SUPREME COURT OF APPEALS
 

In re A.D. FILED 

No. 17-1092 (Mercer County 16-JA-37) 

April 9, 2018 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father L.D., by counsel John G. Byrd, appeals the Circuit Court of Mercer 

County’s November 13, 2017, order terminating his parental rights to A.D.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 (“guardian”), David 

Kelley, filed a response on behalf of the child in support of the circuit court’s order and a 

supplemental appendix. On appeal, petitioner argues that the circuit court erred in terminating his 

parental rights when the child’s mother was participating in a post-dispositional improvement 

period and by not employing a less-restrictive alternative than terminating his parental rights. 

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. 

On March 17, 2016, the DHHR filed a petition alleging that petitioner abused and 

neglected the child. The petition specifically alleged that petitioner’s home was in a “deplorable” 

condition and that there was no clear path to walk through the residence. According to the 

petition, the child lacked proper hygiene, her clothes were too small, and she had diaper rash 

severe enough to require medical attention. The petition also alleged that there was drug 

paraphernalia in the home, little food in the refrigerator, and that petitioner exposed the child to 

drug use in the home. Petitioner waived the preliminary hearing. On April 22, 2016, the circuit 

court held an adjudicatory hearing during which petitioner stipulated to the allegations of abuse 

and neglect. Petitioner was adjudicated as an abusing parent and was granted a post-adjudicatory 

improvement period. 

On March 15, 2017, the DHHR moved to terminate petitioner’s parental rights. In 

support of its motion, the DHHR alleged that petitioner failed to comply with the terms and 

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). 

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conditions of his improvement period in that he failed to complete a long-term substance abuse 

treatment program and participate in random drug screenings. The DHHR also alleged that 

petitioner habitually abused alcohol and controlled substances to the extent that his parenting 

skills were seriously impaired. 

On October 30, 2017, the circuit court held a dispositional hearing, which petitioner 

failed to attend, although he was represented by counsel at that hearing. The DHHR presented 

testimony from a caseworker that petitioner failed to enter into a long-term substance abuse 

treatment program. The caseworker also testified that petitioner failed to participate in parenting 

education, adult life skills classes, and random drug screening. A service provider testified that 

petitioner failed to comply with parenting education classes and supervised visitation for at least 

six weeks prior to the dispositional hearing. Based on this evidence, the circuit court found that 

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

abuse and neglect in the near future and that termination of his parental rights was in the child’s 

best interests. At the close of the dispositional hearing, the child’s mother was granted an 

extension to her post-dispositional improvement period. The circuit court ultimately terminated 

petitioner’s parental rights in its November 13, 2017, order.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). Upon our review, the Court finds 

no error in the proceedings below. 

On appeal, petitioner argues that the circuit court erred in terminating his parental rights 

because the mother was participating in an improvement period. We disagree. West Virginia 

Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental rights upon findings 

that there is “no reasonable likelihood that the conditions of neglect or abuse can be substantially 

2

The mother voluntarily relinquished her parental rights in February of 2018. According 

to the guardian and the DHHR, the permanency plan for the child is adoption by her paternal 

grandparents. 

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corrected in the near future” and that termination is necessary for the children’s welfare. West 

Virginia Code § 49-4-604(c)(3) provides that no reasonable likelihood that the conditions of 

abuse or neglect can be substantially corrected exists when “[t]he abusing parent . . . ha[s] not 

responded to or followed through with a reasonable family case plan or other rehabilitative 

efforts[.]” 

Here, it is clear that there was no reasonable likelihood that petitioner could have 

substantially corrected the conditions of abuse or neglect in the near future. The record shows 

that petitioner failed to comply with the terms and conditions of his post-adjudicatory 

improvement period. Specifically, petitioner failed to enter into a long-term substance abuse 

treatment program, continued to abuse drugs and alcohol, and failed to participate in parenting 

education classes, adult life skills classes, and random drug screening. 

Although petitioner argues that the circuit court erred in terminating his parental rights 

when the child’s mother was participating in an improvement period, we have held that “[West 

Virginia Code § 49-4-604] permits the termination of one parent’s parental rights while leaving 

the rights of the nonabusing parent completely intact, if the circumstances so warrant.” In re 

Emily, 208 W.Va. 325, 344, 540 S.E.2d 542, 561 (2000). Further, “simply because one parent 

has been found to be a fit and proper caretaker for [the] child does not automatically entitle the 

child’s other parent to retain his/her parental rights if his/her conduct has endangered the child 

and such conditions of abuse and/or neglect are not expected to improve.” Id. 

As discussed above, the record shows that there was no reasonable likelihood that 

petitioner could substantially correct the conditions of abuse and neglect because he failed to 

successfully participate in his post-adjudicatory improvement period. Therefore, the circuit court 

did not err in terminating petitioner’s parental rights when the child’s mother was participating in 

a post-dispositional improvement period. 

Further, while petitioner argues that the circuit court erred in terminating his parental 

rights instead of employing a less-restrictive alternative, we have previously held that 

“[t]ermination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, W. Va.Code [§] 

49-6-5 [now 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 W. Va.Code [§] 49-6-5(b) [now West Virginia Code 

§ 49-4-604(c)] . . . 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). Moreover, it is clear that 

termination was necessary for the child’s welfare, given that petitioner failed to correct the 

conditions of abuse and neglect. For these reasons, we find no error in the circuit court’s 

termination of petitioner’s parental rights. 

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

November 13, 2017, dispositional order is hereby affirmed. 

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Affirmed. 

ISSUED: April 9, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

Justice Elizabeth D. Walker 

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