1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re K.P. and D.C.-P.

No. 22-0335 (Cabell County 18-JA-162 and 18-JA-163)

MEMORANDUM DECISION

Petitioner Father D.P.1 appeals the Circuit Court of Cabell County’s March 31, 2022, 

order terminating his parental rights to K.P. and D.C.-P.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 August of 2018, the DHHR filed a petition alleging that petitioner was incarcerated

and the children were neglected while in the mother’s care. The DHHR alleged that petitioner

was arrested in January of 2018 and incarcerated for possession with intent to deliver heroin after 

178 grams of heroin was discovered in the family home. Following petitioner’s arrest, the mother 

and children vacated the home; the mother was living “on the streets,” and the children had been 

living with her acquaintance. The DHHR alleged that then-seven-year-old D.C.-P. suffered 

educational neglect and developmental delays and then-four-year-old K.P. had sexualized 

behaviors, which prompted an investigation. According to the DHHR, petitioner failed to 

provide any financial or emotional support for the children. Later in 2018, the circuit court 

adjudicated the children as neglected children and the mother as an abusing parent but made no 

findings regarding petitioner’s conduct. The mother was granted an improvement period, and the 

children were returned to her physical custody in November of 2019.

In January of 2020, the DHHR filed an amended petition alleging that the mother’s livein boyfriend injured K.P. The DHHR alleged that the mother had actively hidden her relationship 

with the boyfriend from workers because she was aware he was inappropriate and that the circuit 

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Petitioner appears by counsel Steven T. Cook. The West Virginia Department of Health 

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

Assistant Attorney General Steven R. Compton. Ryan Turner appears as the children’s guardian 

ad litem.

2

We use initials where necessary to protect the identities of those involved in this case. 

See W. Va. R. App. P. 40(e).

FILED

February 7, 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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court previously ordered her not to allow him to have contact with the children.

3 The DHHR 

proffered that petitioner remained incarcerated, had taken no action to protect the children from 

the mother’s boyfriend, and failed to provide any emotional or financial support of the children. 

Thereafter, the mother generally failed to participate in the proceedings, and the circuit court 

terminated her parental rights in early 2021.

In January of 2021, petitioner was released from incarceration on parole. He testified at a 

hearing in January of 2021 that he last talked to the children in “August or September of [2018]”

but alleged he requested permission to speak to the children while he was incarcerated. At a 

hearing in February of 2021, petitioner stipulated to the allegations in the petition, and the circuit 

court adjudicated him as an abusing parent. By a motion filed that same month, petitioner moved 

for an improvement period. By this time, the children had already spent twenty-eight months in 

foster care.

The court held two more dispositional hearings in April and November of 2021 and then 

issued an order in March of 2022, terminating petitioner’s parental rights. In its order, the court 

found that while petitioner was incarcerated, he “was aware of the abusive situation the children

were in but failed to report the same.” In his testimony, petitioner admitted that, prior to his 

incarceration, he sold controlled substances from his home in which the children were also 

living. Petitioner asserted that he sold drugs to support his own addiction but also admitted that

he was unemployed and used those funds to support the family. Nevertheless, petitioner did not 

believe that he had been abusive or neglectful of the children other than by his incarceration. The 

court found that petitioner had not provided any financial support to the children, during or after 

his incarceration, despite having the funds to do so. The court found that petitioner had not 

attended any classes or therapy to aid and develop his parenting skills nor did he attend any of 

his children’s therapeutic treatments. Finally, the circuit court found that the children had been in 

the DHHR’s custody for a total of thirty months and had not seen petitioner in approximately 

four years. The court found that as a result of the children’s neglect, they suffered from 

developmental delays, psychological trauma, attention deficient hyperactive disorder, and 

educational difficulties. Evidence showed that the children, especially K.P., demonstrated

“severe behavior issues,” which had improved in the most recent placements. The guardian

reported that K.P. “would not recognize [petitioner] at all and has no real memory of him” and 

D.C.-P. “would likely not recognize [petitioner.]” Accordingly, the circuit court found that there 

was no reasonable likelihood that petitioner could correct the conditions of neglect or abuse and 

that it was necessary for the children’s welfare to terminate his parental rights. Petitioner now 

appeals the circuit court’s March 31, 2022, order terminating his parental rights to K.P. and 

D.C.-P.

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3

While the DHHR’s petition failed to state why the mother’s boyfriend was not to be 

around the children, the record provides that the boyfriend was suspected of sexually abusing 

K.P.

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As stated previously, the mother’s parental rights were terminated during these 

proceedings. According to the parties, the permanency plan for the children is adoption in their 

(continued . . . )
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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). Petitioner first argues that the circuit court erred 

in denying his motion for an improvement period because, in his view, he had already remedied 

the conditions of abuse and neglect when he was released from incarceration. We disagree, as 

petitioner’s incarceration was not the only issue for which he was adjudicated and, further, 

because the statutory timeframes for improvement periods were fully exhausted in this matter.

Specifically, West Virginia Code § 49-4-610(9) prohibits the granting of improvement periods

when such an improvement period would cause the children to remain in foster care in excess of 

fifteen of the most recent twenty-two months, unless “compelling circumstances” permit the

granting of the improvement period. In this instance, the children had already been in foster care 

for twenty-eight months when petitioner filed his first motion for a post-adjudicatory 

improvement period in February of 2021.

5 The circuit court heard evidence that, after

petitioner’s four-year absence, the children did not remember him, and the record is devoid of 

any evidence of compelling circumstances. Thus, we find no error in the circuit court’s denial of 

petitioner’s motion for an improvement period.

Petitioner also argues that the circuit court erred in terminating his parental rights. He 

again asserts that he remedied the conditions of abuse and neglect, namely his incarceration, and 

that he could have reunified with the children at the dispositional hearing. We find his argument 

unavailing. Critically, petitioner’s incarceration was not the sole basis of his adjudication, as he 

stipulated to multiple conditions of abuse and neglect, including failure to protect the children

and failure to provide for them. As such, his argument that he corrected the conditions at issue 

simply by being released from incarceration is without merit. Further, the circuit court found that 

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

corrected in the near future and the record supports that finding. See id. § 49-4-604(c)(6)

(authorizing the termination of parental rights upon said findings). The evidence shows that the

children no longer recognized him as a parent, and he failed to recognize his abuse and neglect of

the children. See id. § 49-4-604(d) (providing that there is no reasonable likelihood that the

conditions of neglect and abuse can be substantially corrected when the parent has demonstrated 

“an inadequate capacity to solve the problems of abuse or neglect on their own or with help”).

We have held that “[t]he controlling standard that governs any dispositional decision remains the 

best interests of the child.” Syl. Pt. 4, in part, In re B.H., 233 W. Va. 57, 754 S.E.2d 743 (2014).

Here, where the children no longer knew petitioner as a parent due to his absence and had spent a 

significant period of time in foster care awaiting permanency, we find no error in the circuit 

court’s decision to terminate his parental rights. See Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 

respective placements. At the time of briefing, the parties alleged that K.P. was participating in 

her second residential treatment program to resolve her trauma-related behaviors and a potential 

adoptive placement would be pursued following her completion of that program.

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The children were in their mother’s custody for approximately two months in the middle 

of the proceedings and that time is not counted against petitioner in this calculation.
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712 S.E.2d 55 (2011) (holding that “[t]ermination of parental rights . . . may be employed . . . 

when it is found that there is no reasonable likelihood . . . that the conditions of neglect or abuse 

can be substantially corrected”).

Finally, petitioner argues that the DHHR failed to make reasonable efforts to reunify the 

family, and the circuit court erred in terminating his parental rights in light of the limited effort 

of the DHHR to reunify him with the children. Indeed, West Virginia Code § 49-4-601(d)

requires the DHHR to “provide supportive services in an effort to remedy circumstances 

detrimental to a child” immediately upon the filing of the petition, and the circuit court must 

consider “whether or not the [DHHR] made reasonable efforts, with the child’s health and safety

being the paramount concern, to preserve the family” prior to terminating a parent’s parental 

rights. See id. § 49-4-604(c)(6)(C)(iii) (emphasis added). Petitioner was incarcerated for the 

majority of the proceedings and was unable to participate in remedial services until his release in 

January of 2021. The court found that petitioner did not initiate contact with the DHHR until 

August of 2021, months after the first dispositional hearing was held. Upon our review, we find 

the circuit court appropriately considered the DHHR’s efforts, the children’s need for 

permanency and their therapeutic needs, as well as petitioner’s actions during the case, and, 

therefore, did not err in terminating his parental rights.

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

March 31, 2022, order is hereby affirmed.

Affirmed.

ISSUED: February 7, 2023

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton

Justice C. Haley Bunn