In re A.B. and D.B. ( 2022 )

FILED
August 31, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re A.B. and D.B.
No. 22-0149 (Kanawha County 19-JA-499 and 19-JA-500)
MEMORANDUM DECISION
Petitioner Mother T.R., by counsel Sandra Bullman, appeals the Circuit Court of Kanawha
County’s January 21, 2022, order terminating her parental rights to A.B. and D.B. 1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey
and Brittany Ryers-Hindbaugh, filed a response in support of the circuit court’s order. The
guardian ad litem, Joseph H. Spano Jr., filed a response on the children’s behalf in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating her
parental rights instead of imposing a less-restrictive dispositional alternative.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the governing law, the briefs, and the record presented,
the Court finds that the circuit court erred in failing to set forth sufficient findings of fact and
conclusions of law by written order or on the record to support termination of petitioner’s parental
rights. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the West
Virginia Rules of Appellate Procedure, and a memorandum decision is appropriate to vacate and
remand the matter for further proceedings consistent with this decision.
In August of 2019, the DHHR filed a child abuse and neglect petition against petitioner
and the father. The DHHR alleged that an out-of-court case had been opened against the family
due to the parents’ drug abuse. The parents were offered services, which they completed, but the
case was never designated as “closed” in the DHHR’s recordkeeping system due to an oversight.
Once the DHHR learned of the oversight, it assigned the matter to a Child Protective Services
(“CPS”) worker, who attempted to visit with the family on and off again for a period of two weeks
in order to officially close out services. However, petitioner and the father refused to answer the
door. Eventually, the CPS worker made contact with the family, and observed that the children
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
1
were filthy, covered in dirt and grime. A.B., then age five, was clothed only in underwear that had
once been white in color but were black due to dirt and filth. A.B. further had a chronic lice
infestation that had been ongoing for a period of months. The CPS worker toured the home and
observed that the children had been riding a mattress down the stairs and that the mattress was
black due to dirt. Other mattresses in the home were also black with filth. Trash was on the floor,
the home was otherwise dirty and cluttered, and there was insufficient food in the home. The home
also smelled of garbage and feces. The CPS worker advised the parents to clean the home. When
the CPS worker returned at an undisclosed time later, the home was not clean. Based on the
foregoing, the DHHR filed the instant petition. Petitioner waived her preliminary hearing.
Petitioner stipulated to the allegations contained in the petition in January of 2020, and the
circuit court adjudicated her as an abusing parent based upon her stipulation. The court granted
petitioner an improvement period. The DHHR prepared a series of court summaries from
September of 2019 through January of 2021. According to the court summaries, petitioner was
offered services such as parenting and adult life skills classes and supervised visitation contingent
upon clean drug screens. The summaries indicated that petitioner had not been consistent with
random drug screens, missed scheduled screens, and showed up to screen on the days she chose.
On January 21, 2021, the circuit court held a dispositional hearing. Petitioner did not attend
but her counsel was present and represented her. The DHHR presented the testimony of a CPS
worker, who recommended that petitioner’s parental rights be terminated due to her “substantial
lack of compliance in the court proceedings.” The CPS worker testified that petitioner had not
complied with services and was not complying with drug screens. At the beginning of the case,
petitioner did not submit to screens as scheduled and showed up to screen on days she was not
supposed to. Then, later in the proceedings, petitioner completely ceased screening. Likewise,
petitioner initially complied with parenting and adult life skills classes but her participation
“dropped off for over a year.” The CPS worker stated that she reinitiated services after the prior
hearing, but that petitioner had met with the service provider only twice. The only factual finding
the court made on the record was that “[a]ll this time [petitioner has] had all the opportunities in
the world . . . to rejoin the family together and [she] failed again and again.”
Ultimately, the circuit court terminated petitioner’s parental rights by a dispositional order
entered on January 21, 2022, a year after the dispositional hearing. The order, which is a form
document, contained no findings of fact. The form did, however, contain boxes which the court
checked to note the court’s findings that there was no reasonable likelihood that petitioner could
correct the conditions of abuse and neglect in the near future, that petitioner failed to follow
through with rehabilitative services, that termination of petitioner’s parental rights was in the
children’s best interest, and that there were no less drastic alternatives to the termination of
petitioner’s parental rights. Petitioner appeals the January 21, 2022, dispositional order. 2
The Court has previously held:
2
The father’s parental rights were also terminated below. According to the parties, the
permanency plan for the children is adoption by the maternal grandmother.
2
“Although conclusions of law reached by a circuit court are subject to de
novo review, when an action, such as an abuse and neglect case, is tried upon the
facts without a jury, the circuit court shall make a determination based upon the
evidence and shall make findings of fact and conclusions of law as to whether such
child is abused or neglected. These findings shall not be set aside by a reviewing
court unless clearly erroneous. A finding is clearly erroneous when, although there
is evidence to support the finding, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed. However,
a reviewing court may not overturn a finding simply because it would have decided
the case differently, and it must affirm a finding if the circuit court’s account of the
evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
On appeal, petitioner argues that the circuit court erred in terminating her parental rights.
According to petitioner, termination of her parental rights was not justified under the
circumstances and a less restrictive disposition would have been more appropriate and in the best
interests of the children. Petitioner notes that the children were placed with the maternal
grandmother and that “[t]here is no reason not to permit the legal status of the children to be such
as allows [petitioner] to petition the circuit court for a modification upon a showing of a substantial
change in circumstance.” As such, petitioner contends that a guardianship with the grandmother
would have been more appropriate to the termination of her parental rights.
We find that the circuit court failed to make adequate findings of fact and conclusions of
law in writing or on the record to support its decision to terminate petitioner’s parental rights. Rule
36(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings requires
that
[a]t the conclusion of the disposition hearing, the court shall make findings of fact
and conclusions of law, in writing or on the record, as to the appropriate disposition
in accordance with the provisions of W. Va. Code § 49-4-604. The court shall enter
a disposition order, including findings of fact and conclusions of law, within ten
(10) days of the conclusion of the hearing.
West Virginia Code § 49-4-604(c) sets forth the various dispositions to be imposed at the
conclusion of abuse and neglect proceedings. Relevant to petitioner’s disposition, in order to
terminate a parent’s parental rights, the circuit court must find that “there was no reasonable
likelihood that the conditions of neglect or abuse can be substantially corrected in the near future”
and that termination is necessary for the welfare of the children. W. Va. Code § 49-4-604(c)(6).
This Court has held that
[w]here a trial court order terminating parental rights merely declares that there is
no reasonable likelihood that a parent can eliminate the conditions of neglect,
without explicitly stating factual findings in the order or on the record supporting
such conclusion, and fails to state statutory findings required by West Virginia
3
Code § [49-4-604] on the record or in the order, the order is inadequate.
Syl. Pt. 4, in part, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001). Further,
[w]here it appears from the record that the process established by the Rules
of Procedure for Child Abuse and Neglect Proceedings and related statutes for the
disposition of cases involving children adjudicated to be abused or neglected has
been substantially disregarded or frustrated, the resulting order of disposition will
be vacated and the case remanded for compliance with that process and entry of an
appropriate dispositional order.
Id. at 624, 558 S.E.2d at 623, Syl. Pt. 5. In Edward B., we explained that “[c]lear and complete
findings by the trial judge are essential to enable [the appellate court] properly to exercise and not
exceed our powers of review.” Id. at 632, 558 S.E.2d at 631 (citation omitted).
While the circuit court’s dispositional order included checked boxes for the requisite
findings as set forth in West Virginia Code § 49-4-604, the order lacks a single factual finding
supporting a disposition of termination. Moreover, the circuit court’s sole statement that petitioner
was given the opportunity to remedy the conditions of abuse and neglect but failed to do so is
insufficient to support such a decision. Due to the lack of factual findings, we find it necessary to
vacate and remand the circuit court’s final dispositional order for the limited purpose of entry of
an order that contains sufficient findings of fact and conclusions of law for appellate review. Given
the circuit court’s failure to make sufficient findings and conclusions for meaningful review by
this Court, we decline to address petitioner’s argument that the circuit court should have imposed
a less restrictive disposition than termination of her parental rights.
Accordingly, the circuit court’s January 20, 2021, order, is hereby vacated and remanded
for the limited purpose of entry of a new order consistent with this decision, Chapter 49 of the
West Virginia Code, and the Rules of Procedure for Child Abuse and Neglect Proceedings. 3 The
circuit court is directed to enter a new final order within the next thirty days. The Clerk is hereby
directed to issue the mandate contemporaneously herewith.
Vacated and Remanded.
ISSUED: August 31, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
3
This Court vacates the circuit court’s dispositional order only as it relates to petitioner’s
parental rights.
4
Justice William R. Wooton
Justice C. Haley Bunn
5