1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re K.P.

No. 20-0575 (Mercer County 19-JA-67-DS)

MEMORANDUM DECISION

Petitioner Father B.P., by counsel William O. Huffman, appeals the Circuit Court of 

Mercer County’s June 22, 2020, order terminating his parental rights to K.P.

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, John E. Williams Jr., filed a response 

on behalf of the child also in support of the circuit court’s order. On appeal, petitioner argues that 

the circuit court erred in terminating his parental rights rather than employing a less-restrictive 

dispositional alternative. 

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. 

In May of 2019, the DHHR filed a child abuse and neglect petition against petitioner and 

the child’s mother based upon allegations of drug abuse. Specifically, the DHHR alleged that the 

mother abused drugs during her pregnancy and gave birth to K.P., who tested positive for morphine 

and codeine. At birth, the child exhibited substantial signs of withdrawal, and the mother admitted 

to abusing heroin within the week prior to the child’s birth, as well as at other times throughout 

the pregnancy. The DHHR further alleged that a Child Protective Services (“CPS”) worker spoke 

to petitioner, who denied abusing drugs and denied knowledge of the mother’s drug abuse. The

DHHR alleged that the CPS worker implemented a safety plan, and petitioner agreed to provide 

the child with a crib and other necessities. However, petitioner failed to deliver those items to the 

safety resource person who was put in place and later admitted to abusing nonprescribed 

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

February 2, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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buprenorphine. Further, petitioner failed to visit with the child during the time the safety plan was 

in effect.

Following the petition’s filing, the child underwent a battery of medical testing due to 

significant medical issues. The child was diagnosed with a rare genetic chromosomal disorder 

which caused severe hearing and vision loss.2

The circuit court held an adjudicatory hearing in August of 2019, wherein petitioner 

stipulated to the allegations contained in the petition. Specifically, petitioner stipulated that he 

“neglect[ed the child] by drug abuse.” The circuit court accepted petitioner’s stipulation, 

adjudicated him as an abusing parent, and granted him a post-adjudicatory improvement period. 

Although services were offered, petitioner never met with the multidisciplinary team (“MDT”) to 

develop a case plan aimed at addressing the conditions of abuse and working towards reunification 

with the child. As such, the DHHR filed a motion to terminate petitioner’s parental rights in 

January of 2020.

The circuit court held a dispositional hearing in January of 2020. Petitioner was present, 

having been transported from his place of incarceration, and represented by counsel; however, the 

circuit court was advised that petitioner had been arrested on felony charges in two counties, which 

resulted in his incarceration. A CPS worker testified that petitioner failed to attend a single MDT 

meeting following adjudication and “was not available” for in-home services. A service provider 

testified that petitioner completed a “generalized form of parenting” classes and was compliant 

“[f]or the most part.” The service provider stated that petitioner’s compliance with supervised 

visitation was “sketchy.” However, another service provider testified that petitioner regularly 

attended supervised visitation with the child prior to his incarceration. After hearing evidence, the 

circuit court terminated petitioner’s parental rights upon finding that it was in the best interest of 

the child and that there was no alternative to the termination of his parental rights. The circuit court 

noted that the child “has tremendous challenges and difficulties” which require “24/7” care. The 

circuit court also noted that petitioner had been granted an improvement period but was 

incarcerated during the proceedings and showed little progress. 

Following the issuance of that dispositional order, petitioner did not timely file an appeal. 

However, petitioner moved the circuit court to reenter the dispositional order for the purposes of 

appeal, and the circuit court granted the motion. Accordingly, petitioner now appeals the June 22, 

2020, dispositional order terminating his parental rights to the child.

3

 

The Court has previously established the following standard of review in cases such as this:

2

The record indicates that the child’s chromosomal disorder is so rare that approximately 

only 350 people worldwide have been diagnosed with the disorder. Testimony at the dispositional 

hearing established that the child would essentially always need constant care for his medical 

needs.

