1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re K.R.

No. 19-0074 (Webster County 18-JA-1)

MEMORANDUM DECISION

Petitioner Father M.R., by counsel Jared S. Frame, appeals the Circuit Court of Webster 

County’s December 15, 2018, order terminating his parental rights to K.R.

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 and a supplemental appendix. The guardian 

ad litem, Mary Elizabeth Snead, filed a response on behalf of the child in support of the circuit 

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

rights because he shared a strong bond with the child, supported the child financially, and his 

noncompliance with services was the result of employment out of town.

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 2018, the DHHR filed an abuse and neglect petition that alleged the mother 

filed for a domestic violence protective order against petitioner after he threatened both the mother 

and the child. During an investigation, the mother informed Child Protective Services (“CPS”) that 

petitioner abused drugs and alcohol; was violent toward her in the child’s presence; “threatened to 

burn the house[;] and . . . threatened to kill [the mother’s] family.” During one incident, petitioner 

“smashed [the child’s] toddler bed.” The child corroborated these allegations, telling CPS that 

petitioner “was mean[,] . . . screamed at [m]ommy[,] . . . [and] broke her . . . bed.” Petitioner also 

admitted to CPS that he used marijuana and then tested positive for this substance. Based on these 

 

1Consistent 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

June 12, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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facts, the DHHR alleged that petitioner abused the child by abusing drugs and alcohol and 

committing domestic violence in her presence. Petitioner thereafter waived his preliminary hearing 

and was ordered to submit to random drug screening. 

In February of 2018, the circuit court held an adjudicatory hearing. During the hearing, the 

DHHR presented testimony from the child’s nonabusing mother and a CPS worker. Ultimately, 

the circuit court adjudicated petitioner of abusing and neglecting the child by engaging in domestic 

violence in the child’s presence. According to the circuit court, petitioner’s actions “cause[d] 

serious emotional distress to the child.” Following this hearing, the circuit court granted petitioner 

an improvement period in April of 2018. According to the record, the terms of the improvement 

period were to include (1) weekly drug testing; (2) a hair follicle drug test; (3) “domestic violence 

classes, parenting classes[,] and anger management classes”; (4) no use of alcohol or controlled 

substances, not be in the presence of anyone using such substances, and not be in the presence of 

anyone convicted of any crimes involving drugs or alcohol; and (5) employment. 

In May of 2018, the DHHR filed a motion to revoke petitioner’s improvement period and 

terminate his parental rights. According to the DHHR, petitioner tested positive for amphetamine 

and methamphetamine on a drug screen administered on May 26, 2018. The DHHR filed a second 

motion based upon an additional drug screen positive for amphetamine and methamphetamine 

administered in June of 2018. 

In November of 2018, the circuit court held a dispositional hearing and found that petitioner 

failed to comply with the terms and conditions of his improvement period. In addition to multiple 

positive drug screens, including a screen taken on the day of the hearing, the circuit court found 

that petitioner failed to undergo the ordered hair follicle testing, did not cooperate with his service 

provider, and did not participate in the services offered. Additionally, the circuit court found that 

petitioner had not seen the child since the proceedings began. As such, the circuit court revoked

petitioner’s improvement period and terminated his parental rights to the child.2It 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). 

 

2The child remains in the custody of her nonabusing mother.
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Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Upon review, the Court finds no 

error in the proceedings below. While petitioner argues that it was error to terminate his parental 

rights, the record is clear that the circuit court did not err in imposing this disposition. 

At the outset, it is important to note that petitioner’s financial support of the child is wholly 

irrelevant to the issue of disposition, as petitioner was not adjudicated for any alleged failure to 

provide the child financial support.

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Instead, petitioner was adjudicated based on his substance 

abuse and issues with domestic violence, two conditions that continued throughout the proceedings 

unabated. As such, petitioner’s argument on appeal that he financially supported the child has no 

bearing on this Court’s analysis of the circuit court’s determination of whether petitioner remedied 

the conditions of abuse and neglect such that reunification with the child was warranted. 

Further, petitioner’s argument that he had a strong bond with the child is unpersuasive, 

given that the record contains evidence that contradicts this assertion. According to petitioner, 

prior to removal he was “living in the same household” as the child and was “heavily involved” in 

the child’s caretaking. What petitioner fails to recognize, however, is the effect that his actions had 

on the child and their allegedly strong bond. According to the record, the child witnessed petitioner 

commit domestic violence in the home. During his violent outbursts, petitioner broke the family’s 

belongings, such as the child’s toddler bed. After witnessing these acts, the child reported to the 

DHHR that petitioner “was mean [and] . . . screamed at [m]ommy.” The child also told the DHHR 

that petitioner broke her bed. Based on this evidence, the circuit court specifically found that 

petitioner’s actions “cause[d] serious emotional distress to the child.” Rather than evidencing a 

strong bond between petitioner and the child, this evidence shows that the child feared petitioner 

because of his actions.

Finally, we find no merit to petitioner’s argument that his noncompliance with the terms 

of his improvement period was caused by his employment out of town. However, even if that was

true, it would not have entitled him to a less-restrictive dispositional alternative. In moving to 

 

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In its adjudicatory order, the circuit court found that petitioner’s alcohol abuse “affect[ed] 

his ability to provide for the child.” However, it is unclear what, exactly, the circuit court believed 

petitioner failed to provide. There is no indication that this finding concerned financial support. 

According to West Virginia Code § 49-1-201, a “neglected child” is one “[w]hose physical or 

mental health is harmed or threatened by a present refusal, failure or inability of the child’s parent 

. . . to supply the child with necessary food, clothing, shelter, supervision, medical care, or 

education.” Accordingly, it is clear that, as the child’s parent, petitioner was required to provide 

the child with a broad range of necessary care beyond financial support. Further, the DHHR’s 

petition did not include any allegation that petitioner failed to provide for the child financially. 

Accordingly, the circuit court was precluded from adjudicating petitioner upon a failure to provide 

financial support without first requiring the DHHR to amend its petition. See Syl. Pt. 5, In re Randy 

H., 220 W. Va. 122, 640 S.E.2d 185 (2006) (permitting a circuit court to compel the DHHR to 

amend a petition to include new allegations when “in the course of a child abuse and/or neglect 

proceeding, a circuit court discerns from the evidence or allegations presented that reasonable 

cause exists to believe that additional abuse or neglect has occurred or is imminent which is not 

encompassed by the allegations contained in the [DHHR]’s petition”).
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revoke petitioner’s improvement period, the DHHR relied upon two drug screens that were 

positive for amphetamine and methamphetamine. The record further shows that petitioner tested 

positive for THC during a screen taken on the day of the dispositional hearing. Clearly, petitioner’s 

continued substance abuse against court order had nothing to do with his employment out of town. 

Further, although petitioner argues that the DHHR “gave up on him complying” after his initial 

failure to initiate services, this argument also lacks merit. According to West Virginia Code § 49-

4-610(4)(A), when a parent is granted an improvement period, “the [parent] shall be responsible 

for the initiation and completion of all terms of the improvement period.” As such, it is clear that 

this responsibility was petitioner’s, not the DHHR’s. Rather than the DHHR “giving up” on 

petitioner, it is clear that petitioner chose not to comply with the requirements of his improvement 

period by initiating those services or following through with their completion. This is especially 

true in light of the fact that petitioner’s parenting services provider testified that, in order to 

accommodate his employment, services were scheduled on Saturdays because petitioner reported 

that he would be in town on the weekends. Despite this accommodation, petitioner still failed to 

initiate his services or otherwise comply. As such, it appears that petitioner made no attempt to 

participate in the services ordered. 

Pursuant to West Virginia Code § 49-4-604(c)(3), a situation in which there is no 

reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes 

one in which

[t]he abusing parent . . . [has] not responded to or followed through with a 

reasonable family case plan or other rehabilitative efforts of social, medical, mental 

health or other rehabilitative agencies designed to reduce or prevent the abuse or 

neglect of the child, as evidenced by the continuation or insubstantial diminution 

of conditions which threatened the health, welfare or life of the child.

The evidence above supports the circuit court’s finding that petitioner was entirely noncompliant

with the services provided. As such, there was no reasonable likelihood petitioner could 

substantially correct the conditions of abuse or neglect in the near future. Further, given the 

extreme impact petitioner’s actions had on the child and his failure to correct the conditions of 

abuse, it is clear that termination of his parental rights was necessary for the child’s welfare. 

Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts may terminate parental rights upon 

these findings. Further, this Court has held as follows:

“Termination 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(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). Given that petitioner failed to 

follow through with the reasonable family case plan, it is clear that he was not entitled to a lessrestrictive dispositional alternative. 
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For the foregoing reasons, we find no error in the decision of the circuit court, and its 

December 15, 2018, order is hereby affirmed.

Affirmed.

ISSUED: June 12, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison