In re K.R. ( 2022 )

FILED
August 31, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re K.R.
No. 21-0790 (Harrison County 21-JA-18-1)
MEMORANDUM DECISION
Petitioner Father C.R., by counsel Julie N. Garvin, appeals the Circuit Court of Harrison
County’s August 3, 2021, order terminating his parental rights to K.R. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and Lee
Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Allison S. McClure, filed a response on behalf of the child also in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying him a post-
adjudicatory improvement period and in terminating his 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 January of 2021, the DHHR filed a child abuse and neglect petition against petitioner
and the mother. The DHHR alleged that the mother was admitted to the hospital to give birth to
the child and that, upon admission, she tested positive for amphetamine and THC. The mother
further admitted that she abused heroin, methamphetamine, and buprenorphine during the
pregnancy. A Child Protective Services (“CPS”) worker spoke to the mother, who reported that
petitioner was the father of the child and that he knew of her drug abuse during the pregnancy. The
mother further indicated that petitioner had been incarcerated for a portion of her pregnancy due
to being “caught with [a]mphetamine.” According to the mother, petitioner had previous substance
abuse issues. The CPS worker also spoke with nurses at the hospital, who reported that petitioner
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).
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used an unauthorized bathroom in the triage area and that cleaning personnel found a razor blade
after he exited the bathroom. The nurse additionally reported observing petitioner engaging in
unsafe sleep practices with the newborn child, such as falling asleep with the child on his chest.
Upon further investigating petitioner’s criminal history, the CPS worker discovered that
petitioner had multiple convictions, including a conviction for possession with intent to deliver a
controlled substance in 2020. Petitioner was sentenced to one to five years of incarceration, which
was suspended in favor of probation. The DHHR alleged that, earlier in January of 2021, the State
filed a motion to revoke petitioner’s probation after he failed a drug screen, failed to check in with
his probation officer, failed to answer the door during an unannounced visit by his probation
officer, and failed to complete his addiction severity interview. Based on the foregoing, the DHHR
concluded that petitioner knew or should have known that the mother was abusing substances
while pregnant but failed to protect the child.
The circuit court held an adjudicatory hearing in March of 2021. The DHHR introduced
multiple exhibits and presented the testimony of a CPS worker and petitioner. The evidence
established that petitioner had prior drug-related convictions, that he had an active drug addiction,
and that he had abused heroin and fentanyl as recently as February of 2021. Petitioner was also
incarcerated and, by his own admission, could not assume care, custody, and control of the child.
Accordingly, the circuit court adjudicated petitioner as a neglectful parent, finding that “he has a
substance abuse problem that led to the neglect of the child, [K.R.], including his failure to protect
[the child] from [the mother’s] substance abuse, and cannot assume care of the child due to his
incarceration.”
In July of 2021, the circuit court held a dispositional hearing. The DHHR submitted
petitioner’s sentence and commitment order in his criminal matter and requested that the circuit
court take judicial notice of the evidence presented at the adjudicatory hearing. Petitioner requested
a post-adjudicatory improvement period. The DHHR presented the testimony of a CPS worker,
who stated that petitioner had been incarcerated since February of 2021 and that his expected
release date was not until May of 2023. The CPS worker testified that petitioner had not seen the
child due to his incarceration and as a result, had no bond with the child. Further, he had not
contacted the CPS worker during his incarceration to ask about the child’s welfare. The CPS
worker recommended that petitioner’s parental rights be terminated. On cross-examination, the
CPS worker admitted that she had not attempted to contact petitioner at his correctional facility
and acknowledged that he would have a parole hearing in November of 2021.
Petitioner testified in support of his motion for an improvement period. He confirmed that
he would be eligible for parole in November of 2021 and that he could participate in classes such
as parenting and adult life skills classes and substance abuse classes at his place of incarceration.
Petitioner testified that he had already applied to participate in some classes, was assigned a job,
and applied to take some college classes. Petitioner stated that he would comply with any services
required of him if he were granted an improvement period. He admitted that he was still in a
relationship with the mother, who had not complied with drug screens or other services. Petitioner
further admitted that he had a substance abuse problem.
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By order entered on August 3, 2021, the circuit court denied petitioner’s request for a post-
adjudicatory improvement period and terminated his parental rights. The circuit court found that
petitioner had a drug abuse problem and failed to comply with the terms of his probation, resulting
in his incarceration when the child was just one month old. The court found that petitioner knew
he was about to become a father yet violated the terms and conditions of his probation. Petitioner’s
conduct resulted in his incarceration until approximately May of 2023, unless he is paroled earlier.
The court noted that, although he would become parole eligible in November of 2021, his release
was not guaranteed. The circuit court further found that the child would be ten months old by the
time petitioner would become eligible for parole, has known no other home than her foster home,
and would be even more bonded with her current placement by petitioner’s potential release. The
circuit court noted that petitioner had seen the child only at her birth and one other time before
becoming incarcerated. Moreover, due to petitioner’s incarceration, there would be no way he
could meaningfully participate in an improvement period. Additionally, the circuit court found that
petitioner failed to contact the DHHR to inquire about the well-being of the child and remained in
a relationship with the mother whose failure to participate in the proceedings resulted in the
termination of her parental rights to the child. The court concluded that petitioner’s substance
abuse history, the uncertainty of his release date, the child’s tender years, and petitioner’s inability
to comply with the terms and conditions of his probation, supported its decision. Based on the
foregoing, the circuit court found that there was no reasonable likelihood that petitioner could
substantially correct the conditions of neglect in the near future and that termination of his parental
rights was necessary for the child’s welfare. Petitioner appeals the circuit court’s August 3, 2021,
dispositional order terminating his parental rights. 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 first argues that the circuit court erred in denying his motion for a
post-adjudicatory improvement period. According to petitioner, he filed an appropriate motion and
“was able to demonstrate compliance to the best of his ability.” At disposition, petitioner listed the
2
The mother’s parental rights were also terminated during the proceedings below. The
permanency plan for the child is adoption by the foster family.
