1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re K.B. and J.H.

No. 20-0450 (Webster County 17-JA-15 and 17-JA-16)

MEMORANDUM DECISION

Petitioner Father T.B., by counsel Andrew B. Chattin, appeals the Circuit Court of Webster

County’s March 2, 2020, order terminating his parental rights to K.B. and J.H.

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, Mary Elizabeth Snead, filed a

response on the children’s behalf in support of the circuit court’s order. On appeal, petitioner 

argues that the circuit court erred in terminating his parental rights without granting him an 

improvement period.

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.

As more fully discussed in this Court’s prior memorandum decision, the DHHR previously 

filed a child abuse and neglect petition alleging that petitioner used controlled substances in the 

presence of the children, exposed the children to inappropriate individuals, and failed to comply 

with an in-home safety plan. In re K.B. and J.H., No. 18-0255, 2018 WL 6119921, *1 (Nov. 21, 

2018) (memorandum decision). Petitioner admitted to these allegations in March of 2017, and the 

circuit court adjudicated him as an abusing parent. Id. Petitioner was granted a post-adjudicatory 

improvement period. Id. Over a period of several months, petitioner complied with substance 

abuse treatment, obtained employment, and remained drug and alcohol free. Id. at *2. However, 

the circuit court granted the DHHR’s motion to terminate petitioner’s parental rights on the basis 

that he failed to obtain housing during the improvement period. Id. This Court vacated and 

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

December 10, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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remanded the circuit court’s dispositional order due to the DHHR’s failure to prepare a family case 

plan and its late addition of a requirement that petitioner obtain housing. Id. at *3-4. The circuit 

court held a subsequent dispositional hearing in January of 2019, and, finding that petitioner 

obtained appropriate housing and otherwise remedied the conditions of abuse and neglect, returned 

the children to his custody. The circuit court noted that during the pendency of petitioner’s appeal, 

the DHHR filed an amended petition with allegations that the mother abused controlled substances 

and neglected the children.2 Accordingly, the proceedings continued against the children’s mother. 

In November of 2019, the DHHR amended the child abuse and neglect petition and alleged 

that petitioner was again abusing controlled substances that negatively affected his ability to parent 

the children. The DHHR alleged that petitioner moved to Cowen, West Virginia, to care for his 

ailing mother following the circuit court’s January of 2019, dispositional order, and, upon the 

DHHR’s investigation of the appropriateness of that residence, petitioner and his girlfriend 

admitted to marijuana use while parenting the children. Thereafter, petitioner waived his 

preliminary hearing. In January of 2020, petitioner admitted to the allegations in the amended 

petition, and waived his right to an adjudicatory hearing. The circuit court accepted the admissions 

and adjudicated petitioner as an abusing parent. Petitioner moved for a post-adjudicatory 

improvement period.

The circuit court held the final dispositional hearing in February of 2020. Petitioner did not 

appear but was represented by counsel.3 The DHHR presented evidence that petitioner had not 

participated in services since November of 2019. Further, petitioner had tested positive for 

controlled substances on the day of the adjudicatory hearing in January of 2020, and failed to 

submit to any subsequent drug screens. As a result of petitioner’s continued substance abuse, he 

had not visited with the children since November of 2019. Ultimately, the circuit court found that 

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

corrected in the near future and that termination of petitioner’s parental rights was necessary for 

the welfare of the children. Accordingly, the circuit court terminated petitioner’s parental rights to 

the children by its March 2, 2020, order. Petitioner now appeals that order.

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The Court has previously held:

“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 

2

Notably, J.H.’s mother’s parental rights were previously terminated in 2012. The circuit 

court determined that K.B.’s mother was a psychological parent of J.H. and placed J.H. with her 

during the pendency of petitioner’s first abuse and neglect proceeding.

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Upon inquiry by the circuit court, petitioner’s counsel proffered that petitioner had moved 

to Minnesota and had not responded to counsel’s “several” messages regarding the proceedings.

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K.B.’s mother is participating in an improvement period and retains her parental rights.

According to the parties, the permanency plan for K.B. is to return to his mother’s custody. The 

permanency plan for J.H. is adoption by K.B.’s mother, who was previously determined to be his 

psychological parent.
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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 review, this Court finds no 

error in the proceedings below.

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

without first granting him an improvement period. He asserts that the conditions of neglect and 

abuse were correctable and that he should have been granted an improvement period “to show the 

[circuit court] that he could correct the conditions which led to the filing of the petition.” Petitioner 

argues that the circuit court should have imposed an improvement period as a less-restrictive 

dispositional alternative to terminating his parental rights. We disagree.

West Virginia Code § 49-4-610(2)(B) provides that a circuit court may grant a parent a 

post-adjudicatory improvement period when he “demonstrates, by clear and convincing evidence, 

that [he] is likely to fully participate in the improvement period.” It is well established 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). Here, 

petitioner presented no evidence that he was likely to fully participate in an improvement period. 

In fact, petitioner acknowledges the circuit court’s contrary findings that he failed to participate in 

any services and continued to test positive for controlled substances, yet he offers no challenge to 

those findings. In light of these uncontroverted findings, we find no error in the circuit court’s 

denial of petitioner’s motion for a post-adjudicatory improvement period.

Further, the circuit court did not err in terminating petitioner’s parental rights. West 

Virginia Code § 49-4-604(c)(6) provides that a circuit court may terminate a parent’s 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 of parental rights is necessary 

for the welfare of the children. Pursuant to West Virginia Code § 49-4-604(d)(3), a circuit court 

may determine that there is no reasonable likelihood that the conditions of neglect or abuse can be 

substantially corrected when

[t]he abusing parent or parents have 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.
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Here, the circuit court’s uncontroverted findings fully support its conclusion that there was no 

reasonable likelihood that the conditions of neglect and abuse could be substantially corrected in 

the near future. Petitioner demonstrated no ability to comply with the services that were designed 

to help him remedy the conditions of neglect or abuse and no ability to correct those conditions on 

his own. Additionally, 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(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). Based upon the circuit court’s 

findings, there was no error in terminating petitioner’s parental rights without the use of a lessrestrictive dispositional alternative, such as the granting of a post-adjudicatory improvement 

period.

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

2, 2020, order is hereby affirmed.

Affirmed.

ISSUED: December 10, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison