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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

 

In re D.B.

No. 23-3 (Hampshire County CC-14-2021-JA-59)

 

MEMORANDUM DECISION

 

Petitioner Mother T.B.1appeals the Circuit Court of Hampshire County’s November 3, 

2022, order terminating her parental rights to D.B.,

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arguing that the circuit court erred in denying 

her a post-dispositional improvement period and terminating her parental rights instead of 

considering less restrictive alternatives. 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 May 2021, the DHS filed a petition alleging that petitioner abused and neglected the 

child based upon petitioner’s drug use, exposure of the child to domestic violence with the child’s 

father, failure to provide appropriate housing, and neglect of the child’s educational needs. At a 

hearing in August 2021, petitioner stipulated that she exposed D.B. to illegal drugs and domestic 

violence between herself and the child’s father, neglected the child’s educational needs, and failed 

to supply the child with adequate shelter. Accordingly, the circuit court adjudicated petitioner of 

abusing and neglecting the child. 

Thereafter, the circuit court granted petitioner a six-month post-adjudicatory improvement 

period. Petitioner substantially complied with the terms of her improvement period until October 

2021, when she relapsed and tested positive for methamphetamine. Despite petitioner’s relapse, 

the circuit court allowed her improvement period to continue. In February 2022, petitioner’s postadjudicatory improvement period was extended for an additional three months. In April 2022, 

1Petitioner appears by counsel Jeremy B. Cooper. The West Virginia Department of 

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

General Lee Niezgoda. Counsel Joyce E. Stewart appears as the child’s guardian ad litem.

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

the West Virginia Department of Health and Human Resources was terminated. It is now three 

separate agencies—the Department of Health Facilities, the Department of Health, and the 

Department of Human Services. See W. Va. Code § 5F-1-2. For purposes of abuse and neglect 

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

2We use initials where necessary to protect the identities of those involved in this case. See 

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

FILED

April 15, 2024

C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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petitioner was permitted to have an overnight visit with the child due to her substantial compliance 

with services. However, at a hearing in July 2022, it was reported that petitioner had not shown up 

for drug testing since May. The circuit court briefly recessed to allow petitioner to submit to a drug 

screen. That day, petitioner tested positive for methamphetamine and amphetamine. The matter 

was set for disposition.

The dispositional hearing commenced in September 2022. The DHS presented testimony 

from a service provider that petitioner submitted to her drug screens at their facility until May 

2022, when she failed to appear on six occasions in the latter part of May and failed to appear for

all drug screens in June and July 2022. The DHS also presented testimony from a worker at the 

day report center who explained that petitioner tested positive for methamphetamine and 

amphetamine seven times between July 2022 and September 2022. The dispositional hearing was 

continued until October 2022, at which time petitioner made an oral motion for a post-dispositional 

improvement period. Petitioner argued that her circumstances had substantially changed since the 

September hearing because she began participating in an advanced residential substance abuse

treatment program. Petitioner presented the testimony of her counselors, who explained that the 

program was twelve to eighteen months long and petitioner had been in the program for two weeks 

and was fully compliant, but therapy and parenting classes still needed to be arranged. Petitioner 

then testified on her own behalf. Petitioner admitted to relapsing in July, but she could not explain 

why her drug tests following that relapse were positive for methamphetamine. She stated that her 

plan was to remain in the substance abuse treatment program, get a part-time job, and have the 

child live with her at the facility. She also testified that she ended her relationship with the father.

Based on the evidence, the circuit court denied petitioner’s motion for a post-dispositional 

improvement period. Although petitioner admitted to relapsing, the circuit court found that she 

failed to acknowledge the seriousness of her addiction. Further, petitioner refused to admit use of 

the methamphetamine as evidenced by her positive screens. The circuit court noted that despite 

nearly fourteen months of services afforded to her, petitioner “relapsed and only in the eleventh 

hour . . . sought treatment by entering into another recovery program.” The circuit court found that 

petitioner’s circumstances had not changed as she continued to abuse illicit substances and any 

additional improvement period would be to the detriment of the child’s health, safety, and welfare.

As such, the circuit court found that there was no reasonable likelihood that she would correct the 

issues in the near future and that termination of petitioner’s parental rights was in the child’s best 

interests. Accordingly, the circuit court terminated petitioner’s parental rights.

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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 first argues that the 

circuit court erred in denying her motion for a post-dispositional improvement period because she 

demonstrated a substantial change in circumstances by ending her relationship with the child’s 

father and by entering an inpatient substance abuse treatment program. See W. Va. Code § 49-4-

610(3)(D) (“The court may grant an improvement period . . . as a disposition . . . when . . . the 

3The father’s parental rights were also terminated. The permanency plan for the child is 

adoption in his current placement. 
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respondent demonstrates that since the initial improvement period, the respondent has experienced 

a substantial change in circumstances” and demonstrates that she is “likely to fully participate in 

the improvement period.”). We find no merit in this argument as petitioner failed to demonstrate 

that she was likely to fully participate in the improvement period. Petitioner had already received 

fourteen months of services and had relapsed three times. Moreover, petitioner failed to fully 

acknowledge her continued use of methamphetamine by maintaining that she did not know why 

she had positive drug screens. See In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) 

(“Failure to acknowledge the existence of the problem . . . results in making the problem 

untreatable and in making an improvement period an exercise in futility at the child’s expense.” 

(quoting In re Charity H., 215 W. Va. 208, 217, 599 S.E.2d 631, 640 (2004))). Accordingly, we 

find that the circuit court did not err in denying petitioner’s request for a post-dispositional 

improvement period.

Finally, petitioner argues that it was error to terminate her parental rights rather than 

consider less restrictive alternatives because there was a reasonable likelihood that she could 

remedy her drug use in the near future. We disagree. As we have consistently held:

Termination 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). Here, petitioner’s multiple 

relapses after fourteen months of services were sufficient evidence for the circuit court to find that 

there was no reasonable likelihood that the conditions of abuse and neglect could be substantially 

corrected in the near future. Further, the court had ample evidence upon which to find that 

termination was in the child’s best interests. See W. Va. Code § 49-4-604(c)(6) (permitting 

termination of parental rights upon finding “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 welfare of the child). Accordingly, termination of petitioner’s parental rights 

without considering less restrictive alternatives was not in error.

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

November 3, 2022, order is hereby affirmed.

Affirmed.

ISSUED: April 15, 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