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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re M.B. and P.B. 

No. 19-0529 (Jackson County 18-JA-31 and 18-JA-34)

MEMORANDUM DECISION

Petitioner Father J.B., by counsel Ryan M. Ruth, appeals the Circuit Court of Jackson 

County’s April 26, 2019, order terminating his parental rights to M.B. and P.B.1 The West Virginia 

Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed a 

response in support of the circuit court’s order. The guardian ad litem (“guardian”), Erica Brannon 

Gunn, 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 denying his motion for a post-adjudicatory 

improvement period and in 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.

In March of 2018, the DHHR filed an abuse and neglect petition against the parents alleging 

that their substance abuse affected their ability to parent and care for M.B. Specifically, the DHHR 

alleged that the police investigated a report of an unattended toddler wading in floodwaters, and

later located the child’s parents asleep inside the home. According to the DHHR, the parents stated 

that they did not know the location of their child, and the mother appeared both pregnant and under 

the influence of drugs or alcohol. Further, the petition alleged that the parents had been convicted 

of drug offenses and were required to submit to regular drug screening. The DHHR learned that 

petitioner tested positive for amphetamine in March of 2018, and the mother tested positive for 

methamphetamine in February of 2018. 

 

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

February 7, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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Thereafter, the circuit court held a contested preliminary hearing and found probable cause 

to believe that the child, M.B., was in imminent danger due to the parents’ lack of supervision and 

positive drug screens. Also, the circuit court learned that as a result of their positive drug screens, 

the mother was incarcerated for violating her probation and petitioner was placed on home 

incarceration for violating his parole. While incarcerated, the mother gave birth to the second child, 

P.B., who was born drug-exposed. In April of 2018, the DHHR amended the petition to allege that 

P.B. was abused and neglected and suffered from withdrawal symptoms. The amended petition 

also alleged that the circuit court in petitioner’s criminal matter instructed him to find appropriate 

inpatient drug treatment prior to his sentencing hearing. A subsequent preliminary hearing ratified 

the removal of P.B. from the home. Later that month, petitioner participated in a psychological 

evaluation to determine parental fitness, and the psychologist recommended, at a minimum, that 

petitioner attend intensive outpatient treatment. As of May of 2018, petitioner had failed to seek 

inpatient drug treatment as ordered by the circuit court in his criminal matter, resulting in seven 

months of incarceration. 

In June of 2018, the circuit court held an adjudicatory hearing. The parents did not appear,

but counsel represented them. The circuit court took judicial notice of testimony presented at the 

preliminary hearing and adjudicated the parents as abusing parents based upon the lack of 

supervision of M.B. and the parents’ positive drug screens. In November of 2018, the circuit court 

held a dispositional hearing wherein petitioner did not appear, but counsel represented him. 

Petitioner’s disposition was continued in light of the circuit court’s grant of a post-adjudicatory 

improvement period to the mother.

In January of 2019, petitioner filed a motion for a post-adjudicatory improvement period

based upon his release from incarceration. On March 1, 2019, the DHHR filed a motion to 

terminate petitioner’s parental rights, arguing that “[a]s a result of his drug use while under [c]ourt 

supervision and failure to enter an [inpatient] drug rehabilitation program [petitioner] was 

remanded to DOC custody to serve the remainder of his felony sentence.” Further, it argued that 

petitioner failed to comply with drug screening after his release from custody and was given ample 

warnings regarding his noncompliance. 

On March 15, 2019, the circuit court held a final dispositional hearing. In arguing against 

petitioner’s motion for an improvement period, the DHHR presented evidence that petitioner was 

called to drug screen twenty-two times from January of 2019 to March of 2019, but only appeared 

to screen six times. Of the six screens, he tested positive once for tetrahydrocannabinol (“THC”). 

Petitioner had three missed screens excused for his work, and the remaining thirteen screens were 

“no show.” Ultimately, the drug-screening center removed petitioner as a participant for his 

excessive noncompliance. Further, the DHHR worker testified that the multidisciplinary team 

recommended that petitioner attend inpatient drug treatment, but he never enrolled. The DHHR 

also referred petitioner to an intensive outpatient drug treatment program, but he never enrolled. 

Also, the DHHR worker testified that petitioner had not visited with the children since his release 

from incarceration due to his noncompliance with drug screening. In conclusion, the DHHR 

opposed petitioner’s motion for an improvement period because he had done nothing throughout 

the case to indicate that he would successfully complete one. The circuit court took petitioner’s 

motion for an improvement period under advisement.
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In light of the testimony at the dispositional hearing that petitioner did not comply with the 

conditions of drug screening, had not attempted to enroll in drug treatment, and had not exercised 

visitations with the children, the circuit court found that petitioner was not likely to participate in 

services to remedy the abuse and neglect in the home and denied his motion for a post-adjudicatory 

improvement period. Further, the circuit court found that petitioner denied having a substance 

abuse problem or that the children should have been removed by the DHHR, thus failing to accept 

full responsibility. Based upon these findings, the circuit court concluded that it was in the best 

interests of the children to terminate petitioner’s parental rights. The circuit court entered an order 

reflecting its decision on April 26, 2019. Petitioner now appeals from this order.

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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). 

On appeal, petitioner argues that the circuit court erred in denying his motion for a postadjudicatory improvement period when the evidence below demonstrated that he would have fully 

complied and participated in an improvement period. In support, petitioner argues that his

employment made it difficult to regularly drug screen, as he often worked far from the drugscreening center, which scheduled screenings during his work hours. Further, petitioner argues 

that he needed employment to provide for his family, but the circuit court punished him for 

working. Lastly, petitioner acknowledges that it is his responsibility to complete the terms and 

conditions of an improvement period, but argues that he would have fully participated had the 

DHHR, the guardian, and the circuit court been willing to accommodate him regarding his 

employment. Upon review, we find that petitioner is entitled to no relief.

West Virginia Code § 49-4-610(2)(B) provides that the circuit court may grant a parent a 

post-adjudicatory improvement 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 

 

2The parental rights of both parents were terminated during the proceedings below. 

According to the parties, the permanency plan for the children is adoption in their current foster 

placement.
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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,

[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) (citation omitted). Finally, “the 

circuit court has the discretion to deny an improvement period when no improvement is likely.”

In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002).

While petitioner acknowledges his failure to comply with drug screens, he fails to address 

the circuit court’s finding that he did not accept responsibility for the children’s removal from his 

home due to his substance abuse. In order to remedy the issues of abuse and/or neglect, petitioner 

must acknowledge that his conduct constituted abuse and/or neglect. Here, petitioner denied 

having a substance abuse problem at the final dispositional hearing despite his positive drug 

screens, drug-related criminal conviction, and psychological evaluation findings to the contrary.

Without an acknowledgment of his abuse and/or neglect, petitioner was not entitled to an 

improvement period. See Kaitlyn P., 225 W. Va. at 127, 690 S.E.2d at 135 (holding that “[a]bsent 

the parents’ acknowledgment of the abuse, the requirement for granting a post-adjudicatory 

improvement period . . . was not satisfied”).

Additionally, petitioner’s continuous unexcused missed screens meant he could not 

exercise visitation. “We have previously pointed out that the level of interest demonstrated by a 

parent in visiting his or her children while they are out of the parent’s custody is a significant factor 

in determining the parent’s potential to improve sufficiently and achieve minimum standards to 

parent the child.” In re Katie S., 198 W. Va. 79, 90 n.14, 479 S.E.2d 589, 600 n.14 (1996) (citation 

omitted); State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 259, 470 S.E.2d 205, 213 (1996)).

Here, petitioner did not regularly screen, and did not otherwise attempt to contact the DHHR 

regarding his work schedule. As a result of his noncompliance with drug screening, petitioner 

could not exercise visitation with the children. In light of the findings above, the circuit court

reasonably found that petitioner was unlikely to fully participate in an improvement period and we 

find no error in the circuit court’s denial of his motion.

Further, we find no error in the circuit court’s termination of petitioner’s parental rights. 

Petitioner reiterates his argument that the circuit court erred in not allowing him an opportunity to 

remediate the issues that led to the removal of his children through a post-adjudicatory 

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 children’s welfare. Further, 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 
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[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 discussed above supports the termination of petitioner’s parental rights, as he failed 

to seek drug treatment, accept responsibility for his substance abuse issues, or comply with drug 

screenings and supervised visitations. Based on this evidence, there was no reasonable likelihood 

that petitioner could substantially correct the conditions of abuse and neglect in the near future. 

Additionally, due to petitioner’s lack of participation with supervised visitation with the children, 

it is clear that the termination of his parental rights was in the children’s best interest. Further, 

termination of his parental rights was necessary to establish permanency for the children. 

Therefore, the circuit court did not err in terminating petitioner’s parental rights. 

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

26, 2019, order is hereby affirmed.

Affirmed.

ISSUED: February 7, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

DISQUALIFIED:

Justice John A. Hutchison