1 

STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS

In re D.K. and N.K. 

No. 18-0646 (Randolph County 2017-JA-064 and 2017-JA-065)

MEMORANDUM DECISION 

Petitioner Mother J.F., by counsel Melissa T. Roman, appeals the Circuit Court of 

Randolph County’s June 14, 2018, order terminating her parental rights to D.K. and N.K.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”), G. 

Phillip Davis, filed a response on behalf of the children in support of the circuit court’s order. On 

appeal, petitioner argues that the circuit court erred in terminating her parental rights. 

 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 August 25, 2017, the DHHR filed an abuse and neglect petition alleging that 

petitioner abused methamphetamine and was unable to provide proper care for the children. On 

August 23, 2017, a police officer responded to a call from petitioner’s neighbor and found N.K. 

wandering in the yard. According to the officer, he remained at the scene with the child for fortyfive minutes. During that period, neither parent searched for the two-year-old child. Additionally, 

the DHHR received a referral in July of 2017 that reported petitioner was under the influence of 

methamphetamine in the home while the children were there. At that time, the father was 

“passed out cold” and there were six other men in the home that were under the influence of 

methamphetamine. Upon investigation, a Child Protective Services (“CPS”) worker observed 

very little furniture and little food in the home. The children were observed to be “unkempt, 

dirty,” and appeared to not have bathed in several days. The CPS worker observed that D.K. had 

knots in his hair from his hair not being combed. She also observed that N.K.’s diaper was full 

and had not been changed in several hours. Petitioner was interviewed by the CPS worker and 

admitted to a history of substance abuse, but denied that she was currently abusing any 

 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). 

FILED 

November 19, 2018 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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substances. However, petitioner told the CPS worker that she did not want to voluntarily drug 

screen because “occasionally after she gets her bills paid up . . . she will go buy a bag of crystal 

meth.” Petitioner waived her preliminary hearing. 

On October 3, 2017, the circuit court held an adjudicatory hearing during which 

petitioner stipulated to the allegations of abuse and neglect. Accordingly, petitioner was 

adjudicated as an abusing parent and was granted a post-adjudicatory improvement period. On 

November 14, 2017, the circuit court held a review hearing. The DHHR reported that petitioner 

had not been fully compliant with her post-adjudicatory improvement period and that they 

received a report that petitioner had recently overdosed. However, during a January 2, 2018, 

review hearing, the DHHR reported that petitioner was complying with the terms and conditions 

of her post-adjudicatory improvement period. On February 15, 2018, the circuit court held a 

review hearing and was advised that petitioner recently tested positive for substances. 

Nevertheless, the circuit court ordered that petitioner’s improvement period continue under the 

previously ordered terms. On March 21, 2018, petitioner failed to appear for the scheduled 

review hearing, but was represented by counsel. Petitioner’s counsel reported that she spoke to 

petitioner a few weeks prior, but that she did not know why petitioner did not attend the hearing. 

The circuit court continued the hearing. However, petitioner also failed to appear for the 

rescheduled hearing on April 26, 2018. The circuit court found that petitioner failed to 

successfully complete her post-adjudicatory improvement period because she failed to submit to 

drug screens, participate in visitation, and participate in services. The circuit court set the 

dispositional hearing, and on May 14, 2018, the DHHR filed a motion to terminate petitioner’s 

parental rights. 

On May 21, 2018, the circuit court held a dispositional hearing. The DHHR presented 

evidence that petitioner tested positive for methamphetamine in February of 2018 and did not 

submit to any subsequent drug screens. According to petitioner’s testimony, she had not had a 

phone or transportation since February of 2018. However, the circuit court noted that petitioner 

testified that she had been in town for medical appointments after February of 2018, but made no 

efforts to contact the DHHR. Petitioner had not visited the children since February of 2018. 

Petitioner testified at the dispositional hearing that she recently acquired a cellphone and 

transportation. She further testified that she was living with family members, that they did not 

have utilities, but that they were working on remedying that issue. After considering the 

testimony, the circuit court found that petitioner was initially compliant with her postadjudicatory improvement period, but failed to contact the DHHR or participate in services after 

February of 2018. The circuit court also found that petitioner was unwilling or unable to 

adequately provide for the children’s needs. The circuit court noted that petitioner did not have 

appropriate housing for the children and had not visited with them or drug screened in the 

preceding three months. Based on the evidence, the circuit court found no reasonable likelihood 

that petitioner could substantially correct the conditions of abuse and neglect in the near future 

and that the termination of her parental rights was in the children’s best interests. Ultimately, the 

circuit court terminated petitioner’s parental rights in its June 14, 2018, order.2

 It is from this 

order that petitioner appeals. 

 2

The father’s parental rights were also terminated below. The permanency plan for the 

children is adoption in their current foster placement. 
3 

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, this Court 

finds no error in the proceedings below. 

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

In support, she asserts that she was “entitled to a [post-]dispositional improvement period.” We 

find petitioner’s argument to be meritless. West Virginia Code § 49-4-610(3)(D) provides that a 

when a parent has previously been granted an improvement period, the parent must prove that 

“since the initial improvement period, the [parent] has experienced a substantial change in 

circumstances” and that “due to that change in circumstances, the [parent] is likely to fully 

participate in the improvement period[.]” Additionally, we have stated 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 argues that she was entitled to a post-dispositional improvement 

period, the decision whether to grant an improvement period at disposition rests solely within the 

discretion of the circuit court. Petitioner initially complied with the terms and conditions of her 

post-adjudicatory improvement period. However, in February of 2018, petitioner tested positive 

for methamphetamine and stopped participating in services and visits with the children. She also 

missed two review hearings. While petitioner argues that she was unable to participate in 

services because she did not have transportation or a cellphone, the record shows that petitioner 

traveled to Elkins, West Virginia, from her residence for medical appointments. The record also 

shows that petitioner failed to contact the DHHR during that time. Further, petitioner did not 

provide any evidence of a change in her circumstances that demonstrated that she would be 

likely to participate in a post-dispositional improvement period and, therefore, she did not meet 

the applicable burden to receive one. As such, we find no error. 

We also find no error in the circuit court’s termination of petitioner’s parental rights. 

Petitioner asserts that, during the proceedings, she took steps to address her parental deficiencies. 

We do not find this argument persuasive. West Virginia Code § 49-4-604(b)(6) provides that 
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circuit courts are to terminate parental rights upon findings that there is “no reasonable likelihood 

that the conditions of neglect or abuse can be substantially corrected in the near future” and that 

termination is necessary for the children’s welfare. West Virginia Code § 49-4-604(c)(3) 

provides that there is no reasonable likelihood that the conditions of abuse and neglect can be 

substantially corrected when the abusing parent “ha[s] not responded to or followed through with 

a reasonable family case plan or other rehabilitative efforts of social, medical, mental health or 

other rehabilitative agencies designed to reduce or prevent the abuse or neglect of the child[.]” 

 As discussed, petitioner failed to substantially comply with her post-adjudicatory 

improvement period. After a period of compliance with the terms of the post-adjudicatory 

improvement period, petitioner tested positive for methamphetamine in February of 2018 and 

subsequently ceased her participation in drug screens, visits, and other services. Further, the 

record shows that petitioner was unable to provide an appropriate home for the children. Based 

on this evidence, the circuit court was correct in finding no reasonable likelihood that the 

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

termination of petitioner’s parental rights was in the children’s best interests. While she also 

argues that the termination of her parental rights in this matter was premature, we have 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 

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). 

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4. Because of their young ages and the 

unlikelihood of improvement by petitioner, termination of petitioner’s parental rights was 

necessary in order for the children to achieve permanency in their foster home. 

Moreover, although petitioner argues that the circuit court should have utilized a lessrestrictive dispositional alternative, we have held that 

“[t]ermination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, W. Va. Code 

[§] 49-6-5 [now 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 W. Va. Code [§] 49-6-5(b) [now West Virginia Code 

§ 49-4-604(c)] . . . 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). For these reasons, the 

termination of petitioner’s parental rights was appropriate. 
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For the foregoing reasons, we find no error in the decision of the circuit court, and its 

June 14, 2018, dispositional order is hereby affirmed. 

Affirmed. 

ISSUED: November 19, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Elizabeth D. Walker 

Justice Tim Armstead 

Justice Evan H. Jenkins 

Justice Paul T. Farrell sitting by temporary assignment