnesses testified that 

petitioner continued to test positive for cocaine and opiates, missed visitation with the child, and 

missed parenting and adult skills classes. One caseworker testified that, against medical advice, 

petitioner checked herself out of a short-term substance abuse treatment program the same day 

she checked in. This evidence supports the circuit court’s decision to deny petitioner’s motion 

for a post-adjudicatory improvement period. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: June 2, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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