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

FILED
November 17, 2022
STATE OF WEST VIRGINIA
released at 3:00 p.m.
SUPREME COURT OF APPEALS EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re V.B. and A.B.
No. 22-0008 (Boone County 19-JA-115 and 19-JA-116)
MEMORANDUM DECISION
Petitioner father, L.B. (“Father”), 1 appeals the Circuit Court of Boone County’s
December 16, 2021 order terminating his parental rights to V.B. and A.B. (“children”). 2
Upon review, we find that the circuit court had no jurisdiction over A.B. because she was
in a subsidized guardianship at the time of the petition’s filing and, therefore, was not
exposed to any of the alleged abuse and neglect. Therefore, we vacate the circuit court’s
dispositional order, in part, regarding A.B. We find, however, that the circuit court did not
err in terminating Father’s parental rights to V.B. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the West Virginia Rules of Appellate
Procedure for resolution in a memorandum decision.
In a July 2018 order, prior to the filing of the petition at issue, the Circuit Court of
Boone County terminated the parental rights of the children’s mother because her abuse of
and addiction to “controlled substances or drugs” seriously impaired her parenting skills.
At the conclusion of the case in December 2018, Father retained legal and physical custody
of V.B., who was almost three years old, while the younger child, A.B., entered a
1
Father appears by counsel Matthew M. Hatfield. The Department of Health and
Human Resources appears by counsel Patrick Morrisey and Andrew Waight. Moriah N.
Myers appears as the children’s guardian ad litem, but was not the guardian ad litem for
the circuit court proceedings.
2
We use initials where necessary to protect the identities of those involved in this
case. See W. Va. R.A.P. 40(e). In re K.L., 241 W. Va. 546, 548 n.1, 826 S.E.2d 671, 673
n.1 (2019) (using initials to refer to child parties).
1
subsidized guardianship with her foster parents, T.B. and his wife.3 Father agreed to the
guardianship.
The Department of Health and Human Resources (“DHHR”) began investigating
the safety of V.B. at Father’s home in May 2019. On June 25, 2019, the DHHR completed
a “WV Safety Assessment and Management System” form regarding V.B. titled a “Family
Functioning Assessment” (hereinafter “Safety Assessment”). The Safety Assessment
included information that Father allowed the mother contact with V.B., yet the mother was
not in a caretaker role. The Safety Assessment concluded the child was not maltreated or
unsafe and found no impending dangers.
In September of 2019, the DHHR filed a new petition against Father seeking
immediate custody of V.B., who was four at the time, and also included A.B. in the heading
of the case, although the petition did not include any allegations that A.B. was abused or
neglected. 4 The DHHR alleged that while Father knew the mother’s rights were terminated
and she “still ha[d] a drug problem,” he allowed the mother “around [V.B.] and in the
home.” The petition asserted that V.B. “disclosed domestic violence” between her parents
and watched “her mother shoot up.” V.B. believed the mother’s “shots” caused the mother
to be angry and start fights with Father. The petition also explained that the mother got into
an argument with Father’s mother (“grandmother”) at Father’s house and pushed her.
At the first adjudicatory hearing on November 4, 2019, the circuit court heard
evidence regarding the petition’s allegations. A DHHR employee explained that she
previously visited Father’s residence after the mother’s parental rights were terminated,
but could not substantiate abuse and neglect until the DHHR filed the petition at issue.
Before filing the petition, she reminded Father “numerous times” that the mother’s rights
were terminated and that he was not being a protective caregiver. Father admitted to the
witness that he knew the mother still had a “drug problem,” but he allowed her around V.B.
The grandmother also informed the DHHR employee that the mother pushed her.
The DHHR employee stated further that when she interviewed V.B., the child said
the mother lived down the road but “comes and goes at her dad’s house whenever she
wants.” She testified that V.B. said that “she didn’t know why [her mother and Father]
fought, but that it scared her” and that her mother takes “medicine, and her mom takes
3
The December 12, 2018 order dismissing the earlier abuse and neglect case against
Father erroneously stated that both children were placed in a subsidized guardianship,
rather than only A.B. At the time of her placement, A.B. was an infant and had serious
medical issues.
4
The petition named T.B as a “non-maltreating” respondent and noted he had
“subsidized guardianship of [A.B.].”
2
shots in her arm” in a closet 5 and showed the DHHR employee the bend of her arm. V.B.
described to the DHHR employee that her mother “[got] very angry” when she took those
shots and she sometimes started fights with Father. V.B. said “a lot of people come in and
out of her dad’s house that she doesn’t know, and it scares her, but none of them have ever
bothered her, she just doesn’t like them there.” The DHHR employee professed her concern
that Father would continue to allow the mother around “even after he says that he wouldn’t,
and that the mother has a severe drug addiction that she still hasn’t kicked from the last
petition.” She explained that her interview with V.B. led to the filing of the petition: after
V.B. “disclosed something as severe as her seeing her mom shoot up, after her parental
rights were terminated, then we petitioned the [c]ourt.”
The circuit court found that the DHHR met its burden regarding V.B., then stated,
“I think it’s very depressing and sad that we go through this once, [the mother] is an obvious
drug addict, and [F]ather does little to nothing to protect the child from the mother again.
It’s horrible.” The circuit court adjudicated only V.B. as an abused and neglected child,
explaining that “the Department is going to have to make some kind of amendment,
because I’m not making a finding with respect to [A.B.], because [A.B.] was not present
[in Father’s home] at the time [of the petition’s filing].”
At the hearing, Father requested an improvement period, which the guardian ad
litem and the DHHR opposed. The circuit court denied the motion. The guardian ad litem
also notified the court that he planned to seek termination of Father’s parental rights.
After the hearing, the circuit court entered an adjudicatory order on November 26,
2019, including the following findings of fact and conclusions of law:
Whereupon, the Court, in consideration of the pleadings
filed herein, argument of counsel and evidence presented, and
in conjunction with reports, and recommendations of record,
does make the following FINDINGS of FACT and
CONCLUSIONS of LAW as to whether the children were
abused and/or neglected based on the conditions existing at the
time of the filing of the petition and proven by clear and
convincing evidence:
The Court FINDS that the Adult Respondent [Father]
has abused and neglected the children as alleged in the petition.
The Court, therefore ADJUDICATES the children[6] as abused
5
The DHHR employee later explained that the closet was at the mother’s home.
6
The references to “the children” appear to be in error, as the circuit court had
determined that it lacked evidence that A.B. was abused and neglected.
3
and neglected children, pursuant to West Virginia Code
§ 49-4-602.
On December 2, 2019, the DHHR filed an amended petition, adding an additional
allegation that Father abandoned A.B. and “made no efforts to have any contact with her.”
After the DHHR filed the amended petition, the court held status, adjudicatory, and
dispositional hearings over the next 23 months. The circuit court never entered an order
adjudicating A.B. as abused or neglected. Father filed a written motion requesting a post-
adjudicatory improvement period in March of 2020. The circuit court denied this motion
on June 14, 2021, on the record at a dispositional hearing. While the guardian ad litem
participated in the case and attended hearings, pursuant to the record before us, he never
filed a report with the court. The record also does not indicate that a child or family case
plan was ever filed, but during the final dispositional hearing in November 2021, the
DHHR’s attorney, Father’s attorney, and a DHHR employee appeared to agree that the
family case plan was filed, although no one seemed certain of the date.
During a dispositional hearing in July 2021, the DHHR introduced video in which
Father purportedly sold controlled substances to a confidential informant during a
controlled drug buy. 7 In the recording, which apparently occurred before the DHHR filed
the initial petition in this case, Father instructed V.B. to get in the house with her mother.
The circuit court also heard evidence that when the DHHR visited Father’s home, even
after V.B. was removed, the mother appeared; Father reported that the mother helped him
with the grandmother, who needed care. At the final dispositional hearing on November 8,
2021, Father testified, “it’s hard to say you can’t be around your biological mother. . . . And
as long as I didn’t feel like there was no danger that [her mother] was giving to her, I don’t
feel that I was in the wrong.” He went on, stating, “But now, if it was told to me by the
judge, ‘Hey you’re not allowed to have her around you,’ or my lawyer said ‘She’s not
allowed to be around her,’ then, yeah.” When the guardian ad litem questioned Father
whether “it never crossed your mind” that maybe the mother should not be around the
children, Father explained that “Your rights are terminated, no, she shouldn’t be around
her, but shouldn’t that be under the obligation of a parent to say what’s right and what’s
wrong for their child?”