3
services he would comply with, stated his desire and need for an improvement period, and noted
that he had not yet been granted an improvement period during the matter. Petitioner avers that he
should have been given the opportunity to bond with the child and that an improvement period
would have been in the child’s best interest.
The decision to grant or deny an improvement period rests in the sound discretion of the
circuit court. See In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia
law allows the circuit court discretion in deciding whether to grant a parent an improvement
period.”); Syl. Pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“It is within the
court’s discretion to grant an improvement period within the applicable statutory requirements[.]”).
We have also held that a parent’s “entitlement to an improvement period is conditioned upon the
ability of the [parent] to demonstrate ‘by clear and convincing evidence that the respondent
[parent] is likely to fully participate in the improvement period.’” In re Charity H., 215 W. Va.
208, 215, 599 S.E.2d 631, 638 (2004). The circuit court has discretion 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 he was likely to fully participate in an
improvement period. While petitioner testified that he would comply with an improvement period
and had enrolled in classes at his correctional facility, his continued incarceration created a barrier
to his ability to meaningfully participate in an improvement period. Although petitioner allegedly
signed up for some classes, he had not yet been accepted into any of the classes as of the
dispositional hearing. Further, petitioner could not visit with the child or apply any parenting skills
learned during his incarceration. Moreover, petitioner’s release on parole was not guaranteed. 3
Even assuming that petitioner was to be paroled in November of 2021, four months of his
improvement period would have passed during his incarceration, leaving only two months of a
six-month improvement period for him to remedy the conditions of abuse and neglect upon his
release. As noted by the circuit court, petitioner saw this child very little before his incarceration
and the child had bonded with her foster family. Such bond would only increase with time, and
the child would be over two years old by the time petitioner discharged his sentence. We have
previously held that “[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.” Cecil
T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4 (citation omitted). Based on the foregoing, we
find no error in the circuit court’s decision to deny petitioner’s motion for an improvement period.
Petitioner next argues that the circuit court erred in terminating his parental rights.
Specifically, petitioner avers that the circuit court’s basis for terminating his parental rights was
premature and insufficient to support such a disposition. Petitioner claims that the circuit court
could have adequately protected the child by employing a less restrictive alternative disposition,
such as disposition under West Virginia Code § 49-4-604(c)(5), which would have allowed for
petitioner to “restore [his parental] rights” after demonstrating that he possessed the ability to
properly care for the child. Petitioner admits his inability to “be a good parent right now” but
claims that the situation is not permanent. According to petitioner, this less restrictive disposition
3
Indeed, the guardian indicates that petitioner continued to be incarcerated as of April of
2022.
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provides the same protection to the child, and the circuit court could have modified disposition at
a later date if the permanency plan required adoption. As such, petitioner argues that termination
of his parental rights was error.
We disagree. West Virginia Code § 49-4-604(c)(6) provides that circuit courts are to
terminate parental, custodial, and guardianship 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 is necessary for the child’s welfare. West Virginia Code § 49-4-604(d)
provides that a circuit court may find that there is no reasonable likelihood that the conditions of
abuse and neglect can be substantially corrected when the abusing parent has “demonstrated an
inadequate capacity to solve the problems of abuse or neglect on [his or her] own or with help.”
Here, the record establishes that petitioner demonstrated an inadequate capacity to solve
the problems of abuse or neglect on his own or with help. Specifically, petitioner failed to comply
with the terms and conditions of his probation, which resulted in his incarceration shortly after the
child’s birth. Due to his incarceration, petitioner was unable to comply with services aimed at
remedying the conditions of abuse and neglect. While the circuit court considered that petitioner
would become parole eligible in November of 2021, there was no guarantee that he would be
released, and the guardian avers on appeal that petitioner remained incarcerated as of April of
2022. Absent his release on parole, petitioner will not discharge his sentence until the child is over
two years old. The child has been with her foster family since birth and is bonded to them and will
undoubtedly be more bonded by the time petitioner is released from incarceration. Further,
petitioner remained in a relationship with the mother throughout the proceedings despite her failure
to participate in services, which led to the termination of her parental rights, and he failed to contact
the DHHR to inquire about the child. These factors, which were considered by the circuit court,
are sufficient to support a finding that there is no reasonable likelihood that petitioner could correct
the conditions of abuse and neglect in the near future.
While petitioner argues that the circuit court could have employed a less restrictive
alternative to the termination of his parental rights, we have previously 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). Given the abovementioned
evidence, we find no error in the circuit court’s decision to terminate petitioner’s parental rights to
the child.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 3, 2021, order is hereby affirmed.
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Affirmed.
ISSUED: August 31, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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