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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re D.M. and R.P.

No. 20-0089 (Fayette County 19-JA-72 and 19-JA-73)

MEMORANDUM DECISION

Petitioner Mother J.P., by counsel Susie Hill, appeals the Circuit Court of Fayette County’s 

January 15, 2020, order terminating her parental rights to D.M. and R.P.1 The West Virginia 

Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N. Felton-Ernest, 

filed a response in support of the circuit court’s order. The guardian ad litem, Anthony Ciliberti 

Jr., 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 denying her an improvement period and finding that 

there was no reasonable likelihood that the conditions of neglect or abuse could be corrected in the 

near future. 

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 2017, the DHHR filed the first abuse and neglect petition against petitioner

and M.P., the father of R.P., due to their issues with domestic violence and drug abuse in the home. 

At a dispositional hearing held in February of 2018, M.P.’s parental rights to R.P. were terminated, 

and the circuit court ordered petitioner to have no contact with M.P. In fact, the circuit court 

specifically ordered that if petitioner were contacted by M.P., she was to tell him his parental rights 

had been terminated, cease any further contact, and inform the circuit court of the contact

immediately. In December of 2018, the circuit court returned the children to petitioner’s custody

and dismissed the petition after petitioner successfully completed an improvement period.

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).

FILED

November 4, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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In April of 2019, the DHHR filed the instant child abuse and neglect petition against 

petitioner. The DHHR alleged that police officers responded to reports of a domestic dispute in 

petitioner’s home and found M.P. there. According to the DHHR, petitioner permitted M.P. to 

move back into the home around December of 2018, against the circuit court’s order. The DHHR 

alleged that there was no indication that M.P. had addressed either his violent behavior or his drug 

addiction since the prior termination of his parental rights to R.P. Child Protective Services 

(“CPS”) workers spoke to petitioner, who stated that she could not deny that M.P. had been around 

the children and that she was aware of her actions, but that her “kids should not suffer because of 

her stupid decisions.” CPS workers also interviewed D.M., who reported that M.P. had been living 

with them since the prior proceedings concluded. D.M. divulged that petitioner and M.P. fought 

“by yelling [at each other] pretty much every day.” D.M. also reported that M.P. “had gotten into 

her face” during fights with petitioner and she further alleged that M.P. was abusing drugs. In sum, 

the DHHR concluded that petitioner failed to protect the children from M.P. and exposed the 

children to domestic violence in the home. Petitioner waived her preliminary hearing.

The circuit court held an adjudicatory hearing in August of 2019. Petitioner stipulated to 

the allegations contained in the petition. The circuit court accepted petitioner’s stipulation and 

adjudicated her as an abusing parent. Subsequently, petitioner filed a motion for a postadjudicatory improvement period. The circuit court held a hearing on petitioner’s motion in 

September of 2019. In support, petitioner presented the testimony of a service provider who 

testified that petitioner had produced no positive drug screens during the proceedings and 

participated in five supervised visits with the children. The provider stated that the visits went well 

and both petitioner and the children wanted them to continue. A CPS worker testified that 

petitioner was compliant with supervised visits. However, on cross-examination, the worker noted 

that the DHHR continued to receive reports that petitioner and M.P. maintained their relationship. 

The CPS worker also provided details regarding the prior case and how petitioner was instructed 

that M.P. could not be around her or the children.

The DHHR called petitioner to testify. Petitioner admitted that she had been informed 

during the prior proceedings that M.P. was prohibited from having contact with her and the 

children. Petitioner also admitted to allowing M.P. to move back into the home and continuing

contact with him even after the filing of the instant petition. In fact, petitioner testified she had 

“frequent” contact with M.P. through August of 2019—only one month prior to the hearing. 

Nevertheless, petitioner insisted that she would cease contact with M.P. if the circuit court were to 

grant her an improvement period. Following petitioner’s testimony, the circuit court found that

when the prior case was dismissed in 2018, it had felt that reunification of the children with 

petitioner was in the children’s best interests. The circuit court believed petitioner in the prior case 

when she said she would not allow M.P. around the children. The circuit court concluded that

petitioner’s testimony in the immediate proceeding indicated she would reenter a relationship with 

M.P., which was a danger to the children. Accordingly, the circuit court denied petitioner’s motion 

for a post-adjudicatory improvement period.

In December of 2019, the circuit court held a dispositional hearing. At the conclusion of 

the hearing, the circuit court found that, in the prior case, petitioner promised that she would take 

care of the children and would not permit M.P. back in the home. However, petitioner allowed 

M.P. to move back into the home and continued to engage in domestic violence in the presence of 
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the children. The circuit court noted that “as long as [M.P.] is alive, [petitioner] will do whatever 

she can to make sure that he is in her life.” The circuit court further noted the trauma suffered by 

the children at the hands of M.P. Ultimately, the circuit court found 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 parental rights was necessary for the children’s welfare. It is from the 

January 15, 2020, dispositional order terminating her parental rights that petitioner appeals.

