In re K.R. ( 2024 )

FILED
February 7, 2024
STATE OF WEST VIRGINIA C. CASEY FORBES, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re K.R.
No. 23-34 (Monongalia County 21-JA-124)
MEMORANDUM DECISION
Petitioner Mother D.C. 1 appeals the Circuit Court of Monongalia County’s December 15,
2022, order terminating her parental rights to K.R. 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 November 2021, the DHS filed an abuse and neglect petition alleging that petitioner had
abused and/or neglected her child due to substance abuse that negatively impacted her ability to
parent. These allegations were based, in part, upon petitioner’s granddaughter 3 ingesting fentanyl
while in petitioner’s care, which resulted in the child requiring medical care. During the DHS’s
investigation, petitioner admitted to using Zoloft and Xanax without a valid prescription.
In January 2022, petitioner stipulated to her substance abuse that negatively affected her
ability to safely and appropriately parent her child and to lack of supervision in her home that led
to injury, constituting neglect. The circuit court then adjudicated petitioner as an abusive and
1
Petitioner appears by counsel Andrew C. Cook. The West Virginia Department of Human
Services appears by counsel Attorney General Patrick Morrisey and Assistant Attorney General
Lee Niezgoda. Counsel Diane D. Michael appears as the child’s guardian ad litem (“the guardian”).
Additionally, pursuant to West Virginia Code § 5F-1-2, the agency formerly known as the
West Virginia Department of Health and Human Resources was terminated, effective January 1,
2024, and is now three separate agencies—the Department of Health Facilities, the Department of
Health, and the Department of Human Services. For purposes of abuse and neglect appeals, the
agency is now the Department of Human Services (“DHS”).
2
We use initials where necessary to protect the identities of those involved in this case. See
W. Va. R. App. P. 40(e).
3
Although the factual basis for the DHS’s allegations against petitioner included the
incident involving the granddaughter, the court took no action against petitioner in relation that
that child. That child is, accordingly, not at issue on appeal.
1
neglectful parent. Following adjudication, petitioner was granted a six-month post-adjudicatory
improvement period in February 2022.
In April 2022, the circuit court held a review hearing for petitioner’s improvement period.
Evidence presented at the hearing showed that petitioner had not attended any substance abuse
treatment; was not participating in services; and was failing drug screens, including testing positive
for fentanyl at least eleven times in February and March 2022. Based on this evidence, the circuit
court revoked petitioner’s improvement period and set the matter for disposition. However, the
court directed the DHS to resend referrals for services to give petitioner an opportunity to
participate in services prior to the next hearing. Petitioner then began participating in services and
drug screening, and the circuit court, following the guardian’s recommendation, granted petitioner
an extension to her post-adjudicatory improvement period by order entered July 26, 2022.
In August 2022, the court held a hearing to review petitioner’s improvement period.
Evidence presented showed that petitioner tested positive for fentanyl on July 25, 2022, and tested
positive for fentanyl, opioids, and methamphetamine on August 8, 2022. Additionally, petitioner
had not yet attended any drug treatment, and the court emphasized the importance of attending
treatment and remaining drug-free. The court held a final review hearing in October 2022, in which
the evidence showed that petitioner was continuing to test positive for fentanyl and had only just
been accepted into an outpatient drug rehabilitation program, set to begin the next week. During
the hearing, the court stressed that petitioner could not test positive for substances before the
disposition hearing.
The court proceeded to disposition in November 2022, where the DHS worker testified
that, throughout the case, petitioner has not acknowledged her use of fentanyl and that, since the
last hearing in October 2022, petitioner tested positive for fentanyl three times. The circuit court
found that petitioner would not be able to remedy the issues that led to the filing of the petitioner
in the near and distant future, given that petitioner was unable to remain sober and continued to
deny her drug use and relapse, minimized the deficiencies in her parenting, and failed to complete
substance abuse treatment during her improvement period. The court further found that termination
of petitioner’s parental rights was necessary for the welfare of the child. Accordingly, the court
terminated petitioner’s parental rights to the child. 4 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 argues that circuit
court erred by terminating her parental rights because she had remedied the issues that led to the
filing of the petition by remedying her drug use. Upon our review, we find no error.
According to petitioner, although she continued to test positive for fentanyl throughout the
proceedings, the levels produced in her later screens were not sufficient to have impaired her and
4
The permanency plan for the child is legal guardianship or adoption in her kinship
placement.
2
did not reflect active use. Petitioner argues that this renders the court’s finding that there was no
reasonable likelihood that she could substantially correct the conditions of abuse and neglect
erroneous, because West Virginia Code § 49-4-604(d)(1) requires such use to be “to the extent that
proper parenting skills have been seriously impaired.” However, this argument is entirely without
merit, as the court was free to base this finding on any number of circumstances set forth in West
Virginia Code § 49-4-604(d); the list of circumstances where there is no reasonable likelihood
conditions can be corrected is clearly non-exhaustive.
Broadly, West Virginia Code § 49-4-604(d) defines “[n]o reasonable likelihood that
conditions of neglect or abuse can be substantially corrected” to mean “that, based upon the
evidence before the court, the abusing adult or adults have demonstrated an inadequate capacity to
solve the problems of abuse or neglect on their own or with help.” Additionally, there is no
reasonable likelihood that conditions of neglect or abuse can be substantially corrected where the
parent has not followed through with a reasonable family case plan and other rehabilitative efforts.
W. Va. Code § 49-4-604(d)(3). Here, the record is replete with evidence supporting a finding that
petitioner demonstrated an inadequate capacity to solve the problems of abuse or neglect and failed
to comply with the terms of the family case plan. This case began because a child in petitioner’s
care became injured after ingesting fentanyl, the very same drug for which petitioner consistently
tested positive throughout the case. Petitioner’s argument regarding her fentanyl levels ignores
that petitioner also tested positive for opioids and methamphetamine use during the case. Further,
petitioner continues to deny her abuse of fentanyl even to this Court, and we have explained that
“[f]ailure 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.” In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013)
(citation omitted).
Despite the court stressing several times the importance of petitioner completing substance
abuse treatment and remaining drug-free, petitioner did not complete substance abuse treatment
and continued to test positive for substances up to the disposition hearing. Because the court had
ample evidence upon which to base the findings necessary for termination of petitioner’s parental
rights, we find no error in the court’s decision. See W. Va. Code § 49-4-604(c)(6) (permitting
circuit court to terminate parental rights upon finding no reasonable likelihood conditions of
neglect can be substantially corrected in the near future and when necessary for child’s welfare);
see also Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (permitting termination
of parental rights “without the use of intervening less restrictive alternatives when it is found that
there is no reasonable likelihood . . . that conditions of neglect or abuse can be substantially
corrected”).
For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 15, 2022, order is hereby affirmed.
Affirmed.
ISSUED: February 7, 2024
3
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
4