1 

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS 

In re P.B.

No. 22-0406 (Kanawha County 19-JA-513) 

MEMORANDUM DECISION

Petitioner Father M.B.1 appeals the Circuit Court of Kanawha County’s April 22, 2022, 

order terminating his parental rights to P.B.2 Upon our review, we determine that oral argument is 

unnecessary and that a memorandum decision affirming the circuit court’s order is appropriate.

See W. Va. R. App. P. 21. 

In August of 2019, the DHHR filed a petition alleging that the parents abused and neglected 

the child by virtue of domestic violence and drug abuse. Prior to the petition’s filing, petitioner 

tested positive for methamphetamine, amphetamine, and marijuana while an in-home safety plan 

was in place. The petition also alleged that the mother had an extensive history of Child Protective 

Services involvement in Texas, which resulted in the termination of her parental rights to two older 

children in that state. Petitioner later stipulated to the fact that his drug use interfered with his 

ability to parent, and the circuit court adjudicated him as an abusing and neglecting parent by order 

entered in October of 2019. During the adjudicatory hearing, the court “strongly urged” petitioner 

to consider inpatient substance abuse treatment. 

In December of 2019, the court granted petitioner a post-adjudicatory improvement period 

that required him to participate in adult life skills classes, random drug screens, supervised 

visitation, and substance abuse treatment. The court then held many review hearings over the next 

several months, during which the DHHR indicated that the parents were somewhat compliant with 

services, although they noted concerning issues such as failure to attend visits and drug screens. 

1

Petitioner appears by counsel Kenneth Starcher. The West Virginia Department of Health 

and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey and 

Assistant Attorney General Brittany Ryers-Hindbaugh. Elizabeth Davis appears as the child’s 

guardian ad litem. 

2

We use initials where necessary to protect the identities of those involved in this case. See 

W. Va. R. App. P. 40(e). 

FILED

February 7, 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

At a review hearing in January of 2021, the court addressed an issue with the arrest of one 

of the parents’ service providers. The parents were the victims of his crime and explained to the 

court that the provider sought “sexual favors for helping in court” and wanted them to “[d]o drugs 

with him and have sex in front of him.” The provider also threatened to kill the parents if they 

reported his conduct and stalked them both before and after he was fired from his job. According 

to the record, this provider was involved in the parents’ case from April of 2020 until November 

of 2020. 

The court noted, however, that notwithstanding the issue of the provider’s criminal 

conduct, “there have been issues involving [the parents’] compliance with the improvement 

period[s],” including continued drug use. During the hearing, petitioner admitted that he “had pot 

in [his] system consistently” and also acknowledged at least one drug screen that was positive for 

methamphetamine. The court explained that although the provider’s criminal conduct was 

problematic, it did not alleviate the court’s concerns about petitioner’s issues with drug use, lack 

of substance abuse treatment, and “other issues that, quite frankly, have put this case on hold way 

too long.” In fact, the court explained that petitioner’s drug use occurred both before the 

problematic provider was involved in the case and after he was fired. Both the DHHR and the 

guardian agreed and asked to proceed to disposition, with the guardian highlighting the fact that 

“it has been over a year with essentially no improvement in the issues that led to the filing.” The 

court ultimately decided to continue the parents’ improvement period, despite their failure to fully 

comply, because the circumstances “justif[ied] an improvement period under a different provider 

so there is no . . . undue influence.” 

In May of 2021, the guardian and the DHHR moved to terminate the parents’ postadjudicatory improvement periods upon evidence that they had not made progress, despite the 

lengthy proceedings. The court granted the motion, but ordered that services for petitioner would 

continue. Thereafter, disposition was continued several times, ultimately culminating in a hearing 

in February of 2022. During the hearing, a DHHR worker testified to petitioner’s failure to comply 

with drug screens, as required. According to the witness, petitioner avoided testing by offering 

several different excuses. Prior to the dispositional hearing, petitioner missed seven screens and 

tested positive for marijuana on at least one screen. During the hearing, petitioner moved for a 

post-dispositional improvement period. 

Ultimately, the court denied petitioner’s motion and terminated his parental rights. In 

rendering these decisions, the court recognized that the prior service provider’s conduct was 

appalling and caused “disruption and delays in any potential progress with remedial services.” 

However, the court noted that even after the provider was removed, petitioner did not progress in 

services, despite the court leaving services in place even when petitioner demonstrated 

noncompliance. The court also found that petitioner was responsible for many delays as a result of 

his failure to consistently screen, his repeated illnesses that lacked documentation, trips out of town 

that caused him to fail to screen, and “cutting short supervised visitations because of [his] own 

scheduling.” Accordingly, the court found that there had been no significant change in 

circumstances since the prior improvement period and that petitioner was not likely to substantially 

comply with an additional improvement period. The court also found that, over the two years the 

matter was pending, petitioner never attained minimally adequate parenting as evidenced by his 

admitted ongoing substance abuse, domestic violence between the parents, and other issues of 
3

noncompliance. According to the court, petitioner “squandered opportunities” to reunify with the 

child “despite the best efforts of the Department.” Accordingly, the court found that there was no 

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

and that termination was in the child’s best interests. As such, the court terminated petitioner’s 

parental rights.

3 It is from the dispositional order that petitioner appeals.

On appeal from a final order in an abuse and neglect proceeding, this Court reviews the 

circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re 

Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Before this Court, petitioner raises only one 

argument challenging the circuit court’s denial of his motion for a post-dispositional improvement 

period.

4 According to petitioner, it was error to deny his motion because he was the victim of 

criminal conduct perpetrated by a service provider during the proceedings. While we agree with 

the circuit court that this provider’s conduct was egregious and caused delay in petitioner’s 

improvement, the record also totally belies petitioner’s argument given that he was granted an 

extended period to demonstrate compliance with services and failed to do so.

As the circuit court noted many times during the proceedings, petitioner failed to comply 

with services both before the provider in question was involved in the case and after the provider 

was removed. In short, petitioner cannot be entitled to relief by basing his argument on this 

provider’s conduct, because the record shows that the provider was no longer involved in the case 

after November of 2020. Despite this fact, petitioner continued in his failure to fully comply with 

services or otherwise improve his parenting. Petitioner also ignores the fact that the provider in 

question was involved in the case for only seven out of the thirty months the matter was pending. 

On appeal, petitioner makes no attempt to explain his failure to comply with services during the 

roughly twenty-three months when the provider in question was not involved in the case.

In order to obtain a post-dispositional improvement period after already having received 

an improvement period, petitioner was required to “demonstrate[] that since the initial 

improvement period, . . . [he] experienced a substantial change in circumstances” and “that due to 

that change in circumstances, . . . [he was] likely to fully participate in the improvement period.” 

While petitioner argues that the removal of the problematic provider was a substantial change in 

circumstance that warranted a second improvement period, the facts set forth above demonstrate 

that the provider’s removal did not constitute a substantial change in circumstances, given that 

petitioner continued to fail to comply even after the provider’s removal. As we have explained, 

circuit courts have 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). Because petitioner demonstrated 

a failure to comply with services or improve the conditions of abuse and neglect at times before 

the provider in question was assigned to the case and after the provider’s removal, we find no 

abuse of the court’s discretion in denying petitioner’s motion for a post-dispositional improvement 

period. 

3

The court also terminated the mother’s parental rights to the child. The permanency plan 

for the child is adoption in the current placement. 

4

Petitioner raises no argument concerning the circuit court’s termination of his parental 

rights. 
4

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

22, 2022, order is hereby affirmed.

Affirmed.

ISSUED: February 7, 2023

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton

Justice C. Haley Bunn