STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

In Re: K.P. FILED 

June 2, 2014 

No. 14-0110 (Kanawha County 13-JA-66) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father filed this appeal by his counsel, W. Jesse Forbes, from an order entered 

January 14, 2014, in the Circuit Court of Kanawha County, which terminated his parental rights 

to twenty-three-month-old K.P. The guardian ad litem for the child, Sharon K. Childers, filed a 

response in support of the circuit court’s order. The Department of Health and Human Resources 

(“DHHR”), by its attorney, William P. Jones, also filed a response in support of the circuit 

court’s order. Subsequently, petitioner filed a reply. On appeal, petitioner argues that the circuit 

court erred by conducting hearings without him present, not allowing him to present evidence 

with regard to his prior termination, finding that he made no efforts to rectify the circumstances 

of abuse and neglect, and by finding that there was no less restrictive alternative to termination. 

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 2008, petitioner was convicted in federal court on possession of chemicals used in the 

manufacture of methamphetamine and of aiding/abetting the same. Petitioner was subsequently 

sentenced to sixty months of incarceration followed by three years of federal supervised release. 

While petitioner was on supervised release, the DHHR filed an abuse and neglect petition against 

petitioner and K.P.’s mother in March of 2013 because they were arrested for operating a 

clandestine methamphetamine lab in their home. During this time, petitioner was under federal 

supervised release and, subsequently, was returned to federal custody for violating his probation. 

The petition alleged that not only was K.P. present for the arrest, but also that the parents failed 

to provide him with necessary food, clothing, supervision, financial support, and housing. The 

petition also alleged that petitioner had his rights terminated to other children in 2008. 

The officer who arrested petitioner testified at the preliminary hearing that when he and 

another officer arrived at the home, they could smell a chemical odor. After entering the home, 

the two officers found materials used to make methamphetamine and “finished product.” This 

officer also testified about the home’s unsafe conditions, such as the stove being used for 

heating, the lack of running water, the home’s cold temperature, and trash everywhere. In June of 

2013, and after multiple continuances due to petitioner’s absences while in federal custody, the 

circuit court proceeded with adjudication and adjudicated K.P. as a neglected child and petitioner 

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and K.P.’s mother as abusing parents.1 After a number of continuances for the dispositional 

hearing, again due to petitioner’s absences while in federal custody, the circuit court heard 

evidence from the family’s assigned caseworker. Ultimately, the circuit court found that there 

was no reasonable likelihood that the conditions of abuse and neglect could be substantially 

corrected in the near future and that termination would be in the child’s best interests. Petitioner 

now brings this appeal. 

This 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). 

Petitioner raises four assignments of error. First, petitioner argues that the circuit court 

erred in conducting the adjudicatory and dispositional hearings without him being present 

because petitioner was incarcerated at the time of those hearings. Upon our review of the record, 

we find no error by the circuit court in proceeding with these hearings in petitioner’s absence. 

We have held as follows: 

[An] incarcerated parent who is a respondent to an abuse and neglect proceeding 

must inform the circuit court in which such case is pending that he/she is 

incarcerated and request the court’s permission to attend the hearing(s) scheduled 

therein. Once the circuit court has been so notified, by the respondent parent 

individually or by the respondent parent’s counsel, the determination of whether 

to permit the incarcerated parent to attend such hearing(s) rests in the court’s 

sound discretion. 

Syl. Pt. 4, in part, In re Stephen Tyler R, 213 W.Va. 725, 584 S.E.2d 581 (2003). The record 

does not reveal that he ever requested the circuit court’s permission to attend the hearings 

The circuit court actually adjudicated the parents as abusive and neglectful parents, but the 

Court notes that West Virginia Code § 49-1-3(2) defines “abusing parent” as a “parent, guardian 

or other custodian, regardless of his or her age, whose conduct, as alleged in the petition 

charging child abuse or neglect, has been adjudged by the court to constitute child abuse or 

neglect.” 

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himself. Rather, the record reflects that these hearings were continued numerous times and that 

although petitioner was absent, his attorney was present at each hearing. 

Second, petitioner argues that the circuit court erred by not allowing him to present 

evidence of the facts of the underlying prior termination on the record prior to the finding of 

abuse and neglect and prior to termination of parental rights. Petitioner argues that the 

circumstances of that termination were remedied, asserting that a family court order returned 

custody of those minor children to petitioner. Upon our review of the record, we decline to 

address this assignment of error because the circuit court’s adjudication was supported by 

findings unrelated to petitioner’s prior termination.2 West Virginia Code § 49-1-3(11)(A) 

provides the following definitions of a “neglected” child: 

(i) [A child] [w]hose physical or mental health is harmed or threatened by a 

present refusal, failure or inability of the child's parent, guardian or custodian to 

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

or education, when such refusal, failure or inability is not due primarily to a lack 

of financial means on the part of the parent, guardian or custodian; or 

(ii) [A child] [w]ho is presently without necessary food, clothing, shelter, medical 

care, education or supervision because of the disappearance or absence of the 

child's parent or custodian; 

Our review of the record reveals that the circuit court concluded that the child’s health 

was harmed by petitioner’s failure to supply him with the necessary food, clothing, shelter, 

supervision, and care. The circuit court found that petitioner allowed the child to live in a home 

unsafe for human habitation through his exposure to methamphetamine, filth, no running water, 

and heat sourced only by a kitchen stove. The circuit court also found that petitioner has 

remained incarcerated on drug charges throughout the abuse and neglect proceedings. These 

findings were sufficient to support the circuit court’s adjudication of K.P. as a neglected child 

and petitioner as an abusing parent to K.P. 

Third, petitioner argues that the circuit court erred in finding that petitioner made no 

efforts to rectify the circumstances that led to the conditions of abuse and neglect or follow 

through with services, and that the same could not be substantially corrected. Petitioner asserts 

that the DHHR failed to provide any services during this case. However, the DHHR’s petition 

provides that supportive services were offered to petitioner and K.P.’s mother prior to K.P.’s 

removal from the home. No evidence in the record provides that petitioner subsequently 

requested any services or kept communication with the DHHR during the pendency of this case. 

Therefore, we find no error by the circuit court in this regard. 

Lastly, petitioner argues that the circuit court erred in finding that there were no less 

restrictive alternatives to termination. Petitioner argues that he should have received an 

improvement period at disposition because K.P. is in his mother’s care and custody. Our review 

We note, however, that there is no record of the circuit court ever modifying the termination 

order of petitioner’s older children to reflect that the termination was vacated. 

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of the record reveals no error by the circuit court in terminating petitioner’s parental rights. We 

have held the following: 

“[C]ourts are not required to exhaust every speculative possibility of 

parental improvement . . . where it appears that the welfare of the child will be 

seriously threatened, and this is particularly applicable to children under the age 

of three years who are more susceptible to illness, need consistent close 

interaction with fully committed adults, and are likely to have their emotional and 

physical development retarded by numerous placements.” Syl. Pt. 1, in part, In 

Re: R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980). 

Syl. Pt. 4, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). The record shows no indication 

that petitioner ever attempted to contact his attorney or the DHHR during the abuse and neglect 

case involving twenty-three-month-old K.P. Rather, petitioner was unresponsive and unable to 

be located. This evidence, coupled with the child’s need for permanency, was sufficient to 

support the circuit court’s findings and conclusions that there was no reasonable likelihood that 

conditions of abuse and neglect could be substantially corrected in the near future, and that 

termination was necessary for the child’s welfare. Pursuant to West Virginia Code § 49-6­

5(a)(6), circuit courts are directed to terminate parental rights upon such findings. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: June 2, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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