3

According to the guardian, the mother’s parental rights were also terminated. The 

permanency plan for the child is adoption by his foster parents.
3

“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 “examining” less-restrictive alternatives.4 According to petitioner, the petition largely 

surrounded the mother’s drug abuse, of which he claims he was unaware. Petitioner also points 

out that he had no control over the child’s chromosomal disorder. Petitioner states that he stipulated 

to neglect by drug abuse and successfully complied with his improvement period. Petitioner argues 

that the service providers testified at the dispositional hearing that he actively engaged in services 

and visited with the child regularly before his incarceration. Petitioner contends that the DHHR 

presented no evidence that he continued to use drugs. Nonetheless, the circuit court imposed the 

most drastic disposition available: termination of his parental rights. Petitioner avers that there was 

simply insufficient evidence to support a finding that there was no reasonable likelihood that he 

could correct the conditions of abuse in the near future or that termination was in the child’s best 

interest.

4

In support of petitioner’s argument that the circuit court failed to examine less-restrictive 

alternatives to the termination of his parental rights, he states that “[a]t a minimum, [petitioner] 

would assert that he should have received a dispositional improvement period.” However, 

petitioner fails to cite to the record demonstrating that he requested a post-dispositional 

improvement period and further fails to provide any relevant citations to authority in support of 

his claimed entitlement to a post-dispositional improvement period. This failure to cite to the 

record or any applicable law is in direct contravention of Rule 10(c)(7) of the West Virginia Rules 

of Appellate Procedure requiring that

[t]he brief must contain an argument exhibiting clearly the points of fact and law 

presented, the standard of review applicable, and citing the authorities relied on, 

under headings that correspond with the assignments of error. The argument must 

contain appropriate and specific citations to the record on appeal, including 

citations that pinpoint when and how the issues in the assignments of error were 

presented to the lower tribunal. The Court may disregard errors that are not 

adequately supported by specific references to the record on appeal.
4

West Virginia Code § 49-4-604(c)(6) provides that circuit courts are to terminate parental 

rights upon finding 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 child’s 

welfare. West Virginia Code § 49-4-604(d)(3) provides that a situation in which there is “[n]o 

reasonable likelihood that [the] conditions of neglect or abuse can be substantially corrected” 

includes when the abusing parent has 

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 

evidenced by the continuation or insubstantial diminution of conditions which 

threatened the health, welfare, or life of the child.

The evidence demonstrates that there was no reasonable likelihood that petitioner could 

correct the conditions of abuse and neglect in the near future as he failed to adequately respond to 

services or show that he sufficiently corrected the conditions of abuse or neglect. Petitioner failed 

to attend a single MDT meeting following his adjudication and failed to assist in the development 

of a case plan to address the issues of abuse. While testimony at the dispositional hearing 

demonstrated that petitioner completed a portion of his parenting classes and attended some visits

with the child, the fact remains that petitioner engaged in behavior that resulted in his incarceration 

during the proceedings with pending felony charges. As such, petitioner essentially was precluded 

from further addressing the conditions of abuse. Petitioner remained incarcerated as of the 

dispositional hearing, provided no anticipated release date, and was not in a stable position to care 

for the child, who requires extensive care due to his chromosomal disorder. We find that 

petitioner’s completion of one portion of his parenting classes and his handful of visits with the 

child prior to his incarceration are insufficient to show that he remedied the conditions of abuse. 

Based on the foregoing, it is clear that there was no reasonable likelihood that petitioner could 

correct the conditions of abuse and neglect in the near future and that termination was necessary 

for the child’s welfare. While petitioner claims the circuit court should have imposed a lessrestrictive alternative to the termination of his parental rights, we have previously 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(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). In sum, the circuit court’s 

findings are fully supported by the record below, and we find no error in the termination of 

petitioner’s parental rights.

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

22, 2020, order is hereby affirmed.
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Affirmed.

ISSUED: February 2, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins 

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton