FILED
June 22, 2021
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re K.R. and C.R.
No. 20-0879 (McDowell County 18-JA-94 and 18-JA-95)
MEMORANDUM DECISION
Petitioner Mother B.R., by counsel Thomas H. Evans III, appeals the Circuit Court of
McDowell County’s September 24, 2020, order terminating her parental rights to K.R. and C.R.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L.
Evans, filed a response in support of the circuit court’s order and a supplemental appendix. The
guardian ad litem, Andrew Waight, filed a response on behalf of the children also in support of the
circuit court’s order and a supplemental appendix. On appeal, petitioner argues that the circuit
court erred in denying her motion for a post-adjudicatory improvement period and terminating her
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 September of 2018, the DHHR filed an abuse and neglect petition alleging that
petitioner’s untreated mental illness and substance abuse impacted her ability to parent.
Specifically, a law enforcement officer found petitioner parked dangerously along the side of the
road and acting agitated and disoriented. She appeared overwhelmed by then-three-year-old C.R.
who was crying and wearing soiled clothes. Petitioner explained to the officer that she takes
medication for anxiety but had not taken her dose the day before. She also stated that she and the
child were both ill and had just left the hospital. The officer observed that petitioner had no change
of clothes for the child. He also learned that petitioner had a revoked driver’s license, so he
arranged for the maternal grandmother to pick up petitioner and C.R. That evening, a Child
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).
1
Protective Services (“CPS”) worker investigated and learned that the maternal grandmother
babysits C.R.’s older half-sibling, K.R., while K.R.’s father works and that petitioner can only visit
K.R. in the presence of the maternal grandmother per a family court order. C.R.’s father stated that
petitioner abuses drugs, potentially methamphetamine, and that petitioner was emotionally
unstable. When the worker attempted to speak with petitioner, she was uncooperative and could
not remain focused, and when asked about the allegations of drug abuse, petitioner became irate
and called 9-1-1. Law enforcement officers arrived at the home, and petitioner continued to be
combative with the CPS worker and appeared to be “over medicated.” Law enforcement officers
observed petitioner’s pupils to be dilated and believed she was under the influence of a substance.
At that time, C.R.’s father took custody of C.R. and agreed to a protection plan. K.R.’s father took
K.R. home with him. Petitioner refused to cooperate and participate in a protection plan, thus
forcing the DHHR to file the underlying petition.
Petitioner waived her preliminary hearing in October of 2018, and the circuit court ordered
that petitioner complete a psychological evaluation, which she partially completed in December
of 2018. The evaluation indicated that petitioner was too distracted to complete the questions but,
in the psychologist’s opinion, petitioner suffered from untreated mental illness with serious
delusions, opioid use disorder, methamphetamine use disorder, post-traumatic stress disorder, and
relationship distress with partner. Petitioner’s insight was deemed poor as she appeared to have
little understanding of the relationship between her emotions, cognitions, and behaviors. The
psychologist’s opinion was that petitioner’s prognosis for achieving minimally sufficient parenting
was poor, but he recommended that petitioner enroll in an intensive inpatient mental health and
drug treatment program.
At a status hearing in February of 2019, the DHHR reported that petitioner tested positive
for methamphetamine in January of 2019. The circuit court ordered petitioner to return to finish
her psychological evaluation, but she failed to do so. In March of 2019, the circuit court reviewed
a text message from petitioner to the DHHR worker which stated the following: “I wanted to let
you know I choose not to participate in the safety plan or parenting or any other services CPS has
coerced me to participate in since these are supposed to be voluntary.”
The DHHR filed an amended petition in April of 2019, alleging that petitioner continued
to live in the home with C.R and C.R.’s father who perpetuated domestic violence against
petitioner in the presence of C.R. At a status hearing the same month, the circuit court ordered
C.R.’s father and petitioner to not have contact and that he was required to move out of the home
by April 25, 2019, with the assistance of the DHHR. In September of 2019, the DHHR filed a
second amended petition alleging that petitioner refused to cooperate with any services and
declined mental health treatment. The DHHR further alleged that C.R.’s father continued to
perpetuate domestic abuse in the home in the presence of the child. In October of 2019, C.R.’s
father and petitioner each sent various self-represented letters to the circuit court.
The circuit court held adjudicatory hearings in October of 2019, during which it noted that
the various letters to the court were “devoid of logic and reason, and are nothing more than
inarticulate and indecipherable ramblings.” The circuit court explained that it would not consider
the letters for purposes of adjudication but would consider them for purposes of disposition. The
DHHR presented the testimony of Mr. David Lawson, M.A., the psychologist who performed
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petitioner’s psychological evaluation. Mr. Lawson testified that petitioner appeared two-and-a-half
hours late for the first appointment, during which she took two forty-minute restroom breaks and
failed to complete the evaluation despite ample time do so. After petitioner failed to return to
complete the evaluation, Mr. Lawson stated that he formed a summary evaluation and diagnosis.
He opined that petitioner displayed psychotic symptoms, could not function at an adequate level
to care for the children, and needed to enroll into intensive inpatient mental health and drug
treatment.
Next, a CPS worker testified about the October of 2018, incident described above, wherein
the law enforcement officer discovered petitioner on the side of the road with C.R. Explaining the
aftermath of this incident, the CPS worker testified that when she went to petitioner’s home to
discuss the allegations of substance abuse, petitioner became irate, called the police, and remained
on the phone with the 9-1-1 operator during the entire visit, refusing to speak to the CPS worker.
Law enforcement officers appeared and stated to the worker that they suspected petitioner was
intoxicated from drugs. After removal, petitioner refused to submit to drug screens or participate
in parenting and adult life skills, and information about her refusal was included in the second
amended petition. Thereafter, law enforcement officers testified to responding to petitioner on the
side of the road in a state of distress, exhaustion, and confusion, and later responding at the home,
where they observed that petitioner’s pupils were dilated and thus concluded that petitioner was
likely under the influence of methamphetamine. Another CPS worker testified that petitioner had
refused to submit to drug screens and refused to participate in any of the DHHR’s services.
Petitioner testified that C.R. had been ill with a fever and she was almost out of gasoline
when she pulled over by the side of the road. She admitted to driving with a suspended license,
which resulted in the impoundment of her vehicle. Petitioner stated that a CPS worker came to her
home and told her to sign paperwork or else C.R. would be removed from her care. In response,
petitioner called 9-1-1 because “the allegations against her made no sense.” Petitioner testified that
the CPS worker was demanding and degrading. Petitioner stated that she had been prescribed a
number of medications over the years to treat anxiety, attention deficit hyperactive disorder, and
stress, but she ceased taking the medications without consulting her doctor. She further explained
that she was not a patient of any mental health professional as she believed she no longer had any
mental illness. Petitioner admitted to past drug use but denied drug use during the previous year.
Petitioner disagreed with Mr. Lawson’s findings and claimed that she did not complete his
evaluation because he was influenced by the DHHR. She further admitted to sending a message to
the DHHR worker that she would not participate in services. Petitioner denied the allegations of
domestic abuse with C.R.’s father. The circuit court found petitioner and C.R.’s father in contempt
of the court’s no contact orders as they continued to live together. Ultimately, the circuit court
adjudicated petitioner as an abusing parent based upon her unresolved mental health issues and
drug abuse as well as her failure to protect the children from domestic violence.
In July of 2020, petitioner filed a motion for a post-adjudicatory improvement period. The
same month, the DHHR filed a motion to terminate petitioner’s parental rights, and the guardian
filed a report recommending the termination of petitioner’s parental rights. Later that month, the
circuit court held two final dispositional hearings. A service provider testified that petitioner
attended only two parenting sessions. Another provider stated that petitioner submitted to only one
drug screen for which she tested positive for methamphetamine. The next provider explained that
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petitioner participated in supervised visitations at the DHHR’s office, but that petitioner’s visits
were suspended in February of 2020 after she posted confidential videos of the visits online.
Petitioner testified that she cooperated with her psychological evaluation, exercised supervised
vitiations with the children, and sought out mental health counseling services but did not obtain
medicated mental health treatment. She denied issues of domestic violence with C.R.’s father but
stated that she was willing to cooperate with the DHHR’s services. Ultimately, the circuit court
found that there was no reasonable likelihood that petitioner could correct the conditions of abuse
and neglect in the near future and that the termination of her parental rights was necessary for the
children’s welfare. The circuit court terminated petitioner’s parental rights by order entered on
September 24, 2020. 2
The Court has previously established the following standard of review in cases such as this:
“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 terminating her parental rights
without first granting her a post-adjudicatory improvement period. Petitioner asserts that the
DHHR offered her no assistance, including no psychiatric counseling or treatment. She also
contends that she presented evidence at the dispositional hearing that she was likely to participate
in the terms and conditions of an improvement period.
West Virginia Code § 49-4-610(2)(B) provides that the circuit court may grant a parent a
post-adjudicatory improvement period 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 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). Finally, the circuit court has discretion
2
C.R.’s father’s parental rights were terminated below. The permanency plan for C.R. is
adoption by her foster mother. K.R.’s father was a nonabusing parent, and the permanency plan
for her is to remain in his care.
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to deny an improvement period when no improvement is likely. See In re Tonjia M., 212 W. Va.
