In re: J.G., II , 809 S.E.2d 453 ( 2018 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2018 Term
FILED
February 15, 2018
No. 17-0777 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re J. G., II
Appeal from the Circuit Court of McDowell County
The Honorable Booker T. Stephens, Judge
Case No. 14-JA-081
REVERSED AND REMANDED WITH DIRECTIONS
Submitted: January 23, 2018
Filed: February 15, 2018
William O. Huffman, Esq.
Patrick Morrisey, Esq.
Princeton, West Virginia
Attorney General
Attorney for Petitioners S. L. and S. L.
Melinda C. Dugas, Esq.
Assistant Attorney General
Ronald D. Hassan, Esq.
Charleston, West Virginia
Welch, West Virginia
Attorney for West Virginia
Attorney for Respondent J. G.
Department of Health and
Human Resources
R. Keith Flinchum, Esq.
Princeton, West Virginia
Attorney for Respondent T. S.
Philip A. LaCaria, Esq.
Welch, West Virginia
Guardian ad Litem for J. G., II
JUSTICE WORKMAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “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 re Tiffany Marie S., 196 W. Va. 223, 470
S.E.2d 177 (1996).
2. “Pursuant to West Virginia Code § 49-6-12(g) (1998), before a circuit
court can grant an extension of a post-adjudicatory improvement period, the court must
first find that the respondent has substantially complied with the terms of the improvement
period; that the continuation of the improvement period would not substantially impair the
ability of the Department of Health and Human Resources to permanently place the child;
and that such extension is otherwise consistent with the best interest of the child.” Syl. Pt.
2, In re Jamie Nicole H., 205 W. Va. 176, 517 S.E.2d 41 (1999).
i
3. “At the conclusion of the improvement period, the court shall review
the performance of the parents in attempting to attain the goals of the improvement period
and shall, in the court’s discretion, determine whether the conditions of the improvement
period have been satisfied and whether sufficient improvement has been made in the
context of all the circumstances of the case to justify the return of the child.” Syl. Pt. 6, In
re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).
4. “Child abuse and neglect cases must be recognized as being among
the highest priority for the courts’ attention. Unjustified procedural delays wreak havoc on
a child’s development, stability and security.” Syl. Pt. 1, in part, In re Carlita B., 185 W.
Va. 613, 408 S.E.2d 365 (1991).
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. “Although parents have substantial rights that must be protected, the
primary goal in cases involving abuse and neglect, as in all family law matters, must be the
health and welfare of the children.” Syl. Pt. 3, In re Katie S., 198 W. Va. 79, 479 S.E.2d
589 (1996).
ii
7. “In a contest involving the custody of an infant the welfare of the child
is the polar star by which the discretion of the court will be guided.” Syl. Pt. 2, State ex rel.
Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d 221 (1948).
8. “‘[C]ourts are not required to exhaust every speculative possibility of
parental improvement before terminating parental rights where it appears that the welfare
of the child will be seriously threatened. . . .’” Syl. Pt. 7, in part, In re Carlita B., 185 W.
Va. 613, 408 S.E.2d 365 (1991).
9. “When parental rights are terminated due to neglect or abuse, the
circuit court may nevertheless in appropriate cases consider whether continued visitation
or other contact with the abusing parent is in the best interest of the child. Among other
things, the circuit court should consider whether a close emotional bond has been
established between parent and child and the child’s wishes, if he or she is of appropriate
maturity to make such request. The evidence must indicate that such visitation or continued
contact would not be detrimental to the child’s well being and would be in the child’s best
interest.” Syl. Pt. 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).
10. “A permanency plan for abused and neglected children designating
their permanent placement should generally be established prior to a determination of
whether post-termination visitation is appropriate.” Syl. Pt. 6, In re Billy Joe M., 206 W.
Va. 1, 521 S.E.2d 173 (1999).
iii
WORKMAN, J.:
Petitioners/foster parents S. L. and S. L.1 (hereinafter “petitioners”), appeal
the Circuit Court of McDowell County’s August 25, 2017, disposition order in this abuse
and neglect proceeding, which required the gradual transition of infant J. G., II back to the
physical custody of his biological parents, respondents J. G. and T. S. Petitioners assert
that the circuit court erred in failing to comply with the statutory time frames required for
abuse and neglect proceedings and further abused its discretion in returning the infant to
his biological parents. The Department of Health and Human Resources (hereinafter
“DHHR”) and the guardian ad litem concur that the circuit court abused its discretion in
returning the infant to his parents.
Upon careful review of the briefs, the appendix record, the arguments of the
parties, and the applicable legal authority, we find that the circuit court erred in failing to
comply with the statutory requirements of West Virginia Code § 49-4-610 (2015) and the
West Virginia Rules of Procedure for Child Abuse and Neglect. We further find that the
circuit court abused its discretion in failing to terminate respondents’ parental rights and
ordering return of the infant to their care and physical custody. Therefore, we reverse the
circuit court’s disposition in this matter and remand this case with directions to the circuit
1
Consistent with our practice in cases involving sensitive facts, we identify the
parties by initials only. See In re Jeffrey R.L., 190 W.Va. 24, 26 n.1, 435 S.E.2d 162, 164
n.1 (1993).
1
court to terminate respondents’ parental rights, attain permanency for the infant, and
conduct any and all further proceedings, as necessary and appropriate.
I. FACTS AND PROCEDURAL HISTORY
J. G., II was born to respondents T. S. and J. G. at thirty-four weeks’ gestation
with opiates, marijuana, and benzodiazepines in his system. Based on T. S.’s prior
involuntary termination of parental rights to a child due to substance abuse and domestic
violence and the presence of drugs in J. G., II’s system, an abuse and neglect petition was
filed by DHHR on December 29, 2014.2 J. G., II was placed into a variety of foster homes
in his early weeks and was ultimately placed with petitioners on February 11, 2015, when
he was six weeks old. He remains in their care to date.3 Due to his prematurity and the
drugs in his system, J. G., II has special needs requiring medical monitoring and treatment
including ear, nose and throat difficulties, feeding/weight gain, and hypertonicity.
Respondents waived a preliminary hearing and while awaiting a March 10,
2015, adjudicatory hearing, they cancelled multiple visits, frequently fell asleep during the
visits they did attend, failed to return calls from DHHR, and had multiple positive drug
2
A DNA test confirming J. G. as the infant’s father would soon follow, whereupon
he was added as an adult respondent.
3
This Court stayed the circuit court’s disposition order returning J. G., II to
respondents pending the outcome of this appeal.
2
screens. Nevertheless, at the March 10, 2015, hearing, the circuit court granted a six-month
pre-adjudicatory improvement period. The DHHR apparently provided a report to the
circuit court prior to the subsequent ninety-day hearing indicating the respondents were not
cooperating with services; 4 accordingly, the circuit court ordered that respondents
cooperate with services and set an adjudicatory hearing for July 30, 2015.5 The July 30,
hearing was continued to August 20 and the circuit court again entered an order requiring
respondents to cooperate with drug screens. The day before the August 20, 2015,
adjudicatory hearing, the DHHR advised the circuit court that respondents were
cooperating “only minimally” with services and were difficult to contact; DHHR requested
adjudication since the improvement period “appear[ed] to have been a failure.”
For reasons that do not appear in the record or in its order, the court continued
the August 20 adjudicatory hearing until September 16, 2015. Further, the appendix record
contains no transcript of the September 16, 2015, hearing; however, in an order arising
4
This letter is not contained in the appendix record.
5
In the interim, respondents underwent psychological evaluations. T. S.’s
evaluation found that her prognosis for “reliable attainment of minimally adequate
parenting is considered highly guarded to poor due to likelihood of substance abuse relapse
and recalcitrance of personality issues to change.” She reported a history of schizophrenia,
bipolar disorder, anxiety, and depression. Her evaluation further revealed that she denied
using drugs during her pregnancy, but the record reveals that she later stated to a case
worker that her marijuana use during pregnancy likely saved the infant’s life due to her
morning sickness. J. G.’s evaluation found that his potential for adequate parenting was
“fair in his own right” but likely to be negatively affected by T. S. if they stayed together.
3
from the hearing, the circuit court stated that respondents “have demonstrated the
likelihood to fully participate in [an] improvement period” and therefore granted another
six-month improvement period, apparently upon oral motion. 6
Thereafter, respondents continued to have positive drug screens. A DHHR
summary stated that respondents “will over medicate either night before or morning of
visits, which will result in one being unable to attend due to an ‘illness’” and noted they
were being evicted. A visit just before a November 19, 2015, status hearing was cancelled
due to a physical altercation between respondents, which resulted in J. G. being arrested.
Days before the hearing, respondents again tested positive for a combination of opiates,
benzodiazepiness, and suboxone. A letter from DHHR the day before the hearing stated
that there had been domestic violence incidents each month since the last hearing, resulting
in charges to each respondent. At the November 19, 2015, hearing, the circuit court set
adjudication for December 10, 2015, noting the respondents’ continued positive drug
screens.
Respondents appeared at the December 10, 2015, hearing in an impaired
state. The DHHR advised that respondents continued to test positive in the drug screens
in which they actually participated, but that T. S. noted that there was no reason to attend
them because “her rights were going to be terminated.” The DHHR noted respondents
6
The DHHR’s status letter is not contained in the appendix record. The docket
sheet reveals no written motion for an additional improvement period.
4
were living in hotels and about to be evicted from their most recent home. The circuit court
continued the adjudicatory hearing to December 16, 2015, at which time both respondents
stipulated to substance abuse resulting in abuse and neglect. The DHHR noted that the
drug screens were “just as bad if not worse” than at the outset of the case and that the case
had been “dragging.” The guardian ad litem concurred that there was no improvement.
Nevertheless, the circuit court granted yet another six-month post-adjudicatory
improvement period upon oral motion7 over the objection of the guardian ad litem and
DHHR. The order states that respondents “have demonstrated the likelihood to fully
participate in the improvement period” and that although “[a]n earlier improvement period
was granted[,] . . . there has been a substantial change in circumstances supporting the
likelihood of full participation in a further improvement period.” The order does not note
what those changes in circumstances were.8
Shortly before the next status hearing, the DHHR noted that both parents
were admitted to rehabilitation facilities, but continued to have positive drug screens until
admission. At a July 14, 2016, status hearing, the parties appeared and orally moved for a
7
It appears at least one of the respondents filed a written motion for an improvement
period nearly two months later on February 22, 2016, based on the docket sheet. That
motion is not included in the appendix record.
8
The circuit court stated that “this is your last opportunity, as far as I’m concerned.
I’m giving you this chance, over the objection of the—of the—of this—of the Petitioner
and the Department and the guardian ad litem. . . . Now, if you go there and you don’t get
it right, you’re going to come right back here and I will not hesitate to terminate your
parental rights.”
5
six-month extension of their post-adjudicatory improvement period. The circuit court
granted another improvement period, congratulating them on completing rehab and noting
they “looked better” than he had previously seen them, and making the improvement period
conditional upon respondents obtaining a home.
Shortly after this hearing, petitioner S. L. apparently communicated with the
guardian ad litem objecting to overnight visits, noting that J. G., II would be in danger with
his parents. And in fact, on October 1, 2016, an incident occurred at the end of an overnight
visit. Apparently, a CPS worker arrived at respondents’ home to pick up J. G., II and
received no answer at the door; she then heard J. G., II screaming and entered the home.
She went upstairs and observed large amounts of blood, finding the infant on the bed beside
J. G., who was completely unresponsive; T. S. emerged from the bathroom with a large
gash over her eye, indicating she had fallen. The infant was in a saturated diaper, screaming
and reaching for the CPS worker. The CPS worker reported that T. S. was stumbling and
had difficulty speaking; she stated her “eyes were dilated and her pupils were the size of
pins. . . . [S]he was high as a kite.” It was later discovered that both had stopped attending
their AA and NA meetings and neighbors suspected a relapse. The DHHR once again
advised the circuit court by written report that the “improvement period has been a
failure[.]” The guardian ad litem shortly thereafter requested termination by letter to the
circuit court and the DHHR filed a written motion for termination on November 7, 2016.
6
At the termination hearing of December 15, 2016, respondents contended
that they had not relapsed and that the incident of October 1 was the result of J. G.’s
appropriate use of prescription medication and T. S.’s vertigo. T. S. admitted, however, to
having smoked three joints due to her brother’s death in early October. Without
explanation, the circuit court stated: “I’m going to give them 90 days to see what happens.”
The court further gave respondents thirty days to settle into a fourth home which was
reportedly located in a “known drug area.”
Petitioners thereafter moved to intervene, which motion was granted. At the
next status hearing on March 23, 2017, DHHR reported that the family moved into a trailer
partially damaged by fire and that supervised visits had been reinitiated. Respondents’
preceding three drug screens were positive; however, respondents claimed to have
prescriptions to explain the most recent screens and the circuit court decided to wait for
confirmation of the preceding day’s drug screen, resetting the hearing for April 4, 2017.
At the April 4 hearing, respondents continued to maintain that their positive screens were
for prescribed medications, with the exception of the “small amount of marijuana.” 9
Ultimately, the circuit court stated that “[n]otwithstanding it’s been 26, 27 months, I’m
going to hold in abeyance the motion to terminate, and you have—I’m going to give you
until July. If there are no positive screenings between now and July, I’m inclined then to
9
The parties went several rounds trying to get T. S. to explain how she tested
positive for what she claimed was a “minute” amount of marijuana on March 15 when she
denied smoking marijuana since November. She provided no explanation but stated merely
“I do my thing, Your Honor.”
7
lift the supervised visitations and let you have this child . . . .” The court noted that its
ruling was based “on the fact that, actually, we’re supposed to work to try and reunite the
families, if we can.”
The parties returned upon petitioners’ motion for permanent placement,
which motion contained the recommendation of the Children’s Home Society. CHS
observed that the infant was bonded with petitioners and called their daughter “sissy.” CHS
stated that returning J. G., II to respondents “could be traumatizing and risky to [his]
stability and safety[.]” Both parents tested positive on three occasions for any combination
of hydrocodone, morphine, “extended opiates”; in early July, T. S. tested positive for
amphetamines. Respondents continued to attribute these results to prescription
medications.10 Counsel and the circuit court argued at length about the significance of the
positive findings, but no evidence of the prescriptions was apparently made part of the
record. Respondents further failed to offer any expert testimony regarding the current
necessity of the prescriptions or whether the results were within therapeutic limits. For
reasons which do not appear on the record, the circuit court ordered the parties to return on
August 7, 2017 for its “ruling.”
10
T. S. allegedly produced a prescription for Tylenol with codeine filled on April
20, 2017; J. G. allegedly produced a December 2015 prescription for hydrocodone which
he filled in November, 2016. T. S.’s counsel argued that her positive amphetamine result
was the result of taking non-prescription Claritin-D, which contains pseudoephedrine.
8
On August 7, 2017, testimony was taken at the disposition hearing.
Respondents maintained they were drug-free 11 and continued to attribute positive drug
screens to prescriptions; they insisted they had obtained adequate housing and were
prepared to care for J. G., II and attend to his various medical appointments by J. G. re-
obtaining his drivers’ license which had apparently expired.12 Petitioner/foster mother S.
L. testified about her desire to adopt J. G., II and explained his various medical issues. She
testified that he was set to begin preschool and explained his resistance to visits with his
biological parents, as well as sleep disturbances and behavioral disturbances after visits.
The CPS worker confirmed anxiety when she went to pick him up for parental visits and
again recounted the events of October 1.
The circuit court made no ruling at the time of the disposition hearing, but
entered an order eighteen days later on August 25, 2017, noting that the respondents had
made “considerable improvements,” testing negative for months “except for prescribed
11
T. S. continued to downplay her drug addiction as having contributed to the
infant’s medical problems, stating that he was born “with a small amount of hydrocodone
in his system and a small amount of THC. His Apgar was good. Everything was fine. . . .
He was sent to Roanoke Memorial just for precautions. He never had to be in the incubator
. . . He was just small, you know, but all my babies are small.” She also testified that
alcohol was her “main problem.”
12
In a recent update, the DHHR advised J. G. has still not obtained his drivers’
license.
9
medication,” and ordering gradual transition of J. G., II to their physical care and custody.
Petitioners then filed the instant appeal.
II. STANDARD OF REVIEW
With regard to our review of abuse and neglect findings, this Court has held:
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 re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). With these
standards in mind, we turn to the petitioners’ assignments of error.
III. DISCUSSION
Petitioners make two assignments of error: 1) that the circuit court erred in
failing to comply with statutory and procedural time limitations for abuse and neglect
proceedings; and 2) that the circuit court abused its discretion in ordering J. G., II to be
returned to his biological parents. We will address each alleged error in turn.
10
A. STATUTORY AND PROCEDURAL TIME LIMITATIONS
As to their first assignment of error, petitioners focus primarily on the length
and propriety of the pre- and post-adjudicatory improvement periods granted to
respondents below.13 Critically, this Court has observed that “[i]mprovement periods are
[] regulated, both in their allowance and in their duration, by the West Virginia Legislature,
which has assumed the responsibility of implementing guidelines for child abuse and
neglect proceedings generally.” In re Emily, 208 W. Va. 325, 334, 540 S.E.2d 542, 551
(2000). West Virginia Code § 49-4-610 contains comprehensive requirements pertaining
to both pre- and post-adjudicatory improvement periods.
As pertains to pre-adjudicatory improvement periods, West Virginia Code §
49-4-610(1) provides, in part:
(1) Preadjudicatory improvement period. — A court
may grant a respondent an improvement period of a
period not to exceed three months prior to making a
finding that child is abused or neglected . . . only when:
(A) The respondent files a written motion requesting
the improvement period;
13
Petitioners likewise assert that the circuit court’s unauthorized pre-adjudicatory
improvement periods necessarily resulted in a delay in adjudication. Rule 25 of the Rules
of Procedure for Child Abuse and Neglect provides that a final adjudicatory hearing must
occur “no later than thirty (30) days, after the conclusion of [a] pre-adjudicatory
improvement period.” This time standard, along with the limitation on pre-adjudicatory
improvement periods, therefore contemplates adjudication no later than four months
following the beginning of any pre-adjudicatory improvement period.
11
(B) The respondent demonstrates, by clear and
convincing evidence, that the respondent is
likely to fully participate in the improvement
period . . . .
(emphasis added). See also West Virginia Rule of Procedure for Child Abuse and Neglect
23(b) (“Pursuant to W. Va. Code § 49-4-610, a preadjudicatory improvement period shall
not exceed three months.”). In the instant case, the circuit court ordered two six-month
pre-adjudicatory improvement periods, both of which were obviously in violation of the
statute and Rule.
Moreover, not only did the circuit court err in the length and number of pre-
adjudicatory improvement periods, it plainly gave little to no consideration to whether
respondents had demonstrated “by clear and convincing evidence” the likelihood of full
participation. The record reveals that before ordering the initial improvement period,
respondents cancelled multiple visits with J. G., II, fell asleep during visits, failed to return
calls from DHHR, and had multiple positive drug screens. Before the second pre-
adjudicatory improvement period, respondents continued the same minimal participation
and continued to test positive for illicit substances. DHHR repeatedly advised the circuit
court that the improvement period was a failure. Notwithstanding the clear and convincing
evidence to the contrary, the circuit court twice entered orders stating that respondents had
“demonstrated the likelihood to fully participate in the improvement period.”
12
As to the post-adjudicatory improvement periods, the circuit court granted
two “formal” improvement periods of six months each, along with general continuances of
the “status quo” of the improvement periods such that the respondents continued in a
general improvement period for a total of twenty months from the time of the adjudication
until disposition. This is plainly in violation—in both duration and procedure—of West
Virginia Code § 49-4-610(2), which provides, in pertinent part:
(2) Post-adjudicatory improvement period. — After finding
that a child is an abused or neglected child pursuant to section
six hundred one of this article, a court may grant a respondent
an improvement period of a period not to exceed six months
when:
(A) The respondent files a written motion requesting
the improvement period;
(B) The respondent demonstrates, by clear and
convincing evidence, that the respondent is
likely to fully participate in the improvement
period and the court further makes a finding, on
the record, of the terms of the improvement
period;
***
(D) Since the initiation of the proceeding, the
respondent has not previously been granted any
improvement period or the respondent
demonstrates that since the initial improvement
period, the respondent has experienced a
substantial change in circumstances. Further, the
respondent shall demonstrate that due to that
change in circumstances the respondent is likely
to fully participate in a further improvement
period . . . .
(emphasis added).
13
As plainly stated therein, West Virginia Code § 49-4-610(2) permits a post-
adjudicatory improvement period not to exceed six months, upon written motion, and only
if there is a demonstration, by clear and convincing evidence, that the individual is likely
to fully participate and no prior improvement period has been granted. In this case, no
written motion was filed at the time the circuit court granted the improvement period and
respondents had demonstrated—repeatedly—their refusal to participate in the
improvement period. It was, in fact, this refusal that finally prompted the inexplicably
reluctant and recalcitrant circuit court to finally proceed to adjudication.
Further, in view of the fact that a total of twelve months of pre-adjudicatory
improvement period had previously been granted, respondents herein were required to
additionally show a substantial change in circumstances warranting a post-adjudicatory
improvement period and that because of that substantial change, they were likely to
participate: “[R]espondent [must] demonstrate[] that since the initial improvement period,
the respondent has experienced a substantial change in circumstances[] . . . [and] due to
that change in circumstances the respondent is likely to fully participate in a further
improvement period[.]” W. Va. Code § 49-4-610(2)(D). The circuit court’s order granting
the improvement period does in fact state that respondents “demonstrated the likelihood to
fully participate” and that “there has been a substantial change in circumstances supporting
the likelihood of full participation[.]” However, both the transcript and order fail entirely
to identify what that change was and why it supported the likelihood of full participation.
14
In this case, the guardian ad litem reported no improvement in the respondents’ behavior
since the outset and the DHHR noted that the drug screens were “just as bad if not worse[.]”
The second six-month post-adjudicatory improvement period ordered below
was likewise in violation of statutory and procedural requirements. West Virginia Code §
49-4-610(6) provides that an extension of a post-adjudicatory improvement period is
permitted “for a period not to exceed three months” and requires the court to find that such
continuation “will not substantially impair the ability of the department to permanently
place the child and that the extension is otherwise consistent with the best interest of the
child.” (emphasis added). To that end, this Court has held that findings in support of each
of these criteria are mandatory:
Pursuant to West Virginia Code § 49-6-12(g) (1998),
before a circuit court can grant an extension of a post-
adjudicatory improvement period, the court must first find that
the respondent has substantially complied with the terms of the
improvement period; that the continuation of the improvement
period would not substantially impair the ability of the
Department of Health and Human Resources to permanently
place the child; and that such extension is otherwise consistent
with the best interest of the child.
Syl. Pt. 2, In re Jamie Nicole H., 205 W. Va. 176, 517 S.E.2d 41 (1999).
15
No such findings were made upon granting the second improvement period
or at any time thereafter when the improvement period continued generally.14 Respondents
continued to have positive drug screens three months into the first improvement period
until placed into rehab; such behavior is hardly demonstrative of “substantial compliance”
with the prior improvement period. Moreover, the circuit court failed at any time to
consider whether the general continuation of the post-adjudicatory improvement periods
were consistent with the best interests of the child. The record before us and paucity of
statutorily-compliant findings by the circuit court leave us with no other conclusion than
the circuit court sought to place the interests of respondents above the health and welfare
of J. G., II. We are compelled to observe that it was within this second, wholly
unsubstantiated improvement period that the October 1 incident involving respondents’
incapacitation while caring for the infant occurred. Had the circuit court complied with the
statutory and procedural requirements plainly set forth in West Virginia Code § 49-4-610
and acknowledged that respondents’ incorrigible behavior failed to satisfy the criteria
required to entitle one to an improvement period, J. G., II would never have been subjected
to such a traumatizing event.
14
In fact this particular order states “[s]ince the initiation of these proceedings, an
improvement period has not previously been granted to the Respondents.” (emphasis
added). While undoubtedly the result of utilizing the wrong form, this error demonstrates
how little regard was given the statutory requirements regarding improvement periods.
Orders entered pursuant to the statutory requirements are not to be entered pro forma and
must accurately and substantively address the necessary findings.
16
Finally, as pertains to extensions of post-adjudicatory improvement periods,
we note that the requirement that such improvement period not “impair the ability of the
department to permanently place the child” holds particular significance, as well-
demonstrated in the instant case. Here, the circuit court’s perpetual continuance of the
improvement periods resulted in J. G., II being in foster care for a total of thirty-two months
as of the time the disposition order was entered. 15 This occurrence alone squarely
implicates the ultimate time limitation for improvement periods contained in West Virginia
Code § 49-4-610(9):
Notwithstanding any other provision of this section, no
combination of any improvement periods or extensions thereto
may cause a child to be in foster care more than fifteen months
of the most recent twenty-two months, unless the court finds
compelling circumstances by clear and convincing evidence
that it is in the child’s best interests to extend the time limits
contained in this paragraph.
(emphasis added). Before the first post-adjudicatory improvement period ended, J. G., II
had been in foster care for fifteen months. Not only did the circuit court fail to make the
findings required for any individual improvement period or extension thereof, it similarly
failed to make any findings required to continue granting an aggregate of improvement
periods which extended past this fifteen-month benchmark. In fact, the circuit court
15
Moreover, our ultimate determination to leave J. G., II with his foster family in
no way mitigates the delay which occurred in this matter. Lack of permanency is without
a doubt psychologically harmful to children irrespective of their age and/or awareness of
the proceedings given the profound impact this uncertainty has on their caregivers, daily
surroundings, and routine. Unwarranted delay in obtaining permanency merely
compounds the circumstances which gave rise to the abuse and neglect petition in the first
instance.
17
continued generally the improvement period for nearly an additional year and a half after
the first post-adjudicatory improvement period.
As the timeline of this case demonstrates, respondents continually engaged
in domestic violence, had positive drug screens, and unstable housing throughout the
virtual entirety of the improvement periods, not to mention the egregious failure of
supervision and care during the October 1 incident involving the infant. The circuit court
below disregarded in both letter and intent the statutory language and this Court’s clear
holdings regarding its obligation relative to improvement periods:
At the conclusion of the improvement period, the court
shall review the performance of the parents in attempting to
attain the goals of the improvement period and shall, in the
court’s discretion, determine whether the conditions of the
improvement period have been satisfied and whether sufficient
improvement has been made in the context of all the
circumstances of the case to justify the return of the child.
Syl. Pt. 6, Carlita B., 185 W. Va. 613, 408 S.E.2d 365.
For reasons that utterly confound this Court, the circuit court perpetually
allowed respondents opportunity after opportunity to modify their behavior, which they
repeatedly rejected. Only in the approximate six months before the long-overdue
disposition did respondents begin to engage in slightly more stable behavior. However,
they continued to test positive for drugs for which there was limited to no evidence as being
related to appropriate prescription medication usage. Critically, “[a] parent’s rights are
necessarily limited . . . [as to improvement periods] because the pre-eminent concern in
18
abuse and neglect proceedings is the best interest of the child subject thereto.” Emily, 208
W. Va. at 336, 540 S.E.2d at 553.
To whatever extent our expansive body of caselaw regarding the circuit
court’s paramount duties in cases of abuse and neglect is unclear, let us now lay the matter
squarely to rest. The procedural and substantive requirements of West Virginia Code § 49-
4-601 et seq., the Rules of Procedure for Child Abuse and Neglect, and our extensive body
of caselaw are not mere guidelines. The requirements contained therein are not simply
window dressing for orders which substantively fail to reach the issues and detail the
findings and conclusions necessary to substantiate a court’s actions. The time limitations
and standards contained therein are mandatory and may not be casually disregarded or
enlarged without detailed findings demonstrating exercise of clear-cut statutory authority.
Discretion granted to the circuit court within this framework is intended to allow the court
to fashion appropriate measures and remedies to highly complex familial and inter-personal
issues—it does not serve as a blanket of immunity for the circuit court to manage abuse
and neglect cases as its whim, personal desire, or docket may fancy. “Child abuse and
neglect cases must be recognized as being among the highest priority for the courts’
attention. Unjustified procedural delays wreak havoc on a child’s development, stability
and security.” Syl. Pt. 1, in part, Carlita B., 185 W.Va. 613, 408 S.E.2d 365. The circuit
court’s inexplicable penchant for “kicking the can” down the proverbial road in this matter
19
flies directly in the face of every directive enacted by the Legislature and articulated by
this Court as pertains to the timely disposition of abuse and neglect matters.16
This Court is not unsympathetic to the difficult task of procedurally
managing the unfortunate volume of abuse and neglect cases, while weighing the
significant interests and life-altering decisions necessary in these matters. We have noted
that “[b]oth the statute and our case law grant trial courts considerable flexibility in
developing meaningful improvement periods designed to address the myriad possible
problems causing abuse and neglect.” Amy M., 196 W. Va. at 258, 470 S.E.2d at 212.
Nevertheless,
[a]lthough it is sometimes a difficult task, the trial court must
accept the fact that the statutory limits on improvement periods
(as well as our case law limiting the right to improvement
periods) dictate that there comes a time for decision, because a
child deserves resolution and permanency in his or her life, and
because part of that permanency must include at minimum a
right to rely on his or her caretakers to be there to provide the
basic nurturance of life.
16
In addition to the time standards argued by petitioners, it appears from the
appendix record that the circuit court (and DHHR) failed to timely adhere to several other
requirements, but those are largely subsumed by the excessive and unwarranted
improvement periods. For example, DHHR provided letter updates to the circuit court
typically only the day before the ninety-day hearing in violation of Rule 37. Additionally,
the circuit court appears to have failed to conduct designated permanency hearings as
required by Rule 36a and failed to issue its disposition order within ten days of the hearing
as required by Rule 36.
20
Id. at 260, 470 S.E.2d at 214. It is precisely because the court’s actions in these matters is
so starkly life-altering that it must comply with the carefully curated time requisites and
evidentiary requirements contained in our statutory scheme:
[T]he early, most formative years of a child’s life are crucial to
his or her development. There would be no adequate remedy at
law for these children were they permitted to continue in this
abyss of uncertainty. We have repeatedly emphasized that
children have a right to resolution of their life situations, to a
basic level of nurturance, protection, and security, and to a
permanent placement. The legislature has recognized this by
limiting the extent and duration of improvement periods a
court may grant in an abuse and neglect case.
Id. at 257-58, 470 S.E.2d at 211-12 (emphasis added).
Accordingly, we find little difficulty in concluding that the circuit court erred
in disregarding the procedural and substantive requirements pertaining to pre- and post-
adjudicatory improvement periods. This finding alone permits the Court to vacate the
dispositional order:
Where 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.
21
Syl. Pt. 5, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001).17 Frequently, however,
vacation of dispositions and remand for compliance serves only to compound any pre-
existing delay. In this instance, we find it unnecessary to remand this matter for compliance
with long-expired time frames or further development. The record presented amply
provides this Court with sufficient basis upon which to vacate the disposition order and
further direct that respondents’ rights be terminated, as discussed more fully below. See In
re Isaiah A., 228 W. Va. 176, 184, 718 S.E.2d 775, 783 (2010) (reversing court’s refusal
to terminate parental rights and remanding for termination where court “was far more
lenient in the granting of extensions than was warranted by the circumstances” and
continued to extend improvement periods despite “abundant opportunity” for mother to
correct conditions of abuse and neglect).
B. DISPOSITION
As noted above, petitioners further contend that, for reasons obvious from
the record, the circuit court compounded its procedural errors and plainly abused its
discretion by ordering that J. G., II be returned to respondents, thereby disregarding the
17
Relief may have more promptly been granted had any of the aggrieved parties
availed themselves of this Court’s original jurisdiction, as has been suggested: “Prohibition
is available to abused and/or neglected children to restrain courts from granting
improvement periods of a greater extent and duration than permitted under West Virginia
Code §§ 49-6-2(b) and 49-6-5(c) (1995).” Syl. Pt. 2, Amy M., 196 W. Va. 251, 470 S.E.2d
205. Certainly when the circuit court is in such egregious violation of the time standards
contained in West Virginia Code § 49-4-601 et seq., prudence and zealous advocacy would
suggest that the DHHR and/or guardian ad litem are burdened with seeking such relief.
22
recommendations of both the DHHR and guardian ad litem. Petitioners argue that the
record is clear that “[c]ontinued drug use, domestic violence, missed visits and sporadic
cooperation, at best, marred the landscape for more than two and one-half years.”
Respondents counter merely that they are currently “drug free” and have a significant and
undisputed bond with their child, asserting a parent’s natural right to custody of his or her
child. As is certainly obvious from the preceding discussion, we agree with petitioners’
characterization of respondents’ lack of progress throughout the pendency of the
underlying matter. We address, nonetheless, respondents’ claims of more recent
improvements and whether such belated efforts inure to their benefit.
As the timeline of this case demonstrates, the circuit court prolonged and
ignored the statutory time frames for so long that—well after this matter should have been
disposed of—respondents finally began to demonstrate ostensibly improved behaviors.
Unquestionably, this Court has held that
[i]n 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). However, that right has
necessary and well-established limits: “Although parents have substantial rights that must
be protected, the primary goal in cases involving abuse and neglect, as in all family law
matters, must be the health and welfare of the children.” Syl. Pt. 3, In re Katie S., 198 W.
23
Va. 79, 479 S.E.2d 589 (1996); see also Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W.
Va. 302, 47 S.E.2d 221 (1948) (“In a contest involving the custody of an infant the welfare
of the child is the polar star by which the discretion of the court will be guided.”).
We observe that respondents’ supposed improvement has only occurred
during the last approximate six months of the three-year pendency of this case and lacks
compelling support in the record evidence. At the last few hearings conducted in this
matter, the parties, counsel, and the circuit court engaged in abject speculation about the
significance of respondents’ continued positive drug screens. While respondents alleged
they had prescriptions to support these results, the record contains no evidence of these
prescriptions. More importantly, however, even assuming the drug screens resulted from
use of prescribed medications, there was no evidence offered to demonstrate that
respondents were using the prescription medications for active conditions and in non-
abusive dosages.
In particular, the record demonstrates that J. G. tested positive in early 2017
for hydrocodone and hydromorphone purportedly due to a two-year old prescription which
he had gotten filled a year later and began using. T. S. insisted that her amphetamine-
positive result was due to over the counter allergy medication. She likewise insisted she
had a prescription for opioids due to a pulled tooth. However, respondents—both of whom
were admitted and well-documented substance abusers—presented no evidence 1) that the
results were occasioned by the prescriptions alleged; 2) that they should have still been
24
using those medications at the time of the positive screens, regardless of whether they
resulted from legitimate prescriptions at one time; or 3) that the results were within
therapeutic, and not abusive, limits.
However, even assuming that respondents’ proffered explanations for their
more recent drug screens are credible, we find that our caselaw requires us to treat such
belated improvement as insufficient to warrant removal of J. G., II from his foster family.
J. G., II has lived with his foster family for nearly three years—since he was six weeks
old—and is indisputably healthy, thriving, and bonded. West Virginia Code § 49-4-610(9)
prohibits perpetual improvement periods which “cause a child to be in foster more than
fifteen months of the most recent twenty-two months” absent compelling circumstances.
The extended duration of the proceedings below and scant evidence supportive of
respondents’ belated improvement effectively require this Court to ensure that J. G., II’s
current foster placement remain undisturbed and that he proceed to obtain permanency in
that placement.
We find the situation presented in this case much like that in In re Hunter H.,
227 W. Va. 699, 715 S.E.2d 397 (2011). In Hunter H., this Court found that the circuit
court erred where it removed an infant from his foster family in favor of his grandmother
under highly similar circumstances. In justifying the infant’s return to the foster family,
the Court explained:
25
The circuit court fails to mention the strong bond that Hunter
developed with his foster family, fails to mention that Hunter
referred to his foster parents as “mom” and “dad,” and fails to
mention that Hunter lived with his foster family for three years.
***
There is no dispute that the foster family created a stable,
loving environment in which Hunter was growing and thriving.
Hunter was placed with his foster family when he was 17
months old and lived with them for three years. He was part of
their family and both his guardian ad litem and the only expert
witness who testified before the circuit court agreed that it was
in his best interests to remain with this family. Even the
DHHR, which recommended that he be placed with his
grandmother, concluded that Hunter was “well adjusted,
growing and thriving,” while he was living with his foster
family.
Id. at 705-06, 715 S.E.2d at 403-04.
Respondents urge this Court to regard their more recent “improvement” as
more indicative of future behaviors and parenting abilities than the behaviors demonstrated
during the first two-and-a-half years of this matter. However, “‘courts are not required to
exhaust every speculative possibility of parental improvement before terminating parental
rights where it appears that the welfare of the child will be seriously threatened. . . .’” Syl.
Pt. 7, in part, Carlita B., 185 W.Va. 613, 408 S.E.2d 365; see also In re Isaiah A., 228 W.
Va. 176, 185, 718 S.E.2d 775, 784 (2010) (finding “glimmer of hope” standard inconsistent
with the criteria expressly provided by statute). Critically, this Court has held that “[i]n
making the final disposition in a child abuse and neglect proceeding, the level of a parent’s
compliance with the terms and conditions of an improvement period is just one factor to
26
be considered. The controlling standard that governs any dispositional decision remains
the best interests of the child.” Syl. Pt. 4, In re B.H., 233 W. Va. 57, 754 S.E.2d 743 (2014).
We decline to speculate further about respondents’ purported late-arriving “improvement”
and conclude that the egregious delay in this case and best interests of J. G., II require the
Court to vacate the circuit court’s dispositional order and remand for termination of
respondents’ parental rights such that permanency for J. G., II may be attained.
That said, we cannot discount the unrefuted evidence in the record
demonstrating that J. G., II— the foregoing notwithstanding—enjoys an emotional bond
and loving relationship with respondents. At oral argument, DHHR advised that it would
likely support post-termination visitation and certainly this Court has made clear that where
circumstances warrant and under suitable conditions, post-termination visitation may be
appropriate. This Court has held that
[w]hen parental rights are terminated due to neglect or
abuse, the circuit court may nevertheless in appropriate cases
consider whether continued visitation or other contact with the
abusing parent is in the best interest of the child. Among other
things, the circuit court should consider whether a close
emotional bond has been established between parent and child
and the child’s wishes, if he or she is of appropriate maturity
to make such request. The evidence must indicate that such
visitation or continued contact would not be detrimental to the
child’s well being and would be in the child’s best interest.
Syl. Pt. 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995). Such continued
contact is “not [] a right of the parent, but rather [] a right of the child.” Id. at 455 n.9, 460
S.E.2d at 701 n.9.
27
We caution, however, that such visitation may only be considered “if it is in
the child’s or children’s best interests, and would not unreasonably interfere with their
permanent placement.” Amy M., 196 W. Va. at 260, 470 S.E.2d at 214 (1996).
Accordingly, “[a] permanency plan for abused and neglected children designating their
permanent placement should generally be established prior to a determination of whether
post-termination visitation is appropriate.” Syl. Pt. 6, In re Billy Joe M., 206 W. Va. 1, 521
S.E.2d 173 (1999).
IV. CONCLUSION
Based upon the foregoing, we reverse the August 25, 2017, order of the
Circuit Court of McDowell County and remand this matter with directions to proceed with
termination of respondents’ parental rights, attainment of permanency, and consideration
of post-termination visitation, if appropriate. The Clerk is directed to issue the mandate
contemporaneously herewith.
Reversed and remanded
with directions.
28