In re A.R. and A.B. ( 2021 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
April 20, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
In re A.R. and A.B. OF WEST VIRGINIA
No. 20-0775 (Hampshire County 20-JA-1 and 20-JA-2)
MEMORANDUM DECISION
Petitioner Mother S.B., by counsel Stephanie E. Scales-Sherrin, appeals the Circuit Court
of Hampshire County’s September 2, 2020, order terminating her parental rights to A.R. and her
custodial rights to A.B. 1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Lee Niezgoda, filed a response in support of the circuit court’s order. The
guardian ad litem, Marla Zelene Harman, filed a response on behalf of the children also in support
of the circuit court’s order. Intervenor paternal grandparents of A.R., J.R. and S.R., by counsel
Jonathan G. Brill, filed a response in support of the circuit court’s order. Petitioner filed a reply.
On appeal, petitioner argues that the circuit court erred in adjudicating her as an abusing parent,
granting the grandparents’ motion to intervene prior to adjudication, denying her motion for an
improvement period, and terminating her parental and custodial 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 2020, the DHHR filed a child abuse and neglect petition after petitioner
presented to the hospital with one-month-old A.R., who tested positive for buprenorphine.
Specifically, the DHHR alleged as follows: On December 20, 2019, petitioner presented to
Hampshire Memorial Hospital in Romney, West Virginia, with complaints that her one-month-old
child, A.R., had slept through two feedings and was groggy and listless. Hospital staff diagnosed
the child with an “air bubble.” Petitioner and the child’s father, L.R. (“the father”), subsequently
left the hospital with the child and traveled to Winchester Medical Center in Winchester, Virginia.
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
The child tested positive for buprenorphine, a narcotic medication. The parents denied any history
of substance abuse and informed hospital staff that the child had not been with anyone except for
them. Hospital staff contacted Child Protective Services (“CPS”), and a CPS worker proceeded to
the hospital to speak to the parents the following day. The parents reported observing the symptoms
around 6 p.m. on December 20, 2019, and indicated that two persons, the father’s sister-in-law,
R.R., and her friend, T.D., had been at their house that day and held the child. The parents claimed
that T.D. had a history of substance abuse and surmised that she must have had something on her
skin when she held the child, which led to his absorbing buprenorphine. The CPS worker spoke to
the child’s treating physician, Dr. Jason Robertson. Dr. Robertson explained to the worker that
buprenorphine would not metabolize through skin contact and that the drug had to have been orally
ingested. Dr. Robertson further suggested that the levels of buprenorphine necessary to lead to the
child’s positive drug test result and the effects suffered by the child indicated that it was a “non-
accidental amount.” Dr. Robertson and the CPS worker confronted the parents about their
explanation and informed them that “an accidental exposure such as that wouldn’t produce the
current effects, as the child had been asleep for more than 24 hours, and hadn’t been aroused from
sleep from any of the number of tests that had been done.” Petitioner spoke to another CPS worker
and denied any drug abuse issues. Petitioner commented that, despite rumors of a history of drug
abuse, the father did not abuse drugs. The parents submitted to drug screens and both tested
negative for any substances.
On December 27, 2019, the father called a CPS worker and left a lengthy voicemail,
explaining that he wanted to “come clean” and explain how the child had ingested buprenorphine.
The father claimed that he had been abusing nonprescribed buprenorphine, unbeknownst to
petitioner, and possibly transferred the substance to the child’s bottle. The father explained that on
the day prior to the child’s exhibiting symptoms, he placed a small piece of buprenorphine in his
mouth and “let the juice build up” before spitting it into a half-filled water bottle. The father placed
the water bottle on the kitchen table. After being informed of the child’s symptoms the next day,
the father observed that the water bottle was empty and next to the child’s formula. The father
questioned petitioner about whether she used the water to make the child’s bottle, and she
confirmed that she had done so. According to the father, “[t]hat’s how [buprenorphine] got into
his system.”
Subsequently, the paternal grandmother contacted the CPS worker and reported that the
father told her that he kissed the child and “was responsible for the baby [testing positive for
buprenorphine] because of the kiss.” The father also informed her that he was “going to take the
fall.” The grandmother denied that the father had a history of substance abuse and opined that he
was lying about passing buprenorphine to the child through a kiss. The grandmother reported
observing the child in distress as early as 2:00 p.m. on December 20, 2019, and stated that R.R.
was concerned about the child’s situation and opined that he ought to see a doctor. However,
petitioner still had not taken the child to the doctor by 4:00 p.m. The grandmother also reported
that petitioner had been in the company of petitioner’s friend, A.L., that day.
Lastly, the DHHR alleged that the parents refused to return calls from a service provider
to provide a mouth swab for drug testing. The parents waived their preliminary hearings.
2
The multidisciplinary team (“MDT”) held a meeting later in January of 2020. Petitioner
and the father maintained that the child must have ingested buprenorphine after petitioner
unknowingly made a bottle with water that the father had spit into after consuming buprenorphine.
The paternal grandparents filed a motion to intervene on February 5, 2020. The circuit
court entered an order granting the motion that same day. On February 6, 2020, the circuit court
held a hearing on “adjudicatory matters.” Petitioner objected to the grandparents’ motion to
intervene. The circuit court noted petitioner’s objection, but remarked that it was granting the
motion to intervene, stating “I’ve granted this in similar cases where we have grandparents that
are intimately involved with the case and ones where they have custody of the children or child in
this case.” The circuit court deferred its ruling on petitioner’s motion for a preadjudicatory
improvement period. The circuit court issued an order memorializing its findings regarding the
motion to intervene on February 19, 2020.
After continuances due to the COVID-19 pandemic, the circuit court held an adjudicatory
hearing in June of 2020. The parents stipulated that A.R. tested positive for buprenorphine so that
medical personnel did not have to testify to that fact. Petitioner testified regarding the day A.R.
was taken to the hospital. Petitioner testified that she fed A.R. a bottle around 6:00 a.m. and that
she and a friend, A.L., left the home around 9:00 a.m. to go to the bank and Chick-fil-a. While
petitioner entered the bank, A.L. fed the child a bottle in the car. Petitioner took the child into
Chick-fil-a to change his diaper and then left. Petitioner and A.L. returned to the home after
dropping the car off to the paternal grandfather, and the child appeared to be in good health. After
returning home, petitioner left the child in the care of his aunt, R.R., so that petitioner could attend
a Christmas party at A.B.’s school at approximately 1:00 p.m. While petitioner was at the party,
R.R. texted petitioner and asked her whether the child normally whined in his sleep. Petitioner
responded that he occasionally whined when he was overtired. Petitioner testified that, upon
returning home around 2:00 p.m., she observed that the child was sleepier than usual. Petitioner
testified that the child’s condition became more concerning, and she and R.R. proceeded to
Hampshire Memorial Hospital around 5:47 p.m. Petitioner testified that she had the child’s oxygen
checked, and upon finding nothing wrong, returned to the car about five or ten minutes later. She
further stated that she did not have to provide any payment information or fill out any forms.
Petitioner testified that after leaving that hospital, she met the father as they intended to proceed
to Winchester, Virginia. However, they needed gasoline and petitioner had forgotten her wallet at
home. As such, the father dropped petitioner and the child off at Hampshire Memorial Hospital
again after 6:00 p.m. After approximately two hours, the child was diagnosed with a gas bubble.
Petitioner testified that she and the father decided to take the child to Winchester Medical Center,
where he eventually tested positive for buprenorphine. Petitioner testified that she had no
suspicions that either A.L. or R.R. used buprenorphine or caused the child to ingest the substance.
Petitioner testified that she was “not sure” how the child ingested buprenorphine but
theorized that the father made a bottle for the child after taking the substance and that he transferred
it from his hands onto the nipple of the bottle. Petitioner admitted that she previously authored a
signed statement to hospital staff in which she had claimed that a man approached A.R. at the bank
and touched his face, implying that the child tested positive for buprenorphine as a result of the
contact. Petitioner claimed that she fabricated the encounter because she was scared and mitigated
her actions by explaining that she left the statement on a table rather than handing it to anyone
3
directly. Petitioner also admitted that she colluded with the father when he claimed to have spit
buprenorphine into a water bottle that was used to make a bottle for the child. Petitioner further
admitted that she and the father maintained the false story for nearly two months.
R.R. testified and confirmed that she watched A.R. on December 19, 2019, that the child
was fussy while asleep, and that petitioner told her that the child whined while sleeping if overly
tired. At some point, the situation was made known to the paternal grandmother and, following the
grandmother’s prompting, petitioner eventually agreed to take the child to the emergency room.
R.R. testified that she took petitioner and the child to Hampshire Memorial Hospital and dropped
them off at 5:47 p.m. Petitioner returned to the car not long after and claimed that the child’s
oxygen levels were good and that they could proceed to see the child’s pediatrician in Winchester,
Virginia. R.R. then met the father so that petitioner and the child could travel with him to
Winchester. R.R. testified that petitioner later texted her that they were returning to Hampshire
Memorial Hospital because she was not comfortable traveling all the way to Winchester. Another
witness, A.L., also testified about traveling to the bank and Chick-fil-a with petitioner. She denied
having abused buprenorphine and denied dosing the child with the same.
Sandy Lewis, the records clerk at Hampshire Memorial Hospital, testified that petitioner
was seen at the emergency room only once on December 19, 2019. When presented with
petitioner’s claims that she was permitted to bypass the information desk and obtain an oxygen
reading on the child without providing any personal information or payment information at her
first visit, Ms. Lewis testified that she had never heard of the hospital providing a service without
registering the patient in the twenty-two years she had worked there.
Dr. Robertson testified regarding the child’s diagnosis and treatment and opined that there
was no way for the five-week-old child to have ingested the substance on his own. Dr. Robertson
testified that he questioned the parents as to how the child could have ingested buprenorphine and
stated that there “were no answers that were reasonable or forthcoming.” Dr. Robertson also noted
that petitioner provided a few different timelines of what happened on the day she presented the
child to the hospital. At first, petitioner told Dr. Robertson that no one else had been around the
child that day. Later, petitioner indicated that a family member cared for the child while she went
to a party. Dr. Robertson stated,
And so there were a couple different, you know, explanations for the timeline of
events and if I recall also some different explanations for incidental exposure,
maybe it was in the air, maybe it was on somebody’s hands we don’t know and, I
think, I responded the same way I would have today that I’ve taken care of infants
and babies whose mothers and fathers are in recovery in all these medicines and yet
never had a patient with toxicity from the medicine.
On cross-examination, Dr. Robertson described petitioner’s reaction to learning of the child’s
testing positive for buprenorphine as “taken aback and surprised.” Dr. Robertson also opined that
petitioner demonstrated an appropriate level of concern for the child.
The father testified and admitted to fabricating a story about spitting buprenorphine into a
bottle which was used to make the child’s formula. The father further admitted to maintaining that
4
story for two months before reporting that it was false. When asked how the child ingested
buprenorphine, the father maintained that he did not know how the child consumed the substance
but conceded that he was the only person in the home abusing the substance and that “inadvertently
. . . something I did had to lead to it.” The father theorized that a strip of buprenorphine melted
onto his fingers and that he must have unknowingly transferred it to the nipple of a bottle he
prepared. The father denied intentionally feeding the child buprenorphine and denied any
knowledge that anyone else intentionally dosed the child.
The paternal grandmother testified that neither petitioner nor the father had provided her
with an explanation of how the child ingested buprenorphine and stated, “I don’t think I’ll ever
know.” The grandmother testified that she heard several improbable stories provided by the parents
since the proceedings began, including that the grandmother had been accused of buying
nonprescribed buprenorphine and giving it to R.R. to give to the child. The grandmother also
testified that she heard petitioner advise Dr. Robertson that the child had been touched by a man
in the bank, contrary to petitioner’s testimony. However, Dr. Robertson had reportedly explained
that indirect contact would not cause the child to test positive for buprenorphine. The grandmother
opined that the father would do anything to protect his child and that he was not in the home that
day and could not have known what occurred. According to the grandmother, the child’s exposure
“fell on [petitioner’s] watch . . . and she wasn’t forthcoming.”
Petitioner presented the testimony of a nurse practitioner who indicated that petitioner
submitted to drug screens twice weekly and never tested positive for any illegal or controlled
substances except for alcohol on one occasion.
By order entered on June 8, 2020, the circuit court found that it had been presented with
“complicated factual scenarios as to how this infant child consumed buprenorphine with multiple
prevarications as advanced by the [parents], some of which were recanted and remain
unexplained.” The court noted several examples including the father’s claim concerning the child’s
bottle and petitioner’s claim that an unknown man had touched the child in a bank. Further,
petitioner claimed that she presented to Hampshire Memorial Hospital twice while the hospital
had records of only one visit. Although the ability of the child to consume buprenorphine remained
unexplained, the circuit court found that petitioner either neglected the child by permitting him to
accidentally consume buprenorphine or abused the child by intentionally administering the
substance to the five-week-old baby. Accordingly, petitioner was adjudicated as an abusing or
neglecting parent.
The circuit court held a dispositional hearing in July of 2020. A DHHR worker testified
that petitioner participated in drug screens and parenting and adult life skills classes as directed.
However, petitioner never offered a reasonable explanation for the child’s ingesting
buprenorphine. Two service providers also testified that petitioner adequately participated in
supervised visits, along with other services. The issue of how the child tested positive for
buprenorphine, however, remained unanswered. Given petitioner’s refusal to provide an adequate
explanation, the DHHR recommended termination of her parental rights.
Petitioner testified that she would comply with an improvement period if she were granted
one and stated that she believed she could protect the children from a similar situation in the future.
5
Petitioner also testified that she complied with all services offered and sought out therapy on her
own. However, petitioner maintained that she did not know how the child ingested buprenorphine.
By order entered on September 2, 2020, the circuit court found that petitioner was
unwilling or unable to provide adequately for the children’s needs and that she could not provide
a sustainable, safe home for them. The circuit court found that the child ingested buprenorphine
while he was in petitioner’s physical custody and that petitioner never provided a reasonable
explanation as to how the five-week-old child was able to do so. The court found, “[n]ot only did
this infant child sustain a traumatic and unexplained injury while in the care of [petitioner], the
situation was made worse by multiple prevarications made by her during the course of the case.”
Petitioner “failed to be above-board with her knowledge of the situation” and colluded with the
father as to the source of the buprenorphine being a contaminated water bottle. She refused to
identify the source of the drug, reduced to writing an admittedly false scenario, recanted the
explanations she gave to the circuit court, and repeatedly contended that she did not know how the
child consumed buprenorphine. Moreover, petitioner’s refusal or failure to provide an explanation
rendered the residence unsafe for A.B. as well. The circuit court found that petitioner demonstrated
that she was unwilling to cooperate or participate with the terms of the family case plan and that
without admitting how the child was permitted access to the substance, there were no parenting
deficiencies that could be addressed. Accordingly, the circuit court concluded that there was no
reasonable likelihood that petitioner could correct the conditions of abuse or neglect in the near
future and terminated petitioner’s parental rights to A.R. and her custodial rights to A.B., as
recommended by the DHHR. Petitioner appeals the circuit court’s dispositional order. 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 granting the grandparents’
motion to intervene for three reasons. First, petitioner argues that she was not provided proper
2
A.R.’s father’s parental rights were terminated below. The permanency plan for the child
is adoption by the intervenor grandparents. A.B.’s father was deemed a nonabusing parent and the
permanency plan for A.B. is to remain in his care.
6
notice of the motion or sufficient time to respond given that it was granted merely hours after it
was filed. Petitioner avers that granting the motion violated Rule 17(c)(1) of the West Virginia
Rules of Procedure for Child Abuse and Neglect Proceedings, Rule 6(d) of the West Virginia Rules
of Civil Procedure, and Rule 6.01(c) of the West Virginia Trial Court Rules. Second, petitioner
argues that the circuit court erred in granting the motion prior to adjudication. The grandparents
were already provided a meaningful opportunity to be heard in a limited fashion pursuant to West
Virginia Code § 49-4-601(h), so intervention was unnecessary at that time. Permitting the
grandparents to intervene prior to adjudication allowed for them to interfere with petitioner’s
rehabilitative and reunification efforts. Specifically, the paternal grandmother testified at
adjudication and she was not required to be sequestered during the other witnesses’ testimony due
to her intervenor status. The grandparents’ counsel was permitted to cross-examine petitioner and
continually suggested that the parents purposefully poisoned the child. As a result, the
grandparents clearly aligned their desires with the DHHR and acted against petitioner, in spite of
this Court’s holding that foster parents should not interfere with the fact-finding portion of the
proceedings. Moreover, the grandparents were not entitled to intervene as a matter of right because
the case was still in its early stages. Third, the circuit court’s reasoning in granting the motion to
intervene—that it had done so in other cases where the grandparents were “intimately involved”
and had custody of the children—was also flawed. Petitioner contends that the grandparents’
intimate involvement and placement of the children “is exactly why their role . . . should have
be[en] distinct from the fact-finding portions of the case” so as not to unfairly prejudice the circuit
court against her. Based on the foregoing, petitioner contends that she was prejudiced by the
premature grant of the grandparents’ motion to intervene.
We find no error. At the outset we note that “Rules 5(b), 5(e) and 80 [of the West Virginia
Rules of Civil Procedure] apply, but the other rules do not apply, to juvenile proceedings brought
under the provisions of chapter 49 [§ 49-1-1 et seq.] of the West Virginia Code.” W. Va. R. Civ.
P. 81. Accordingly, petitioner’s claim that the circuit court violated Rule 6(d) of the West Virginia
Rules of Civil Procedure in granting the grandparents’ motion to intervene is without merit as it
does not apply to abuse and neglect proceedings.
Likewise, the circuit court did not violate Rule 6.01(c) of the West Virginia Trial Court
Rules. Rule 6.01 provides: “Except by permission or order of the court, no pleading shall be filed
less than forty-eight (48) hours prior to oral presentation or argument of a proceeding.” Although
the grandparents filed a motion to intervene less than forty-eight hours prior to the February 6,
2020, hearing, the circuit court permitted the filing of the motion, which is permissible under Rule
6.01. Given the deference provided to the circuit court in applying this timeframe, we cannot find
that it erred in permitting the filing of the grandparents’ motion despite it having been filed less
than forty-eight hours prior to the hearing.
Although petitioner states that the circuit court erred in granting the grandparents’ motion
because it violated Rule 17(c)(1) of the West Virginia Rules of Procedure for Child Abuse and
Neglect Proceedings, her argument actually states that the motion was not accompanied by a notice
of hearing. Rule 17(c)(4) provides that “[a]ll motions must be accompanied by or contained within
a notice of hearing setting forth the date and time of hearing on the motion.” While petitioner
correctly points out that the grandparents failed to include a notice of hearing, she does not argue
that she was prevented from adequately responding to the motion due to the lack of notice. Rather,
7
she simply argues that she was not provided notice or an opportunity to respond. We disagree,
given that petitioner was permitted to respond to the motion at the hearing held on February 6,
2020. Regarding petitioner’s claim that she was not provided adequate notice of the motion before
the circuit court granted it, we note that the circuit court permitted petitioner to object to the motion
at the hearing held the following day and later issued a new order memorializing its findings
regarding granting the grandparents’ motion despite petitioner’s objections. Accordingly, under
the circumstances of this case, we find that petitioner’s due process rights were not violated and
that she is entitled to no relief in this regard.
We further find that petitioner was not prejudiced by the circuit court’s granting of the
grandparents’ motion prior to adjudication. The adjudicatory order sets forth that petitioner was
adjudicated as an abusing or neglecting parent based upon her inability or refusal to explain how
the child tested positive for buprenorphine. The circuit court determined that petitioner either
neglected the child by permitting him to accidentally consume buprenorphine or abused the child
by intentionally dosing him. Having reviewed the record, it is clear that these findings were
supported by the evidence presented. Petitioner and the father stipulated that the child tested
positive for buprenorphine. Petitioner testified that she was “not sure” how the child had done so
but admitted that she had provided explanations for how the child had ingested the substance that
she knew to be false. Moreover, the timeline established by petitioner and other witnesses showed
that petitioner had physical custody of the child the entire day except for a brief trip into the bank
and the hour she attended her other child’s school Christmas party. Dr. Robertson explained that
petitioner’s different explanations for how the child tested positive for buprenorphine were
unlikely as he had never encountered those scenarios before despite having treated several children
whose parents used buprenorphine as part of their recovery treatment. The father also admitted
that he fabricated explanations for how the child tested positive for the substance and that petitioner
colluded with him on at least one occasion. As such, even absent the grandmother’s testimony and
the grandparents’ counsel’s cross-examination and argument, there was sufficient evidence to
support petitioner’s adjudication. Accordingly, petitioner is unable to establish that the
grandparents’ participation at adjudication prejudiced her or that the circuit court would have
declined to adjudicate her absent the grandparents’ involvement. Under the limited circumstances
of this case, we find that petitioner is entitled to no relief in this regard. 3
Petitioner similarly argues that the circuit court erred in adjudicating her as an abusing
parent. Petitioner contends that there was insufficient evidence to adjudicate her, as supported by
the circuit court’s comment that “there was no good explanation for what happened.” Petitioner
further points out statements made by the circuit court that she contends indicate that the circuit
3
Although we find no error with the circuit court’s granting of the grandparents’ motion to
intervene prior to adjudication under the particular circumstances of this case, in light of the circuit
court’s acknowledgement that it has allowed grandparents having custody of the subject child or
children to intervene in similar cases, we caution that the better practice would be for the circuit
court to comply with Syllabus Point 3 of State ex rel. C.H. v. Faircloth, 240 W. Va. 729, 732, 815
S.E.2d 540, 542 (2018), in which we held, in relevant part, that “[t]he foster parents’ involvement
in abuse and neglect proceedings should be separate and distinct from the fact-finding portion of
the termination proceeding.”
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court was unsure of its decision and, therefore, that the decision was made upon less than the clear
and convincing evidence required to adjudicate her. Petitioner further argues that the circuit court
wrongfully shifted the burden to petitioner to demonstrate how the accidental ingestion occurred
rather than requiring the DHHR to prove that petitioner was negligent or abusive in causing the
ingestion to occur. Petitioner likens her case to In re Walter G., 231 W. Va. 108, 743 S.E.2d 919
(2013). In Walter G., a child died due to buprenorphine consumption coupled with a dose of
Benadryl. Id. at 111-12, 743 S.E.2d at 922-23. The parents were unable to provide an explanation
as to how the young child ingested the substance, and the circuit court adjudicated the mother
based upon her inability to provide an explanation. Id. at 113, 743 S.E.2d at 924. This Court found
that the circuit court’s decision that the child’s consumption of the drug was nonaccidental was
clearly erroneous given that neither parent was prescribed or abused the substance, neither parent
had any knowledge of anyone in the home using the substance, and investigations by both the
police and CPS into the source of the substance were unsuccessful. Id. at 114-16, 743 S.E.2d at
925-27. Petitioner contends that this situation is nearly identical to the case at bar and that, as such,
she should not have been adjudicated.
We have previously held that
[a]t the conclusion of the adjudicatory hearing, the 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 . . . . The findings must be based upon
conditions existing at the time of the filing of the petition and proven by clear and
convincing evidence.
In re F.S., 233 W. Va. 538, 544, 759 S.E.2d 769, 775 (2014). This Court has explained that “‘clear
and convincing’ is the measure or degree of proof that will produce in the mind of the factfinder a
firm belief or conviction as to the allegations sought to be established.” Id. at 546, 759 S.E.2d at
777 (citation omitted). However, “the clear and convincing standard is ‘intermediate, being more
than a mere preponderance, but not to the extent of such certainty as is required beyond a
reasonable doubt as in criminal cases.’” Id. (citation omitted). Further, West Virginia Code § 49-
1-201 defines “abused child” as “[a] child whose health or welfare is being harmed or threatened
by . . . [a] parent . . . who knowingly or intentionally inflicts, attempts to inflict, or knowingly
allows another person to inflict, physical injury or mental or emotional injury, upon the child or
another child in the home.” Moreover, a “neglected child” is defined as 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 that refusal, failure, or inability is not due primarily to a lack of financial
means on the part of the parent, guardian, or custodian.
Id.
We begin by noting that Walter G. is distinguishable in three critical ways. First, the child
in Walter G. was nearly one year old when he died due to ingesting a combination of buprenorphine
and Benadryl, and he was old enough to be placed on the floor and crawl or move around on his
9
own. Walter G., 231 W. Va. at 110, 743 S.E.2d at 921. In fact, on the night of his supposed
accidental dosing, the child was reported to have “pushed a bag of baby wipes around on the floor
and, at one point, fell asleep.” Id. Here, the child was only five weeks old at the time he tested
positive for buprenorphine. There is simply no way that the child could have moved around and
found the substance on his own or lifted it to his mouth, unlike the child in Walter G. Second, the
record was clear that no adults who encountered the child in Walter G. on the day of his dosing
were ever found to have had a prescription for, abused, or otherwise possessed buprenorphine. Id.
at 112, 743 S.E.2d at 932. In the instant case, the father admittedly abused the substance for at
least two months prior to A.R.’s ingesting the substance. While petitioner claimed that she had no
knowledge of the father’s substance abuse, the fact remains that buprenorphine was conclusively
proven to be in her residence, and this is a glaring factual distinction from Walter G. Third, the
parents in Walter G. consistently maintained that they did not know how their child ingested
buprenorphine and they complied with investigations by both the police and CPS. Id. at 116, 743
S.E.2d at 927. Petitioner and the father in the instant case, on the other hand, presented a myriad
of excuses as to how their five-week-old child ingested buprenorphine, none of which were
determined to be a reasonable. Petitioner admittedly lied to CPS workers for a minimum of two
months during the proceedings, misleading the MDT members and the circuit court as to what
occurred. Further, petitioner admitted to writing down a knowingly false statement indicating that
the child might have been touched by a man in the bank despite later admitting that she never took
the child in the building. Accordingly, petitioner’s actions go beyond claiming that she had no idea
what happened to actively perpetrating fraud upon the court and misleading the DHHR and other
parties as to what occurred. We lastly note that in Walter G., the DHHR conceded that the circuit
court likely made a mistake in its order when it found that the child’s ingesting buprenorphine was
“non-accidental.” Id. at 114, 743 S.E.2d at 925. For these reasons, petitioner’s reliance on Walter
G. is misplaced.
Having reviewed the record, we cannot find that the circuit court erred in adjudicating
petitioner as an abusing or neglecting parent. The circuit court determined that the child was either
intentionally dosed with buprenorphine or was neglected such that an accidental consumption of
the substance occurred. The record shows that, aside for the time during which petitioner was in
the bank and for approximately one hour during which she was at A.B.’s Christmas party,
petitioner had physical custody and control of the child on the day he showed symptoms.
Importantly, after learning the child’s diagnosis, petitioner actively misled CPS workers and
medical personnel by providing knowingly false accounts of what could have happened. Petitioner
colluded with the father and provided one explanation for two months before admitting that she
had fabricated the story. While petitioner claims that the circuit court placed the burden on her to
prove that the child’s consumption of buprenorphine was an accident, this argument has no basis
in the record. On the contrary, the DHHR proved that the child was either given the drug or
permitted to ingest it, and it was incumbent upon petitioner to rebut this evidence in her defense at
adjudication. Further, we note that we have frequently upheld the adjudication of parents or the
termination of their parental rights when they are unable or unwilling to explain injuries to their
children under certain circumstances. See In re Taylor B., 201 W. Va. 60, 491 S.E.2d 607 (1997)
(finding that the circuit court erred in refusing to terminate the parent’s parental rights when
medical testimony established the child’s injuries were nonaccidental and when the parents denied
that the abuse occurred); In re A.B., No 14-0576, 2014 WL 5334055 (W. Va. Oct. 20,
2014)(memorandum decision) (finding that the circuit court’s determination that the DHHR
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proved the child’s abuse by his parents through clear and convincing evidence was not erroneous
when the parents’ explanations regarding the child’s injuries were inconsistent with the child’s
injuries and when neither parent offered any evidence regarding the cause of the injuries); In re
K.F.-1, No. 20-0428, 2020 WL 7259191 (W. Va. Dec. 10, 2020)(memorandum decision) (finding
no error in the circuit court’s termination of the father’s parental rights when he failed to identify
the perpetrator of abuse against his child and failed to provide a reasonable explanation for the
injuries); In re S.H., No. 20-0562, 2021 WL 360020 (W. Va. Feb. 2, 2021)(memorandum decision)
(finding that the circuit court did not err in terminating the father’s parental rights when he refused
to acknowledge the injuries caused to his children or provide any explanations for them).
Accordingly, based on the evidence including: the child’s age; the fact that petitioner exercised
custody and control over the child for the overwhelming majority of the day; and the petitioner not
only failing to provide a reasonable explanation for the child’s consumption of buprenorphine, but
actively colluding with the father to deceive the court and the parties as to how it happened for an
extended period, we find no error in the circuit court’s decision to adjudicate her as an abusing or
neglecting parent.
To the extent petitioner argues that the circuit court erred in adjudicating her as an abusing
parent with regard to A.B., we note that the definition of an abused child includes injury inflicted
“upon the child or another child in the home.” Here, the circuit court found that A.R. was an abused
or neglected child and that A.B. was his sibling. The record demonstrates that petitioner shared
custody of the child with the child’s father and that the child resided in the house during that time.
Accordingly, we find no error in the circuit court adjudicating petitioner with regard to A.B.
Petitioner next argues that the circuit court erred in denying her an improvement period
when she acknowledged harm had come to the child and proved that she would comply with
services given her compliance with services throughout the proceedings. Specifically, petitioner
stipulated that the child ingested buprenorphine at adjudication and cooperated with the DHHR by
voluntarily engaging in remedial services as requested. In fact, the service providers and
caseworker testified that petitioner was cooperative and compliant with services. Additionally,
petitioner never tested positive for drugs and actively participated in parenting and adult life skills
classes and supervised visits with the child. Petitioner also separated from the father and was no
longer living with him by the time of the dispositional hearing. Petitioner contends that the circuit
court erred in penalizing her when the child’s exposure to buprenorphine “was accidental and
logically occurred due to [the father’s] unknown use of the same.” Petitioner further points out that
the father tested positive for his prescribed buprenorphine, as well as alcohol, amphetamine, and
methamphetamine, throughout the proceedings.
We find that the record reveals no abuse of discretion in denying petitioner 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. . .
.”); 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.”). Further,
this Court has established that “[t]he circuit court has the discretion to refuse to grant an
improvement period when no improvement is likely.” In re Tonjia M., 212 W. Va. 443, 448, 573
S.E.2d 354, 359 (2002). While petitioner relies on the fact that she stipulated that the child ingested
buprenorphine, she failed to acknowledge her actions and refused to provide a reasonable
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explanation for how the child came into contact with the substance. Although petitioner places
blame on the father, the record is clear that he was at work on the day in question and that it was
petitioner who cared for the child on that day. Moreover, petitioner repeatedly lied about what
happened to the child for nearly two months. Despite petitioner’s claims that she participated in
remedial services, the fact remains that she failed to provide an adequate explanation for what
occurred to the child. As this Court has long held, “[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 . . . 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). Because petitioner rendered the conditions of abuse and neglect
untreatable, we find no error in the denial of her motion for an improvement period.
Petitioner lastly argues that the circuit court erred in terminating her parental rights when
the DHHR failed to file its case plans and disclosures at least five days prior to the dispositional
hearing pursuant to Rules 29 and 30 of the West Virginia Rules of Procedure for Child Abuse and
Neglect Proceedings. Petitioner contends that this failure violated her due process rights. Further,
petitioner avers that she was prejudiced when the circuit court failed to hear testimony and
argument on the issue of her improvement period prior to the testimony taken for disposition. She
claims that “the opposing parties immediately began to argue for termination of parental rights, so
that the court then ignored the pending motions for [an] improvement period and began a
termination proceeding.” Petitioner concedes, however, that the matter was set for disposition and
that she did not object to proceeding in that fashion. She nevertheless maintains that she was
prejudiced by the lack of notice regarding the DHHR’s recommendation as to disposition and a
list of proposed witnesses with summaries of their testimony. Petitioner also acknowledges that
the guardian requested that the circuit court take notice of the fact that the case plan was filed and
that the circuit court included such language in its dispositional order, but claims that there is no
documentation to support such a claim. Accordingly, petitioner claims that this Court should
vacate and remand the proceeding with instructions to restore her rights to the children.
Rule 29 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings
provides that “[c]opies of the child’s case plan shall be provided to the parties, their counsel, and
persons entitled to notice and the right to be heard, at least five (5) judicial days prior to the
disposition hearing.” While petitioner argues that no documentation was submitted demonstrating
that case plans were filed, we note that “[i]t is a paramount principle of jurisprudence that a court
speaks only through its orders.” Legg v. Felinton, 219 W. Va. 478, 483, 637 S.E.2d 576, 581 (2006)
(citation omitted). The circuit court’s dispositional order acknowledges that the DHHR timely filed
a case plan in accordance with Rule 29. Petitioner was provided the opportunity to submit proposed
findings and failed to raise any objection to the DHHR’s alleged failure to file any case plans or
any disclosures pursuant to Rule 30. Further, at the dispositional hearing, the guardian requested
the circuit court to take notice of the same on the record, which it did. Petitioner failed to object or
to raise any issue with the DHHR’s alleged failures with regard to these disclosures and she failed
to assert that she was unaware of the DHHR’s position such that she was surprised or blindsided
by their recommendation for termination of her parental rights. Accordingly, if there was any error,
petitioner has waived this issue by failing to object to the case plan at any point in the proceedings.
Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009) (“‘Our
general rule is that nonjurisdictional questions . . . raised for the first time on appeal, will not be
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considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W. Va. 333, 349 n.20, 524 S.E.2d 688, 704
n.20 (1999).”).
Even assuming that the DHHR failed to make the disclosures required by Rules 29 and 30
and that the issue had not been waived, we find that petitioner was in no way prejudiced by these
alleged failures. “The purpose of the family case plan as set out in [W. Va. Code § 49-4-408] is to
clearly set forth an organized, realistic method of identifying family problems and the logical steps
to be used in resolving or lessening these problems.” Syl. Pt. 2, In re Desarae M., 214 W. Va. 657,
591 S.E.2d 215 (2003) (citation omitted). Petitioner was adjudicated based upon her failure to
provide a reasonable explanation for how the child was exposed to buprenorphine, and the circuit
court found that the child was either intentionally dosed or neglected such that he was permitted
to accidentally ingest the substance. As such, petitioner was aware that the issue that needed
corrected was her unwillingness or refusal to identify how the child ingested the drug. In fact, the
DHHR opined that it would not need much time to present evidence at disposition “unless
something happens between now and then.” We have held that
[w]here it appears from the record that the process established by the Rules
of Procedure for Child Abuse and Neglect Proceedings and related statutes for the
disposition of cases involving children adjudicated to be abused or neglected has
been substantially disregarded or frustrated, the resulting order of disposition will
be vacated and the case remanded for compliance with that process and entry of an
appropriate dispositional order.
Syl. Pt. 5, In re Edward B., 210 W. Va. 621, 624, 558 S.E.2d 620, 623 (2001). If there was an error
that was not waived, we find that the proceedings were not so frustrated as to warrant vacating and
remanding the case.
Concerning petitioner’s claim that the circuit court erred in failing to consider evidence
regarding her motion for an improvement period prior to and separate from evidence relating to
the termination of her parental rights, we find no error. The circuit court made clear at the
adjudicatory hearing that it would be considering both the motion and disposition. While the circuit
court initially indicated that it would consider petitioner’s motion prior to the presentation of any
evidence related to disposition, the record demonstrates that petitioner informed the circuit court
which witnesses she intended to present and failed to object when the circuit court stated its
intention to hear the evidence together. As noted above, we will not consider nonjurisdictional
issues raised for the first time on appeal. Noble, 223 W. Va. at 821, 679 S.E.2d at 653. Moreover,
petitioner fails to demonstrate how she was prejudiced by the circuit court proceeding to hear
evidence together when it held its ruling in abeyance to allow the parties to provide proposed
findings, taking time to consider all of the evidence, which was sufficient upon which to base the
termination of petitioner’s parental rights, in rendering its decision. Accordingly, we find that
petitioner is entitled to no relief in this regard.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 2, 2020, order is hereby affirmed.
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Affirmed.
ISSUED: April 20, 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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