STATE OF WEST VIRGINIA 

FILED SUPREME COURT OF APPEALS 

October 23, 2017 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS In re: T.Y., A.Y.-1, A.Y.-2, J.P., K.P., and A.P. OF WEST VIRGINIA 

No. 17-0441 (Kanawha County 16-JA-18, 16-JA-19, 16-JA-20, 16-JA-21, 16-JA-22, & 16-JA23) 

MEMORANDUM DECISION 

Petitioner Mother M.P., by counsel Sandra K. Bullman, appeals the Circuit Court of 

Kanawha County’s April 11, 2017, order terminating her parental rights to T.Y., A.Y.-1, A.Y.-2, 

J.P., K.P., and A.P.1 The West Virginia Department of Health and Human Resources (“DHHR”), 

by counsel S.L. Evans, filed a response in support of the circuit court’s order. The guardian ad 

litem (“guardian”), W. Jesse Forbes, filed a response on behalf of the children in support of the 

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

parental rights without first granting an 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 January of 2016, the DHHR filed an abuse and neglect petition against petitioner.2 

According to the petition, the DHHR received a referral that petitioner abandoned three of the 

children, T.Y., A.Y.-1, and A.Y.-2, by dropping them off at her sister-in-law’s place of 

employment and failing to return for them. Petitioner advised the sister-in-law, R.K., that she 

wanted her to keep the children and enroll them in school. Petitioner provided nothing for the 

children and did not send any clothing. R.K. informed petitioner that she did not have the means 

to care for the children. Petitioner then stated that she would return to retrieve the children the 

next day. However, petitioner never returned. Rather, she requested that R.K. provide her with 

food and money for a hotel room so that she and the other three children did not have to sleep in 

her car. The DHHR alleged that the children refused to talk to Child Protective Services (“CPS”) 

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). Additionally, because two children share the same initials, 

we will refer to them as A.Y.-1 and A.Y.-2, respectively, throughout this memorandum decision. 

2

When the DHHR filed its petition, the children’s fathers were deceased. 

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workers because they had been in and out of several foster homes. The children had not been 

enrolled in school for the preceding two months. The DHHR further alleged that petitioner failed 

to cooperate, told R.K. that she was going to flee the area, and threatened to kill the potential 

foster parents. Specifically, petitioner stated “that she had already killed her husband and framed 

someone else for it.” Petitioner had a long history of CPS involvement in at least two different 

states. Petitioner was the subject of proceedings in Indiana, beginning in 2004, for abandonment. 

The children were returned to her care in 2005, but were subsequently removed again in 2006 in 

Roane County, West Virginia. Petitioner regained custody of the children in 2008. In 2011, in 

Fayette County, West Virginia, the children were removed from petitioner’s custody due to her 

failure to protect the children from her boyfriend, who allegedly sexually abused A.Y.-1. The 

children were returned to her after she completed an improvement period. Finally, the DHHR 

alleged that petitioner (1) had been provided services to no avail; (2) failed to provide a safe 

home and life essentials to the children; (3) neglected the children’s education; (4) demonstrated 

a violent nature, anger management issues, substance abuse, and a history of failure to protect 

her children, all of which prevented her from being an appropriate parent; (5) abandoned the 

children; and (6) had a significant history of involvement with CPS which included a hostile 

attitude, a history of fleeing, and lack of cooperation. 

The circuit court held a preliminary hearing in which the DHHR presented the testimony 

of petitioner, R.K., and a CPS worker. Petitioner testified that she recently moved to West 

Virginia from Indiana, where she claimed she was not being investigated by CPS. However, she 

then stated that her involvement with Indiana CPS was “a 30-day open case,” which was set to 

expire on January 15, 2016, after she left the area with the children. Petitioner denied threatening 

to kill the foster family. Petitioner also denied that R.K. ever asked her to retrieve the children. 

Petitioner denied knowing about the sexual abuse from her previous case, stating that the 

children never told her and that the former judge called two of her children “habitual 

pathological liars.” Petitioner also lied under oath. During the course of the hearing, petitioner 

stated that she was not married. However, the DHHR then presented evidence that petitioner was 

married. When questioned whether she had lied under oath, petitioner responded “[y]es.” R.K. 

testified that the children missed petitioner but did not want to return to her care. Specifically, 

A.Y.-1 reported that she was scared of petitioner, having previously been pushed down the stairs 

for reporting petitioner’s drug use. Finally, a CPS worker testified that petitioner denied all 

allegations against her, including substance abuse and abandonment. The CPS worker testified 

that she spoke to all of the children and that they appeared to be afraid of petitioner. Two of the 

children told the CPS worker that they slept in petitioner’s car and had not eaten in several days. 

Based upon the testimony, the circuit court found there was probable cause that petitioner 

abused, neglected, and abandoned the children. The circuit court also found that there was 

probable cause to remove the children from petitioner’s legal and physical custody. 

In May of 2016, petitioner underwent a psychological evaluation performed by Saar 

Psychological Group, PLLC. The evaluating psychologist concluded that petitioner “does not 

have any cognitive limitations that would impair her ability to parent.” The psychologist opined 

that petitioner’s history was indicative of life-long maladaptive personality traits that have 

interfered and continue to interfere with her ability to parent. The psychologist further stated that 

it was unlikely that petitioner would benefit from further services and offered no 

recommendations. 

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In September of 2016, the circuit court held an adjudicatory hearing during which the 

DHHR requested that all prior evidence submitted be considered for adjudicatory purposes. The 

request was granted without objection and no further evidence was submitted. The circuit court 

then adjudicated petitioner as an abusing parent due to her (1) failure to provide a safe home and 

life essentials; (2) neglect of the children’s educational needs; (3) mental state, violent nature, 

anger management issues, and substance abuse issues which prevented her from being an 

appropriate parent; (4) physical and substance abuse; and (5) lack of cooperation throughout her 

substantial history of CPS involvement, among other things.3 

In January of 2017, the circuit court held a dispositional hearing, during which petitioner 

moved for an improvement period. The DHHR presented the testimony of a CPS worker who 

testified that petitioner failed to comply with the services provided. Specifically, the circuit court 

heard evidence that petitioner stopped submitting to drug screens, missed multiple parenting and 

adult life classes, and cancelled her supervised visitation due to leaving the state unannounced 

for approximately one month. In fact, the CPS worker testified that petitioner continued to miss 

drug screens after November of 2016, despite having the services set up to be performed in her 

home. Further, petitioner had yet to obtain a steady income or suitable housing. Petitioner 

testified on her own behalf and admitted that the DHHR previously granted her services in all of 

her former proceedings, including the instant proceedings. Petitioner further testified that she 

never abused her children, failed to feed them, or abandoned them. The circuit court found that 

petitioner lacked the necessary motivation to regain custody of her children and that, despite the 

many opportunities provided to her through services, she failed to correct the conditions of abuse 

and neglect. Ultimately, the circuit court denied petitioner’s motion for an additional 

improvement period and terminated her parental rights to the children.4 It is from the April 11, 

2017, 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 

3

While the parties refer to petitioner as “an abusive and neglectful parent,” we note that 

the phrase “neglectful parent” does not appear in the statutory framework for abuse and neglect 

proceedings in this State. Instead, West Virginia Code § 49-1-201 defines “abusing parent” as “a 

parent . . . whose conduct has been adjudicated by the court to constitute child abuse or neglect 

as alleged in the petition charging child abuse or neglect.” (Emphasis added.) As such, the Court 

will refer to petitioner as an “abusing parent” in this memorandum decision, as that phrase 

encompasses parents who have been adjudicated of abuse and/or neglect. 

4

According to the DHHR, seventeen-year-old T.Y. ran away from her foster home and is 

still missing. A permanency plan will be implemented upon her return. J.P., K.P., and A.P. are 

with Pressley Ridge Foster Home with the goal to be adopted through that agency. A.Y.-1 was 

placed in the home of an aunt with the goal of adoption. A.Y.-2 was placed in a foster home with 

the goal of adoption. 

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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). 

On appeal, petitioner asserts two assignments of error. First, she argues that the circuit 

court erred in denying her motion for an improvement period. We disagree. First, the Court finds 

no error in the circuit court’s denial of petitioner’s motion for an improvement period. Pursuant 

to West Virginia Code § 49-4-610, “[a] court may grant a respondent an improvement period . . . 

when . . . the respondent files a written motion . . . [and] demonstrates, by clear and convincing 

evidence, that the respondent is likely to fully participate in the improvement period[.]” The 

record on appeal is devoid of any such written motion. Moreover, the decision to grant or deny 

an improvement period rests in the sound discretion of the circuit court. See In re: M.M., 236 

W.Va. 108, 115, 778 S.E.2d 338, 345 (2015) (holding that “West Virginia law allows the circuit 

court discretion in deciding whether to grant a parent an improvement period”); Syl. Pt. 6, in 

part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (holding that “[i]t is within the court’s 

discretion to grant an improvement period within the applicable statutory requirements”). We 

have also held that a parent’s “entitlement to an improvement period is conditioned upon the 

ability of the [parent] to demonstrate ‘by clear and convincing evidence, that the [parent] is likely 

to fully participate in the improvement period . . . .’” In re: Charity H., 215 W.Va. 208, 215, 599 

S.E.2d 631, 638 (2004). 

Here, even if petitioner had filed a written motion, it is clear from the record that she 

failed to demonstrate her ability to fully participate in an improvement period. Contrary to 

petitioner’s argument that she substantially complied with the services the DHHR offered, the 

record shows that she failed to submit to drug screens and missed individual parenting and adult 

life skills classes. In fact, petitioner received services throughout four separate cases dating back 

to 2004 and yet continues to conduct herself in the same abusive manner. We have previously 

held that it is possible for an individual to show “compliance with specific aspects of the case 

plan” while failing “to improve . . . [the] overall attitude and approach to parenting.” W.Va. 

Dep’t of Human Servs. v. Peggy F., 184 W. Va. 60, 64, 399 S.E.2d 460, 464 (1990). Fully 

participating in an improvement period necessarily requires implementing the parenting skills 

that are being taught through services. In re M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 

(2015). Thus, while petitioner completed past improvement periods, and took advantage of a few 

services offered throughout the entirety of the instant proceedings, the record clearly indicates 

that she failed to implement any of the techniques taught in the services and has not adopted a 

new approach to parenting. Accordingly, we find no error in the circuit court’s decision denying 

petitioner an improvement period. 

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Petitioner also argues that the circuit court erred in terminating her parental rights without 

first granting her 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 corrected in the 

near future” and that termination is necessary for the child’s welfare. Pursuant to West Virginia 

Code § 49-4-604(c)(3), a situation in which there is no reasonable likelihood that the conditions 

of abuse or neglect can be substantially corrected include one in which “[t]he abusing parent . . . 

ha[s] not responded to or followed through with a reasonable family case plan or other 

rehabilitative efforts[.]” Moreover, 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). Despite being offered services 

in four separate cases dating back over ten years, petitioner failed to respond or follow through 

with rehabilitative efforts. Further, the evaluating psychologist opined that petitioner’s prognosis 

for improved parenting was extremely poor to non-existent and declined to recommend services 

as she seemed unlikely to benefit. Based on the evidence outlined above, it is clear that there was 

no reasonable likelihood petitioner could substantially correct the conditions of abuse and 

neglect and that termination was necessary for the children’s welfare. As such, 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 

April 11, 2017, order is hereby affirmed. 

Affirmed. 

ISSUED: October 23, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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