1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re L.B., A.B., and J.B.-1

No. 22-0075 (Kanawha County 21-JA-514, 21-JA-515, and 21-JA-516)

MEMORANDUM DECISION

Petitioner Father J.B.-2, by counsel Michael M. Cary, appeals the Circuit Court of 

Kanawha County’s January 10, 2022, order terminating his parental rights to L.B., A.B., and J.B.-

1.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick 

Morrisey and James Wegman, filed a response in support of the circuit court’s order. The guardian 

ad litem, Jennifer N. Taylor, filed a response on the children’s behalf in support of the circuit 

court’s order. On appeal, petitioner argues that the circuit court erred in terminating his parental 

rights without affording him a meaningful 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.

Prior to the initiation of the current proceedings, petitioner’s five-year-old child suffered 

two self-inflicted gunshot wounds while in the backseat of petitioner’s vehicle. In re E.B., 21-

0804, 2022 WL 710821, at *1 (W. Va. March 9, 2022)(memorandum decision). Petitioner denied 

all wrongdoing and his parental rights to this child were involuntarily terminated on August 25, 

2021. Id. at *2. This Court affirmed that termination. Id. at *4.

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 one child and petitioner share the same 

initials, we will refer to them as J.B.-1 and J.B.-2, respectively, throughout the memorandum 

decision.

FILED

August 31, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

The same month the circuit court terminated petitioner’s parental rights in the prior 

proceeding, the DHHR filed a new child abuse and neglect petition alleging that, upon 

investigation by the DHHR, petitioner had three other children whom he had abandoned. The 

DHHR alleged that petitioner withheld information regarding the three other children, L.B., A.B., 

and J.B.-1, in the prior proceeding and filed the underlying petition, in part, on the basis of

petitioner’s prior involuntary termination of parental rights to another child. At the preliminary 

hearing in September of 2021, petitioner acknowledged paternity of the children despite not being 

listed on their birth certificates. The court ordered petitioner to pay child support and ordered that 

his name be placed on the children’s birth certificates. 

The circuit court held an adjudicatory hearing in October of 2021. A DHHR worker 

testified consistently with the allegations in the petition and that the DHHR was required to file a 

petition regarding L.B., A.B., and J.B.-1 due to petitioner’s prior involuntary termination of

parental rights. She further stated that petitioner had not disclosed paternity of these children in 

the prior proceeding. Petitioner did not testify. Ultimately, the circuit court adjudicated petitioner 

as an abusing parent and found that there had been no change in circumstances in the conditions 

of abuse and neglect in petitioner’s prior case. The court also noted that the DHHR was relieved 

of its statutory duty to provide reasonable efforts to preserve the family due to the aggravated 

circumstances of petitioner’s prior termination of his parental rights. In late October of 2021, the 

DHHR submitted a court summary stating that at the multidisciplinary team meeting held that 

month, petitioner continued to deny all wrongdoing and failed to acknowledge the conditions of 

abuse and neglect. The DHHR recommended terminating petitioner’s parental rights.

In November of 2021, petitioner filed a motion for a post-adjudicatory improvement 

period, and the guardian filed a report recommending the termination of petitioner’s parental 

rights. That same month, the circuit court held the final dispositional hearing. A DHHR worker 

testified that the DHHR was recommending termination of petitioner’s parental rights because he 

continued to deny any wrongdoing in his prior case and there was no change of circumstances in 

the conditions of abuse and neglect that led to the filing of the instant petition. Specifically, the 

worker stated that petitioner had not contacted her regarding L.B., A.B., and J.B.-1 and that he had 

otherwise not cooperated with the DHHR or its investigations. 

During the dispositional hearing, petitioner testified that he never married the mother but 

maintained a friendship with her. He stated that he loved his children and that he would participate 

in the terms and conditions of an improvement period. He confirmed that he had paid the courtordered child support since the preliminary hearing but admitted that he had not paid child support

through the Bureau of Child Support Enforcement prior to the court’s order.

2 He stated that he 

financially supported the mother with direct payments. On cross-examination, petitioner 

confirmed that he had received childcare tax credits and other federal stimulus payments for the 

two oldest children despite the fact that they lived solely with the mother, but he claimed that he 

spent the money on the children. However, the mother testified that petitioner only gave her half 

of the federal stimulus money and confirmed that she never received regular financial support from 

petitioner until the court ordered payments at the preliminary hearing in September of 2021. She 

stated that she rarely saw petitioner. 

2

Notably, the oldest child is sixteen years old. 
3

Ultimately, the circuit court found that petitioner failed to acknowledge any responsibility 

for actions that resulted in significant physical harm to the child in the prior case and failed to 

cooperate with the DHHR and disclose paternity to L.B., A.B., and J.B.-1. The court noted 

petitioner’s criminal history, including a criminal conviction for being a person prohibited from 

possessing a firearm, and that despite this restriction, petitioner left a loaded gun in the back of his 

vehicle with the child to whom his rights were previously terminated. The court found that 

petitioner had failed to pay proper child support for L.B., A.B., and J.B.-1, and that petitioner had 

not corrected the issues that led to the filing of both the instant petition and the prior petition. The 

circuit court, therefore, concluded that there was no reasonable likelihood that the conditions of 

abuse and neglect could be substantially corrected in the near future and that termination of 

petitioner’s parental rights was necessary for the welfare of the children. The circuit court 

terminated petitioner’s parental rights by its January 10, 2022, order. Petitioner now appeals this 

order.3

The Court has previously held:

“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). 

On appeal, petitioner argues that the circuit court erred in terminating his parental rights 

without affording him a meaningful improvement period. Petitioner asserts that he testified at the 

final dispositional hearing that he would comply with the terms and conditions of an improvement 

period. According to petitioner, the court failed to give him the opportunity to demonstrate his 

willingness to comply with the DHHR’s services.4 We disagree. 

3

The mother was a nonabusing parent and retains her parental rights to L.B., A.B., and J.B.-

1. The children have achieved permanency in the mother’s custody.

4

Petitioner repeats arguments regarding his exercising his Fifth Amendment Right against 

self-incrimination that he asserted in his appeal of the prior termination of his parental rights. This 

Court previously addressed those arguments and found them unavailing. See In re E.B., 21-0804, 

2022 WL 710821 (W. Va. March 9, 2022)(memorandum decision). We decline to reconsider or 

readdress those meritless arguments.
4

West Virginia Code § 49-4-610(2)(B) provides that the circuit court may grant a parent a 

post-adjudicatory improvement period when the parent “demonstrates, by clear and convincing 

evidence, that the [parent] is likely to fully participate in the improvement period.” Further, “[t]his 

Court has explained that ‘an improvement period in the context of abuse and neglect proceedings 

is viewed as an opportunity for the . . . parent to modify his/her behavior so as to correct the 

conditions of abuse and/or neglect with which he/she has been charged.’” In re Kaitlyn P., 225 W. 

Va. 123, 126, 690 S.E.2d 131, 134 (2010) (citation omitted). However, the circuit court has 

discretion to deny an improvement period when no improvement is likely. In re Tonjia M., 212 W. 

Va. 443, 448, 573 S.E.2d 354, 359 (2002).

The record is clear that petitioner failed to demonstrate that he was likely to fully participate 

in an improvement period. The DHHR worker testified that petitioner had not reached out to her 

regarding L.B., A.B., and J.B.-1 and that, at the multidisciplinary team meeting held in October of 

2021, petitioner continued to deny any wrongdoing or otherwise acknowledge that his actions 

severely harmed one of his children. Petitioner’s lack of acknowledgment also places L.B., A.B., 

and J.B.-1 in danger, and petitioner is unable or unwilling to address his severe deficits in parenting 

without acknowledging his shortfalls. Critically, petitioner’s failure to acknowledge the conditions 

of abuse and neglect is a substantial barrier to any improvement of those conditions. This Court 

has held that “[i]n order to remedy the abuse and/or neglect problem, the problem must first be 

acknowledged.” In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation 

omitted). Moreover, the evidence showed that petitioner did not properly financially support L.B., 

A.B., and J.B.-1 and that he improperly received federal money on behalf of the two oldest 

children, with whom he did not reside. The circuit court’s finding that petitioner failed to 

acknowledge the conditions of abuse and neglect and his failure to financially provide for the 

children fully support the court’s conclusion that there was no reasonable likelihood that the 

conditions of neglect or abuse could be substantially corrected in the near future. See W. Va. Code 

§ 49-4-604(c)(6) (detailing the required findings for termination of parental rights). This Court has 

held that

“[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). The circuit court was well within 

its discretion to terminate petitioner’s parental rights based on the record presented, and we find 

no error in the circuit court’s decision.

For the foregoing reasons, we find no error in the decision of the circuit court, and its

January 10, 2022, order is hereby affirmed.

Affirmed.
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ISSUED: August 31, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice C. Haley Bunn