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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 

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 denying her a post-adjudicatory 

improvement period. Petitioner contends that she met her burden of proof in demonstrating that 

she was likely to fully participate in an improvement period. According to petitioner, she complied 

with all drug screenings and supervised visitation. Petitioner claims that she would have benefitted

from counseling and that she should have been granted an improvement period prior to the 

termination of her parental rights. We disagree.

This Court has held that “a parent charged with abuse and/or neglect is not unconditionally 

entitled to an improvement period.” In re Emily, 208 W. Va. 325, 336, 540 S.E.2d 542, 553 (2000). 

West Virginia Code § 49-4-610(2)(B) provides that the circuit court may grant a parent a postadjudicatory improvement period when the parent “demonstrates, by clear and convincing 

evidence, that the [parent] is likely to fully participate in the improvement period.” “This Court 

has explained that ‘an improvement period in the context of abuse and neglect proceedings is 

viewed as an opportunity for the miscreant parent to modify his/her behavior so as to correct the 

conditions of abuse and/or neglect with which he/she has been charged.’” In re Kaitlyn P., 225 W. 

Va. 123, 126, 690 S.E.2d 131, 134 (2010) (citation omitted). However, the circuit court has 

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M.P.’s parental rights to R.P. were terminated during the prior proceedings. The 

permanency plan for the child is adoption by her foster family. D.M.’s father was deemed a nonabusing parent during the proceedings and the permanency plan for D.M. is to remain in the care 

of her father.
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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).

Petitioner failed to demonstrate that she was likely to fully participate in an improvement 

period. While petitioner points out that she attended supervised visits with the children and 

submitted to drug screens, petitioner failed to correct the conditions of abuse that led to the filing 

of the petition. Here, a prior petition was filed against petitioner and M.P. due to their issues with 

domestic violence. Petitioner was granted an improvement period, which she successfully 

completed, and the children were returned to her care. However, petitioner was repeatedly 

instructed that M.P., whose parental rights had been terminated due to his inability to address the 

issues of abuse, was prohibited from contact with the children. Despite the circuit court’s 

instruction, petitioner allowed M.P. to move back into the home almost immediately after the 

petition against her was dismissed. The couple continued to engage in domestic violence such that 

law enforcement intervened, leading to the filing of the instant petition. Petitioner’s children were 

removed from her care in April of 2019, yet she continued to maintain contact with M.P. during 

the instant proceedings for at least four months. Although petitioner claimed that she made a 

mistake and would not let M.P. around the children if she were granted an improvement period, 

the circuit court found that petitioner was not sincere and would continue to associate with M.P. 

despite the danger to her children. Given this evidence, we find no error in the circuit court’s 

decision to deny petitioner a post-adjudicatory improvement period.

Petitioner also argues that the circuit court erred in terminating her parental rights when 

there was not sufficient evidence to support its finding that there was no reasonable likelihood that 

petitioner could correct the conditions of abuse and neglect in the near future. However, the 

evidence as set forth above also supports the termination of petitioner’s parental rights.

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

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 their 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. As noted above, petitioner was granted a 

post-adjudicatory improvement period in her prior case and was provided with services aimed at 

correcting the issues of abuse.3 Petitioner complied with services such that she convinced both the 

circuit court and the parties involved that she had successfully addressed her issues with domestic 

violence and would not permit M.P. around the children. However, petitioner immediately 

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Petitioner claims that she was never offered services to address her history of domestic 

violence. However, the portion of the record to which petitioner cites in support of this argument 

does not reference any of the services provided to her. Moreover, a review of the record indicates 

that petitioner admitted that she never requested any additional services from the DHHR beyond 

the ones that were provided to her. 
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resumed her relationship with M.P. once the petition against her was dismissed and maintained 

that relationship for at least four months after her children were removed from her custody in the 

instant case. Petitioner maintained the relationship knowing that it was preventing her from 

remedying the conditions that led to the petition’s filing and despite knowing that her children 

were traumatized from the violence perpetrated by M.P. Based on this evidence, we cannot find 

that the circuit court erred in finding that there was no reasonable likelihood that petitioner could 

correct the conditions of abuse or neglect in the near future as petitioner demonstrated an 

inadequate capacity to solve her issues of abuse on her own or with help.

Lastly, while petitioner claims that she should have been granted a less-restrictive 

disposition than termination of her parental rights, we have previously 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 

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). Based on the foregoing, 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 

January 15, 2020, order is hereby affirmed.

Affirmed.

ISSUED: November 4, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead 

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison