1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re K.W.

- 1, K.W.

- 2, and K.R.

No. 2 1

- 0 917 ( Kanawha County 2 0

- JA

- 616, 20

- JA

- 617, and 2 0

- JA

- 618 )



### MEMORANDUM DECISION

Petitioner Mother T.R

. , by counsel Sandra K. Bullman

, app eal s t he Circui t Co urt o f
Kanawha County’s October 12

, 20 2 1 , order terminating h er parental rights to K.W.

- 1, K.W.

- 2,
and K.R

. 1 The West Virginia Department of Health and Human Resources ( “DHHR”), by
counsel Pat ri ck Morrisey and K a therine A. Campbell , f ile d a respon s e in suppo rt of t he c ircui t

co urt’s o rde r

. The guardian ad li te m , J. Rudy Martin

, filed a response on the chil d ren ’s behalf in
support of the circuit court’s orde r

. On appeal, petitioner argues that the circuit court erred by terminating her par ent al rights without first g ranting her an improvement period

.

Thi s Cou r t has considered the parties’ bri efs and t he r ecor d on appeal. The facts and legal

a rguments are adequately presented, and the decisi onal proce s s would no t be si gni fican tly aid ed
b y ora l arg u ment. Upon consideratio n of the standa rd of review, th e bri e fs, a nd the record
present ed, the Cour t finds n o su bsta ntial question of law and no preju dicial error. For these

reasons, a memorand um dec ision affi r m ing th e c ir cuit cou rt’s order i s ap pr opr iate u nder Rule 21
of the Rul es of Appellate Procedure.

In December of 202 0, the DHHR filed a child abuse and neglect petition alleging that the
school issued iPads of then

- e ight

- year

- old K. R . and then s ix

- year

- old K. W

. - 2 contained videos
of th ose ch ild ren “ attempting sexual beha viors

. ” The DHHR interviewed petitioner who reported
that she was unaware of the existence of the vid eos. The c hildren w ere also inter viewed regarding the videos but they provided no additional information . However, both K. R

. and K. W

. - 2 disclos ed significant dome stic viol ence in the home. K. R . reported th at petitioner a nd her

1 Con sis tent w ith our l o ng

- sta n d ing practice in cases wi th sens i tive facts, we use initials
wh ere neces sary to pro t ect t he iden ti ti e s of those i nv o l ved in this c as e

. See In re K. H.

, 2 3 5 W

. V a

. 2 54, 773 S .E. 2d 2 0 (2015); Mel ind a H. v. Wi lliam R. II , 230 W. Va . 7 31, 742 S .E.2d 419 (2013) ; State v. Brandon B. , 218 W. Va. 324, 624 S.E.2d 761 (2005); St ate v. Ed ward Charle s L.

, 183 W. Va

. 6 41 , 3 98 S.E

. 2d 1 23 (1990). Ad ditionally, as two of the c hil dren s hare the same i nitials, we refer to them as K.W.

- 1 and K.W.

- 2, respectively, throughout this memorandum
decision. 

### FILED April 14, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 boyfriend, C.F.

, “ hit eac h other when they fight ” and that she tried to stop the m from fi ghting on
two differe nt occasions

. K. W.

- 2 also reported that when pe titi o ner and C.F. fought, C.F

. “ hits [petitioner] hard. ” K. W

. - 2 witnessed C.F. punch petitioner “ with a closed hand ” and pet itioner crying afterwards. K. W

. - 2 reported that he was afraid of C.F. due to the fighting he witnessed. Additionally, both childr en repo r ted b eing “ whipped wit h a belt ” by petitioner and C.F

. as a form
of discipline. K. W

. - 1 was two years old at the time and was not interviewed due to her age. In January of 2021, the circu it co urt ratified the emergenc y removal of the children from

p eti tion e r’s c are , and p etitioner moved for reunification services, w hich were granted.

The circuit court held an adjudicatory hearing in M a y of 2021. The DHHR presented
evidenc e consistent wit h the allegations in the peti tion

. According to the DHHR worke r, K.R.

state d that petitioner and C.F. fought “ six o r seven times ” and the child “ tried to stop them fro m physically fighting ” by yelling “ [s]top, you ’ re goin g to h urt eac h other. ” The DHHR wor ke r also
testified tha t the children repe ated their disclosure s o f domestic violence during forensic
intervie ws . K.R. al so d escribe d petitioner and C.F. smoking marijuana. Petitioner testified on her
own be half and denied the allegations of domestic v iolence between herself and C.F. She

sug g ested that th e children wi t ne sse d domestic vio lence between petitioner and her former

spouse and that C.F. was not involved. Petitioner further testified that she was nine

- weeks
pregnant

, and C.F. was the father of her u nb orn child

. 2 Petitioner then adm it ted that sh e tested positiv e f or methamph etamine on April 6, 2021, approximately four weeks ea rlier. The circuit

court found tha t the DHHR p resented clear and convincing evidence that petitioner had exposed
the children to d omestic violence . The court adju dicated the children as abu se d and neglec ted
children and petitioner as an abusing parent.

In October of 2021, the cir cuit co urt held the final dispositional hearing and considered petitioner ’ s previously filed motion fo r an improvement period

. A DHHR c ase worker testified that p et i tioner was complying with court

- order ed services but no t benefiting from those services.
The worker explained that petitioner had not imp lement ed the in struction from the parenting
classes a nd, therefore, “ en hanced ” vi sitatio n could not be recommended

. Ad d itionally, th e worker testified that petitioner continued to deny the children ’ s disclosures of abuse and
domestic violence in the home

. One of petitioner ’ s service providers testified tha t she supervised
visitation and t aug h t parenting and adult life s ki l ls to peti tioner. She explained that pe titioner had not improved in her parenting and discipline of the children and, even more c ritically, denied
abuse and domestic violence in her most re cent relationship with C. F. Finally, petitioner ’ s d omestic viole nc e counsel or testified that petitioner was still depend ent on C.F. and denied
d omestic violence and abuse in their relationship

.

2 This child is not at issue in this appeal. However, while it is unclear from the record whether this child was born prior to the final dispositio nal hearing , we remind the DHHR of its statutory duty to “ file or join in a petition

. . . to terminate parental rights ” when “ t he parental rights of the parent to another child have been terminated involuntarily

. ” W. V a. Code § 49

- 4

- 605(a)(3).3 During her testimony, p etitioner again denied that any dome s t ic violence oc curred in her
relati o n ship with C.F. Further, sh e t esti fied t hat she ended her relationship with C.F. , although
the circuit court heard evid ence that C.F . was observed in the hallway outside of the court room immediately before th e hearing

.

Ul timately , the circuit court fo un d that there was no reasona bl e likelihoo d that th e conditions of neglect a nd abuse could be substantially corrected in the near future because petitioner continued to deny the c ircum stances which led t o the fi ling of th e pet ition . The court
foun d that te rm inati on of petitioner ’s par en t al rights was necessary for the welfare of the children. Accordingly, the circuit court denied petitioner ’s motion for a n improvem ent period and terminated her parental rights to the childr en by its October 12 , 2021, order. P e titio ner now appeals that o rd e r. 3

T he Co urt ha s previ ou sly he ld :

“Although conclusions of l aw re ached by a circ u i t cou rt ar e subject to de

novo rev ie w, wh en an ac tio n, suc h as an a buse a nd negle ct c ase , i s tried upo n the

f ac ts w it h o ut a j ur y, th e c ircuit cour t s hall m a ke a determ in ation ba se d u pon th e evide nc e an d shall make fin dings of fact and conc lusions of law a s t o w hethe r such child is abused o r negle cte d. Th ese fi ndi n g s shall not b e set as id e by a

r ev iewing co u rt unl es s cl ea r l y er r o ne ous. A f inding is c le a rly e r r on e ous when

, altho ugh t her e is e vidence t o su pp ort the findin g, the reviewing court on the entire

e v id enc e is left with the de finite a nd firm co nv i ct ion th at a mi stake has b een

comm it t e d. Ho w ev er, a rev i ewing co ur t ma y not o v er turn a f inding simp ly
becau s e i t would h av e dec ide d the case differe nt ly, an d it must affi rm a finding if

t he ci rcuit court’s a c c ou nt of th e evidence is pl ausible in ligh t o f t he re cor d

v i e we d in its en tirety.” S y l . P t. 1, In In ter e st of Ti ff

an y M a rie S

. , 196 W .Va . 223,

470 S. E .2d 1 7 7 ( 1 996).

Sy l. Pt . 1

, In re Cec il T

., 22 8 W. V a. 89, 717 S.E .2d 873 (2011).

On appeal, petitio ner argues that the circuit court erred in termi n ating her parental rights without first granting her an improvement pe r i od. According to petitioner

, s he present ed clear and convincing evidence that she was likely to fully participate in an improvement period.

P e titioner was compliant in ser vices, had ap propr iate housing, was employe d and testified that
she wa s no longer i n a relationship with C.F. Sh e a rgues that “ [t]he biggest compl aint a gainst [her] was that she continued to deny any domestic violence between her and [C.F.] ” and

conce des that on cross

- exami nat ion, she denied d omestic abuse in her relationship

. We find

pe ti tioner is entitled to no re li e f on appea l.

3 The indi vidual fat her s ’ parental rights were also terminat ed b elow. According to the

p a rties, the permane nc y plan fo r the children i s adoptio n in their respectiv e fost er placements.4 In ord e r to be g ranted a post

- adjudicator y improvement period un der Wes t Virg inia Cod e § 49

- 4

- 6 10(2)(B), the parent must f irst “ d emo nstrate [ ] , by cl ear and c on vincing evidence, that
the [parent] is likely to fu ll y participate in the improv em e nt period and the co u rt furthe r makes a finding, on the record, of the terms o f the i mprovement per iod

. ” “ We st Virginia law allows the

c ircuit cou rt d iscr etion in de cidi ng w hether to g ra nt a parent an impr o vement perio d

. ” In r e M.M. , 236 W. Va. 10 8, 115

, 7 78 S.E.2d 33 8, 345 ( 2 015) ; see also In r e Tonjia M. , 21 2 W. Va. 443, 448, 57 3 S.E.2d 354, 359 (2002 ) (holding that a circuit court has t he dis c ret ion to d eny a

mo tion fo r an impr ovemen t period when no improveme nt is l ikely). F urther, t his C ourt has hel d

t h at

[ i ]n o r d er to remedy t he abuse and/o r ne glect problem, the pro bl em must first be acknowledged. Failure to acknowledge the existence of the problem, i. e., t he truth of the basic alleg ation pertaining t o the all eged ab use an d neglect or t he
perpetrat o r o f sai d abu s e and neglect, results in mak ing the problem untreatabl e

an d in making an improvement period an ex ercise in futility at the c hild’ s

expense.

I

n re Tim ber M. , 231 W. Va. 44, 5 5, 743 S.E.2d 352

, 363 (201 3) ( cit atio n omitted ).

Critical to pe ti t ioner ’ s ar gument

, the circuit court found that petitioner denied the conditions of abuse and neglect, i.e., the domestic violence and abuse that the child ren d isc los ed. Indeed, at every opportunity, petitioner denied that th er e was any dome stic violence i n the home despite the children independently telling the DHHR worker t hat such domes tic violence took place in their prese nce

. Therefore, the circuit court did not err in denying peti tioner ’ s motion for

an improvement p eriod. Granting an improveme nt per io d would ha ve be en an exercise in f utility.

Furthermore, we find no error in the circuit court ’ s te rmination of petitione r ’ s parenta l

r ights. P ur suant to West Vi r ginia Code § 4 9

- 4

- 604 ( c)(6)

, a circuit court may ter minat e a par ent ’ s

pare n ta l rights upon fi n d ing t ha t “ th e re is no re as on a ble likelihood th a t the conditions of neglect
or abuse can be substant iall y correct e d in th e nea r future ” and th at t ermination is n e cessary for

t h e welfa r e of t he child . West Virgin i a Code § 49

- 4

- 604(d) prov i des that t her e is no reaso na ble

lik elihood th a t the condition s of neg lect or ab use can be substantially corrected wh en the abusing
adult ha s “ demonstrated an inadequate capacity to solve the problems o f abuse or neglect on
their own or w ith hel p. ” As set fo rth above, p et it i oner ’ s f ailu re to acknowl ed ge the conditions of
abuse and neglect leaves no hope that she will improve t hose conditions

. Petitioner does not challenge the circuit court ’ s finding that there was no reasonable li kelihood th at th e con d ition s could be corre ct e d in t he n ear fut ure , and we find no e rror in that finding upon our review

. Finally,

“ [t] ermination of parental right s, the most drastic remedy under the statutory provision covering the disposition of neglected childr en , [ We st Vi r ginia Code § 49

- 4

- 604 ]

. . . m ay b e em plo yed without the use o f intervening less
restrictive alternatives when it is found that there is no reaso na ble likelihood
under [ West Virginia Code § 49

- 4

- 604( d ) ] . . . th at conditions of neglect or abus e can b e sub s tantially corrected.” S y llabus p oi nt 2

, I n re R.J.M. , 164 W.Va . 496, 266 S.E.2d 114 (1980).5 Syl. Pt. 5, In re Kristin Y. , 227 W. Va. 558, 712 S. E.2d 55 (2011). The circuit court was well
within its discretion t o termi nate p etitioner ’ s par enta l right s bas e d on the findings bel ow

. Accor di ng ly, we find no error.

Fo r t he forego ing reas on s , we f ind no erro r in the de c isi on o f the cir cu it c ourt

, and it s October 12

, 20 2 1 , o rder is h e reby affirmed.

Affirme d.

ISSUED : 

### April 14, 2022

CONCURRE D IN BY :

Chief Ju sti ce John A. Hutchison
Justi ce Eli zabe t h D. W al ker

Ju s ti ce Tim Armstead
Justi ce William R. Wooton Justice Alan D. Moats sitting by te mporary as signment