1 

### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

In re K.P. and D. C.

- P.

No. 2 2

- 0 3 35 ( 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

, 2 0 22,
order terminating h is 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 201 8, the DHHR filed a petitio n al legi ng that petitioner was incarcerated and the children were neglected while in the mot her ’ s care

. The DHHR a ll e ged that petitioner

was arrested in January of 2018 and incarcerated for possession with i n tent to deliver heroi n a fter 178 gram s of heroin was discovered in the f amily home

. Following petitioner ’ s arrest, the mother
and children va cated the home; t he mother w as living “ on the streets

, ” and the children h ad been living with her acquaintance

. The DHHR alleged that th en

- seve n

- y e ar

- old D.C.

- P

. suf fered
educational neglect an d developmental delays and then

- four

- year

- old K.P. had sexualized
behavi ors, which prompted an investigation

. According to t he DHHR, petitioner failed to provide any financial or emotional suppor t fo r t h e ch i ldren

. Later in 2018 , t he circuit court adjudica ted th e children as negle c ted child ren and the mother as an abusing parent but made no findings regarding petitioner ’ s c o n d u c t

. The mother was granted an improvem ent period , and the
child ren were ret urn e d to her physical custody in Nove mber of 2019

.

In January of 202 0, the DHHR f i led a n amended petition alleging that the mother ’ s live

in boyf riend injur e d K.P. The DHHR alleged that the mother had actively hidden h er relations hip
with the boyf riend fr om w orkers becaus e she was aw are he was inappropriate and th at the circuit

1 Petitioner appears by counsel Steven T. Cook

. The West Virginia Department of Health
and Hu man Resources ( “ DHHR ” ) appears by counsel Attorney General Patrick Morr isey an d Assistant Attorney General Steven R. Comp ton

. Ryan Turner appears as t he ch ild ren ’ s guardian
ad litem.

2 We u se initials where necessary to protect the id entities of those involved in this c ase. See W. Va. R. A pp. P

. 40(e ). 

### FILED February 7 , 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 cour t previ ously 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 protec t the childr en f rom the mother ’ s boyfr ien d

, a nd failed to provide any em otiona l or financia l support of the chil dren

. Thereafter, the mother generally failed to participate in the proce edings , and the circuit court
terminated h er parental rights in early 2021.

In Jan uar y of 2021, p etition er w as released from in carceration o n p arole

. He t estified at a hearing in January of 20 2 1 that he last talked to the children in “ August or September of [2 018] ”
but alleged he requested permission to spe ak to the children while he wa s i n carcerated. At a
heari ng in February of 202 1, p et itioner stipulated to the allegations in the peti tion , and the circuit court adjudicated him as an abusing parent. By a motion filed that s ame mo nth, petitioner moved
for an improvement period

. By this t ime

, the children had a l re ady spent twenty

- eight months in
foster ca r e

.

T he court held t wo more dispositional hearings in April and November of 2021 and then
iss ued a n order in March of 2022

, terminating pe t itioner ’ s pare ntal rights

. In its order, the cou rt f ound that while pe ti ti one r was incarcerate d, he “ was aware of t h e abusive situation the child ren

were in but failed to report the same

. ” In his testimony, petitioner admitted that , pr ior to his
incarceration

, he sold c o n t r o lled substances from his home in whi ch t he children wer e a lso living. Petitioner asserted that he sol d drug s t o support his own addiction but also admitted that
he was unemployed and used thos e funds to support the family

. Nevertheless, petitioner did not
believe that he ha d been ab us ive or neglect ful of the c hil dren other than by his incarceration. The

cou rt fou n d th at petitioner had not pro vided any financial support to the children

, during or after
his incarceration

, despite having the funds to d o so

. The court found that petitioner ha d no t attend ed any clas ses or therapy to aid and develop his pa r en ting skills n o r did he a tten d any of
his children ’ s therapeutic treatments

. Fi nally, the cir cuit court found that the children had b een in
the DHHR ’ s custod y for a total of thirty months and had no t seen petitione r i n approxim ately four years. T he court found that as a r e sult of the children ’s neglect, the y suffered from
devel o pmental delays, p s ychological trau ma, attention deficient hyperactiv e disorder, and
educational d ifficulties. Evid enc e showed that the child ren , esp ecially K. P

., demonstrated
“severe behavior issu es , ” which had improved in the most recent placements. The guardian reported that K.P. “ would not re co gnize [petitioner] at all and has no real memory of him ” and
D.C

. - P. “ wo uld likely not recognize [ pe t iti oner. ] ” Accordingly, the circuit court found that th e re

was no reasonable likelihood that petitioner could c or rect the cond itions of neglect or a buse and
tha t it was necessary for the children ’ s welfare to termi nate his pare nta l rights. P e titioner no w

a

ppe als the circuit court ’ s March 31, 2022, or der t e rminat ing h is parental rights to K.P. and
D.C.

- P

. 4

3 While t he DHHR ’ s petition fail ed to state why the m ot her ’ s b oyfriend w as not t o be
around t he chil dr en, the record provides that the boyfriend was suspected of sexually abusing

K.P.

4 As stated previously , the mother ’ s pa r ental right s were t ermin at ed during these

proce edings. Ac c or ding to the p ar ties , th e p ermanency plan for the ch i ldren is adopt ion in their

(co ntinued . . . )3 On appeal from a final o rder in an abuse and negl ect proceeding, this Court re views the
circ uit court’s findings of fact for cl e a r error and its conc lu s i ons of law de novo

. Syl. Pt. 1, In re
Cecil T

., 22 8 W. Va. 89 , 717 S.E.2d 873 (2011)

. Petitioner first arg ues tha t the circuit court erred
in denying hi s motion for an improvement period because, in his view

, he had already rem e di e d
the conditions of a bu s e and neglect whe n he was released from incarceration

. We d i sagree , as petitioner ’ s incarceration was not the only issue for which he was adjudicated and, further,
because the stat utory timeframes for i mprovement periods were fu lly exhausted in this matter

. S pecifically, Wes t Virginia Code § 49

- 4

- 610(9) prohibits the g ranting of improvement periods
when such an improvement period would ca use the children to remain in foster care in excess of
fiftee n of the mos t re cent twenty

- two mon t hs , unless “ compellin g c i rcumstances ” permit th e granting of the im provement period

. In this instance, the children had already been in foster care for twenty

- eight months when petitioner filed his fir st motio n for a post

- adjudicatory
im provement perio d i n February o f 2 02 1

. 5 The c ircuit cour t heard evidence tha t , after petitioner ’ s four

- year absence, the children did not remember him

, and the record is de void of

a ny evidence of com pelling circumstances

. Thus , w e find no error in the ci rcuit court ’ s deni a l o f petitioner ’ s motio n fo r an improvement period.

Petitioner also arg ues that the circuit court erred in terminati ng his parental rights . He again asserts that he rem edied the cond itions of abuse and neglect

, namely his i ncarceration, an d
that he coul d h a ve reunified with th e ch i ldren at the dispositional hearing. W e find his argument unavailing. Critically, petitioner ’ s incarc eration was not the sole basis of his adjudication, as he stipulated to mul tiple condi tions of abuse and neglect, including fai lur e to protec t the children and failure to provide for them. As such , his argument that he corrected the conditions at is s ue simply by being rel eased from incarceration is without merit . Further, t he circuit court f ound that
there was no reasonable likeli hoo d that the conditions of n eg lect or abuse cou ld be substantially

correct ed in the near future and the record supports th at fi nding. See id. § 49

- 4

- 604(c )(6) (a

uthor izing the ter mination of parental rights up on said findings ). The evidence shows that the
ch i ldren no longer re cogniz e d him as a parent

, and h e f ailed to r e cognize his abus e and neglect of
the children

. S e e id. § 49

- 4

- 604( d) ( prov iding that t here is no r ea sonable likelihood that the
conditions of neglect and abuse can be subs tantiall y correcte d w h en the parent has demons t ra t ed

“ an in adequate capaci ty to solve the pro blems of abuse or neglect on the ir ow n or with he lp ” ).
We have held that “ [t] he controllin g standard that governs any dispositional decision remains the
best interests of the child. ” S y l. Pt. 4 , in part

, In re B. H

. , 233 W. Va. 57, 754 S. E.2d 7 43 (20 14). Here, where the children no longe r knew pe titioner as a parent due to his a bsence and had sp ent a si g nificant period of time in foster care awaiting permanency, we find no error in th e c i rcuit

court ’ s decision t o t e rminate h is parental rig hts

. S ee Syl . Pt. 5, In re Kristin Y. , 227 W. Va. 5 5 8,

respective placements. At the time of briefing, the parties alleged that K.P. was participating in
her second reside ntial treat ment pro g ram to resolve her trauma

- rela ted behavio rs and a potential adop t i v e placement would be purs u ed follo wing h er c ompletion of that program.

5 The children were in the ir mother ’ s custody for approximately two months in the middle
of the p ro ceedings and that time is not counted against petitioner in this calculation.4 7 12 S .E.2d 55 (2011) ( hold ing tha t “ [t] erm inat ion of parental rights . . . may be employed

. . . when it is fou n d tha t there is no reasonab le lik eli h ood . . . that the condi t io n s of neg lect or abuse

ca n be su bs tan tially co rrect ed ” ).

Finally , p etition e r ar gues that the DHHR failed to mak e reasonable eff orts to reunify the family , and the circuit cour t erred in terminating his parental rights in li ght of the limited effort
of th e DHH R to reunify him wit h the c hildren. Indeed, West Virginia Code § 49

- 4

- 6 0 1(d) requires t he DHHR to “ provide supportive servic es in an effort to re medy circumstances
detrimental to a child ” immediately upon the fili ng of t h e p etition

, and the cir cuit c o u rt m ust consider “ whethe r or no t the [DHHR] made reasonab le efforts

, wit h t he ch ild ’ s health and safety being the para mount concern

, to preserve the family ” prior to terminating a parent ’ s parental rights

. See id. § 49

- 4

- 604 ( c) ( 6) (C)(iii) (emphasis add e d)

. P etitioner was incarcer ated for the

ma jority of the proceedings an d was unable to participate in remedial services until his release in January of 2021. T he court found that petitioner did not initi ate contact with the DHHR un t il Augus t of 202 1, m onth s a fter the first dispositio nal hearing was held. Upon our review, we f in d

t h e circuit court appropriately considered the D HHR ’ s efforts

, the children ’ s need for permanency and their therapeutic needs , a s we ll as petitio ner ’ s ac tio n s during the case , a nd

, t he refore, did not err in te rminat ing his par ental ri ghts.

Fo r t he forego ing r eas on s , w e f ind no erro r in t h e de c i s i on o f t h e cir cu it c ourt

, and its
March 31

, 2 0 2 2

, o r der is h e reby affirmed.

Affir m e d.

ISS UED : February 7, 2023

CONCURRE D IN BY :

Chief Ju s ti ce Eliza beth D. Walker

Ju s tice Ti m Arms t ead
Justice John A. H u tch ison

Ju s ti ce Willi am R. Wooton
Ju s tice C. Haley Bunn