In re A.P. ( 2021 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA FILED
June 2, 2021
January 2021 Term released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 20-0201
In Re: A. P.
Appeal from the Circuit Court of Harrison County
The Honorable Thomas A. Bedell, Judge
Case No. 17-JA-141-2
REVERSED AND REMANDED WITH DIRECTIONS
Submitted: May 5, 2021
Filed: June 2, 2021
Allison S. McClure, Esq. Patrick Morrisey, Esq.
McClure Law PLLC Attorney General
Clarksburg, West Virginia Lee Niezgoda, Esq.
Attorney for Petitioner J. K. Assistant Attorney General
Charleston, West Virginia
Attorneys for West Virginia
Julie N. Garvin, Esq. Department of Health and Human
Garvin Law, PLLC Resources
Nutter Fort, West Virginia
Guardian ad Litem for A. P.
JUSTICE WOOTON delivered the Opinion of the Court.
JUSTICE WALKER concurs and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. “‘When this Court reviews challenges to the findings and conclusions
of the circuit court, a two-prong deferential standard of review is applied. We review the
final order and the ultimate disposition under an abuse of discretion standard, and we
review the circuit court’s underlying factual findings under a clearly erroneous standard.’
Syl., McCormick v. Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996).” Syl. Pt. 1,
In re S. W., 236 W. Va. 309, 779 S.E.2d 577 (2015).
2. “Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” Syl. Pt. 1, Chrystal R. M. v. Charlie A. L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
3. “When an infant child is born alive and becomes the subject of an
abuse and neglect petition, but the child dies during the pendency of the abuse and neglect
proceedings, the matter may proceed to an adjudicatory hearing, and the presiding circuit
court may make findings of fact and conclusions of law as to whether the subject child is
an abused and/or neglected child and whether the respondents are abusing and/or neglectful
as contemplated by W. Va. Code § 49-4-601(i) (2015) (Repl. Vol. 2015). The circuit
court’s findings and conclusions regarding the existence of abuse and/or neglect must,
however, be based upon the conditions alleged in the abuse and neglect petition and any
amendments thereto.” Syl. Pt. 2, In re I.M.K., 240 W. Va. 679, 815 S.E.2d 490 (2018).
i
4. “Termination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, W. Va. Code, 49-6-5
(1977) may be employed without the use of intervening less restrictive alternatives when
it is found that there is no reasonable likelihood under W. Va. Code, 49-6-5(b) (1977) that
conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 2, In re R. J. M.,
164 W. Va. 496, 266 S.E.2d 114 (1980).
5. “In the law concerning custody of minor children, no rule is more
firmly established than that the right of a natural parent to the custody of his or her infant
child is paramount to that of any other person; it is a fundamental personal liberty protected
and guaranteed by the Due Process Clauses of the West Virginia and United States
Constitutions.” Syl. Pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).
6. “The primary object in construing a statute is to ascertain and give
effect to the intent of the Legislature.” Syl. Pt. 1, Smith v. State Workmen’s Comp. Comm’r,
159 W. Va. 108, 219 S.E.2d 361 (1975).
7. West Virginia Code § 49-4-604(c)(6) (2020) does not permit the
termination of parental, guardianship, or custodial rights to a child who is deceased at the
time of disposition.
ii
WOOTON, J.:
This is an appeal from the Circuit Court of Harrison County’s January 27,
2020 order terminating petitioner-mother J. K.’s (hereinafter “petitioner”) parental rights
to infant A. P., who died during the pendency of these abuse and neglect proceedings. 1
Petitioner was adjudicated a neglectful parent after stipulating to subjecting A. P. to drug
abuse and/or a drug-endangered environment and abusing drugs and alcohol during her
pregnancy. A. P. failed to recover from the incident which precipitated the abuse and
neglect petition and died prior to disposition. The circuit court refused to dismiss the abuse
and neglect proceedings, terminating petitioner’s parental rights as a result of her failure to
comply with the terms of her post-adjudicatory improvement period. More specifically,
the circuit court found that, notwithstanding A. P.’s death, termination of petitioner’s
parental rights under the statutory dispositional alternatives was implicitly permitted by
this Court’s holding in In re I.M.K., 240 W. Va. 679, 815 S.E.2d 490 (2018) and the overall
purposes of the abuse and neglect statutory scheme.
Upon careful review of the briefs, the appendix record, the arguments of the
parties, and the applicable legal authority, we conclude that West Virginia Code § 49-4-
1
Because this case involves minors and sensitive matters, we follow our
longstanding practice of using initials to refer to the children and the parties. See, e.g.,
State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
1
604(c)(6) (2020) 2 does not permit termination of parental rights following the death of the
child who is the subject of the underlying abuse and neglect petition. Accordingly, we
reverse the circuit court’s termination of petitioner’s parental rights and remand for entry
of an order dismissing the proceedings.
I. FACTS AND PROCEDURAL HISTORY
A. P. was born in early October 2017, positive for buprenorphine for which
petitioner had a valid prescription. One day after his birth, petitioner was found co-sleeping
with A. P. in her hospital room; the nurses advised of the dangers of co-sleeping and
petitioner signed a written agreement not to do so. Early the next morning, petitioner
emerged from her room screaming that A. P. was not breathing after being found on his
father, M. P.’s, chest while he slept. A. P. was life-flighted to Ruby Memorial Hospital in
Morgantown, West Virginia. A cleaning of petitioner’s room and subsequent police
investigation uncovered drug paraphernalia in petitioner’s room, which tested positive for
heroin, morphine, and buprenorphine; petitioner and M. P., A. P.’s father, claimed that it
belonged to friends who visited the hospital room.
2
At the time of the filing of the petition in this matter, the dispositional alternatives
currently contained in West Virginia Code § 49-4-604(c) were codified at West Virginia
Code § 49-4-604(b). All references herein are to the current version of the statute, the text
of which was not altered from the applicable 2016 or intervening versions of the statute in
any way pertinent to this appeal.
2
On October 11, 2017, an abuse and neglect petition was filed against
petitioner and M. P. and they waived their preliminary hearing. On November 17, 2017,
petitioner entered a voluntary stipulation of adjudication admitting that “she neglected [A.
P.] by[] subjecting the child to drug abuse and/or a drug-endangered environment; and, []
using and abusing alcohol and drugs, including prescription drugs, during her pregnancy.” 3
Accordingly, the circuit court adjudicated her neglectful, leaving legal and physical
custody of A. P. with the West Virginia Department of Health and Human Resources
(hereinafter “DHHR”). Shortly thereafter, upon information from A. P.’s healthcare
providers that his condition was worsening, and he was suffering, the court entered an
emergency “do not resuscitate” order. On November 22, 2017, petitioner moved for a post-
adjudicatory improvement period; A. P. died the next day. An autopsy report listed his
cause of death as “unknown.”
On January 15, 2018, petitioner moved to dismiss the petition against her,
arguing that since A. P. was deceased and there were no other children “in the home,” none
of the dispositional alternatives contained in West Virginia Code § 49-4-604(c) were
applicable, warranting dismissal. Petitioner conceded that although she retained parental
rights to an older child, A. V. 4, her custodial rights to A. V. were terminated in 2012 and
3
Petitioner had also apparently tested positive for THC, barbiturates, and alcohol
levels consistent with “heavy drinking the same or previous day” during her pregnancy.
4
In the guardian ad litem’s Rule 11(j) update to the Court, she represented that A.
V., as she was known in the underlying proceedings, is now known as A. K.
3
A. V. was placed under a legal guardianship with petitioner’s mother. 5 Alternatively,
petitioner moved to certify a question to this Court to determine whether dismissal was
required where “the only child named in the Petition dies during the pendency of the case.”
On August 21, 2018, 6 the circuit court denied petitioner’s motion to dismiss
and motion to certify question. Citing the recent opinion of I.M.K., the circuit court
concluded that since the purpose of abuse and neglect proceedings as articulated therein
was to “remedy[] conditions” of abuse and neglect, disposition must necessarily follow
adjudication and “must address such conditions, regardless of the status of the subject
child[ren].” The court further found that I.M.K.’s holding that adjudication may proceed
irrespective of a child’s death “[i]mpli[es] that disposition must follow [the]
adjudication[.]” Accordingly, on August 29, 2018, 7 the court granted petitioner’s motion
5
Petitioner’s custodial rights to A. V. were similarly terminated due to substance
abuse and failure to comply with the terms of an improvement period. A. V. was placed
into a guardianship with petitioner’s mother in 2013. As a result of petitioner retaining her
parental rights, a second referral as to A. V. occurred in 2016 when petitioner overdosed
on methamphetamines. Petitioner was apparently hallucinating and believed A. V. to be
present for her overdose, despite the fact that A. V. was safely at home with her legal
guardian at the time. A. V. was not made subject of the instant petition at any time.
6
It appears the circuit court may have been awaiting this Court’s decision in I.M.K.,
discussed more fully infra, which issued on June 4, 2018.
7
The order granting the improvement period, however, was not entered until
January 9, 2019.
4
for improvement period, specifically noting that petitioner was of “child bearing age and
[] currently in an alternate disposition 5 as to a previously born female child[.]”
A dispositional/review hearing was set for February 25, 2019. Shortly
before, DHHR filed its Family Case Plan requesting termination of petitioner’s parental
rights to A. P.; petitioner filed a proposed voluntary relinquishment of her parental rights.
The court denied petitioner’s proposed voluntary relinquishments on the basis of the
“public policy issue with respect to any after-born children” as well as A. V. The court
took testimony from the assigned Child Protective Services worker who testified that
petitioner never returned her phone call, provided current contact information, employment
information, or drug treatment information, and that petitioner did not drug screen at any
time.
Accordingly, the circuit court found that there was no reasonable likelihood
that the conditions of neglect, “namely [petitioner’s] substance abuse issues[,]” could be
corrected in the near future, citing her “lack of participation in this case thus far and her
failure to successfully complete her post-adjudicatory improvement period.” The circuit
court terminated both M. P.’s 8 and petitioner’s parental rights to A. P., finding that
termination “serves [A. P.’s] best interests and protects other children, whether children in
8
M. P. did not appeal the termination of his parental rights.
5
existence or future children, giving [A. P.’s] life meaning and importance well beyond his
tender months.” 9 This appeal followed.
II. STANDARD OF REVIEW
As is well-established,
“[w]hen this Court reviews challenges to the findings and
conclusions of the circuit court, a two-prong deferential
standard of review is applied. We review the final order and
the ultimate disposition under an abuse of discretion standard,
and we review the circuit court’s underlying factual findings
under a clearly erroneous standard.” Syl., McCormick v.
Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996).
Syl. Pt. 1, In re S. W., 236 W. Va. 309, 779 S.E.2d 577 (2015). However, “[w]here the
issue on an appeal from the circuit court is clearly a question of law or involving an
interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal R.
M. v. Charlie A. L., 194 W. Va. 138, 459 S.E.2d 415 (1995). With these standards in mind,
we proceed to the parties’ arguments.
III. DISCUSSION
This case presents an issue of first impression requiring statutory
interpretation: whether West Virginia Code § 49-4-604(c)(6) permits a court to terminate
9
Although the dispositional hearing was conducted on February 25, 2019, the order
terminating petitioner’s parental rights was not entered until January 27, 2020.
6
the parental rights 10 of an abusive or neglectful parent as to a child who dies during the
pendency of the abuse and neglect proceedings. 11
Petitioner contends that most of the dispositional alternatives contained in
West Virginia Code § 49-4-604(c) are phrased in such a manner as to effectively preclude
their application where a child who is the subject of the petition is deceased. Further,
10
West Virginia Code § 49-4-604(c)(6) refers to “parental, custodial and
guardianship rights.” For ease of reference, we will refer to these rights collectively as
“parental rights” herein but note that our discussion and holding herein is equally
applicable irrespective of which of these particular rights may be in issue.
11
We wish to make clear from the outset that our discussion and holding herein does
not purport to affect situations where a child who is subject of an abuse and neglect petition
dies during the pendency thereof, but there are additional children in the home and/or
subjects of the petition. In that event, the death of a child who is but one of the children
named in a petition does not serve to abate the matter altogether; findings as to the abuse
or neglect of the deceased child remain relevant to an evaluation of whether the remaining
children likewise satisfy the definition of an abused or neglected child. See Syl. Pt. 2, In
re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995) (“Where there is clear and
convincing evidence that a child has suffered physical and/or sexual abuse while in the
custody of his or her parent(s), guardian, or custodian, another child residing in the home
when the abuse took place who is not a direct victim of the physical and/or sexual abuse
but is at risk of being abused is an abused child under W. Va. Code, 49-1-3(a) (1994).”).
Even more importantly, if a parent is properly adjudicated of abuse and/or neglect
in regard to several children and one of them subsequently dies, a parent’s inability to
remedy those conditions of abuse and neglect can certainly serve as the basis for the
termination of the parent’s parental rights to the remaining children upon evidence that
those children’s health or welfare is harmed or threatened, the death of any one child
notwithstanding. 194 W. Va. at 452, 460 S.E.2d at 698 (explaining that, although no
“blanket rule” requires the termination of rights to all children found to be abused by virtue
of residing in the same home as a child who suffered physical or sexual abuse, such rights
may be terminated when the DHHR “present[s] clear and convincing evidence that the
child’s ‘health or welfare is harmed or threatened’”). Nonetheless, this case concerns only
a situation where the lone child who is the subject of a petition dies prior to the dispositional
phase of the proceedings.
7
petitioner asserts that the applicable statutory language includes a mandatory prerequisite
to termination of parental rights: that termination must be necessary to the continued
welfare of the child who is the subject of the petition. Petitioner asserts that a deceased
child has no further “welfare” to be protected.
DHHR, on the other hand, relying almost exclusively on this Court’s holding
in I.M.K., maintains that an abuse and neglect action may proceed to the dispositional phase
and result in termination irrespective of the death of the child. 12 DHHR argues that the
Court’s rationale and holding in I.M.K. constitute a tacit endorsement of termination of a
parent’s rights to a deceased child, where appropriate, for the protection of other or future
children. In I.M.K., this Court held that an adjudicatory hearing may be held irrespective
of the death of the subject child:
When an infant child is born alive and becomes the
subject of an abuse and neglect petition, but the child dies
during the pendency of the abuse and neglect proceedings, the
matter may proceed to an adjudicatory hearing, and the
presiding circuit court may make findings of fact and
conclusions of law as to whether the subject child is an abused
and/or neglected child and whether the respondents are abusing
and/or neglectful as contemplated by W. Va. Code § 49-4-
601(i) (2015) (Repl. Vol. 2015).
240 W. Va. 679, 815 S.E.2d 490, syl. pt. 2, in part. DHHR highlights I.M.K.’s overarching
rationale that abuse and neglect proceedings are for the purpose of identifying and
12
The guardian ad litem adopts, in large part, DHHR’s arguments but draws
additional focus to petitioner’s failure of her improvement period, discussed more fully
infra. See n.15.
8
documenting abuse and/or neglect to prevent recurrence in the future and argues that
disposition even more affirmatively accomplishes that goal than adjudication, particularly
where termination of parental rights is appropriate.
While we recognize the temptation to summarily make what DHHR contends
is a sound and logical extension of I.M.K. to resolve this issue, we may not do so without
examining the statutory language and intent of the dispositional statute, which stands
separate and distinct from the adjudicatory statute. As this Court has recognized, “[t]he
adjudicatory hearing required by § 49-4-601 and the disposition hearing required by § 49-
4-604 create a ‘two-stage process [that] is well-recognized in our case law,’” each of which
“has a separate purpose.” In re A.P.-1, 241 W. Va. 688, 693, 827 S.E.2d 830, 835 (2019)
(footnote omitted) (quoting In re K.H., No. 18-0282, 2018 WL 6016722, at *4-6 (W. Va.
November 16, 2018) (memorandum decision)). Accordingly, we begin with an
examination of the dispositional statute’s language.
West Virginia Code § 49-4-604(c) provides the various dispositional
alternatives available to the court in the final phase of an abuse and neglect proceeding.
The circuit court in the instant case ordered termination of parental rights pursuant to
subsection (c)(6):
(c) Disposition decisions. The court shall give precedence to
dispositions in the following sequence:
(1) Dismiss the petition;
9
(2) Refer the child, the abusing parent, the battered parent or
other family members to a community agency for needed
assistance and dismiss the petition;
(3) Return the child to his or her own home under supervision
of the department;
(4) Order terms of supervision calculated to assist the child and
any abusing parent or battered parent or parents or custodian
which prescribe the manner of supervision and care of the child
and which are within the ability of any parent or parents or
custodian to perform;
(5) Upon a finding that the abusing parent or battered parent or
parents are presently unwilling or unable to provide adequately
for the child’s needs, commit the child temporarily to the care,
custody, and control of the department, a licensed private child
welfare agency, or a suitable person who may be appointed
guardian by the court. . . .
(6) Upon a finding that there is no reasonable likelihood that
the conditions of neglect or abuse can be substantially
corrected in the near future and, when necessary for the welfare
of the child, terminate the parental, custodial and guardianship
rights and responsibilities of the abusing parent . . . .
Petitioner maintains that the references in each of the dispositional alternatives—other than
those resulting in dismissal—to “the child” presume and therefore require the continued
involvement and presence of the child who is the subject of the petition. Accordingly,
petitioner argues that none of those dispositions may obtain where “the child” who is the
subject of the petition is deceased. Petitioner contrasts this phrasing with alternative
wording which, had the Legislature chosen to use it, could be construed as casting a wide
enough net to encompass and consider children who are not named in the petition or who
are not yet born, such as “a child” or “children.”
10
Petitioner notes that similar language is utilized in West Virginia Code § 49-
4-604(d) describing circumstances in which there is “[n]o reasonable likelihood that
conditions of neglect or abuse can be substantially corrected,” a finding necessary to
terminate parental rights. 13
Subsection 604(d) provides a non-exclusive list of
circumstances in which that finding may be made, most of which likewise evaluate the
parent’s capacity to solve the problems of abuse or neglect relative to “the child.” 14 When
13
We observe further that “the child” is referenced in this manner not only in the
dispositional alternatives and the circumstances constituting a parent’s “inadequate
capacity” but elsewhere throughout the statutory scheme. See also W. Va. Code §§ 49-1-
105(b)(2) (2015) (recognizing that Child Welfare Act “[s]erve[s] the mental and physical
welfare of the child” (emphasis added)); W. Va. Code § 49-2-801(1) (2015) (observing
purpose “[t]o protect the best interests of the child” (emphasis added)).
14
As provided in West Virginia Code § 49-4-604(c)(6), termination of parental
rights must be supported by both a finding that there is “[n]o reasonable likelihood that
conditions of neglect or abuse can be substantially corrected” and a finding that termination
is “necessary for the welfare of the child.” West Virginia Code § 49-4-604(d) then further
defines “[n]o reasonable likelihood . . .” as existing where “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.” That “inadequate capacity”
is then described as existing under the following circumstances:
(1) The abusing parent or parents have habitually abused or are
addicted to alcohol, controlled substances or drugs, to the
extent that proper parenting skills have been seriously impaired
and the person or persons have not responded to or followed
through the recommended and appropriate treatment which
could have improved the capacity for adequate parental
functioning;
(2) The abusing parent or parents have willfully refused or are
presently unwilling to cooperate in the development of a
reasonable family case plan designed to lead to the child’s
return to their care, custody and control;
(continued . . .)
11
these circumstances are established, “[t]ermination of parental rights, the most drastic
remedy under the statutory provision covering the disposition of neglected children . . .
may be employed without the use of intervening less restrictive alternatives[.]” Syl. Pt. 2,
in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).
We agree with petitioner that the Legislature’s use of the definite article “the”
in referring to “the child” throughout the dispositional alternatives in subsection 604(c)
(3) The 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;
(4) The abusing parent or parents have abandoned the child;
(5) The abusing parent or parents have repeatedly or seriously
injured the child physically or emotionally, or have sexually
abused or sexually exploited the child, and the degree of family
stress and the potential for further abuse and neglect are so
great as to preclude the use of resources to mitigate or resolve
family problems, or assist the abusing parent or parents in
fulfilling their responsibilities to the child; and
(6) The battered parent’s parenting skills have been seriously
impaired and the person has willfully refused or is presently
unwilling or unable to cooperate in the development of a
reasonable treatment plan, or has not adequately responded to
or followed through with the recommended and appropriate
treatment plan.
Id. (emphasis added).
12
was designed to refer to the child or children who are the subject of the petition. As
explained by one court:
Like all the other words in a statute, the articles count.
“If possible, the court must give effect to every word, clause,
and sentence; it must not read a statute so as to render any part
inoperative, superfluous, or insignificant * * *.” (Emphases
added.) The articles in a statutory text—the definite articles
and the indefinite articles—should not be overlooked or
discounted. They are meaningful. We should treat them as
chosen by design. Regardless of whether a definite article
modifies a singular noun or a plural noun (“the victim” or “the
victims”), the definite article has a particularizing effect.
People v. Hayden, 127 N.E.3d 823, 842 (Ill. App. Ct. 2018) (citations omitted); see also
BP Am. Prod. Co. v. Madsen, 53 P.3d 1088, 1092 (Wyo. 2002) (“[I]n construing statutes,
the definite article ‘the’ is a word of limitation as opposed to the indefinite or generalizing
force of ‘a’ or ‘an.’”). As such, we find that the references in the dispositional alternatives
to “the child” means the child or children who are the subject of the petition.
In view of that construction, we find that as to the dispositional alternatives
contained in West Virginia Code § 49-4-604(c), the statute’s language indicates that
anything less than dismissal of the petition implicates the continued involvement, presence,
and welfare of the child who is the subject of the petition. Disposition one is outright
dismissal of the petition. Id. § 49-4-604(c)(1). Disposition two, permitting the court to
refer the child or parent to an agency for assistance, does not necessarily require application
to “the child.” However, this dispositional alternative also requires commensurate
dismissal of the petition: “Refer the child, the abusing parent, the battered parent or other
13
family members to a community agency for needed assistance and dismiss the petition[.]”
Id. § 49-4-604(c)(2).
The remaining dispositional alternatives in West Virginia Code §§ 49-4-
604(c)(3) through (6) referencing “the child” are all plainly designed to address the
custodial situation of the subject child and the supervision and caretaking necessary for his
or her welfare. Subsections (c)(3) and (c)(4) enhance the level of supervision to parent and
child, providing alternatives of “[r]eturn[ing] the child to his or her own home under
supervision of the department[,]” or ordering “terms of supervision calculated to assist the
child and any abusing parent[.]” Id. (emphasis added). Dispositional alternative (c)(5)
escalates the resolution, invoking removal of the child from the home and “commit[ing]
the child temporarily to the . . . custody . . . of the [DHHR] . . . or a suitable person who
may be appointed guardian[.]” Id. (emphasis added).
The “most drastic” dispositional alternative—termination under subsection
(c)(6)—allows for termination of parental, custodial or guardianship rights where there is
“no reasonable likelihood that the conditions of neglect or abuse can be substantially
corrected in the near future” and “when necessary for the welfare of the child[.]” Id. § 49-
4-604(c)(6) (emphasis added). This dispositional alternative, in particular, very
specifically directs the court to consider the individual needs of the child who is the subject
of the petition. West Virginia Code §§ 49-4-604(c)(6)(A) and (B) requires a court ordering
termination to consider “[t]he child’s need for continuity of care and caretakers[] [and] []
14
[t]he amount of time required for the child to be integrated into a stable and permanent
home environment[.]” These references make clear that the dispositional alternatives not
resulting in dismissal of the petition presume that the child who is the subject of the petition
and his or her custodial and living situation remain extant at the time of disposition.
Having determined that the dispositional alternatives contained in West
Virginia Code § 49-4-604(c) contemplate and refer specifically to the child who is the
subject of the petition, petitioner draws focus to subsection 604(c)(6)’s requirement that
termination of parental rights may be ordered only upon a finding that 1) there is no
reasonable likelihood the conditions of neglect or abuse can be substantially corrected and
2) the termination is “necessary for the welfare of the child.” Id. § 49-4-604(c)(6).
Petitioner contends that because of A. P.’s death, “[t]here was no child named in the
petition whose welfare could be served by the termination of [petitioner’s] parental
rights[.]” We agree.
The two distinct requirements set forth in West Virginia Code § 49-4-
604(c)(6) for termination of parental rights must each be afforded their proper significance.
The prerequisite that there must first be “no reasonable likelihood that the conditions of
neglect or abuse can be substantially corrected” speaks to the parent’s current situation,
conduct, and/or abilities relative to his or her caretaking of the child. Id. In contrast, the
“and[] when necessary for the welfare of the child” requirement concerns itself with the
15
particular needs of the child as pertains to his or her physical and emotional well-being.
Id. (emphasis added).
This latter requirement—through its pre-condition of abject necessity—duly
recognizes the heightened burden which must be satisfied to terminate, with finality, a
parent’s fundamental right to custody of his or her child. “In the law concerning custody
of minor children, no rule is more firmly established than that the right of a natural parent
to the custody of his or her infant child is paramount to that of any other person; it is a
fundamental personal liberty protected and guaranteed by the Due Process Clauses of the
West Virginia and United States Constitutions.” Syl. Pt. 1, In re Willis, 157 W. Va. 225,
207 S.E.2d 129 (1973). See also Taylor v. Taylor, 47 S.W.3d 377, 386 (Mo. Ct. App. 2001)
(recognizing that “termination of parental rights is an ‘awesome power’ exercised by the
State and that strict and literal compliance with the statutory authority is necessary.”). This
language cannot simply be cast aside in the interest of the more elaborately described “no
reasonable likelihood” factor, nor presumed from the presence of that factor. 15 It is well-
15
This is, in effect, the argument advanced by the guardian ad litem. Parting ways
with the DHHR’s primary argument, the guardian ad litem insists that petitioner in this
particular case remains subject to termination of her parental rights due to her failure to
comply with her improvement period. See In re Kristin Y., 227 W. Va. 558, 571, 712
S.E.2d 55, 68 (2011) (“A parent’s participation in an improvement period is a clear
indicator of the parent’s future potential for success and willingness to make the necessary
changes to become a fit and suitable parent. . . . [S]poradic cooperation with service
providers, [] inability to complete a course of parent education . . . and [] failure to fully
cooperate with the Department, provide sufficient grounds for the finding that the
conditions of neglect or abuse cannot substantially be corrected.”). The guardian ad litem
notes that petitioner herself moved for the improvement period—albeit prior to A. P.’s
(continued . . .)
16
established that “courts are not to eliminate through judicial interpretation words [in a
statute] that were purposely included[.]” Syl. Pt. 11, Brooke B. v. Ray, 230 W.Va. 355,
738 S.E.2d 21 (2013).
DHHR suggests, however, that a child’s “welfare” as the term is used in
subsection 604(c)(6), is tantamount to his “best interests,” which do not abate upon his or
her death. In support, DHHR contends that I.M.K. implicitly found that a child’s “best
interests” effectively survives his or her death by holding that a guardian ad litem must
continue to represent and advocate for a deceased child until the proceedings are
concluded. See 240 W. Va. 629, 815 S.E.2d 490, syl. pt. 4. The Court found that,
death—and in her adjudicatory stipulation agreed to psychological/drug/alcohol
evaluations and counseling, drug screening, individual and family therapy, parenting and
adult life skills classes, and cooperation with service providers, among other things.
Indeed, we note further that the order granting the improvement period—ruled upon and
entered after A. P.’s death—reflects that the parties, including petitioner, “were in
agreement for [petitioner] to be granted a post-adjudicatory improvement period not to
exceed six (6) months.” (emphasis added). Despite requesting and apparently agreeing to
the improvement period even after A. P.’s death, it is undisputed that petitioner then failed
to comply or participate in any respect.
Nevertheless, this failure on petitioner’s part merely goes to establish that the “no
reasonable likelihood” prerequisite may well have been met in this case. As indicated
supra, the “[n]o reasonable likelihood” factor is established where the parent demonstrates
an “inadequate capacity” to solve the problems of abuse or neglect. See W. Va. Code §
49-4-604(d). That “inadequate capacity” is then described as existing in a variety of
circumstances including, as pertains to this specific case, where the parent has “willfully
refused or [is] presently unwilling to cooperate in the development of a reasonable family
case plan” and/or has not “followed through the recommended and appropriate treatment”
and/or “other rehabilitative efforts[.]” Id. §§ 49-4-604(d)(1)-(3). However, the “no
reasonable likelihood” factor is but one of two prerequisites to termination, the second
being that termination is necessary for the welfare of the child. See discussion infra.
17
irrespective of a child’s death, “it is essential that a guardian ad litem participate in all the
various stages of the abuse and neglect proceedings to accomplish this goal of advocacy
and protection of the child’s best interests.” Id. at 691, 815 S.E.2d at 502. DHHR suggests
that a child’s “welfare” and “best interests” are synonymous; if a child’s “best interests”
are entitled to advocacy after his or her death, certainly a court can consider a child’s
“welfare” despite his or her death. As tangential support for this position, DHHR offers a
handful of extra-jurisdictional cases where courts have addressed a parent’s ability to bring
or benefit from a wrongful death action where the parent is alleged to have engaged in
conduct equivalent to abuse and/or neglect. 16
16
Some courts have informally utilized traditional termination bases to construe
their wrongful death statutes as precluding standing to bring wrongful death actions. See,
e.g., Abraham v. Black, 816 S.E.2d 351 (Ga. Ct. App. 2018) (utilizing parental termination
statute to construe wrongful death statute and determine who had standing to bring
wrongful death suit); Perry v. Williams, 70 P.3d 1283, 1286 (N. M. Ct. App. 2003)
(declining to address “posthumous . . . termination of parental rights” but permitting use of
abandonment and non-support bases in neglect statute to construe wrongful death statute
and determine standing). Other courts have used the specter of “collateral consequences”
of an abuse and neglect finding to permit challenges to those findings posthumously despite
having been rendered technically moot. See, e.g., In re Smith, 919 N.W.2d 427, 434 (Mich.
Ct. App. 2018) (holding appeal not rendered moot “because the trial court’s termination of
respondent’s parental rights may have collateral legal consequences for respondent.”); In
re C. G., 410 P.3d 596, 603 (Colo. App. 2015) (finding abuse and neglect issues not moot
because of “collateral consequences” including civil remedies arising from the death); In
re E.C.G., 345 N.W.2d 138 (Iowa 1984) (finding termination of parental rights not
rendered moot where estate and wrongful death issues were present).
In none of these cases, however, were a parent’s rights to his or her deceased child
terminated posthumously. More importantly, none of these cases addresses whether
statutory language such as that employed in West Virginia Code § 49-4-604(c)(6) permits
the termination of parental rights to a deceased child. Only one of the cases cited by DHHR
(continued . . .)
18
We believe that it is commonly understood that the terms “welfare” and “best
interests” have significantly different connotations. Black’s Law Dictionary defines
“welfare” as “[w]ell-being in any respect; prosperity.” WELFARE, Black’s Law
Dictionary (11th ed. 2019); see also Commonwealth v. Lynn, 114 A.3d 796, 823 (Pa. 2015)
(“By requiring supervision of the child’s welfare rather than of the child, the statute
endeavors to safe-guard the emotional, psychological, and physical well-being of
children.” (emphasis added)). A child’s “welfare,” therefore, concerns his or her personal
well-being.17 On the other hand, his or her “interests” or “best interests” are considerably
even obliquely addresses the issue squarely presented here, wherein a court terminated a
mother’s parental rights to prevent her from bringing a wrongful death action against the
state for her child’s murder after she abandoned him. See N. J. Div. of Youth & Fam. Servs.
v. M.W., 942 A.2d 1, 17 (N. J. Super. Ct. App. Div. 2007) (permitting posthumous
termination on narrow basis that “court may exercise equitable powers in unusual
circumstances to grant posthumous relief in order to prevent an inequity.”).
17
As such, a child’s welfare necessarily implicates his or her need for and
entitlement to permanency. See In re Isaiah A., 228 W. Va. 176, 182, 718 S.E.2d 775, 781
(2010) (“[T]he precedent of this Court supports the proposition that children are entitled to
permanency to the greatest degree possible.”); Syl. Pt. 6, In re Cecil T., 228 W. Va. 89, 717
S.E.2d 873 (2011) (“The eighteen-month period provided in Rule 43 of the West Virginia
Rules of Procedure for Child Abuse and Neglect Proceedings for permanent placement of
an abused and neglected child following the final dispositional order must be strictly
followed except in the most extraordinary circumstances which are fully substantiated in
the record.”).
In that regard, the “and when necessary for the welfare” language of West Virginia
Code § 49-4-604(c)(6) does not allow a court to make a dispositional election which
jeopardizes a child’s right to that permanency. See In re I. A., No. 19-0152, 2019 WL
2451150, at *3 (W. Va. June 12, 2019) (memorandum decision) (rejecting argument that
disposition under subsection (c)(5) “‘provides the same protection to the children as
termination’” due to its temporary nature); In re V. R., No. 17-0933, 2018 WL 1255026(W. Va. Mar. 12, 2018) (memorandum decision) (rejecting mother’s demand for
(continued . . .)
19
broader and may implicate his or her stake or position in a particular matter which best
serves his or her overall interests. In that vein, a guardian ad litem’s continued advocacy
for a child in abuse and neglect proceedings—even after his or her death—speaks more to
the child’s entitlement to advocacy for the child’s position or stake as established in the
matter, rather than being limited to his or her personal well-being. We simply find no
reasonable basis upon which to conclude that a child’s individual “welfare” is a matter that
can any longer be affected by the termination of an abusive or neglectful parent’s rights
after the child’s death. His or her individual “welfare” is, sadly, no longer a present and
practicable concern.
These conclusions notwithstanding, we find it appropriate to further evaluate
the purpose of the dispositional statutes to ensure that our reading of the statutory language
comports with the Legislature’s intent. “The primary object in construing a statute is to
ascertain and give effect to the intent of the Legislature[;]” therefore, we will examine the
purpose of an abuse and neglect disposition in greater detail. Syl. Pt. 1, Smith v. State
Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). DHHR forcefully
contends that adjudication without disposition is “meaningless.” It argues that, irrespective
of a technical reading of the statute, it is vitally necessary to the protection of other children
disposition under subsection (c)(5) where statutory criteria for termination were met);
Kristin Y., 227 W. Va. at 571, 712 S.E.2d at 68 (reversing disposition under subsection
(c)(5) finding that it “deprives the children of the permanency they need, want, deserve and
are entitled to have.”); Cecil T., 228 W. Va. at 99, 717 S.E.2d at 883 (reversing disposition
under subsection (c)(5) finding that for “children victimized by abuse and neglect[,] . . .
their need for permanency in a secure environment is paramount.”).
20
who are not named in the petition or any future children that a properly founded termination
of parental rights not abate with a child’s death. DHHR insists that other living or future
children benefit from a termination of parental rights by establishing “aggravated
circumstances” for any future abuse and neglect proceedings involving the parent. As
provided by our statutory scheme, a prior termination of parental rights qualifies as
“aggravated circumstances,” 18 the significance of which is that 1) it is to be considered by
the court for purposes of temporary custody of children who become the subject of a future
petition; 19 and 2) it eliminates the requirement of reunification with regard to those children
in any future petition. 20
18
Technically, a prior termination does not constitute “aggravated circumstances,”
but rather is listed alongside other specifically delineated aggravated circumstances (i.e.,
abandonment, torture, chronic abuse and sexual abuse) as an equal basis upon which to
find that reunification efforts are unnecessary. It is, however, commonly referred to as an
aggravated circumstance, as does DHHR herein.
19
W. Va. Code § 49-4-602(d)(3) (2015) provides:
(d) Situations when reasonable efforts to preserve the family
are not required. -- For purposes of the court’s consideration
of temporary custody pursuant to subsection (a), (b), or (c) of
this section, the department is not required to make reasonable
efforts to preserve the family if the court determines:
***
(3) The parental rights of the parent to another child have been
terminated involuntarily.
20
W. Va. Code § 49-4-604(c)(7)(C) provides:
(continued . . .)
21
As indicated previously, the adjudicatory phase and hearing and the
dispositional phase and hearing each has a “separate purpose”: “The first phase culminates
in an adjudication of abuse and/or neglect. [See section 49-4-601]. The second phase is a
dispositional one, undertaken to achieve the appropriate permanent placement of a child
adjudged to be abused and/or neglected. [See section 49-4-604].” A.P.-1, 241 W. Va. at
693, 827 S.E.2d at 835 (footnotes omitted) (quoting K.H., 2018 WL 6016722, at *5-6)
(emphasis added). As the language of the dispositional alternatives makes clear, discussed
supra, the focus of disposition is the conduct or abilities of the parent and what measures
they necessitate for purposes of the subject child’s living situation and caretaking going
forward. 21 A determination of whether the child will be adequately protected and cared
For purposes of the court’s consideration of the disposition
custody of a child pursuant to this subsection, the department
is not required to make reasonable efforts to preserve the
family if the court determines:
***
(C) The parental rights of the parent to another child have been
terminated involuntarily[.]
See also W. Va. Code § 49-4-605(a)(3) (2018) (“[T]he department shall file or join in a
petition or otherwise seek a ruling in any pending proceeding to terminate parental rights .
. . (3) If a court has determined . . . the parental rights of the parent to another child have
been terminated involuntarily[.]”).
21
Emphasis on the temporal purpose of disposition is fully consonant with I.M.K.’s
treatment of the adjudicatory statutory language. With regard to the adjudicatory phase,
the I.M.K. Court placed particular emphasis on the guidance provided in West Virginia
Code § 49-4-601(i) which states that adjudicatory findings “‘must be based upon
conditions existing at the time of the filing of the petition.’” Id. at 686, 815 S.E.2d at 497
(emphasis added). Accordingly, the Court reasoned:
(continued . . .)
22
for with simple supervision and/or services or requires removal from the home is the entire
objective of disposition.
Moreover, DHHR’s position that disposition is necessary to the protection of
other living children who are not the subject of the petition or any future children is
undermined by the very case upon which it relies. 22 I.M.K. makes clear that it is
adjudication which primarily serves the “function of . . . identify[ing] and document[ing]
instances of abuse and neglect to ensure the safety of additional children in the household.”
240 W. Va. at 689, 815 S.E.2d at 500. Further, the I.M.K. Court found that adjudication
fully lends itself to the protection of any future children:
Where, as here, there is only one child who is the subject of the
abuse and neglect proceedings and where, as here, there are no
other children in the home, an adjudication still is vital because
it serves the recognized purposes of identifying, documenting,
and “remedying conditions” that could, if left unchecked,
potentially harm future children in the household.
The fact that the subject child has since died, presumably as a
result of the severity of the injuries inflicted by the alleged
abuse and/or neglect, though tragic, does not foreclose the
circuit court’s inquiry because the conditions alleged to exist
at the time of the petition’s filing are the determinative
factors—not those that may later arise.
Id. at 687, 815 S.E.2d at 498 (footnote omitted).
22
We observe further that in stark contrast to its position herein, DHHR’s position
in I.M.K. was that a guardian ad litem was unnecessary after a child’s death “because the
child would not be impacted by any of the dispositional alternatives for the parents and
permanency for the child is no longer at issue.” 240 W. Va. at 690, 815 S.E.2d at 501.
23
Id. (footnote omitted). Accordingly, I.M.K. belies DHHR’s position that only disposition
can adequately protect other living or future children, inasmuch as the Court found that
adjudication itself acts to “ensure the safety and well-being of both current and future
children of the respondent parties.” Id. In fact, I.M.K. goes so far as to state that, despite
the continued vitality of adjudication, “final disposition of the abuse and neglect
proceeding and establishment of permanency for the subject child” is necessarily
“hampered” by a child’s death. Id. at 688, 815 S.E.2d at 499 (footnote omitted).
Simply put, West Virginia Code § 49-4-604(c) has nothing to offer other
living or future children as they are not within the control of the court and therefore evade
the effects of application of any of the dispositional alternatives. Accord In re L.W., 861
N.E.2d 546, 551 (Ohio Ct. App. 2006) (finding “‘as a matter of reason and common sense,’
the action abated with L.W.’s death, as circumstance has effectively accomplished the
primary objectives of the [action].”). DHHR’s focus on the creation of “aggravated
circumstances” for any future abuse and neglect proceedings is simply too speculative to
summarily enlarge the scope of disposition’s reach. There is nothing to suggest that
petitioner will have future children or that those children will become the subject of abuse
and neglect proceedings. See L. W., 861 N.E.2d at 552 (finding father’s arguments to avoid
action’s mootness due to subject child’s death were “entirely speculative. There is no
indication that appellant will ever be subject to a neglect or dependency action with regard
to his surviving child[.]”); In re C. R., 95 N.Y.S.3d 720, 723 (N.Y. Fam. Ct. 2018) (finding
abuse and neglect petition mooted by child’s death and “declin[ing] to make a
24
determination based on a possible future event” such as “if the mother[] became pregnant
or accepted jobs caring for children”).
Insofar as petitioner’s other child, A. V., is concerned, at no time did DHHR
seek to make her part of the subject proceedings given that her health and/or safety was not
jeopardized by petitioner’s conduct in view of the child’s guardianship. See W. Va. Code
§ 49-4-601 (2019) (requiring abuse and neglect findings to be “based upon conditions
existing at the time of the filing of the petition”). This will presumably continue to be the
case unless and until modification of her particular disposition is sought, at which point, if
relevant, certainly petitioner’s adjudication would constitute competent evidence to be
considered for any such purpose. See id. § 49-4-606(a) (2015) (“Upon motion of a child,
a child’s parent or custodian or the department alleging a change of circumstances requiring
a different disposition, the court shall conduct a hearing pursuant to section six hundred
four of this article and may modify a dispositional order if the court finds by clear and
convincing evidence a material change of circumstances and that the modification is in the
child’s best interests.”). Similarly, while the instant matter may not satisfy the statutory
preconditions for an “aggravated circumstances” allegation in any future proceedings, it is
nonetheless competent evidence to be considered by the court in the course of such
proceedings as appropriate and permitted by law.
Accordingly, we hold that West Virginia Code § 49-4-604(c)(6) does not
permit the termination of parental, guardianship, or custodial rights to a child who is
25
deceased at the time of disposition. Accord LePori v. Welch, 93 So. 3d 66, 68 (Miss. Ct.
App. 2012) (finding that father’s rights to child could not be posthumously terminated
because purpose of termination is to allow for child to be adopted and stating “it logically
follows the statute only addresses circumstances when the child is still living.”); L.W., 861
N.E.2d at 551 (“L.W.’s death clearly extinguished the instant action. The state’s primary
focus in a dependency action is on the child’s condition and environment.”); Matter of
Stephanie W. W., 623 N.Y.S.2d 404, 405 (N. Y. App. Div. 1995) (“In view of the
underlying purpose of Family Court Act article 10 to ‘protect children from injury or
mistreatment and to help safeguard their physical, mental, and emotional well-being’ we
conclude that a neglect petition may not be brought on behalf of a deceased child[.]”
(citations omitted)); Crosby v. Corley, 528 So. 2d 1141, 1144 (Ala. 1988) (finding
termination of parental rights under Child Protection Act “simply not applicable in
postmortem situations”). 23
Finally, we underscore that our conclusion that the death of the only child
named in an abuse and neglect petition requires its post-adjudicatory dismissal does not
imply that the abusive and/or neglectful conduct is beyond the concern of the court or that
23
We are careful to note that there is insufficient evidence in this particular case to
conclude that A. P.’s death was caused by the conditions of neglect to which petitioner
stipulated, although there is an uninterrupted chain of events from the incident which gave
rise to the petition and the child’s death. However, nothing in this opinion should be read
as insinuating that such a causal connection exists. Regardless, however, we clarify that
our reading of the statutory language leaves no room for distinction between a child whose
death is caused by abuse and/or neglect and a child whose death is unrelated to such
proceedings.
26
the proceedings were for naught. As previously noted, West Virginia Code § 49-4-
604(c)(2) expressly permits the court to refer a parent or other family member “to a
community agency for needed assistance” concomitantly with dismissal of the petition.
We can think of no situation better suited to the dispositional alternative provided in
subsection 604(c)(2) than that demonstrated in the instant case—where dismissal of the
petition is statutorily required but a parent most clearly could still benefit from assistance,
services, and/or other intervention.
IV. CONCLUSION
Therefore, for the reasons set forth herein, we reverse the January 27, 2020,
order of the Circuit Court of Harrison County and remand for entry of an order consistent
with this opinion.
Reversed and remanded with directions.
27