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STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

In re J.L. 

No. 22-597 (Harrison County 22-JA-3-2) 

MEMORANDUM DECISION 

Petitioner Father D.L.1 appeals the Circuit Court of Harrison County’s June 2, 2022, 

order terminating his parental and custodial rights to J.L.2 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 January of 2022, the DHHR filed a petition alleging that the mother tested positive for 

multiple drugs, including methamphetamine, when she gave birth to the child. The petition 

further alleged that petitioner admitted he was aware the mother abused drugs during the 

pregnancy. Finally, the petition alleged that petitioner’s parental rights to an older child were 

previously involuntarily terminated. The record indicates that this prior termination was based on 

substance abuse and incarceration. 

Shortly after the petition’s filing, petitioner was incarcerated for a parole violation and 

remained incarcerated throughout the proceedings. At an adjudicatory hearing in March of 2022, 

the court found that petitioner had not had a substantial change in circumstances since the prior 

termination of his parental rights and that he knew the mother abused drugs during her 

pregnancy. As such, the court adjudicated petitioner as a neglecting parent. 

Following this hearing, petitioner underwent a psychological evaluation and moved for a 

post-adjudicatory improvement period. In May of 2022, the court held a dispositional hearing. 

The court detailed petitioner’s admissions during his psychological evaluation, including the fact 

1Petitioner appears by counsel Jenna L. Robey. The West Virginia Department of Health 

and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey and 

Assistant Attorney General Lee Niezgoda. Allison S. McClure appears as the child’s guardian ad 

litem. 

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 25, 2023 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 
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that his drug abuse began thirteen years prior; that he abused a range of drugs, including 

fentanyl; and that he had overdosed approximately ten times. The court found that petitioner 

failed to prove that he was likely to fully participate in an improvement period based, in part, 

upon his history of noncompliance, and therefore denied his motion for the same. The court 

further found that petitioner had not remedied the conditions that led to the involuntary 

termination of his parental rights to the older child, as his “substance abuse . . . was a problem 

during his prior . . . case, and he continued to abuse drugs after the termination of parental 

rights.” The court noted that incarceration remained an issue across both cases. Accordingly, the 

court concluded that there was no reasonable likelihood that petitioner could substantially correct 

the conditions of abuse and neglect and that termination of his rights was necessary for the 

child’s welfare. The court then terminated petitioner’s parental and custodial rights.3 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). First, petitioner argues that the circuit court 

erred in denying his motion for a post-adjudicatory improvement period. Petitioner is correct that 

in order to obtain a post-adjudicatory improvement period, he was required to “demonstrate[], by 

clear and convincing evidence, that . . . [he was] likely to fully participate in the improvement 

period.” W. Va. Code § 49-4-610(2)(B). Before this Court, petitioner simply asserts that his 

motion indicated he would substantially comply with the terms thereof, and he fails to cite to any 

evidence he presented below to support this assertion. On the contrary, the circuit court found 

that petitioner’s history of noncompliance demonstrated that he would be unlikely to fully 

comply or correct the conditions of neglect at issue. The court noted that petitioner was granted 

an improvement period in the prior proceeding, yet he failed to remedy his substance abuse and 

incarceration. Given that these issues persisted across two proceedings, we find no abuse of 

discretion in denying petitioner’s motion. See In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 

354, 359 (2002) (permitting circuit court discretion to deny improvement period when no 

improvement is likely). Further, petitioner argues that the child’s permanency would not be 

delayed because the mother was participating in an improvement period at the time. However, 

the fact that the mother satisfied her burden for obtaining an improvement period has no bearing 

on whether petitioner satisfied his burden and cannot entitle petitioner to relief. 

Next, petitioner argues that it was error to terminate his rights when the court could have 

merely “suspended” his rights under West Virginia Code § 49-4-604(c)(5). We find this 

argument unavailing because, as the circuit court found, this young child requires a more 

permanent outcome. As the circuit court noted, 

“[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 

3According to respondents, the mother is participating in an improvement period, and the 

child has been returned to her physical custody with a permanency plan of reunification with her. 
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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. The court was correct in finding that 

termination of petitioner’s parental and custodial rights was necessary to obtain the permanency 

needed for the child’s development, especially considering the issues of neglect present in this 

case were also the basis for the termination of petitioner’s parental rights to an older child. 

Before this Court, petitioner argues that there was a reasonable likelihood that he could 

correct his neglectful conditions, but their chronic nature demonstrates that the court had 

sufficient evidence upon which to find that there was no reasonable likelihood the conditions of 

abuse and neglect could be substantially corrected. Petitioner also argues that termination of his 

rights was not necessary for the child’s welfare because the child was placed with a relative, but 

this fact does nothing to undermine the court’s findings concerning the child’s need for 

permanency. In short, the court had a sufficient basis upon which to make the findings necessary 

to terminate petitioner’s parental and custodial rights.4See W. Va. Code § 49-4-604(c)(6) 

(permitting circuit court to terminate parental and custodial rights upon finding no reasonable 

likelihood that conditions of neglect can be substantially corrected in near future and when 

necessary for child’s welfare); see also Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 

55 (2011) (permitting termination of parental and custodial rights “without the use of intervening 

less restrictive alternatives when it is found that there is no reasonable likelihood . . . that 

conditions of neglect . . . can be substantially corrected”). 

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

June 2, 2022, order is hereby affirmed. 

Affirmed. 

ISSUED: April 25, 2023 

CONCURRED IN BY: 

Chief Justice Elizabeth D. Walker 

Justice Tim Armstead 

Justice John A. Hutchison 

Justice William R. Wooton 

Justice C. Haley Bunn 

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In this assignment of error, petitioner also alleges that it was error to deny him posttermination visitation with the child. However, petitioner provides no argument in support of this 

assertion. Accordingly, we decline to address this unsupported assertion. See W. Va. R. App. P. 

10(c) (requiring brief to contain “an argument exhibiting clearly the points of fact and law 

presented. . . and citing the authorities relied on”).