Also at the final dispositional hearing, the court denied Father’s oral motion for a
post-dispositional improvement period after hearing evidence that the mother remained
around Father. The court further determined that Father had not corrected the matter that
7
The circuit court allowed Father and his counsel to review the video during a June
2021 dispositional hearing, during which a law enforcement officer testified about the
contents of the video. At the July 2021 dispositional hearing, when the DHHR asked the
court to admit the video into evidence, Father objected to its admission, calling it hearsay.
When the circuit court then admitted the video, the court’s admission of the video excluded
the portions of the video where Father did not appear.
4
led to the initial filing of the petition, i.e., the mother at Father’s home, because when the
DHHR visited the home, the mother was there. The circuit court found that the conditions
that led to the filing of the petition could not be corrected in the near future, and it was in
the best interests of the children to terminate the parental rights of Father. The Amended
Order (“dispositional order”) filed on December 16, 2021, reflected these findings, and
Father now appeals. 8
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). “‘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.’” Id., in part (quoting Syl. pt. 1, in part, In Interest of
Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996)).
While Father first argues that the circuit court never adjudicated A.B. as an abused
or neglected child before terminating his parental rights to her, we need not address this
alleged error. Based on the uncontested facts in the record regarding A.B., we find that the
circuit court did not have subject matter jurisdiction over the child, and the portion of the
order terminating Father’s parental rights to A.B. should be vacated. A circuit court does
not have jurisdiction over a child unless she is “an ‘abused child’ or a ‘neglected child’”
pursuant to the definitions in West Virginia Code § 49-1-201, and a finding of abuse and
neglect “must be based upon the conditions existing at the time of the filing of the abuse
and neglect petition.” Syl. pt. 8, in part, In re C.S., ___ W. Va.___, 875 S.E.2d 350 (2022).
See generally id. (determining the court lacked jurisdiction over the child, who was not
abused or neglected, as the child lived outside of the parent’s home in a permanent legal
guardianship for five years before the filing of the petition; the parent’s drug addiction did
not harm or threaten the child; and no evidence of abuse or neglect existed regarding the
child in the guardian’s home). Here, A.B. lived outside of Father’s home with her guardians
in a subsidized guardianship since sometime shortly after her birth; when the DHHR filed
both the petition and the amended petition, she was not harmed or threatened by the
mother’s drug use or Father’s failure to protect her from the mother, and no allegations of
abuse or neglect were made against her guardians. Likewise, the court heard no evidence
of abuse or neglect of A.B. during this case and specifically mentioned that she was not
present during the abuse and neglect of V.B. While the amended petition alleged that Father
abandoned A.B., the allegations fail to meet any of the statutory definitions for an abused
or neglected child pursuant to West Virginia Code § 49-1-201. For these reasons, the circuit
court had no jurisdiction over A.B.
The original order terminating Father’s parental rights failed to include A.B. The
8
Amended Order added A.B.
5
Turning to Father’s remaining assignments of error, we find no merit. In relation to
the court’s adjudication of V.B. as an abused and neglected child, Father argues, without
citation, that the DHHR failed to meet its burden of proving, by clear and convincing
evidence, that V.B. was abused and/or neglected. The DHHR has the burden of proof in
abuse and neglect proceedings. Syl. pt. 3, In re C.S., ___ W. Va.___, 875 S.E.2d 350(2022). Thus, it must prove by clear and convincing evidence that the child is abused and
neglected, based on the conditions “existing at the time of the filing of the petition.” See
W. Va. Code § 49-4-601(i) (setting forth the requirements for a child to be adjudicated as
abused or neglected). A court may find that a child is abused or neglected if a parent fails
to protect the child. See In re A.L.C.M., 239 W. Va. 382, 392, 801 S.E.2d 260, 270 (2017)
(“[T]he statutes governing abuse and neglect proceedings allow a finding of abuse to be
based upon a parent’s knowledge that another person is harming his/her child.”).
