1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re S.P. and K.P.

No. 21-0746 (Mercer County 19-JA-93 and 19-JA-94)

MEMORANDUM DECISION

Petitioner Mother C.A., by counsel P. Michael Magann, appeals the Circuit Court of 

Mercer County’s August 20, 2021, order terminating her custodial rights to S.P. and K.P.1 The 

West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick 

Morrisey and James Wegman, filed a response in support of the circuit court’s order. The guardian 

ad litem (“guardian”), Joshua J. Lawson, filed a response on behalf of the children also in support 

of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating 

her custodial rights instead of granting her a post-dispositional 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. 

In August of 2019, the DHHR filed a child abuse and neglect petition against petitioner 

alleging that she abused drugs, failed to seek treatment for her mental health issues, and failed to 

provide for the children, S.P. and K.P.2 The children underwent forensic interviews, and both 

children reported physical, emotional, and substance abuse by petitioner. Petitioner participated in 

services but continued to test positive for marijuana. The DHHR further alleged that petitioner had 

an extensive Child Protective Services (“CPS”) history dating back to 2015. 

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). 

2

Of note, petitioner has two younger children who were also involved during the 

proceedings below. However, those children are not at issue in this appeal.

FILED

March 9, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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Later in August of 2019, the DHHR filed an amended petition with additional allegations 

of abuse. Specifically, the DHHR alleged that, during her forensic interview, then-fourteen-yearold K.P. reported that petitioner always placed the men in her life above her children and took her 

frustrations out on her children by yelling at them daily for no reason. K.P. further disclosed 

physical abuse, including the allegations that petitioner had previously punched and hit her head, 

legs, and arms and had attempted to strangle S.P. According to K.P., petitioner also abused 

marijuana and sold her prescribed medication. In her interview, then-thirteen-year-old S.P. 

reported that “any chance [petitioner] got she would beat” them and that petitioner previously 

threw a glass figurine at her head. S.P. also disclosed that petitioner sold drugs with the children 

present. Both children stated that they did not want to be returned to petitioner’s care. Petitioner 

waived her preliminary hearing

The circuit court granted petitioner a preadjudicatory improvement period in February of 

2020. As part of the terms and conditions, petitioner was required to maintain stable housing and 

employment, cooperate with services, and address and maintain her mental health needs. At the 

conclusion of her preadjudicatory improvement period in September of 2020, the circuit court 

adjudicated petitioner as a neglecting parent and granted her a post-adjudicatory improvement 

period.

Prior to disposition, the guardian filed a report recommending that petitioner’s custodial 

rights to the children be terminated. The guardian reported that petitioner failed to take her mental 

health issues seriously and did not seek treatment or medication management for the same. 

According to the guardian, petitioner continuously placed all blame on the children and failed to 

accept any responsibility for her own actions. The guardian noted that petitioner “has made every 

[multidisciplinary team meeting] about what the children have done wrong and why she believes 

she can correct these issues and has continued to refuse to address any shortcomings of her own, 

particularly those related to [m]ental [h]ealth [t]reatment.” The guardian further noted that the 

children refused to visit with petitioner, and the children’s therapist recommended that visits with 

petitioner cease until the children were ready for further contact to continue. Despite this 

recommendation, petitioner continued to contact the children via phone and social media, which 

caused the children distress. The guardian reported that service providers attempted to address 

these issues with petitioner, but she refused to recognize the validity or need for the no contact 

requests. The guardian concluded that the relationship between petitioner and the children was 

irreparable. 

In August of 2021, the circuit court held a dispositional hearing. The DHHR presented the 

testimony of several witnesses in support of its motion to terminate petitioner’s parental rights, 

including a CPS worker who stated that petitioner failed to address her mental health concerns. 

The worker testified that petitioner underwent a psychological evaluation and was diagnosed with 

bipolar disorder and a personality disorder but was seeking treatment for social anxiety only. The 

worker further advised that petitioner had not submitted to a drug screen since September of 2020, 

failed to accept responsibility for any of the issues that led to the petition’s filing, blamed the 

children for her troubles, and contacted the children against the therapist’s recommendation.

A service provider testified that she provided parenting and adult life skills classes to 

petitioner, and that petitioner satisfactorily complied with the services. However, the service 
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provider acknowledged that petitioner continued to contact the children against their wishes and 

their therapist’s recommendations, and that petitioner indicated that she was going to continue to 

contact the children unless she had a court order instructing her not to do so. Nevertheless, the 

service provider believed that, with further counseling, the children could eventually be returned 

to petitioner’s care. The service provider testified that petitioner did not submit to drug screens for 

some time because that service had expired, and she further indicated that she did not suspect that 

petitioner was abusing drugs.

A service provider for the children also testified, stating that she provided “wrap around 

facilitation” and “work[ed] with them to make sure that their mental health is good in the home 

and that they are stable in the environment that they are in.” The service provider testified that the 

children no longer had a relationship with petitioner and had no desire to continue a relationship 

with petitioner. The provider stated that she initially encouraged the children to maintain a 

relationship with petitioner, but that their contact with petitioner had been detrimental to the 

children’s mental health. The provider recounted one message sent by petitioner to K.P. wherein 

she told the child, “Remember, I’m no longer your mother. I’m [petitioner’s first name]. Use a 

condom because . . . I ain’t raising none of them grandbabies.”3

 Petitioner further wrote to K.P., 

“I cannot believe I raised such a disrespectful, lying, manipulative little s--t. And yes, that’s the 

way I’m talking to you right now because that’s exactly what you’re acting like.” The provider 

stated that petitioner was also provided phone calls with the children but refused to follow the 

phone call schedule provided, calling the foster mother more than sixty-five times in one month. 

The provider testified that she attended MDT meetings and had never observed petitioner to take 

responsibility for her actions. When asked whether there was anything else that could be done to 

repair the relationship between petitioner and the children, the provider stated “I feel like we have 

exhausted all resources. For two years we have done everything possible. I don’t know what else 

we could do.”

The children’s therapist testified that therapy was going well and that “it’s a night and day 

difference” from when she first started seeing the children. The therapist diagnosed the children 

with posttraumatic stress disorder and stated that the children experienced trauma at the hands of 

petitioner, including physical and mental abuse. The therapist stated that the children refused to 

visit with petitioner during the proceedings due to petitioner’s abuse and actions during the 

proceedings. The therapist opined that “if visitation is pushed in any capacity for the [children], 

we’re going to see some pretty big behaviors. I think they’re going to regress immensely.” The 

therapist further opined that the relationship could not be fixed in the near future.

Child K.P. testified that, prior to the initiation of the proceedings, petitioner became very 

aggressive with her. K.P. reported being scared to come home from school for fear of what kind 

of mood petitioner would be in that day. K.P. testified that petitioner hit her, called her names, and 

abused marijuana in her presence. K.P. opined that her relationship with petitioner could not be 

repaired because petitioner “can’t even take responsibility for what she did to us.” K.P. stated, “I 

also want her [petitioner] to know that if it wasn’t for her I wouldn’t be suffering with PTSD every 

day of my life, and anxiety and depression.”

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Neither child has any children.
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Child S.P. also testified, stating that prior to the petition’s filing, petitioner beat her. S.P. 

stated, “I know the difference between whoopings and like spankings, but it wasn’t that.” S.P. 

stated that petitioner would punch them or throw things at them. S.P. testified that she did not want 

to see petitioner until she changed her behavior and did not believe there was any possibility of 

rekindling her relationship with petitioner in the future.

Petitioner’s therapist testified that petitioner was compliant with her treatment. However, 

on cross-examination, the therapist admitted that the allegations of abuse were never 

communicated to him and that petitioner characterized the proceedings as a custody dispute.

Petitioner testified that addressing her mental health concerns was a part of her 

improvement period and that she began counseling in February or March of 2021. Petitioner 

testified that when visits with the children were provided, they went well, and she requested family 

counseling. She admitted that she had not submitted to a drug screen since December of 2020 but 

claimed that the DHHR referral for that service had expired. When asked whether she had said 

anything inappropriate to the children during the proceedings, petitioner stated “I guess I have 

because they’ve said it.” However, petitioner claimed she was only trying to communicate how 

much she loved her children. Petitioner testified that she tried to give the children the space they 

desired during the proceedings stating, “I did that for this whole time,” and denied that she ever 

contacted the children on social media. Petitioner also denied calling the foster parent more than 

sixty-five times in one month. When asked why the petition was filed against her, petitioner 

claimed that the children were mad at her. She denied calling them names or beating them.

Following testimony, the DHHR requested that the circuit court terminate petitioner’s 

parental rights. The guardian, however, requested that only her custodial rights be terminated as 

he believed the children would eventually want to resume their relationship with her, despite their 

testimony to the contrary. Ultimately, the circuit court terminated petitioner’s custodial rights to 

the children. The circuit court found that petitioner “has no credibility with me.” The circuit court 

found that petitioner had severe mental health issues that affected her ability to parent the children 

and that there had been too much trauma inflicted on the children to place them back in her care. 

Petitioner now appeals the August 20, 2021, dispositional order terminating her custodial rights.4

The Court has previously established the following standard of review in cases such as this:

“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 

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K.P.’s father’s parental and/or custodial rights were previously terminated or relinquished. 

S.P.’s father’s parental rights remain intact. The permanency plan for K.P. and S.P. is guardianship 

by their foster family. Further, based upon the recommendation of the DHHR and the guardian, 

the circuit court granted petitioner a post-dispositional improvement period with regard to the two 

younger children who are not at issue on appeal.
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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). 

On appeal, petitioner argues that the circuit court erred in terminating her custodial rights 

without first granting her a post-dispositional improvement period. According to petitioner, 

testimony established that she was compliant with parenting and adult life skills classes and 

demonstrated her understanding of the materials taught. Further, petitioner obtained housing and 

employment, and the DHHR and the guardian recommended that the two younger children 

continue in her home during a post-dispositional improvement period. Petitioner also obtained 

counseling to address her mental health issues. By terminating her custodial rights, petitioner 

argues that the circuit court failed to consider family counseling and that reunification with K.P. 

and S.P. was a possibility. 

We find petitioner’s arguments to be without merit. Petitioner failed to demonstrate that 

she was entitled to a post-dispositional improvement period. West Virginia Code § 49-4-610(3)(D) 

provides that a circuit court may grant a parent a post-dispositional improvement period after the 

expiration of a previous improvement period when the parent shows that she “experienced a 

substantial change in circumstances” and that due to the change in circumstances, she was likely 

to fully participate in another 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). Finally, the circuit court has 

discretion to deny an improvement period when no improvement is likely. See In re Tonjia M., 

212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002).

Here, petitioner provides no argument as to what substantial change in circumstances she 

experienced. Further, petitioner failed to demonstrate that she was likely to fully participate in 

another improvement period. Although petitioner eventually obtained counseling, a letter authored 

by her therapist indicated her treatment was targeting a social anxiety disorder rather than her 

diagnoses of bipolar disorder and a personality disorder. Further, her therapist testified at the 

dispositional hearing that petitioner had not provided him with the allegations of abuse and 

characterized the proceedings as a custody battle. Moreover, petitioner failed to accept 

responsibility for her actions. Both children testified that petitioner was physically abusive and 

beat them; petitioner, however, continued to deny such actions during her testimony at the 

dispositional hearing. Both children also testified that petitioner called them names, which 

petitioner also denied, despite evidence that petitioner called K.P. “a manipulative little s--t.” To 

the extent petitioner argues that the circuit court erred in denying her a post-dispositional 

improvement period with regard to K.P. and S.P. when she was granted one with regard to her two 

younger children, testimony established that continued contact with K.P. and S.P. was not in their 

best interests and would be detrimental to their mental health. Accordingly, we find no error in the 

circuit court’s decision to deny petitioner a post-dispositional improvement period. 
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We likewise find no error in the circuit court’s termination of petitioner’s custodial rights. 

West Virginia Code § 49-4-604(c)(6) provides that circuit courts are to terminate parental, 

custodial, and guardianship 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 is necessary for the children’s welfare. West Virginia Code § 49-4-604(d) provides 

that a circuit court may find that there is no reasonable likelihood that the conditions of abuse and 

neglect can be substantially corrected when the abusing parent has “demonstrated an inadequate 

capacity to solve the problems of abuse or neglect on [his or her] own or with help.”

The record establishes that petitioner demonstrated an inadequate capacity to solve the 

problems of abuse or neglect on her own or with help. Specifically, petitioner failed to adequately 

address her mental health issues and failed to acknowledge the conditions of abuse and neglect.

The record establishes that petitioner did not seek counseling until March of 2021, well over a year 

into the proceedings. Petitioner exhibited extreme behavior towards the children during the 

proceedings, including calling them names and sending them hurtful messages. The children 

testified about the trauma inflicted by petitioner, and both indicated that they wanted no further 

relationship with petitioner due to her failure to accept responsibility for her actions. We have 

previously explained that

[i]n order to remedy the abuse and/or neglect problem, the problem must first be 

acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth 

of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator 

of said abuse and neglect, results in making the problem untreatable.

In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted). The record 

clearly establishes that petitioner blamed the children for the proceedings, attempted to harass them 

by sending them messages and calling them against the DHHR’s directive and therapist’s 

recommendation, and denied being physically or mentally abusive to the children. The children 

testified that petitioner was aggressive towards them, beat them, and threw objects at them, but 

petitioner denied being physically violent or hitting the children. Petitioner also denied harassing 

the children and denied calling the foster mother over sixty-five times in one month, despite 

evidence to the contrary.

Moreover, the children’s service provider and their therapist testified that continued contact 

between petitioner and the children was not in the children’s best interests. Their therapist testified 

that the children would “regress immensely” in their treatment if contact were forced, and the 

service provider testified that “we have exhausted all resources” with regards to petitioner’s 

services. While petitioner argues that she should have been granted a less-restrictive dispositional 

alternative, 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 
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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). The evidence set forth above 

demonstrates that there was no reasonable likelihood that petitioner could correct the conditions 

of abuse and neglect in the near future and that termination of her custodial rights was necessary 

for the children’s welfare. Consequently, we find no error in the circuit court’s decision to 

terminate petitioner’s custodial rights to the children.

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

August 20, 2021, order is hereby affirmed.

Affirmed.

ISSUED: March 9, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison 

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice Alan D. Moats sitting by temporary assignment