STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In Re: J.K. and C.K. March 31, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS No. 13-1008 (Mingo County 12-JA-67 and 12-JA-68) OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father filed this appeal by his counsel, Donald C. Wandling. His appeal arises 

from the Circuit Court of Mingo County, which terminated his parental rights to one-year-old 

J.K. and three-year-old C.K., by order entered on September 13, 2013. The guardian ad litem for 

the children, Lauren Thompson, filed a response in support of the circuit court’s order. The 

Department of Health and Human Resources (“DHHR”), by its attorney, William P. Jones, also 

filed a response in support of the circuit court’s order. Petitioner argues that the circuit court 

erred in finding that petitioner abused and neglected the subject children and erred in finding that 

there was no reasonable likelihood that petitioner could substantially correct the conditions of 

abuse and neglect in the near future. Petitioner also argues that the DHHR’s Family Case Plan 

failed to comply with the requirements of West Virginia Code § 49-6D-3(a). 

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. 

The DHHR filed an abuse and neglect petition for this case in September of 2012 after it 

received a referral from the Tug Valley Recovery Center, where the children’s mother, K.H., and 

the children were residing. The DHHR’s investigation revealed that K.H. was having 

hallucinations and delusions that three-year-old C.K. was possessed and that there was someone 

in a tree outside throwing blood at her. The DHHR also discovered that K.H. once left one-yearold J.K. on a shaky table by herself; that on another occasion, K.H. and J.K. went missing from 

the center for about twenty-five minutes; that K.H. suffers from a bipolar condition for which she 

has refused encouraged treatment; that K.H. has left the children unsupervised; and that K.H. 

once gave child C.K. a double dose of medicine because she had forgotten to give him a dose the 

prior day. The petition also alleged that upon speaking with petitioner, the Child Protective 

Services (“CPS”) worker learned that petitioner was currently residing with his parents, 

including his father who is a registered sex offender; that he is currently receiving treatment at 

the methadone clinic for an opiate addiction; and, that he noticed the mother’s strange behavior 

whenever she left him. At the time the DHHR filed its petition, petitioner also had a pending 

emergency domestic violence protective order against him that was filed by the children’s 

mother. At the preliminary hearing, the circuit court found probable cause for the abuse and 

neglect petition to proceed forward. 

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At the adjudicatory hearing in October of 2012, the circuit court found that petitioner 

previously reported that he lived with his mother and his father, who is a registered sex offender. 

At the dispositional hearing in March of 2013, the CPS worker reported that there was a sixmonth period of time in which petitioner failed to respond to the DHHR despite its phone calls to 

his mother in attempts to contact him, that petitioner has been in substance abuse treatment for 

quite some time without any decrease in his methadone dosage, and that petitioner once allowed 

his father to transport his children in his vehicle during his improvement period. After finding 

that petitioner did not have any independent means of transportation and would need to rely on 

his sexual offender father and that petitioner continued to use methadone as part of his treatment, 

the circuit court found that there was no reasonable likelihood that the conditions of abuse and 

neglect would be substantially corrected in the near future. The circuit court found that 

termination would be in the children’s best interests. Accordingly, the circuit court entered a 

termination order on September 13, 2013. From this order, petitioner appeals. 

This 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). 

Petitioner raises three assignments of error on appeal. Petitioner first argues that the 

circuit court erred in finding that the DHHR showed by clear and convincing evidence that he 

abused and neglected his children. Petitioner asserts that the DHHR failed to prove that 

petitioner improperly used the methadone he was prescribed as part of his inpatient substance 

abuse treatment. He also asserts that no proof was given as to his former residence with his 

father. Upon our review of the record, we find no error in the circuit court’s findings of abuse 

and neglect. Under West Virginia Code § 49-1-3(1)(B), the definition of an abused child includes 

those children whose health or welfare is threatened by sexual abuse or sexual exploitation. The 

record indicates that petitioner reported living with his parents when the DHHR initially filed the 

abuse and neglect petition. It is also undisputed that on one occasion, even after he left his 

parents’ residence, petitioner allowed his one-year-old and three-year-old children alone in the 

car with his father, a registered sexual offender. We find no clear error with these findings nor 

with the circuit court’s conclusions of abuse and neglect. 

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Next, petitioner argues that the Family Case Plan filed by the DHHR failed to comply 

with the requirements of West Virginia Code § 49-6D-3(a), which directs the DHHR to file a 

case plan within thirty days from the beginning of an improvement period. Indeed, this Court has 

held the following: 

Where it appears from the record that the process established by the Rules 

of Procedure for Child Abuse and Neglect Proceedings and related statutes for the 

disposition of cases involving children adjudicated to be abused or neglected has 

been substantially disregarded or frustrated, the resulting order of disposition will 

be vacated and the case remanded for compliance with that process and entry of 

an appropriate dispositional order. 

Syl. Pt. 5, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001). Notwithstanding the 

foregoing, as directed by Rule 2 of the Rules of Procedure for Child Abuse and Neglect, such 

rules and related statutes “shall be liberally construed to achieve safe, stable, secure permanent 

homes for abused and/or neglected children and fairness to all litigants.” Upon our review of the 

record and the applicable law, we find no error. The transcripts included in the record clearly 

provide expressed concerns by the DHHR and the circuit court with regard to contact between 

petitioner’s father and the children due to the grandfather’s status as a registered sexual offender. 

It is clear from the transcripts that petitioner was advised that the potential placement and 

reunification of his children would be obstructed should he allow contact between the children 

and his father. Also, although it appears the Family Case Plans were untimely filed, the 

transcripts provide that the DHHR was in communication with petitioner for scheduled drug 

screens, visitations, and hearings throughout this case. Under these circumstances, we find no 

frustration of the rules or statutes as it pertains to securing the safety of the subject children. 

Accordingly, we find no error in this regard. 

Lastly, petitioner argues that the circuit court erred in finding that there was no 

reasonable likelihood that petitioner could substantially correct the conditions of neglect or abuse 

in the near future. Petitioner asserts that his lapse in judgment in allowing his father to spend 

time alone with his children could be easily corrected in the near future. Upon our review of the 

record, we conclude that the circuit court properly terminated petitioner’s parental rights. 

“‘Although parents have substantial rights that must be protected, the primary goal in cases 

involving abuse and neglect, as in all family law matters, must be the health and welfare of the 

children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 2, In re 

Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013). We have also held as follows: 

“[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 

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). 

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Syl. Pt. 4, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Our review of the dispositional 

hearing transcript supports the circuit court’s findings that petitioner improperly allowed alone 

time between his father and his children, despite prior directions by the circuit court to not allow 

such contact. The record also supports the circuit court’s findings that petitioner depends on his 

parents, including his father, for transportation; that petitioner failed to maintain contact with the 

DHHR for a period of time; and that petitioner is not scheduled to complete his inpatient 

treatment in the near future. This evidence was sufficient to support the circuit court’s findings 

and conclusions that there was no reasonable likelihood to believe that conditions of abuse and 

neglect could be substantially corrected in the near future, and that termination was necessary for 

the children’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed 

to terminate parental rights upon such findings. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: March 31, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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