We will not disturb the circuit court’s finding that the DHHR met its burden to prove
that V.B. was abused and neglected. Father argues that because the order terminating the
mother’s parental rights did not specifically prevent her from seeing V.B., he did not abuse
or neglect V.B. by allowing the mother to be around her. He also contends that the DHHR’s
knowledge that he allowed V.B. and her mother contact prior to the filing of the petition
should have prevented the circuit court from finding V.B.’s interactions with the mother
equated to abuse and neglect by him. These arguments fail to acknowledge the escalation
of the mother’s behavior and drug use around V.B., and Father’s failure to protect V.B.
from the mother. The circuit court heard ample evidence at the adjudicatory hearing to find
that Father abused and neglected V.B. based on his failure to protect the child from the
mother: Father admitted to the DHHR employee that he knew that the mother still used
drugs and yet he allowed her around V.B.; Father fought with the mother in front of V.B.,
and they hit each other; and V.B. told the DHHR employee that the mother takes “shots”
in the closet, indicating the location of the shot in the bend of her arm. Furthermore, the
court heard testimony that V.B. told the DHHR worker that after her mother takes the
“shots,” she gets angry, which sometimes begins the fights with Father that occur in front
of V.B. The circuit court also heard testimony that the mother fought with grandmother
while V.B. was at the house. In light of this evidence, the court’s finding that the DHHR
met its burden of proving that V.B. was abused and neglected was not clearly erroneous.
Also in his first assignment of error, Father argues that the adjudicatory order
regarding V.B. failed to include the required findings of fact and conclusions of law. We
disagree. Rule 27 of the Rules of Procedure for Child Abuse and Neglect Proceedings
requires the circuit court to “make findings of fact and conclusions of law, in writing or on
the record” when determining whether a child is abused or neglected. See also W. Va. Code
§ 49-4-601 (requiring “findings of fact and conclusions of law as to whether the child is
abused or neglected” which must be “incorporated into the order of the court.”). Here, at
the adjudicatory hearing, the circuit court made a finding on the record regarding that
Father “does little to nothing to protect the child from the mother,” who is “an obvious
drug addict,” then determined that V.B. was abused and neglected. The November 26, 2019
6
order adjudicating V.B. as abused and neglected generally referenced the testimony,
pleadings, and evidence presented. The order also noted the recommendations on the
record at the adjudicatory hearing and found that Father abused and neglected V.B. “as
alleged in the petition.” While we recognize that the adjudicatory order is “somewhat
limited in [its] findings of fact and conclusions of law,” the circuit court nevertheless
“provided ample findings on the record” to support its adjudication of V.B. as an abused
and neglected child and its corollary determination that Father was an abusive and
neglectful parent. In re T.W., No. 21-0574, 2022 WL 123562, at *6 (W. Va. Jan. 12, 2022)
(memorandum decision).
Father further alleges that the circuit court violated his due process rights because it
did not require the DHHR to provide timely discovery, specifically the Safety Assessment.
Rule 10(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings provides
general discovery requirements. We previously found that delayed discovery in an abuse
and neglect proceeding was not a due process violation. See In re S.D., No. 13-0917, 2014
WL 629507, at *2 (W. Va. Feb. 18, 2014) (memorandum decision). Here, the circuit court
repeatedly rescheduled hearings, delaying the proceedings to allow the DHHR time to
comply with its discovery obligations. The DHHR ultimately provided the discovery at
issue—the Safety Assessment—to Father before the dispositional hearing. While Father
argues that not having the Safety Assessment prevented him from fully participating in the
adjudicatory hearing, we disagree. 9 Certainly, the Safety Assessment provided basic
information that the DHHR knew Father allowed V.B. around the mother. Still, that
document provided no useful, additional information that was not also provided by the
DHHR’s witness at the adjudicatory hearing: that the DHHR knew the Father allowed the
mother around V.B. during the period before DHHR filed the petition. Furthermore, the
Safety Assessment provides no defense to the allegations that Father allowed the mother
essentially unfettered access to V.B., who at times saw the mother use drugs and fight with
Father. Nevertheless, while we find no reversible error in this case, the Court stresses that
this Rule still requires the DHHR to provide discovery to the respondent in an abuse and
neglect proceeding within the timeframes specified. See W. Va. R. P. Child Abuse &
Neglect Proceeds. 10(b) & (d), 12.
Father also asserts that the circuit court erred by terminating his parental rights
without a child or family case plan or guardian ad litem report, 10 however, it does not
9
Father knew that the DHHR investigated him before it filed the petition, and more
than fifty days passed between the filing of the petition and the adjudicatory hearing. We
have no evidence that Father requested discovery from the DHHR or objected to holding
the adjudicatory hearing due to a lack of discovery during this timeframe.
10
West Virginia Code § 49-4-604(a) requires that the DHHR file a child’s case plan
after the circuit court “finds a child to be abused or neglected.” See also W. Va. R. P. Child
Abuse & Neglect Proceeds. 28 & 29. Rule 18a of the Rules of Procedure for Child Abuse
7
appear that he objected to proceeding without a plan or report. 11 While the governing
statutes and rules relating to the termination of parental rights require the filing of a case
plan and a guardian ad litem report, Father “cannot establish how his defense to the
DHHR’s seeking termination of his parental rights at disposition was in any way
hampered” by the lack of a plan or report. See In re T.W., No. 21-0574, 2022 WL 123562,
at *5 (W. Va. Jan. 12, 2022) (memorandum decision) (finding that petitioner failed to show
“how this matter could have possibly been impacted by the provision of a report”).
Unquestionably, the guardian ad litem sought termination of Father’s parental rights as
early as the November 2019 adjudicatory hearing of V.B. Furthermore, the parties seemed
to believe a family case plan had been filed. At the dispositional hearing in November
2021, the DHHR’s attorney, Father’s attorney, and a DHHR employee appeared to agree
that the family case plan was filed, although no one seemed certain regarding the date.
Father points to no place in the record where he objected to proceeding without either of
these documents. Under the particular facts and circumstances of this case, we find that the
failure to file a formal, written child or family case plan or a guardian ad litem report “did
not substantially disregard or frustrate the abuse and neglect process.” See In re I.D., No.
20-0962, 2021 WL 5326512, at *7 (W. Va. Nov. 16, 2021) (citing Syl. pt. 5, In re Edward
B., 210 W. Va. 621, 558 S.E.2d 620 (2001)). The lack of this plan and report are not
prejudicial errors requiring reversal. Nonetheless, the DHHR, the guardian ad litem, and
the circuit court are cautioned to fully comply with our statutes and Rules of Procedure for
Child Abuse and Neglect Proceedings in future cases to ensure that required case plans and
a guardian ad litem report are filed properly with the court.
We finally turn to Father’s arguments regarding the circuit court’s denial of his
requests for an improvement period and the dispositional order terminating his parental
rights. “The standard of proof required to support a court order limiting or terminating
parental rights to the custody of minor children is clear, cogent and convincing proof.” Syl.
pt. 6, In re: Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973). A circuit court may terminate
parental rights “without the use of intervening less restrictive alternatives when it is found
that there is no reasonable likelihood . . . that conditions of neglect or abuse can be
substantially corrected.” Syl. pt. 5, in part, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55(2011) (per curiam) (quotations and citation omitted). Father’s complaints that the court
erred by denying him an improvement period lack merit. Improvement periods are left to
the court’s discretion. See In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359
(2002) (per curiam). To obtain an improvement period under West Virginia Code
§ 49-4-610, the parent must first demonstrate that he or she is likely to fully participate in
and Neglect Proceedings requires a guardian ad litem to submit a report to the circuit court
and the parties at least five days before the dispositional hearing.
11
While Father’s counsel mentioned the lack of a guardian ad litem report to the
circuit court at the final dispositional hearing, he did not object to proceeding without the
report.
8
the improvement period. A court should only grant an improvement period if it would serve
the child’s best interests. Syl. pt. 3, in part, State ex rel. W. Va. Dep’t of Health & Hum.
Res. v. Dyer, 242 W. Va. 505, 836 S.E.2d 472 (2019). As we have noted, the “[f]ailure to
acknowledge the existence of the problem” makes “the problem untreatable” and, in turn,
an improvement period is “an exercise in futility at the child’s expense.” In re Charity H.,
215 W. Va. 208, 217, 599 S.E.2d 631, 640 (2004) (per curiam) (quotations omitted). While
Father passed drug screens and was employed during part of the proceedings, which is
commendable, he remained in contact with the mother, who often visited his home. Even
when he testified at the dispositional hearing, Father failed to acknowledge any problem
with allowing the mother contact with V.B. Therefore, the court did not abuse its discretion
by denying Father an improvement period.
Because the court made the requisite findings, based upon ample evidence and the
allegations in the petition, to support termination of Father’s parental rights, we find no
error in its termination of Father’s parental rights to V.B. See W. Va. Code
§ 49-4-604(c)(6) (permitting a circuit court to terminate parental rights upon finding that
there is no reasonable likelihood that the conditions of abuse and neglect can be
substantially corrected in the near future and when necessary for the child’s welfare). As
the circuit court explained, Father repeatedly allowed the mother around his home, even
after V.B. had been removed from the home, and Father testified that he did not understand
how a child could be prohibited from being around her biological mother. The dispositional
order specifically noted that “the matters that led to the filing of the [p]etition,” that is, the
presence of the mother, had “not been corrected.” 12 The court explained that “seemingly”
every time the DHHR visited Father, the mother was there. Accordingly, we find no error
in the circuit court’s termination of Father’s parental rights to V.B., as the evidence before
the circuit court showed no reasonable likelihood that the conditions of abuse and neglect
could be substantially corrected in the near future given Father’s failure to acknowledge
the danger the mother posed to the child. 13
12
Father also argues that the circuit court erred in considering the controlled buy
video in which Father appears, citing In re Brian James D., 209 W. Va. 537, 550 S.E.2d
73 (2001) (per curiam), for the proposition that the court cannot terminate his parental
rights “solely” based on arrest for delivery of a controlled substance. While the circuit court
referred to the video in the hearing and the dispositional order as “the most damning
evidence,” the court terminated father’s parental rights for additional reasons, including
Father’s failure to protect V.B. from her mother. Furthermore, this video, apparently taken
before the petition was filed, is more evidence that the Father allowed the mother around
V.B., because he instructed V.B. to return inside to “mommy.”
13
While Father alleges certain factual discrepancies by the circuit court, still “the
circuit court’s account of the evidence is plausible in light of the record viewed in its
entirety.” See Syl. pt. 1, in part, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177.
Although the dispositional order indicates that Father failed to participate in or complete
9
For the foregoing reasons, we vacate, in part, the circuit court’s December 16, 2021
order terminating Father’s parental rights as it relates to A.B. and affirm that same order,
in part, as it relates to the termination of Father’s parental rights to V.B.
Vacated, in part, and Affirmed, in part
ISSUED: November 17, 2022
CONCURRED IN BY:
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice C. Haley Bunn
DISSENTING:
Chief Justice John A. Hutchison
Justice William R. Wooton
No. 22-0008 – In re V.B. and A.B.
HUTCHISON, Chief Justice, concurring, in part, and dissenting, in part, joined by Justice
Wooton:
In this case, the majority upholds the termination of the petitioner father’s parental
rights to V.B while acknowledging that (1) “the adjudicatory order is ‘somewhat limited
in [its] findings of fact and conclusions of law;’” (2) the DHHR failed to provide discovery
to the father within the timeframes specified in Rule 10 of the West Virginia Rules of
Procedure for Child Abuse and Neglect Proceedings; (3) the child or family case plan
required by West Virginia Code § 49-4-604(a) (2020) may have never been filed; (4) the
guardian ad litem failed to submit a report with the circuit court as required by Rule 18a of
the Rules of Procedure for Child Abuse and Neglect Proceedings; (5) the dispositional
an improvement period when he was never granted one, the order also correctly states that
it denied Father’s motions in this regard. Similarly, discrepancies in the circuit court’s order
regarding Father’s request for visitation were adequately cured by the court’s subsequent
acknowledgment that Father failed to follow up on his earlier request for visitation and his
concession of this point in the brief, where he concedes that he last addressed visitation to
the circuit court in January 2020. For the reasons we have previously stated, these minor
factual issues do not overcome the ample evidence before the circuit court supporting the
termination of Father’s parental rights.
