1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re K.J.A.B.

No. 20-0572 (Cabell County 20-JA-5)

MEMORANDUM DECISION

Petitioner Mother K.R., by counsel Paula L. Harbour, appeals the Circuit Court of Cabell

County’s July 23, 2020, order terminating her parental rights to K.J.A.B.

1 The West Virginia 

Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a 

response in support of the circuit court’s order. The guardian ad litem, David R. Tyson, filed a 

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

argues that the circuit court erred in terminating her parental rights upon conditions of neglect 

that were correctable. 

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 January of 2020, the DHHR filed a petition alleging that petitioner abused and 

neglected the child at issue. According to the DHHR, petitioner’s parental rights to two older 

children were terminated in November of 2019 due to petitioner’s substance abuse, her 

involvement in domestic violence, and her incarceration. Specifically, petitioner tested positive 

for cocaine upon the birth of one of the older children at issue in the prior matter, continued to 

test positive for drugs while on probation for federal criminal charges, and refused to cooperate 

with the DHHR so that remedial services could be implemented. The DHHR alleged that, 

following the prior termination, petitioner gave birth to K.J.A.B. while incarcerated. 

Additionally, the month prior to the child’s birth, petitioner attempted to escape from 

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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incarceration. Based on petitioner’s failure to correct the conditions of abuse and neglect from 

the prior proceeding, which resulted in her termination of parental rights to the older children, 

the DHHR filed the instant petition. 

Following the petition’s filing, petitioner waived her right to a preliminary hearing. Then, 

in March of 2020, petitioner stipulated to neglecting the child due to her incarceration and the 

prior involuntary termination of her parental rights to the older children. 

At a dispositional hearing in June of 2020, the DHHR presented testimony from a Child 

Protective Services worker who indicated that petitioner did not comply with the improvement 

period granted in her prior abuse and neglect proceeding. According to the witness, petitioner did 

not participate in substance abuse treatment, mental health treatment, or any other services the 

DHHR offered. In fact, the witness testified that there were several months during the prior 

proceeding where petitioner failed to contact anyone or come to court and that the only reason 

petitioner was located was due to her arrest and incarceration. Because petitioner completely 

failed to comply with the services in the prior case in which her parental rights to two older 

children were terminated just two months prior to the initiation of the instant matter, the DHHR 

recommended termination of petitioner’s parental rights. Based on petitioner’s lengthy history of 

noncompliance in her prior case, the court found that there was no reasonable likelihood that 

petitioner could substantially correct the conditions of abuse and neglect at issue. Finding that it 

was in the child’s best interests, the court then terminated petitioner’s parental rights.

2 It is from 

the dispositional order that petitioner appeals. 

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 

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). 

2

According to the DHHR, the father’s parental rights were also terminated below. The 

permanency plan for the child is adoption in the current foster home. 
3

On appeal, petitioner argues that she will be released from jail, which necessitated the 

removal of her child, and, upon her release, the conditions of abuse and neglect will be corrected.

This constitutes the entirety of petitioner’s factual argument on appeal.3 In support of this 

argument, petitioner does not indicate when, exactly, she expects to be released from 

incarceration or how being released will correct the conditions of abuse and neglect that have 

persisted across two separate proceedings, including her issues with domestic violence and 

substance abuse. In short, petitioner’s unsupported assertion that her eventual release from 

incarceration will remedy all issues of abuse and neglect at issue is entirely unavailing. 

Petitioner similarly asserts, without any supporting argument, that the evidence below 

was insufficient to support the circuit court’s termination of her parental rights. This argument, 

however, ignores the fact that the DHHR presented evidence of petitioner’s total noncompliance 

in her prior abuse and neglect proceeding, including a failure to participate in substance abuse 

treatment, mental health treatment, or any other services designed to remedy the conditions of 

abuse and neglect. Contrary to petitioner’s bald assertion that this evidence is insufficient to 

terminate her parental rights, it clearly supports a finding that there is no reasonable likelihood 

that the conditions of abuse and neglect can be substantially corrected in the near future. W. Va. 

Code § 49-4-604(d)(3) (providing that a circumstance in which there is no reasonable likelihood 

that the conditions of abuse and neglect can be substantially corrected in the near future 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”). Further, the court 

found that termination of petitioner’s parental rights was necessary for the child’s welfare, which 

was overwhelmingly supported by evidence of petitioner’s total noncompliance with remedial 

services in two abuse and neglect proceedings. 

Pursuant to West Virginia Code § 49-4-604(c)(6), a circuit court may terminate parental 

rights upon these findings. Further, this Court has 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). Accordingly, we find that 

petitioner is entitled to no relief. 

3

In one section of her brief, petitioner sets forth her assignment of error in a manner that 

asserts that termination was in error “because she is clean and sober now.” However, petitioner 

fails to include any argument in support of her assignment of error in furtherance of the assertion 

that she remedied her substance abuse issues and, in fact, admitted at the dispositional hearing 

that she did not complete any substance abuse treatment. As such, petitioner is entitled to no 

relief in regard to this brief, unsupported assertion. 
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For the foregoing reasons, we find no error in the decision of the circuit court, and its 

July 23, 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