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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re K.R.

No. 23-34 (Monongalia County 21-JA-124)

MEMORANDUM DECISION

Petitioner Mother D.C.

1 appeals the Circuit Court of Monongalia County’s December 15, 

2022, order terminating her parental rights to K.R.

2 Upon our review, we determine that oral 

argument is unnecessary and that a memorandum decision affirming the circuit court’s order is 

appropriate. See W. Va. R. App. P. 21.

In November 2021, the DHS filed an abuse and neglect petition alleging that petitioner had 

abused and/or neglected her child due to substance abuse that negatively impacted her ability to 

parent. These allegations were based, in part, upon petitioner’s granddaughter3 ingesting fentanyl

while in petitioner’s care, which resulted in the child requiring medical care. During the DHS’s

investigation, petitioner admitted to using Zoloft and Xanax without a valid prescription.

In January 2022, petitioner stipulated to her substance abuse that negatively affected her 

ability to safely and appropriately parent her child and to lack of supervision in her home that led 

to injury, constituting neglect. The circuit court then adjudicated petitioner as an abusive and 

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Petitioner appears by counsel Andrew C. Cook. The West Virginia Department of Human 

Services appears by counsel Attorney General Patrick Morrisey and Assistant Attorney General 

Lee Niezgoda. Counsel Diane D. Michael appears as the child’s guardian ad litem (“the guardian”). 

Additionally, pursuant to West Virginia Code § 5F-1-2, the agency formerly known as the 

West Virginia Department of Health and Human Resources was terminated, effective January 1, 

2024, and is now three separate agencies—the Department of Health Facilities, the Department of 

Health, and the Department of Human Services. For purposes of abuse and neglect appeals, the 

agency is now the Department of Human Services (“DHS”).

2

We use initials where necessary to protect the identities of those involved in this case. See 

W. Va. R. App. P. 40(e). 

3

Although the factual basis for the DHS’s allegations against petitioner included the 

incident involving the granddaughter, the court took no action against petitioner in relation that 

that child. That child is, accordingly, not at issue on appeal.

FILED

February 7, 2024

C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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neglectful parent. Following adjudication, petitioner was granted a six-month post-adjudicatory 

improvement period in February 2022. 

In April 2022, the circuit court held a review hearing for petitioner’s improvement period. 

Evidence presented at the hearing showed that petitioner had not attended any substance abuse 

treatment; was not participating in services; and was failing drug screens, including testing positive 

for fentanyl at least eleven times in February and March 2022. Based on this evidence, the circuit 

court revoked petitioner’s improvement period and set the matter for disposition. However, the 

court directed the DHS to resend referrals for services to give petitioner an opportunity to 

participate in services prior to the next hearing. Petitioner then began participating in services and 

drug screening, and the circuit court, following the guardian’s recommendation, granted petitioner 

an extension to her post-adjudicatory improvement period by order entered July 26, 2022. 

In August 2022, the court held a hearing to review petitioner’s improvement period. 

Evidence presented showed that petitioner tested positive for fentanyl on July 25, 2022, and tested 

positive for fentanyl, opioids, and methamphetamine on August 8, 2022. Additionally, petitioner 

had not yet attended any drug treatment, and the court emphasized the importance of attending 

treatment and remaining drug-free. The court held a final review hearing in October 2022, in which 

the evidence showed that petitioner was continuing to test positive for fentanyl and had only just 

been accepted into an outpatient drug rehabilitation program, set to begin the next week. During 

the hearing, the court stressed that petitioner could not test positive for substances before the 

disposition hearing. 

The court proceeded to disposition in November 2022, where the DHS worker testified 

that, throughout the case, petitioner has not acknowledged her use of fentanyl and that, since the 

last hearing in October 2022, petitioner tested positive for fentanyl three times. The circuit court 

found that petitioner would not be able to remedy the issues that led to the filing of the petitioner 

in the near and distant future, given that petitioner was unable to remain sober and continued to 

deny her drug use and relapse, minimized the deficiencies in her parenting, and failed to complete 

substance abuse treatment during her improvement period. The court further found that termination 

of petitioner’s parental rights was necessary for the welfare of the child. Accordingly, the court 

terminated petitioner’s parental rights to the child.

4 It is from the dispositional order that petitioner 

appeals. 

On appeal from a final order in an abuse and neglect proceeding, this Court reviews the 

circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re 

Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Before this Court, petitioner argues that circuit 

court erred by terminating her parental rights because she had remedied the issues that led to the 

filing of the petition by remedying her drug use. Upon our review, we find no error. 

According to petitioner, although she continued to test positive for fentanyl throughout the 

proceedings, the levels produced in her later screens were not sufficient to have impaired her and 

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The permanency plan for the child is legal guardianship or adoption in her kinship 

placement. 
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did not reflect active use. Petitioner argues that this renders the court’s finding that there was no 

reasonable likelihood that she could substantially correct the conditions of abuse and neglect 

erroneous, because West Virginia Code § 49-4-604(d)(1) requires such use to be “to the extent that 

proper parenting skills have been seriously impaired.” However, this argument is entirely without 

merit, as the court was free to base this finding on any number of circumstances set forth in West 

Virginia Code § 49-4-604(d); the list of circumstances where there is no reasonable likelihood 

conditions can be corrected is clearly non-exhaustive. 

Broadly, West Virginia Code § 49-4-604(d) defines “[n]o reasonable likelihood that 

conditions of neglect or abuse can be substantially corrected” to mean “that, based upon the 

evidence before the court, the abusing adult or adults have demonstrated an inadequate capacity to 

solve the problems of abuse or neglect on their own or with help.” Additionally, there is no 

reasonable likelihood that conditions of neglect or abuse can be substantially corrected where the 

parent has not followed through with a reasonable family case plan and other rehabilitative efforts. 

W. Va. Code § 49-4-604(d)(3). Here, the record is replete with evidence supporting a finding that 

petitioner demonstrated an inadequate capacity to solve the problems of abuse or neglect and failed 

to comply with the terms of the family case plan. This case began because a child in petitioner’s 

care became injured after ingesting fentanyl, the very same drug for which petitioner consistently 

tested positive throughout the case. Petitioner’s argument regarding her fentanyl levels ignores 

that petitioner also tested positive for opioids and methamphetamine use during the case. Further, 

petitioner continues to deny her abuse of fentanyl even to this Court, and we have explained that 

“[f]ailure to acknowledge the existence of the problem, i.e., the truth of the basic allegation 

pertaining to the alleged abuse and neglect or the perpetrator of said abuse and neglect, results in 

making the problem untreatable.” In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) 

(citation omitted).

Despite the court stressing several times the importance of petitioner completing substance 

abuse treatment and remaining drug-free, petitioner did not complete substance abuse treatment 

and continued to test positive for substances up to the disposition hearing. Because the court had 

ample evidence upon which to base the findings necessary for termination of petitioner’s parental 

rights, we find no error in the court’s decision. See W. Va. Code § 49-4-604(c)(6) (permitting 

circuit court to terminate parental rights upon finding no reasonable likelihood conditions of 

neglect can be substantially corrected in the near future and when necessary for child’s welfare); 

see also Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (permitting termination 

of parental rights “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”).

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

December 15, 2022, order is hereby affirmed.

Affirmed.

ISSUED: February 7, 2024
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CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Elizabeth D. Walker

Justice John A. Hutchison

Justice William R. Wooton 

Justice C. Haley Bunn