In Re: R.Y. ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: R.Y.
November 2, 2017
released at 3:00 p.m.
No. 16-1125 (Mercer County 15-JA-199) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
T.Y. (hereinafter the “petitioner” or “mother”) appeals the October 21, 2016, order
of the Circuit Court of Mercer County terminating her parental rights to her daughter, R.Y.1
The petitioner also asserts error regarding several pre-termination rulings of the circuit court.
The respondents, the Department of Health and Human Resources (“DHHR”) and the child’s
guardian ad litem, argue in support of the circuit court’s actions.2
After considering the parties’ written and oral arguments, as well as the record on
appeal and the applicable law, this Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s
orders is appropriate under Rule 21 of the Rules of Appellate Procedure.
I. Facts and Procedural History
Upon her birth in November 2015, the infant R.Y. tested positive for the presence of
opiates in her system. The hospital advised the DHHR of this test result and that R.Y. was
exhibiting physical signs of withdrawal, including tremors, a hypertonic tone, regurgitation,
and sneezing. The hospital categorized these symptoms as “an 8 on the withdrawal scale.”
The petitioner mother asserted that she had a prescription to take opiate pain medication
during her pregnancy, which the DHHR later confirmed. When questioned by a DHHR
worker, the petitioner denied taking any illegal drugs during her pregnancy.
1
Because this case involves children and sensitive matters, we follow our practice of
using initials to refer to the children and their parents. See W.Va. R. App. P. 40(e); In re
K.H., 235 W.Va. 254, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015); State v. Edward Charles L., 183
W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2
The petitioner is represented by attorney Shannon L. Baldwin, and the DHHR is
represented by Assistant Attorney General S. L. Evans. The guardian ad litem is attorney
Elizabeth A. French.
1
In addition, the DHHR knew the petitioner had been the subject of an abuse and
neglect case that began in 2006 and resulted in the involuntary termination of her parental
rights to two other children in 2008. When terminating her rights in 2008, the circuit court
found the petitioner had “habitually abused or is addicted to controlled substances or drugs
to the extent that her proper parenting skills have been seriously impaired, and she has not
followed through with the recommended and appropriate treatment which could have
improved her capacity for adequate parental functioning[.]” The petitioner was unable to
complete an improvement period in that case because she was incarcerated.
On November 17, 2015, the DHHR and the petitioner agreed to a voluntary temporary
protection plan whereby the petitioner’s mother, who lived nearby, would check on the
petitioner and R.Y. every day. On November 20, 2015, the hospital advised the DHHR that
R.Y.’s meconium (first stool) had tested positive for the presence of cocaine and marijuana,
indicating that the petitioner had ingested these illegal drugs during her pregnancy. The same
day, the DHHR and the petitioner agreed to a new voluntary temporary protection plan
placing R.Y. in the maternal grandmother’s home. Pursuant to this agreed plan, the
petitioner could visit the baby at any time so long as it was under the maternal grandmother’s
supervision.
On December 4, 2015, the DHHR filed an abuse and neglect petition against the
petitioner citing both the petitioner’s drug use while pregnant with R.Y. and the prior
terminations.3 At that time, the DHHR did not know the identity of R.Y.’s father. The
circuit court entered an order on December 4, 2015, directing that the abuse and neglect
petition be filed, appointing counsel for the petitioner, appointing a guardian ad litem for the
child, and scheduling a status hearing. This order did not address the issue of the child’s
placement and did not award custody to the DHHR.
Meanwhile, in early December 2015, the DHHR removed R.Y. from the maternal
grandmother’s home and placed the baby in the home of the petitioner’s ex-boyfriend, B.R.,
and B.R.’s girlfriend, C.G.4 Although B.R. is not R.Y.’s father, he is the biological father
3
West Virginia Code § 49-4-605(a)(3) (2015 & 2017 Supp.) provides, in relevant part,
that “the department shall file or join in a petition or otherwise seek a ruling in any pending
proceeding to terminate parental rights: . . . If . . . the parental rights of the parent to another
child have been terminated involuntarily.”
4
The date on which the DHHR removed the child from the maternal grandmother’s
home is not specified in the appendix record. However, during oral argument, the
petitioner’s counsel represented that this occurred the same day the abuse and neglect petition
was filed.
2
of the petitioner’s other two children. One of those children, a teenaged boy, lives with B.R.
and C.G. The DHHR removed R.Y. from the maternal grandmother’s home without the
petitioner’s consent, without performing a suitability study of B.R. and C.G.’s home, and
without obtaining a court order regarding the removal.
On January 4, 2016, the status hearing was held during which the circuit court
expressed concern about the DHHR’s removal of the child without seeking a preliminary
hearing or obtaining a court order. The court inquired whether the petitioner wanted a
hearing on this issue. The petitioner responded in the affirmative and the court heard
evidence. A DHHR worker testified that the child was moved to a sibling placement because
the maternal grandmother had ongoing health issues stemming from a previous stroke. By
written order entered January 29, 2016, the court concluded that the DHHR took R.Y.
without affording the petitioner due process. Nonetheless, the court also found that
continuation with the petitioner and the maternal grandmother would have been contrary to
the child’s best interests and probable cause existed to support the removal. As such, the
child remained in her temporary placement with B.R. and C.G.
Although she did not initially identify R.Y.’s father, at some point the petitioner
advised the DHHR that the father is M.W. The circuit court ordered testing to establish
M.W.’s paternity and, in February 2016, the DHHR amended its abuse and neglect petition
to add a claim against M.W. for the failure to support this child.
The adjudication hearing began on February 8, 2016. At that time, the petitioner
testified and denied the use of cocaine or marijuana during her pregnancy. She claimed that
she only took opiate pain medication pursuant to a prescription, and suggested that the results
of the drug tests of R.Y.’s meconium were incorrect. However, when the adjudication
hearing resumed on March 4, 2016, the petitioner offered to stipulate that R.Y.’s meconium
had tested positive for the presence of cocaine and marijuana. By order entered on March
16, 2016, the circuit court adjudicated the petitioner as an abusive parent because she abused
drugs during her pregnancy. The court also adjudicated the father M.W. as neglectful for
having failed to provide proper support when he knew he had a relationship with the
petitioner that could have resulted in the birth of a child.5 The court awarded M.W., but not
the petitioner, a post-adjudicatory improvement period.
During the adjudication hearing, both the petitioner and the DHHR objected to the
child remaining in the home of B.R. and C.G. To address these objections, the circuit court
5
Although we include information about the father, M.W., as part of the history of this
case, none of the circuit court’s rulings pertaining to M.W. are at issue in this appeal.
3
held a separate hearing on the placement issue on March 25, 2016. Although no testimony
was offered at the March 25 hearing, counsel referenced an alleged prior domestic violence
incident between B.R. and his former wife. There was also a report of bacteria found in the
water inside B.R. and C.G.’s home. The petitioner requested that the child be placed with
the paternal grandparents, whose home had since been approved by the DHHR. The
petitioner argued that placement with the paternal grandparents would facilitate the DHHR’s
plan of ultimate reunification of the child and the father. At the March 25 hearing, the
DHHR withdrew its objection to the placement with B.R. and C.G. The DHHR had satisfied
itself that the facts of the domestic violence claim were not a problem, and it had confirmed
the installation of a water filtration system inside B.R. and C.G.’s home. The guardian ad
litem supported leaving the child in B.R. and C.G.’s home because the child had already been
there for a few months and because a half-sibling resided in the home. At the conclusion of
the March 25 hearing, the circuit court relied upon the guardian ad litem’s recommendation
and ordered that R.Y. would remain in her temporary placement.
A disposition hearing was held on July 11, 2016, and October 6, 2016. The petitioner
presented evidence from two service providers that she was doing well with her weekly, four-
hour-long, supervised visits with R.Y. and with parenting education lessons. The petitioner’s
parole officer testified that in three drug screens administered in a two-year period, the
petitioner only tested positive for prescribed medication. The last of those screens was
administered approximately two months before R.Y. was born with illegal drugs in her
system. One of the service providers testified that since the current abuse and neglect
petition has been pending, the petitioner tested positive for marijuana. At the end of the July
11 hearing, the petitioner admitted that, if tested that very day, she would be positive for
marijuana. During the October 6 hearing, her attorney admitted that the petitioner had a drug
problem. The petitioner moved for a post-adjudicatory improvement period that would
include drug treatment, which the court denied. The circuit court verbally ruled that “based
upon the evidence from prior hearings and the evidence that she’s still having problems
today, I’m going to terminate the rights of” the petitioner.
The termination decision was finalized by written order entered on October 21, 2016,
and the petitioner appealed. The parties have notified the Court that during the pendency of
this appeal, R.Y. was moved into the home shared by the father M.W. and his parents.
II. Standard of Review
When reviewing a circuit court’s order in an abuse and neglect case, we apply a
“compound standard of review: conclusions of law are subject to a de novo review, while
findings of fact are weighed against a clearly erroneous standard.” In re Emily, 208 W.Va.
325, 332, 540 S.E.2d 542, 549 (2000). In further elaboration of these standards, this Court
4
explained:
“Although conclusions of law reached by a circuit court are subject to
de novo review, when an action, such as an abuse and neglect case, is tried
upon the facts without a jury, the circuit court shall make a determination
based upon the evidence and shall make findings of fact and conclusions of
law as to whether such child is abused or neglected. These findings shall not
be set aside by a reviewing court unless clearly erroneous. A finding is clearly
erroneous when, although there is evidence to support the finding, the
reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed. However, a reviewing court
may not overturn a finding simply because it would have decided the case
differently, and it must affirm a finding if the circuit court’s account of the
evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1,
In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). With these standards in
mind, we will separately address each of the petitioner’s assignments of error.
III. Discussion
A. The DHHR’s unauthorized removal of the child
As set forth above, two weeks after her birth, R.Y. was placed in the care of her
maternal grandmother pursuant to a pre-petition protection plan to which the petitioner
consented. However, after filing its December 4, 2015, abuse and neglect petition, the
DHHR removed R.Y. from the maternal grandmother’s home. The petitioner argues, and the
circuit court found, that the DHHR violated the petitioner’s due process rights by removing
the child from the agreed placement without scheduling a preliminary hearing and obtaining
a court order approving the removal. Approximately one month after the removal, the circuit
court sua sponte took up the issue, held a preliminary hearing, and concluded that the
removal was justified. On appeal, the petitioner argues that the circuit court should have
instead “reversed” the “illegal removal” of her child.
We begin by observing that the petitioner’s due process complaint is well-founded.
R.Y. was living in the maternal grandmother’s home with the petitioner’s consent, and a
parent has a constitutionally-protected right to make decisions about the care and custody of
her child. See, e.g., In re F.S., 233 W.Va. 538, 543, 759 S.E.2d 769, 774 (2014); In re Jeffrey
R.L., 190 W.Va. 24, 32, 435 S.E.2d 162, 170 (1993). Although there are statutes permitting
5
the emergency removal of a child, those statutes, and the procedures specified therein, were
not followed when the DHHR removed R.Y.
West Virginia Code § 49-4-602(a)(1) (2015)6 permits a circuit court to order a child
into the DHHR’s custody for not more than ten days if the court finds that the contents of the
abuse and neglect petition demonstrate imminent danger and there are no reasonably
available alternatives to removal. However, the circuit court herein made no such findings
in its December 4, 2015, order. The order did not even mention the issues of custody and
placement. Moreover, even if the court had granted emergency custody to the DHHR for ten
days based upon the allegations in the petition, West Virginia Code § 49-4-602(b)7 would
have required that this custody decision be addressed at a preliminary hearing. The DHHR
6
West Virginia Code § 49-4-602(a)(1) provides:
(a)(1) Temporary care, custody, and control upon filing of the petition. – Upon
the filing of a petition, the court may order that the child alleged to be an
abused or neglected child be delivered for not more than ten days into the care,
custody, and control of the department or a responsible person who is not the
custodial parent or guardian of the child, if it finds that:
(A) There exists imminent danger to the physical well-being of the child; and
(B) There are no reasonably available alternatives to removal of the child,
including, but not limited to, the provision of medical, psychiatric,
psychological or homemaking services in the child’s present custody.
7
West Virginia Code § 49-4-602(b) provides, in part:
(b) Temporary care, custody and control at preliminary hearing. – Whether or
not the court orders immediate transfer of custody as provided in subsection
(a) of this section, if the facts alleged in the petition demonstrate to the court
that there exists imminent danger to the child, the court may schedule a
preliminary hearing giving the respondents at least five days’ actual notice. If
the court finds at the preliminary hearing that there are no alternatives less
drastic than removal of the child and that a hearing on the petition cannot be
scheduled in the interim period, the court may order that the child be delivered
into the temporary care, custody, and control of the department or a
responsible person or agency found by the court to be a fit and proper person
for the temporary care of the child for a period not exceeding sixty days[.]
6
did not seek such a hearing. In addition, West Virginia § 49-4-602(c)8 allows the DHHR to
make an emergency custody change during the pendency of an abuse and neglect case if there
is a change in circumstances warranting the move, but the DHHR is required to “immediately
notify the court and a hearing shall take place within ten days to determine if there is
imminent danger to the physical well-being of the child, and there is no reasonably available
alternative to removal of the child.” Instead of complying with these statutes,9 the DHHR
removed R.Y. from the mother’s custody and the maternal grandmother’s care without
seeking court approval, not even an after-the-fact order ratifying the change. The circuit
court sua sponte observed this problem during a status conference and was forced to take
action to protect the petitioner’s rights.
Although this Court is highly critical of the DHHR’s failure to follow the statutory
procedures, we do not agree with the petitioner’s assertion that she was, or is, entitled to the
return of her child. The circuit court acted quickly to rectify the DHHR’s mistake by holding
the required preliminary hearing and making the appropriate findings on January 4, 2016.
While the hearing was not held within ten days of the removal, it was held just a few weeks
later, thus mitigating the violation of the petitioner’s rights. The circuit court required the
DHHR to explain the reasons for taking custody of R.Y., and the petitioner’s counsel was
permitted to cross-examine the DHHR’s witness and present evidence of her own.
Furthermore, because the petitioner had lost her rights to other children, the DHHR was not
8
West Virginia Code § 49-4-602(c) provides:
(c) Emergency removal by department during pendency of case. – Regardless
of whether the court has previously granted the department care and custody
of a child, if the department takes physical custody of a child during the
pendency of a child abuse and neglect case (also known as removing the child)
due to a change in circumstances and without a court order issued at the time
of the removal, the department must immediately notify the court and a hearing
shall take place within ten days to determine if there is imminent danger to the
physical well-being of the child, and there is no reasonably available
alternative to removal of the child. The court findings and order shall be
consistent with subsections (a) and (b) of this section.
9
Another statute, West Virginia Code § 49-4-303 (2015), authorizes the DHHR to take
emergency custody of a child before an abuse and neglect petition is filed. When the DHHR
removes a child pursuant § 49-4-303, the DHHR must “forthwith appear before a circuit
judge or referee . . . and immediately apply for an order” ratifying the emergency custody.
Id. Because it appears that R.Y. was removed after the petition was filed, the other statutory
provisions cited herein would control.
7
legally required to preserve the family when considering temporary placement options. See
W.Va. Code § 49-4-602(d)(3) (2015).10
More importantly, after hearing the evidence, the circuit court found that the removal
was warranted in order to protect this infant. See Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479
S.E.2d 589 (1996) (“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.”). During the January 4, 2016, hearing, the court learned
that not only had the petitioner’s parental rights to other children been terminated due to her
drug abuse, but this child was born with cocaine and marijuana in her system despite the
mother’s denial that she had used illegal drugs. The child was in imminent danger of harm,
and the circuit court correctly ruled that there were no reasonably available alternatives to the
removal. See W.Va. Code §§ 49-4-602(a), (b), and (c). As such, we find that no reversible
error is raised by this assignment of error.
B. The child’s temporary placement
The petitioner asserts that it was error for the circuit court to have approved the
temporary placement of R.Y. in the home shared by her ex-boyfriend, B.R., and his
girlfriend, C.G. She argues that placing R.Y. with the paternal grandparents, who were found
to be suitable care-givers, would have furthered the DHHR’s ultimate goal of having the
child’s father, M.W., obtain full custody. Moreover, she contends that the circuit court
placed too great of an emphasis on placement of the infant in a home with a teenaged half-
sibling, when the law also recognizes a preference for grandparent placement. See W.Va.
Code § 49-4-114(a)(3) (2015) (when parental rights are terminated, DHHR “shall first
consider the suitability and willingness of any known grandparent or grandparents to adopt
the child.”).
The DHHR and the guardian ad litem explain that on January 4, 2016, when the
circuit court first learned of and approved this temporary placement, the identity of the
biological father had not yet been confirmed by paternity testing. As such, the paternal
grandparents had not yet been identified or had their home approved for child placement.
R.Y. was placed into the home of a half-sibling, and both the DHHR and the guardian ad
litem stress the importance of fostering sibling relationships.
10
West Virginia Code § 49-4-602(d) provides, in part, that “[f]or purposes of the
court’s consideration of temporary custody . . . , 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.”
8
After this issue was raised again during the petitioner’s adjudicatory hearing, the
circuit court held a separate hearing solely to consider this placement. Upon considering the
presentations of counsel, the circuit court relied upon the recommendation of the guardian
ad litem to leave the child in B.R. and C.G.’s home. Later, during the disposition hearing,
the circuit court indicated a willingness to re-examine this issue and directed the mult­
disciplinary review team to consider a placement with the paternal grandparents. Finally, the
parties have reported that during the pendency of this appeal, R.Y. was moved into the home
shared by the paternal grandparents and M.W. Thus, the petitioner has already received the
relief she seeks in this assignment of error.
After carefully considering the record, this Court finds no error of law or abuse of
discretion in the circuit court’s temporary placement decision. The circuit court, in
following the recommendations of the DHHR and the guardian ad litem, was focused on
ensuring that siblings were placed together. Although members of this Court might have
ruled differently if we had been deciding where to place this child, as the appellate court, we
cannot substitute our judgment for that of the circuit court. See Tiffany Marie S., 196 W.Va.
at 226, 470 S.E.2d at 180, syl. pt. 1, in part (“[A] reviewing court may not overturn a finding
simply because it would have decided the case differently[.]”). Moreover, if M.W. believes
that placement in B.R. and C.G.’s home hampered his ability to gain custody, then he must
be the person to raise the issue. The petitioner lacks standing to assert an assignment of error
on behalf of another party. See In re J.G., No. 16-0337, 2016 WL 4611246, at *3 (W.Va.
Sept. 6, 2016) (memorandum decision) (recognizing that petitioner father lacked standing
to appeal limitation on mother’s visitation).
C. Adjudication of abuse
The petitioner also challenges the circuit court’s adjudication of her as an abusing
parent and of R.Y. as an abused child. See W.Va. Code § 49-4-601(i) (2015) (directing
circuit court to, at conclusion of adjudicatory hearing, determine whether child is abused or
neglected and whether parent is abusing or neglecting). The petitioner points to a provision
in the circuit court’s written adjudication order noting that R.Y. tested positive for opiates
at birth; the written order does not mention other drugs. The petitioner argues that because
she had a prescription from her obstetrician to take opiates, ingesting this medication did not
constitute child abuse. In her reply brief, the petitioner extends her argument to assert that
the prenatal use of any drug cannot constitute the abuse or neglect of a child. However, the
petitioner’s arguments ignore both the record evidence and a recent opinion of this Court.
The circuit court’s written adjudicatory order concluded that the petitioner had
“abused drugs during her pregnancy.” Regardless of whether the petitioner had a
prescription for an opiate medication, there was evidence in the record proving that she also
9
consumed cocaine and marijuana while pregnant with R.Y. Although the petitioner
previously denied using these illegal drugs while pregnant, during the second day of the
adjudicatory hearing she stipulated to the drug test results revealing the presence of these
drugs in her newborn baby’s first stool. Thus, although the circuit court’s written order did
not state that the baby was exposed to cocaine and marijuana in utero, this exposure was
ultimately uncontested. It is obvious that the circuit court’s omission of these drugs from its
written order was merely inadvertent.
An “abused child” is “[a] child whose health or welfare is being harmed or threatened
by: . . . A parent . . . who knowingly or intentionally inflicts [or] attempts to inflict” injury
to the child. W.Va. Code § 49-1-201 (2015 & 2017 Supp.). This Court recently held that
“[w]hen a child is born alive, the presence of illegal drugs in the child’s system at birth
constitutes sufficient evidence that the child is an abused and/or neglected child, as those
terms are defined” in the abuse and neglect statutes. Syl. Pt. 1, in part, In re A.L.C.M., 239
W.Va. 382, 801 S.E.2d 260 (2017). By ingesting marijuana and cocaine during her
pregnancy, the petitioner abused R.Y. While the circuit court’s adjudication order could have
more thoroughly cataloged the petitioner’s prenatal drug use, there can be no conclusion but
that the petitioner was properly adjudicated as an abusing parent of R.Y.
D. Denial of post-adjudicatory improvement period
During the disposition hearing, the petitioner’s counsel acknowledged that the
petitioner had a drug problem and moved for a post-adjudicatory improvement period that
would include substance abuse treatment. At the conclusion of the hearing, the circuit court
terminated the petitioner’s parental rights without expressly ruling on this motion, thus
effectively denying the same. The petitioner asserts that based upon the evidence she
presented during the disposition hearing, it was error for the circuit court to have denied her
motion.
As an initial matter, we note that it appears the petitioner only made a verbal motion
for an improvement period, whereas West Virginia Code § 49-4-610(2)(A) (2015) requires
a party to “file[] a written motion requesting the improvement period[.]” Regardless, even
if a written motion had been filed, we would find no error in its denial.
In order to obtain a post-adjudicatory improvement period, West Virginia Code § 49­
4-610(2)(B) requires a parent to “demonstrate[], by clear and convincing evidence, that [the
parent] is likely to fully participate in an improvement period[.]” The decision to grant or
deny an improvement period rests within the circuit court’s discretion. Syl. Pt. 2, in part, In
re Lacey P., 189 W.Va. 580, 433 S.E.2d 518 (1993) (“It is within the court’s discretion to
grant an improvement period within the applicable statutory requirements[.]”).
10
The record clearly demonstrates that the petitioner was abusing drugs as far back as
2006, when the prior abuse and neglect petition was filed against her. In that case, she was
provided an improvement period and drug treatment, which she failed to complete. The
record further shows that her drug abuse has continued. Although she passed a few drug tests
while on probation, the probation ended before R.Y. was born–and the uncontested drug test
results prove that the petitioner consumed opiates, cocaine, and marijuana while pregnant
with R.Y. in 2015. Moreover, despite her initial denials about illegal drug use, the petitioner
later acknowledged that she continues to have a drug problem. “[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.
1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980). After reviewing the record,
we find no abuse of discretion in the circuit court’s denial of a post-adjudicatory
improvement period.
E. Termination
Lastly, the petitioner appeals the termination of her parental rights to R.Y. At the
conclusion of the disposition hearing, the circuit court verbally ruled that it was terminating
her rights based upon the evidence presented at the hearings in this case and “the evidence
that she’s still having problems today.” This evidence included that the petitioner used both
cocaine and marijuana during her pregnancy with R.Y.; that she initially lied about this
illegal drug use; and that she continued to use drugs during the pendency of this case.
Although the petitioner urges this Court to consider her successful passage of drug tests
while on probation, it is clear that her illegal drug use continued after her probationary period
ended.
The circuit court considered this evidence against the backdrop of the previous abuse
and neglect case where the petitioner’s rights to other children were involuntarily terminated
due to her severe drug abuse. When a parent’s rights to a sibling were involuntarily
terminated, West Virginia Code § 49-4-605(a)(3) (2015 & 2017 Supp.) requires the DHHR
to pursue an abuse and neglect petition to protect any other children the parent may have.11
A central issue in such a case is whether the parent has corrected the abusive behavior that
resulted in the prior termination. Syl. Pt. 2, in part, In re George Glen B., Jr., 205 W.Va.
435, 518 S.E.2d 863 (1999) (“Where there has been a prior involuntary termination of
parental rights to a sibling, the issue of whether the parent has remedied the problems which
led to the prior involuntary termination sufficient to parent a subsequently-born child must,
at minimum, be reviewed by a court[.]”). Indeed, a prior involuntary termination “lowers the
11
See supra note 3.
11
threshold of evidence necessary for the termination of parental rights” to the after-born child.
Syl. Pt. 5, in part, In re George Glen B., Jr., 207 W.Va. 346, 532 S.E.2d 64 (2000).
Moreover, because of the prior involuntary terminations, the DHHR was not required to
make reasonable efforts to preserve the petitioner’s rights to Y.R. See W.Va. Code § 49-4­
604(b)(7)(C) (2015 & 2017 Supp.).12
The Legislature has directed circuit courts to terminate parental rights “[u]pon 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[.]”
W.Va. Code § 49-4-604(b)(6). A parent’s habitual drug abuse or addiction to drugs, when
the parent has not followed the appropriate treatment, constitutes a scenario where there is
no reasonable likelihood that the abusive conditions can be substantially corrected. See
W.Va. Code § 49-4-604(c)(1).13 Despite being granted an improvement period and treatment
in the prior case, and despite a period of incarceration followed by supervised probation, the
petitioner did not correct the abusive behavior that led to her prior involuntary terminations.
There was no reasonable likelihood the conditions of abuse and neglect would be
substantially corrected in the near future, and the circuit court did not err by terminating the
petitioner’s parental rights to R.Y.
Notwithstanding the evidence supporting termination, the petitioner argues that the
12
West Virginia Code § 49-4-604(b)(7)(C) provides: “For purposes of the court’s
consideration of the disposition [of] 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[.]”
13
West Virginia Code § 49-4-604(c)(1) provides:
As used in this section, “no reasonable likelihood that conditions of neglect or
abuse can be substantially corrected” means that, based upon the evidence
before the court, the abusing adult or adults have demonstrated an inadequate
capacity to solve the problems of abuse or neglect on their own or with help.
Those conditions exist in the following circumstances, which are not
exclusive: (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[.]
12
disposition ruling should be vacated and the case remanded back to the circuit court because
of a lack of findings of fact and conclusions of law in the written termination order. She
relies on In re Edward B., where this Court explained that an order is “inadequate” if it fails
to state the statutory findings required by the disposition statute. See Syl. Pt. 4, In re Edward
B., 210 W.Va. 621, 558 S.E.2d 620 (2001). The respondents argue that despite shortcomings
in the disposition order, there is extensive evidence in the record to support termination.
This Court agrees that the circuit court’s order should have included findings of fact
and conclusions of law regarding the termination. Nonetheless, given the petitioner’s prior
terminations and the record evidence that clearly demonstrates her ongoing abusive behavior,
we find no benefit to remanding this matter for the entry of a new order. The petitioner
admitted, through counsel, that she continues to have a “drug problem,” which was the very
reason she lost custody of other children a decade ago. Remanding for the entry of an order
that would contain findings about uncontradicted evidence would only serve to delay the
permanency that R.Y. deserves. In syllabus point five of Edward B., this Court explained
that remand for a new disposition order is appropriate when “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[.]” Edward B., 210 W.Va. at
624, 558 S.E.2d at 623, syl. pt. 5, in part. After considering the record and the parties’
arguments, we are unable to conclude that the procedures used to reach the disposition
decision were substantially disregarded or frustrated. Accordingly, we affirm.14
Affirmed.
14
In an assignment of error that contains just one paragraph of argument and no
citation to authority, the petitioner argues that it was reversible error for three different
judges to have presided over her adjudication and disposition hearings. We quickly dispose
of this issue. Sometimes it is necessary for a different judge or judges to take over a pending
case, such as when a new judge is elected. Each judge in the petitioner’s case had access to
the existing record, and the petitioner was represented by counsel who was able to inform the
successor judges of the procedural and factual history of the case. Moreover, the petitioner
fails to point to any specific ruling that was erroneous because it was made by a successor
judge. As such, we find no merit to this assignment of error.
13
ISSUED: November 2, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
14