1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re K.J.

No. 21-0142 (Berkeley County 19-JA-112)

MEMORANDUM DECISION

Petitioner Mother V.V., by counsel Dylan Batten, appeals the Circuit Court of Berkley

County’s February 8, 2021, order terminating her parental rights to K.J.

1 The West Virginia 

Department of Health and Human Resources (“DHHR”), by counsel Katherine A. Campbell, filed 

a response in support of the circuit court’s order. The guardian ad litem, Debbie Flowers Payne, 

filed a response on behalf of the child in support of the circuit court’s order. The self-represented

intervening foster parents, C.H. and S.H., also filed a response in support of the circuit court’s 

order. On appeal, petitioner argues that the circuit court erred in denying her motion for a postdispositional improvement period and violated her state and federal due process rights.2

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 September of 2019, the DHHR filed a petition alleging that petitioner tested positive for 

buprenorphine, cocaine, and benzodiazepines during her pregnancy with the child. The DHHR 

alleged that the child suffered from withdrawal after birth, including severe undisturbed tremors, 

poor sleeping, excoriation, and inconsolability, among other symptoms. The child required 

morphine medication for her drug-exposure. Although petitioner’s urine screen upon admission to 

give birth was negative, she admitted to using heroin while pregnant. The petition also alleged that 

1

Consistent 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). 

2

Petitioner raises no specific assignment of error challenging the circuit court’s termination 

of her parental rights. As such, that issue is not addressed in this memorandum decision.

FILED

June 22, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

petitioner began abusing drugs as a teenager, after which she became involved in “selling heroin 

and crack [cocaine], running guns and dope up the highways.” This activity resulted in her being 

sentenced to ten years of incarceration, although she only served seventy-two months. Petitioner 

also served two sentences for probation violations. Further, the DHHR alleged that shortly before 

the petition’s filing, petitioner was charged with possession after law enforcement discovered 

marijuana, cocaine, and heroin in a vehicle she was driving. According to the petition, law 

enforcement recovered over three grams of cocaine and more than five grams of heroin, which 

was packed in several bags. Based on these facts, the DHHR alleged that petitioner abused and 

neglected the child. Following the petition’s filing, petitioner waived her preliminary hearing. 

Petitioner then filed an answer in which she made admissions to the material allegations 

and requested an improvement period. At a hearing in October of 2019, the court accepted 

petitioner’s stipulation and found that she abused and neglected the child. The following month, 

the court granted petitioner a post-adjudicatory improvement period that required her to attend an 

addiction severity index assessment and adhere to the recommendations thereof, attend three 

Narcotics Anonymous (“NA”) meetings each week, find an NA sponsor, complete a psychological 

evaluation and follow all recommendations thereof, consistently adhere to a visitation schedule 

with the child, complete a drug treatment program, and submit to random drug screens, among 

other requirements.

At a hearing in March of 2020, the court was informed that petitioner admitted to relapsing, 

having tested positive for cocaine at least three times in February and March of 2020 and having 

provided diluted screens since the prior hearing. The guardian also expressed concerns that 

petitioner could not care for the child due to the child’s special needs and recommended that 

petitioner seek residential drug treatment. The matter was then scheduled for a hearing on April 

15, 2020. However, due to the COVID-19 pandemic and the resulting judicial emergency, the 

hearing was rescheduled to June of 2020. 

In preparation for that hearing, the guardian filed a motion to revoke petitioner’s 

improvement period on June 14, 2020. In support, the guardian argued that petitioner had not 

submitted to a drug screen since March 13, 2020, despite being ordered to screen three times per 

week. The guardian also asserted that petitioner was no longer living at the residence she identified, 

the DHHR’s attempts to contact her were unsuccessful, and petitioner had not contacted the DHHR 

in that timeframe. The guardian also asserted that petitioner’s multiple positive and diluted screens, 

in conjunction with her failure to attend a March of 2020 multidisciplinary team (“MDT”) meeting, 

were evidence of her noncompliance. The guardian noted that the DHHR suspended petitioner’s 

visitation with the child in March of 2020 because of the child’s fragile medical condition and 

petitioner’s ongoing substance abuse and failure to participate in the MDT. The DHHR also filed 

a court summary in advance of this hearing that included petitioner’s explanation for her lack of 

drug screens. According to petitioner, “[s]he did not go and drug screen because the few people 

she knows says that they are closed” and that “[s]he drove by the Day Report and reports that it 

looked closed.” The report further indicated that petitioner had not provided any proof of NA 

attendance or having obtained a sponsor. The DHHR did report that petitioner was compliant with 

some services, such as her addiction assessment, her psychological evaluation, and a drug 

treatment program. 
3

The court ultimately held several hearings on the guardian’s motion in August and 

September of 2020, during which evidence was introduced that, in addition to her earlier positive 

drug screens, petitioner tested positive for cocaine through her treatment program in March of 

2020 and cannabinoids in June of 2020. Further, the DHHR indicated that petitioner provided two 

additional screens that were positive for marijuana in June of 2020. In opposition to the motion, 

petitioner testified that she stopped drug screening because “when Covid hit, [she] was under the 

impression that everything was stopped until further notice.” When questioned whether she had 

ever been informed by the DHHR or anyone from the MDT that drug screening was suspended, 

petitioner replied, “No.” When asked about her multiple positive screens for cocaine in February 

and March of 2020, petitioner indicated that she “was stressed out.” Petitioner also confirmed that 

at the time she tested positive for cocaine, she was already participating in the same substance 

abuse treatment program that she was participating in at the time of the hearing, having begun that 

program in July of 2019. Petitioner further admitted that she was dishonest with the psychologist 

who evaluated her by failing to disclose her use of cocaine at the time of the evaluation. Petitioner 

also denied having used marijuana, despite her positive screens. When asked why she tested 

positive for the drug, petitioner responded, “That’s a good question because I would like to know.” 

Later that month, the court convened a second hearing on the guardian’s motion, during 

which the DHHR caseworker testified that petitioner provided negative drug screens since August 

of 2020, but that the DHHR recommended termination of her parental rights. This recommendation 

was based on petitioner’s failure to screen for approximately three months, her positive screens, 

and the fact that her lack of compliance caused a breakdown in her relationship with the child. 

According to the worker, petitioner had not seen the child since February of 2020. The caseworker 

testified that the child has special needs, including issues with feeding and a fortified diet. Based 

on several factors, the caseworker testified that petitioner had not been compliant with her 

improvement period. Petitioner then presented the testimony of personnel from her treatment 

program who addressed her progress. Neither individual could confirm that petitioner submitted 

to drug screens in their program between March 12, 2020, and June 3, 2020, the period during 

which petitioner failed to screen in accordance with the court’s order. 

In its order revoking her improvement period, the court noted petitioner’s dishonesty with 

her psychological evaluator, her continued positive drugs screens, and her failure to follow the 

recommendations of her addiction assessment and psychological report. The circuit court cited 

several other requirements of her improvement period with which petitioner failed to comply, 

including her failure to attend all MDT meetings, contact the DHHR in the event of a change of 

residence, attend NA meetings, obtain an NA sponsor or recovery coach, and her extended failure 

to comply with drug screens. The court further noted that the child’s special needs required “an 

extraordinary amount of time and attention,” which was concerning given that petitioner blamed 

her relapse on the stress of caring for her grandmother. The evidence also indicated that the child’s 

pediatrician continued to refer the child to specialists in an attempt to further improve the child’s 

condition. Ultimately, the court found that petitioner’s positive screens for cocaine, followed by 

three months of failure to screen, and then more positive screens “mitigate[d] against a finding that 

it is in the best interests of the [i]nfant to extend the time limits” for improvement periods and that 

petitioner should not be permitted to delay permanency for “this very fragile, special needs child.” 

The court further found that “despite being over eleven . . . months into her improvement period, 

[petitioner] has failed to maintain her compliance with the improvement period terms throughout 
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the proceedings.” The court also found that petitioner was “currently participating in the same 

program that she was participating in when she delivered a drug-affected baby. Clearly, more 

intensive treatment is required, yet [petitioner] has failed to follow the recommendations of the 

MDT to avail herself of such treatment.” The court further found that petitioner’s overall attitude 

remained unchanged, given that “[w]hen she became stressed, [she] turned to cocaine rather than 

any of the services available to her” through her treatment program or the MDT. Based on the 

evidence, the court found that there had been no true improvement in her drug addiction.

Accordingly, the court terminated petitioner’s improvement period. 

Following the hearing, petitioner filed a motion for a post-dispositional improvement 

period. Thereafter, the DHHR filed a motion to terminate petitioner’s parental rights. The court 

then held a dispositional hearing in January of 2021, during which petitioner again testified and 

presented testimony from personnel at her treatment program regarding her ongoing substance 

abuse treatment. According to a doctor who worked with petitioner in the program, petitioner had 

the potential to parent a child. The DHHR indicated that it supported termination of petitioner’s 

parental rights because of the length of time that the child had been in foster care, although it 

acknowledged that petitioner “successfully remedied the conditions of abuse and neglect that were 

present at the time of the petition.” However, the DHHR raised concerns that petitioner had no 

bond with the child. The court agreed that petitioner had made substantial improvements but 

recognized that she was not currently able to care for the child’s special needs and was not bonded 

with the child because of the lack of visitation as a result of petitioner’s noncompliance. The court 

further recognized that “[t]his is one of the harder ones” because of what petitioner had 

accomplished. At the end of the hearing, petitioner asked to address the court and stated that 

“[w]hen [the child] was first taken, they said for abuse and neglect of drugs,” but petitioner 

questioned “why they keep saying abuse and neglect of illegal drugs” because she “had no drugs 

in [her] system when [the child] was born.” 

Ultimately, the court denied petitioner’s motion for an improvement period, finding that 

she could not satisfy the burden of demonstrating a substantial change in circumstances because 

she continued in the same treatment program that she began in July of 2019 during her pregnancy, 

which was the same program she was in when she relapsed in early 2020. Most importantly, 

however, the court found that petitioner’s statements at the hearing demonstrated that she “neither 

recognizes nor acknowledges that her drug use during pregnancy constituted abuse of her child.” 

Based on her failure to acknowledge these conditions, the court found that petitioner failed to 

improve her overall attitude with respect to her drug use and its impact on the child’s ongoing 

medical needs. The court also found that West Virginia Code § 49-4-610(9) precludes any 

combination of improvement periods from resulting in the child being in foster care more than 

fifteen months of the most recent twenty-two months, unless there are compelling circumstances 

that exceeding this timeframe is in the child’s best interests. Given that the child had been in foster 

care for fifteen months and the delay in the case was caused by petitioner’s relapse from February 

to June of 2020, the court found that it was not in the child’s best interests to delay permanency 

any further. The court also found that the child’s welfare would be seriously threatened if placed 
5

in petitioner’s care. As such, the court terminated petitioner’s parental rights.

3 It is from the 

dispositional order that petitioner appeals. 

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 alleges that the circuit court erred in denying her motion for a postdispositional improvement period. According to petitioner, the guardian and DHHR’s main reason 

for opposing the improvement period was the fact that the child had been in foster care beyond the 

timeframe set forth in West Virginia Code § 49-4-610(9), which directs that 

no combination of any improvement periods or extensions thereto may cause a 

child to be in foster care more than fifteen months of the most recent twenty-two 

months, unless the court finds compelling circumstances by clear and convincing 

evidence that it is in the child’s best interests to extend the time limits contained in 

this paragraph.

According to petitioner, unreasonable delays caused by the COVID-19 pandemic and other 

continuances resulted in her being denied an additional improvement period simply because no 

additional time was allowable. We do not agree.

On the contrary, the circuit court denied petitioner’s motion for a post-dispositional 

improvement period because she failed to satisfy the applicable burden for obtaining one. 

According to West Virginia Code § 49-4-610(3)(D), a circuit court may grant a parent a postdispositional improvement period when the parent has already been granted an improvement 

period if the parent “demonstrates that since the initial improvement period, the [parent] has 

experienced a substantial change in circumstances” and that “due to that change in circumstances, 

the [parent] is likely to fully participate in the improvement period.” The record shows that 

3

According to respondents, the father’s parental rights were also terminated below. The

permanency plan for the child is adoption in the current foster home. 
6

petitioner did not establish a substantial change in circumstances that would have warranted a 

second improvement period. Petitioner makes much of the fact that she was participating in 

substance abuse treatment at the time the court denied her motion, but ignores the fact that this 

was the same treatment program she was participating in both when she gave birth to the drugexposed child and when she underwent a significant relapse in February and March of 2020. 

Further, the record shows that petitioner tested positive for drugs later in June of 2020. Unlike her

earlier positive screens, petitioner refused to acknowledge her ongoing substance abuse in the face 

of the positive screens from June of 2020. As such, it is clear that petitioner did not establish a 

substantial change in circumstances that warranted a post-dispositional improvement period. 

Petitioner next argues that her state and federal due process rights were violated by the 

unreasonable delays below. According to petitioner, she “was denied a significant amount of time 

to demonstrate that she had made real and meaningful change to the [c]ourt, such that reunification 

was in the child’s best interests.” This argument is simply unsupported by the record. While it is 

true that some hearings in this matter were continued, including a continuation due to the COVID19 pandemic and resulting judicial emergency, the record shows that petitioner’s services 

continued throughout those periods. In short, petitioner was never deprived of time to show 

compliance with the terms and conditions of her improvement period. Instead, hearings had to be 

rescheduled to accommodate the parties’ safety and other scheduling issues. Even more important, 

however, is the fact that the record shows that the only real delay in petitioner’s progress below 

was entirely her own fault. It is undisputed that petitioner was never told that her required drug 

screens were halted, yet for a period of three months she failed to screen. Also important is the fact 

that shortly before she stopped screening and shortly after she resumed screening, petitioner tested 

positive for drugs. Further, because of her positive screens, failure to screen, and other 

noncompliance, petitioner’s visits with the child were suspended. This resulted in petitioner’s 

failure to bond with the child. Contrary to petitioner’s arguments on appeal, all of these delays are 

directly attributable to petitioner’s noncompliance. 

Finally, at the end of the dispositional hearing, petitioner displayed an unwillingness after 

months of remedial services, to acknowledge that she had done anything wrong. As the court noted, 

petitioner’s questioning of the allegations that gave rise to the petition’s filing at that late stage of 

the proceedings demonstrated that the conditions of abuse and neglect could not be corrected. This 

Court has routinely held that

[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). Contrary to 

petitioner’s argument, she was given ample time to demonstrate improvement. Instead of a lack of 

time, the evidence shows that it was, in fact, petitioner’s unwillingness to recognize her own 

abusive and neglectful conduct that resulted in the termination of her parental rights. As such, we 

find no due process violation in the proceedings below. 
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For the foregoing reasons, we find no error in the decision of the circuit court, and its 

February 8, 2021, order is hereby affirmed.

Affirmed.

ISSUED: June 22, 2021 

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton