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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re K.K.

No. 19-0084 (Kanawha County 18-JA-525)

MEMORANDUM DECISION

Petitioner Father D.K., by counsel Alan L. Pritt, appeals the Circuit Court of Kanawha 

County’s December 20, 2018, order terminating his parental, custodial, and guardianship rights to

K.K.

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, 

Paul K. Reese, 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, custodial, and guardianship rights without granting him 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 August of 2018, the DHHR filed an abuse and neglect petition that alleged petitioner 

had been arrested for numerous crimes allegedly committed during July of 2018. First, petitioner 

was alleged to have traveled to Lincoln County, West Virginia, to pick up a seventeen-year-old 

child that was later reported missing by her family. The DHHR alleged that petitioner knew the 

child’s age before meeting her. According to the petition, when police found the child with 

petitioner, she “had been with [petitioner] for several days before reaching out to a friend for help 

and giving the friend her exact location.” In another incident, K.K.’s mother “reported [to law 

enforcement] that [petitioner] was under the influence of methamphetamine, would not let [the 

m]other and [K.K.] leave the residence, and had a loaded firearm.” It was not until police arrived 

 

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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at the home that petitioner permitted the mother and child to leave. Additionally, when petitioner’s 

mother contacted the police to obtain items taken from petitioner, he “could be heard in the 

background threatening to kill any law enforcement officers who came to his home.” Petitioner 

was arrested as a result of these incidents. Upon his release, the DHHR alleged that petitioner 

“went on a ‘bender’” during which he stole a vehicle and was “on the run from law enforcement” 

while armed. Petitioner was arrested again as a result of this conduct. Based on his actions, the 

DHHR alleged that petitioner engaged in “extreme maltreatment” of the child. 

The parties appeared for a preliminary hearing in September of 2018, and petitioner waived 

his right to that hearing. Before adjourning, the circuit court ordered petitioner, who testified that 

he was unemployed at that time but possessed an active paramedic license, to pay $400 per month 

in child support. Petitioner did not object to this ruling. At an adjudicatory hearing in October of 

2018, the circuit court found that petitioner abused and neglected the child by virtue of his drug 

use and issues with domestic violence. 

At a dispositional hearing in December of 2018, petitioner presented evidence and 

argument in support of his motion for an improvement period. Petitioner testified to the steps he 

had taken to correct the conditions of abuse and neglect, such as obtaining treatment for substance 

abuse. He further testified that he would participate in additional services designed to remedy the 

abuse and neglect, such as therapy and life skills classes. However, in response to questions 

concerning future use of a computer to further inappropriate relations, petitioner “replied he did 

not have that problem.” He further “denied ever being found in possession of a firearm.” Based on 

the evidence, the circuit court found that petitioner “failed to accept responsibility for the domestic 

violence” and was “unable to understand the seriousness and consequences of his actions.” Further, 

in regard to efforts to correct the conditions of abuse and neglect, the circuit court found that 

petitioner “does not sufficiently recognize, nor is he capable of undertaking, those steps.” 

Ultimately, the circuit court found that “[t]he circumstances of this case are so aggravating that 

[petitioner] cannot improve.” Accordingly, the circuit court terminated petitioner’s rights to the 

child. The circuit court further found that petitioner’s “child support obligation of four hundred 

dollars . . . per month, as ordered earlier in these proceedings, will continue.” (Emphasis added).

From the dispositional transcript, it is clear that when the circuit court ordered that “[a]ll child 

support obligations will continue,” petitioner raised no objection.2It is from the dispositional order 

that petitioner appeals.3 

The Court has previously established the following standard of review:

 

2On appeal, petitioner also sets forth an assignment of error alleging that the circuit court 

erred in attributing to him income that was unavailable when calculating his child support 

obligation. As noted above, in the two instances the circuit court ruled on this issue, petitioner 

failed to object to this award or otherwise raise the issue he now raises on appeal. “‘Our general 

rule is that nonjurisdictional questions . . . raised for the first time on appeal, will not be 

considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 

n. 20 (1999).” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 

653 (2009). Accordingly, this argument will not be addressed on appeal. 

3The permanency plan for the child is to remain in the custody of the nonabusing mother.
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“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 review, the Court finds no 

error in the proceedings below.

On appeal, petitioner argues that he was entitled to an improvement period because he 

voluntarily participated in services designed to correct the issues of abuse and neglect and 

established he was likely to fully participate in an improvement period. The record, however, does 

not support petitioner’s argument. 

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) (“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) (“It 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/respondent to demonstrate ‘by clear and convincing evidence, that the 

respondent 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). Petitioner failed to satisfy this burden. 

Although the circuit court recognized that petitioner acknowledged certain aspects of his 

conduct, it found that he failed to fully acknowledge his abuse and neglect and its impact on the 

child. As the circuit court found, petitioner’s actions constituted “extreme circumstances” that 

included violence, firearms, domestic violence, and substance abuse. Based on petitioner’s 

testimony, the circuit court found that he failed “to accept responsibility for the domestic 

violence.” This included petitioner calling into question the veracity of a statement an eyewitness 

to petitioner’s domestic violence gave to law enforcement and his assertion that he “really was 

never found in possession of a firearm.” Further, due to petitioner’s extreme conduct, the circuit 

court found that petitioner did not “sufficiently recognize, nor [was] he capable of undertaking,” 

the steps necessary to remedy the problems that necessitated the petition’s filing. 

This Court has previously held that
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[i]n order to remedy the abuse and/or neglect problem, the problem must first be 

acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth 

of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator 

of said abuse and neglect, results in making the problem untreatable and in making 

an improvement period an exercise in futility at the child’s expense.

In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215 

W. Va. at 217, 599 S.E.2d at 640). While it is true that petitioner testified extensively that he 

recognized the issues of abuse and neglect in this matter and wished to correct them, the circuit 

court made a credibility determination and, in conjunction with the other evidence offered,

ultimately found that petitioner’s testimony did not amount to a true acknowledgment of the 

underlying problems. As this Court has held, “[a] reviewing court cannot assess witness credibility 

through a record. The trier of fact is uniquely situated to make such determinations and this Court 

is not in a position to, and will not, second guess such determinations.” Michael D.C. v. Wanda 

L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997). As such, it is clear that the circuit court 

did not err in denying petitioner an improvement period.

Further, the record is clear that the circuit court did not err in terminating petitioner’s 

parental rights. On appeal, petitioner argues that the circuit court’s finding that there was no 

reasonable likelihood that he could correct the conditions of abuse in the near future was erroneous.

In support of this argument, petitioner relies on the same assertions that he set forth in support of 

his argument that denial of an improvement period was error. As noted above, these arguments are 

not compelling.

Pursuant to West Virginia Code § 49-4-604(c), “‘[n]o reasonable likelihood that conditions 

of neglect or abuse can be substantially corrected’ means that, based upon the evidence before the 

court, the abusing adult . . . [has] demonstrated an inadequate capacity to solve the problems of 

abuse or neglect on their own or with help.” The circuit court found that there was no reasonable 

likelihood that petitioner could substantially correct the conditions of abuse and neglect because 

he did not “sufficiently recognize, nor is he capable of undertaking” the steps necessary to remedy 

the issues. Additionally, the circuit court found that “[t]he circumstances of [petitioner’s] case are 

so aggravating [petitioner] cannot improve.” As such, it is clear that the circuit court was presented 

with sufficient evidence upon which to find there was no reasonable likelihood petitioner could 

substantially correct the conditions of abuse and neglect and that termination of his parental, 

custodial, and guardianship rights was in the child’s best interests. According to West Virginia 

Code § 49-4-604(b)(6), circuit courts may terminate these rights upon such 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).
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Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Given the evidence set forth 

above, it is clear that the circuit court did not err in terminating petitioner’s parental, custodial, and 

guardianship rights. 

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

December 20, 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