443, 448, 573 S.E.2d 354, 359 (2002).
We find that petitioner failed to demonstrate that she was likely to fully participate in an
improvement period. Petitioner disregarded the court’s orders and repeatedly violated the court’s
no-contact order with the child and with C.R.’s father, which resulted in her being held in
contempt. Further, she violated the rules of confidentiality of these proceedings by posting videos
of her supervised visitations online, causing the suspension of visits in February of 2020. These
visits were never reinstated as petitioner continued to live with C.R.’s father. “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) (citations omitted). Most importantly, petitioner
consistently denied having a substance abuse problem or mental health issues and failed to seek
treatment for the same despite Mr. Lawson’s recommendations and the circuit court’s adjudicatory
findings that petitioner’s drug use and unresolved mental illness interfered with her ability to
parent the children. She further denied any issues of domestic violence with C.R.’s father. We have
previously 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).
Finally, petitioner confirmed that she sent the text message to the DHHR worker stating
that she refused to participate in all services. Holding true to her general refusal to cooperate with
services, petitioner failed to submit to all drug screens but one (for which she tested positive for
methamphetamine), and she failed to participate in all parenting and adult life skills classes but
two. In light of the overwhelming evidence that petitioner was unlikely to participate in the terms
and conditions of a post-adjudicatory improvement period, we find no error.
Next, petitioner argues that the circuit court erred in terminating her parental rights when
termination was not necessary for the children’s welfare and was not in their best interests.
Petitioner avers that she was already practicing supervised visitations with K.R. who lived with
her father at the time of the filing of the initial petition and that termination of petitioner’s parental
rights was unnecessary. Petitioner contends that the DHHR did nothing to facilitate mental health
treatment for her and if she had received treatment, she could have corrected the conditions of
abuse and neglect in the near future.
West Virginia Code § 49-4-604(c)(6) provides that a circuit court may terminate a parent’s
parental rights upon finding that “there is no reasonable likelihood that the conditions of neglect
or abuse can be substantially corrected in the near future” and that termination of parental rights is
necessary for the child’s welfare. Pursuant to West Virginia Code § 49-4-604(d)(3), a circuit court
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may determine that there is no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected when
[t]he abusing parent or parents have 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.
As outlined above, the evidence overwhelmingly shows that petitioner failed to respond to
or follow through with a reasonable family case plan. Petitioner places all blame upon the DHHR
and fails to acknowledge her own lack of participation and outright refusal to participate in the
DHHR’s services. Petitioner claims that the DHHR did not do enough to facilitate mental health
services yet ignores that the DHHR arranged for Mr. Lawson’s psychological evaluation to help
her obtain a diagnosis and treatment. Rather, the record shows that petitioner failed to treat the
evaluation seriously as she arrived late, took long breaks, and ultimately failed to complete it
despite ample time and opportunity to do so. Petitioner finally agreed to participate in services at
the dispositional hearing, but only when faced with the termination of her parental rights. Without
petitioner’s cooperation and participation, the DHHR was unable to implement needed mental
health and substance abuse services for petitioner.
Furthermore, the evidence supports the termination of petitioner’s parental rights as
necessary for the children’s welfare as she remained in a violent relationship with C.R.’s father,
which would have exposed the children to domestic violence. Additionally, petitioner’s drug abuse
and mental health issues remained untreated, which would place the children in danger if returned
to her care. As such, it is clear that that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect and the children’s welfare required
termination of petitioner’s parental rights.
Finally, regarding petitioner’s argument that her parental rights to K.R. should have
remained intact since the child was reunified with the father, we have previously held that West
Virginia Code § 49-4-604 “permits the termination of one parent’s parental rights while leaving
the rights of the nonabusing parent completely intact, if the circumstances so warrant.” In re Emily,
208 W. Va. 325, 344, 540 S.E.2d 542, 561 (2000). Further, “simply because one parent has been
found to be a fit and proper caretaker for [the] child does not automatically entitle the child’s other
parent to retain his/her parental rights if his/her conduct has endangered the child and such
conditions of abuse and/or neglect are not expected to improve.” Id. Here, there was substantial
evidence that petitioner was unlikely to improve and correct the conditions of abuse and neglect.
Insomuch as petitioner argues that the circuit court should have allowed her more time to
obtain mental health and drug treatment, we have previously 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
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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).
Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4. Further, we have held that
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [West Virginia
Code § 49-4-604] may be employed without the use of intervening less restrictive
alternatives when it is found that there is no reasonable likelihood under [West
Virginia Code § 49-4-604(d)] that conditions of neglect or abuse can be
substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d
114 (1980).
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). As such, we find no error in the
termination of petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 24, 2020, 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
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