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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re K.D.-1, K.D.-2, J.J.-1, J.J.-2, and L.J.

No. 20-0084 (Ritchie County 18-JA-20, 18-JA-21, 18-JA-22, 18-JA-23, and 18-JA-24)

MEMORANDUM DECISION

Petitioner Mother M.D., by counsel M. Tyler Mason, appeals the Circuit Court of Ritchie

County’s January 2, 2020, order terminating her parental rights to K.D.-1, K.D.-2, J.J.-1, J.J.-2, 

and L.J.

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

Lee Niezgoda, filed a response in support of the circuit court’s order. The guardians ad litem for 

the children, Katrina Christ and Keith White, filed responses on behalf of the children in support 

of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying her

request for a post-dispositional improvement period and 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.

In May of 2018, the DHHR filed an abuse and neglect petition alleging that petitioner and 

her boyfriend—who is the father of J.J.-1, J.J.-2, and L.J.—engaged in substance abuse and 

domestic violence, failed to maintain a safe and secure home, and committed educational neglect.

The petition further contained allegations that petitioner and the boyfriend requested domestic 

violence protective orders against each other and that altercations between them involved physical 

1Consistent 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 several of the children share the same 

initials they will be referred to as J.J.-1, J.J.-2, K.D.-1, and K.D.-2, respectively, throughout this 

memorandum decision. Finally, the proceedings below also concerned additional children that are 

not at issue in this appeal.

FILED

September 3, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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violence toward the children. According to the DHHR, a caseworker responded to a call where 

petitioner was driving without a license. It was further alleged that petitioner was driving with the 

children in the vehicle without proper restraints. Finally, the DHHR alleged that petitioner

admitted to abusing methamphetamine, was charged with criminal truancy, and had a home so 

cluttered that the hallways and bathroom were nearly unreachable. Thereafter, petitioner waived 

her preliminary hearing.

The circuit court held an adjudicatory hearing in September of 2018, wherein petitioner 

stipulated to abusing and neglecting the children due to substance abuse, domestic violence, and 

educational neglect. Additionally, the court granted petitioner a six-month post-adjudicatory 

improvement period, and the DHHR made referrals for her to receive psychological and substance 

abuse evaluations.

In December of 2018, the circuit court held a review hearing on petitioner’s improvement 

period, wherein the DHHR reported that petitioner was noncompliant with services. As such, the 

DHHR moved for the termination of her improvement period. Petitioner objected to the motion, 

citing issues with transportation as an obstacle to her participation in services. The circuit court 

held the motion in abeyance and ordered that services be continued until the improvement period

wasrevoked, noting that it was “not impressed with [petitioner’s] compliance.” In January of 2019, 

the circuit court held a hearing on the DHHR’s motion to terminate petitioner’s improvement 

period. At the hearing, the DHHR asked the court to hold its prior motion in abeyance based on 

petitioner’s improved participation in services. In March of 2019, the circuit court held another 

review hearing and extended the improvement period an additional ninety days.

The circuit court held a review hearing in August of 2019 regarding petitioner’s 

improvement period. Petitioner did not appear in person, citing transportation issues, but was 

represented by counsel. During the hearing, the DHHR informed the court that petitioner tested 

positive for amphetamine and methamphetamine in July of 2019, while she was pregnant. As a 

result, the DHHR requested that the case be scheduled for a dispositional hearing. Later that month, 

petitioner gave birth to K.H., who was born drug-exposed.2

In October of 2019, the circuit court held a dispositional hearing. Petitioner moved for a 

post-dispositional improvement period, while the DHHR moved for termination of her parental 

rights. At the hearing, petitioner testified that she would participate in in-patient drug treatment if 

she was granted a post-dispositional improvement period. However, petitioner still denied having 

a drug problem. Petitioner also denied that any of her recent drug screens were positive for 

controlled substances, despite laboratory evidence to the contrary. A community corrections 

officer who handled petitioner’s drug screening testified that petitioner failed to fully participate 

2The DHHR later amended its petition to include K.H. in the proceedings below. However, 

because petitioner had not yet been adjudicated in regard to K.H., the circuit court’s dispositional 

order on appeal terminated petitioner’s parental rights to only K.D.-1, K.D.-2, J.J.-1, J.J.-2, and 

L.J. According to the DHHR, the proceedings involving K.H. are ongoing, and termination of 

petitioner’s parental rights to this child is expected. Because petitioner’s parental rights to K.H. 

have not yet been terminated, that child is not at issue in this appeal.
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with her call-in program. The officer testified that petitioner started the program in June of 2018 

and tested positive for methamphetamine four times between July and October of 2018. 

Additionally, the officer testified that petitioner produced two diluted samples in August and 

September of 2018 and could not produce a sample on at least one other occasion. The officer 

further testified that while petitioner did have a months-long stretch without any positive screens, 

she again tested positive for controlled substances in March, July, and August of 2019. Finally, 

the officer testified that following these positive screens, petitioner failed to appear for additional 

screens and produced a diluted sample in September of 2019. Next, a parenting and adult life skills 

provider testified that petitioner participated well during some sessions but missed other sessions 

due to her purported transportation issues. The provider also testified that the DHHR made her 

aware of petitioner’s substance abuse issues and that she encouraged and assisted petitioner in 

obtaining treatment. However, the provider testified that, to her knowledge, petitioner never went 

to treatment. Next, a visitation supervisor testified that petitioner had generally good visitations 

with the children but that there were gaps between the visits. The supervisor also testified that 

visitation was eventually suspended due to petitioner’s positive and missed drug screens. Finally, 

the DHHR caseworker testified that despite petitioner’s “tremendous efforts to get her children 

back,” substance abuse remained “the major issue that has never been taken care of.”

In light of the evidence presented at the dispositional hearing, the circuit court found that 

petitioner had repeatedly failed to participate in drug screening, substance abuse treatment, 

individual counseling, and a substance abuse evaluation. Further, the circuit court found that 

pursuant to the call-in drug screening program, petitioner should have screened an average of once 

per week but had only appeared for approximately thirty-three screens from June of 2018 until 

December of 2019. Additionally, the circuit court found that petitioner would often appear one to 

three days after she was scheduled to screen and had eleven recorded failures to appear for 

screening. The court also found that petitioner abused methamphetamine while pregnant with K.H. 

and that she continued to deny substance abuse issues, despite her knowledge of lab reports that 

showed she tested positive while pregnant. Finally, the circuit court found that petitioner failed to 

regularly participate in adult life skills and parenting classes and had not visited the children since 

August of 2019 due to positive drug screens. Based upon these findings, the circuit court found 

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

substantially corrected in the near future and that it was in the best interests of the children to 

terminate petitioner’s parental rights.

3 The circuit court entered an order reflecting its decision on 

January 2, 2020. Petitioner appeals from this order.

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 

 

3The parental rights of the children’s respective fathers were also terminated below. 

According to the parties, the permanency plan for K.D.-1 and K.D.-2 is adoption in the same foster 

home. The permanency plan for J.J.-1, J.J.-2, and L.J. is adoption in their respective foster home.
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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 denying her motion for a postdispositional improvement period because she “had never been found to have committed abuse 

and neglect before this case,” participated in services throughout the proceedings, and previously 

demonstrated by clear and convincing evidence that she would comply with the terms and 

conditions of an improvement period. Petitioner argues that she had a “couple of relapses and slipups with her substance abuse issues” but passed the vast majority of drug screens and could have 

addressed her issues during in-patient rehabilitation. We find petitioner’s arguments unavailing. 

Although there were points in time where petitioner complied with services generally, she 

ignores the fact that she did not complete many of the terms required by her family case plan. Most 

importantly, petitioner’s argument on appeal largely fails to address her ongoing substance abuse 

issues and her failure to acknowledge or take any steps to remedy these issues. Petitioner does not 

dispute that she failed to participate in multiple required drug screens and tested positive on other 

screens. Further, while petitioner now admits that she has a substance abuse problem—after 

denying any addiction on prior occasions—she failed to enroll in a treatment program during her 

post-adjudicatory improvement period. Additionally, petitioner was offered numerous services to 

address her substance abuse issues including a substance abuse evaluation, individual counseling, 

and inpatient drug treatment. However, instead of addressing why she failed to participate in those 

services, petitioner’s argument in support of this assignment of error focuses on her sporadic 

compliance with drug testing. While petitioner argues that she would have participated in an inpatient drug treatment program if granted a post-dispositional improvement period, we note that 

petitioner bore the responsibility of completing the goals of her family case plan, and the record 

shows that she took almost no steps to achieve these goals during her post-adjudicatory 

improvement period.

Despite the overwhelming evidence of petitioner’s noncompliance, she nonetheless argues 

that she would have fully participated in a post-dispositional improvement period. West Virginia 

Code § 49-4-610(3)(D) provides that in order to obtain a post-dispositional improvement period 

after the granting of a previous improvement period, a parent must “demonstrate[] 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.” Further, the circuit court has discretion to deny an improvement period 
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when no improvement is likely. In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002). 

Here, the record is clear that petitioner failed to fully comply with the terms and conditions of her

prior post-adjudicatory improvement period. The evidence establishes that petitioner tested 

positive for controlled substances or failed to participate in drug screens, failed to participate in a 

substance abuse evaluation, attend individual counseling, or enroll in a drug treatment program

throughout her improvement period. The circuit court considered this evidence when it terminated 

her post-adjudicatory improvement period and when it denied her motion for a post-dispositional 

improvement period. Even more importantly, petitioner fails to cite to any evidence in the record 

that shows that she underwent a substantial change in circumstances subsequent to her postadjudicatory improvement period. Therefore, we find that the circuit court did not err in denying 

petitioner’s motion for a post-dispositional improvement period.

Moreover, based on the evidence of petitioner’s sporadic compliance with her prior 

improvement period and her failure to undergo a substance abuse evaluation, attend individual 

counseling, remain drug free, and enroll in a drug treatment program, the circuit court found that 

petitioner failed to follow through with the DHHR’s rehabilitative services. Importantly, this 

constitutes a situation in which there is no reasonable likelihood that the conditions of abuse and 

neglect can be substantially corrected in the near future under West Virginia Code § 49-4-

604(d)(3). On appeal, petitioner asserts that the circuit court’s decision to terminate was improper 

when she was making substantial progress toward reunification. We disagree and find that the 

circuit court’s order is specific and enumerates several areas where petitioner failed to make 

progress as the basis for the termination of her parental rights. The circuit court’s findings are 

based on substantial evidence that petitioner was never fully compliant in her improvement period 

and that she failed to avail herself of many of the services offered. Moreover, the circuit court 

found that termination of petitioner’s parental rights was in the children’s best interests. According 

to West Virginia Code § 49-4-604(c)(6), circuit courts may terminate parental rights upon these 

findings. Further, we have long 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 record shows that the circuit 

court had ample evidence upon which to base these findings, and we decline to disturb them on 

appeal. As such, termination of petitioner’s parental rights was appropriate. 

Lastly, because the proceedings regarding K.H. are ongoing, this Court reminds the circuit 

court of its duty to establish permanency for the child. Rule 39(b) of the Rules of Procedure for 

Child Abuse and Neglect Proceedings requires that
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[a]t least once every three months until permanent placement is achieved as defined 

in Rule 6, the court shall conduct a permanent placement review conference, 

requiring the multidisciplinary treatment team to attend and report as to progress 

and development in the case, for the purpose of reviewing the progress in the 

permanent placement of the child.

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of 

Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child 

within twelve months of the date of the disposition order. As this Court has stated, 

[t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules 

of Procedure[] for Child Abuse and Neglect Proceedings for permanent placement 

of an abused and neglected child following the final dispositional order must be 

strictly followed except in the most extraordinary circumstances which are fully 

substantiated in the record. 

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 6. Moreover, this Court has stated that 

[i]n determining the appropriate permanent out-of-home placement of a 

child under [West Virginia Code § 49-4-604(c)(6)], the circuit court shall give 

priority to securing a suitable adoptive home for the child and shall consider other 

placement alternatives, including permanent foster care, only where the court finds 

that adoption would not provide custody, care, commitment, nurturing and 

discipline consistent with the child’s best interests or where a suitable adoptive 

home [cannot] be found. 

Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian 

ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the child 

is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 

(1991).

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

January 2, 2020, order is hereby affirmed.

Affirmed.

ISSUED: September 3, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison