In re D.W. and R.P. ( 2023 )

FILED
February 7, 2023
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re D.W. and R.P.
No. 22-0347 (Kanawha County 21-JA-398 and 21-JA-399)
MEMORANDUM DECISION
Petitioner Mother H.R. 1 appeals the Circuit Court of Kanawha County’s April 8, 2022,
order terminating her parental rights to D.W. and R.P. 2 Upon our review, we determine that oral
argument is unnecessary and that a memorandum decision affirming, in part, and vacating, in part,
the circuit court’s order is appropriate, in accordance with the “limited circumstances” requirement
of Rule 21(d) of the West Virginia Rules of Appellate Procedure
In July of 2021, the DHHR filed a petition alleging that Child Protective Services (“CPS”)
implemented two safety plans because of then-five-month-old R.P.’s failure to thrive. Despite
these plans, petitioner could not maintain the infant’s weight, yet the child thrived when placed
with relatives. According to the DHHR, R.P. should have weighed approximately twenty-one
pounds, but weighed only ten pounds, and a medical professional asserted that the sole cause was
petitioner’s inability to properly feed the child. The only specific allegation in the petition in regard
to D.W. was that the child was “dirty.”
In September of 2021, the circuit court held an adjudicatory hearing, during which
petitioner stipulated to “failure to properly feed the infant . . . [R.P.] who had special medical
needs.” Petitioner’s counsel then questioned her about the stipulation, and confirmed that D.W. “is
the oldest child. She has not presented with any problems. There are no allegations of neglect
against her.” Counsel was clear that petitioner was stipulating in regard to R.P. only. On the record,
the court simply concluded “I will adjudicate her as an abusing and neglectful parent.” The court
then heard testimony from a CPS worker, although the DHHR was clear that it was presenting
evidence in support of contested adjudication against the fathers, not petitioner.
1
Petitioner appears by counsel Edward L. Bullman. The West Virginia Department of
Health and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey
and Assistant Attorney General Steven R. Compton. Matthew Smith appears as the children’s
guardian ad litem.
2
We use initials where necessary to protect the identities of those involved in this case. See
W. Va. R. App. P. 40(e).
1
In its adjudicatory order, the court failed to make any specific findings of fact or
conclusions of law. Instead, it simply concluded as follows: “That the Court finds that the
Respondent Mother . . . is an abusing and neglecting parent as defined by the WV code and that
the Infant Respondents are abused and neglected children as defined by the WV code.” The court
failed to make any findings as to how, exactly, petitioner abused either child when the evidence
spoke only to neglect by her failure to provide R.P. with proper food or medical care. The court
also failed to make any specific findings as to how D.W. was either abused or neglected, given
that petitioner’s stipulation spoke only to her conduct regarding R.P.
In November of 2021, the court granted petitioner a post-adjudicatory improvement period
upon testimony that petitioner was fully compliant with all of her services. The court required
petitioner to continue participating in nutrition classes, adult life skills, parenting education,
random drug screens, and supervised visits. Petitioner was also required to “participate in all
medical appointments for . . . [R.P.] and attend [B]irth to [T]hree,” a support system for children
under three years old who have developmental delays. Thereafter, the court held review hearings
on the improvement period and found that petitioner was in compliance therewith.
In April of 2022, the court held a dispositional hearing, during which the DHHR presented
testimony from a CPS worker who indicated that petitioner had intermittent compliance with
parenting and adult life skills, having missed five classes and received a noncompliance letter. The
worker also indicated that petitioner “has a lot of missed homework assignments . . . [a]nd has yet
to gather necessary baby supplies for [R.P.].” According to the witness, “the Department
recommends termination of parental rights of . . . [petitioner] due to minimal progress from
services, and the Department recommends [R.P.] to remain in the legal custody of the DHHR and
her current placement.” The worker did not provide any evidence or a recommendation in regard
to D.W., other than to suggest that the child “be dismissed to full physical and legal custody of her
father.” In fact, counsel for the DHHR limited inquiry to R.P., explicitly noting in questioning this
witness that petitioner was “accused and ultimately adjudicated for the child [R.P.] being neglected
due to failure to gain weight.” The witness also explained that R.P. was a “medically-complex
child with special needs” that she did not believe petitioner could meet. Upon cross-examination
from petitioner’s counsel, the witness agreed that, to her knowledge, there was no evidence that
petitioner abused or neglected D.W. She further agreed that the issue in the case concerned
petitioner’s ability to care for R.P.’s special medical needs. Another DHHR provider testified to
petitioner’s compliance and reiterated the opinion that petitioner’s parental rights should be
terminated. According to the witnesses, petitioner’s home was inappropriate and lacked adequate
heating, although housing was not an issue for which petitioner was adjudicated. Petitioner also
testified regarding employment, housing, and her participation in R.P.’s medical appointments.
Finally, D.W.’s father testified to the child’s medical issues that he corrected through treatment,
such as issues with her eyes.
On the record, the court found that “termination of [petitioner’s] rights is appropriate in
this matter to both children” because “[s]he’s not made any significant progress.” According to the
court, petitioner had actually regressed, as evidenced by her housing situation and her “not really
being attentive to the needs of the child or having shown any progress towards improvement.” In
the order on appeal, the court failed to make any specific findings of fact or conclusions of law
and, instead, simply declared that there was no reasonable likelihood that petitioner could
2
substantially correct the conditions of abuse and neglect in the near future because she had not
made meaningful efforts to rectify the circumstances that led to the petition. The court also
concluded that the children’s best interests required termination of petitioner’s parental rights and
that this constituted the least restrictive alternative available. 3 It is from the dispositional order that
petitioner appeals.
On appeal from a final order in an abuse and neglect proceeding, this Court reviews the
circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re
Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). In the current matter, petitioner argues that the
circuit court erred in terminating her rights to D.W. when she was adjudicated only of neglecting
R.P.’s medical and nutritional needs. Given that the record does not support the circuit court’s
adjudication of D.W. as either an abused or neglected child or the adjudication of R.P. as an abused
child, we agree with petitioner that termination of her parental rights to D.W. was in error.
As set forth above, petitioner’s stipulation applied only to R.P. and her neglect of that child
by failing to properly feed the child and address the child’s medical needs. Further, the DHHR
elected to produce no evidence in support of petitioner’s adjudication of D.W. 4 In fact, multiple
parties at several hearings limited the discussion of petitioner’s neglect to R.P. only. Despite these
limitations, the court nonetheless concluded in its adjudicatory order that petitioner subjected both
children to neglect and abuse. There is simply nothing in the record to support this determination,
which is compounded by the fact that the court failed to make any specific findings upon which to
base its conclusion.
In discussing the sufficiency of orders in abuse and neglect proceedings, we previously
explained that
[p]rocedurally, these various directives [set forth in the Rules of Procedure for
Child Abuse and Neglect Proceedings and related statutes] also provide the
necessary framework for appellate review of a circuit court’s action. Where a lower
court has not shown compliance with these requirements in a final order, and such
cannot be readily gleaned by this Court from the record, the laudable and
indispensable goal of proper appellate review is thwarted.
3
The court also terminated the parental rights of R.P.’s father, and the permanency plan for
that child is adoption in the current placement. The permanency plan for D.W. is to remain in the
custody of the nonabusing father.
4
At disposition, the guardian elicited testimony from D.W.’s father concerning efforts he
had taken to rectify that child’s medical issues that he claimed petitioner had ignored. However,
evidence introduced at the dispositional hearing cannot be used to support the circuit court’s earlier
adjudicatory conclusions, especially considering that these allegations were not contained in the
original petition. Instead, the DHHR should have been required to amend the petition to include
allegations that petitioner neglected D.W., and the final adjudicatory hearing should have been re-
opened, as permitted under Rule 19(b) of the Rules of Procedure for Child Abuse and Neglect
Proceedings.
3
In re Edward B., 210 W. Va. 621, 632, 558 S.E.2d 620, 631 (2001). We further explained that
“[a]dequate findings must be made in order to protect the rights of litigants and to facilitate review
of the record by an appellate court.” Id. (citation omitted). Edward B. concerned a dispositional
order that failed to include specific findings required for termination of parental rights. Id. at 629-
30, 558 S.E.2d at 628-29. Although our focus here is on the court’s adjudicatory order, this
direction is nonetheless instructive because the circuit court made insufficient findings as to how,
exactly, petitioner abused either child or neglected D.W.
West Virginia Code § 49-1-201 defines “[n]eglected child,” in relevant part, as a child
“[w]hose physical or mental health is harmed or threatened by a present refusal, failure or inability
of the child’s parent . . . to supply the child with necessary food, clothing, shelter, supervision,
medical care, or education.” Looking to the circuit court’s ruling concerning petitioner’s neglect,
there are no specific findings as to how petitioner harmed or threatened D.W.’s physical or mental
health by failing to supply that child with any of the necessities listed in the applicable statute.
Further, West Virginia Code § 49-1-201 defines “abused child,” in relevant part, as “[a] child
whose health or welfare is being harmed or threatened by . . . [a] parent . . . who knowingly or
intentionally inflicts, attempts to inflict, or knowingly allows another person to inflict, physical
injury or mental or emotional injury, upon the child or another child in the home.” There is simply
no evidence in the record to support a finding that either child was abused. This is critical, because,
before this Court, both the DHHR and the guardian seize upon the language defining “abused
child” as “another child in the home” with an abused child to argue that termination of petitioner’s
parental rights to D.W. was appropriate, given the court’s finding that R.P. was abused. In making
this argument, respondents admit that “there are no allegations that [p]etitioner directly abused or
neglected the child D.W.” Because we conclude that the finding of abuse to R.P. was in error, we
find that any adjudication of D.W. upon these grounds as “another child in the home” similarly
fails. Further, because the circuit court failed to properly adjudicate D.W., the termination of
petitioner’s parental rights to this child was also in error. See Syl. Pt. 1, State v. T.C., 172 W. Va.
47, 303 S.E.2d 685 (1983) (holding that before a court may impose any disposition under West
Virginia Code § 49-4-604, it must “determine ‘whether such child is abused or neglected’”).
Turning to petitioner’s remaining arguments in regard to R.P., we find no error. First,
petitioner argues that she should have been entitled to an extension of her post-adjudicatory
improvement period. In support of this argument, petitioner asserts that she was fully compliant
with the terms of her improvement period, but this argument ignores the evidence below. While it
may be true that petitioner participated in some services and medical appointments for R.P., the
court also heard evidence that she missed so many scheduled services that she was issued a
noncompliance letter. Further, the DHHR produced testimony that petitioner still, after months of
services, had not gathered the supplies necessary to care for R.P. According to West Virginia Code
§ 49-4-610(6), a circuit court may extend an improvement period when, among other things, it
finds that the parent “has substantially complied with the terms of the improvement period.” Here,
the record demonstrates that petitioner was not substantially compliant. Accordingly, we find no
abuse of discretion in the court’s refusal to extend petitioner’s post-adjudicatory improvement
period. See In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002) (holding that a
circuit court’s ruling on an improvement period is reviewed for an abuse of discretion).
4
Finally, petitioner argues that the court erred in terminating her parental rights to R.P.
because the child was placed with a relative and could have remained there in a legal guardianship.
However, petitioner fails to challenge the circuit court’s findings upon which termination was
based; namely, that there was no reasonable likelihood that the conditions of neglect could be
substantially corrected and that the child’s welfare required termination. Because the court had
ample evidence upon which to base these findings in regard to R.P., we find no error in the
termination of petitioner’s parental rights. See Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712
S.E.2d 55 (2011) (permitting termination of parental rights “without the use of intervening less
restrictive alternatives when it is found that there is no reasonable likelihood. . . that conditions of
neglect . . . can be substantially corrected”).
For the foregoing reasons, we affirm, in part, and vacate, in part, the circuit court’s April
8, 2022, order terminating petitioner’s parental rights and remand the matter for the holding of a
new adjudicatory hearing, during which the DHHR will be required to present clear and convincing
evidence in support of its position that petitioner abused and/or neglected D.W., and for further
proceedings consistent with the applicable statutes and rules. The Clerk is hereby directed to issue
the mandate contemporaneously herewith.
Affirmed, in part, vacated, in part, and remanded with directions.
ISSUED: February 7, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
DISSENTING:
Justice John A. Hutchison
Hutchison, Justice, dissenting:
I dissent to the majority’s resolution of this case. I would have set this case for oral
argument to thoroughly address the error alleged in this appeal. Having reviewed the parties’ briefs
and the issues raised therein, I believe a formal opinion of this Court was warranted—not a
memorandum decision. Accordingly, I respectfully dissent.
5