10
order states that the father failed to participate in or complete an improvement period when
in fact father repeatedly sought an improvement period and filed a written motion for an
improvement period but was never given one; (6) the circuit court granted the father
visitation with V.B., but he was never allowed to visit her even though he satisfied the
circuit court’s requirement of three consecutive clean drug screens; and (7) “the most
damning evidence” relied upon by the circuit court to terminate the father’s parental rights
to V.B. was a video purporting to show the father selling drugs to a confidential informant
despite the fact that the abuse and neglect petition upon which the father was adjudicated
contained absolutely no allegation that he was selling drugs and that was not the basis for
his adjudication as an abusive and neglectful parent. The majority’s decision to shrug off
these clear statutory and procedural errors and just tell the circuit court to do better the next
time not only violates the due process rights of a parent, but also sends the message to our
lower courts that it is sometimes okay to just ignore the rules. It is not. Accordingly, I
dissent to the majority’s decision to the extent it upholds the circuit court’s termination of
the father’s parental rights to V.B. 14
All persons, even those accused of abusing and neglecting children, “enjoy [the]
constitutional guarantee[] of due process of law which must be respected by the state, its
legislature, and the courts.” In re Edward B., 210 W. Va. 621, 631, 558 S.E.2d 620, 630
(2001). Indeed, “this Court long ago recognized the constitutional dimensions of abuse
and neglect proceedings under both the federal and state constitutions.” Id. In syllabus
point one of In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973), this Court declared 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.
As a result, this Court has made clear that “the Rules of Procedure for Child Abuse and
Neglect Proceedings and the related statutes detailing fair, prompt, and thorough
procedures for child abuse and neglect cases are not mere general guidance; rather, they
are stated in mandatory terms and vest carefully described and circumscribed discretion in
our courts, intended to protect the due process rights of the parents as well as the rights of
the innocent children.” Edward B., 210 W. Va. at 632, 558 S.E.2d at 631; see also In re
J.G., II, 240 W. Va. 194, 204, 809 S.E.2d 453, 463 (2018) (“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
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I concur with the majority’s decision insofar as it vacates the portion of the
circuit court’s order terminating the father’s parental rights to A.B. because the circuit
court lacked subject matter jurisdiction over that child.
11
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.”). Consequently, we have held that
[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.
Edward B., 210 W. Va. at 624, 558 S.E.2d at 623; syl. pt. 5.
In this case, the circuit court’s failure to set forth any findings of fact in its
November 26, 2019, adjudicatory order to support its conclusion that the father abused and
neglected V.B., was an error that, in and of itself, warrants remand for compliance with
West Virginia Code § 49-4-601 (2019). That statute mandates that “[a]t the conclusion of
the adjudicatory hearing, the court shall make a determination based upon the evidence and
shall make findings of fact and conclusions of law as to whether the child is abused or
neglected and whether the respondent is abusing, neglecting. . . all of which shall be
incorporated into the order of the court.” W. Va. Code § 49-4-601(i) (emphasis added);
see also W. Va. R. Proc. for Child Abuse and Neglect Proceeds. 27 (requiring “order of
adjudication, including findings of fact and conclusions of law”). General conclusory
statements like those used in the circuit court’s order in this case do not satisfy this
requirement. Rather, “[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.” Edward B., 210 W.
Va. at 632, 558 S.E.2d at 631 (additional citation and quotations omitted). In other words,
the circuit court’s order “must be sufficient to indicate the factual and legal basis for the
[court]’s ultimate conclusion so as to facilitate a meaningful review of the issues
presented.” Province v. Province, 196 W. Va. 473, 483, 473 S.E.2d 894, 904 (1996). In
the absence of adequate findings of facts and conclusions of law, we have found that the
adjudicatory order must be vacated, and the case remanded for compliance with the statute.
See In re H.L. and M.L., 243 W. Va. 551, 556, 848 S.E.2d 376, 381 (2020) (reversing and
remanding because adjudicatory order contained “no specific findings of fact or
conclusions law regarding Mother’s alleged status as a ‘battered parent’”); In re K.B.-R.
and L.R., No. 20-0734, 2021 WL 983076, *3 (W. Va. March 16, 2021) (memorandum
decision) (“[B]ecause the circuit court failed to make adequate findings of fact to enable
sufficient appellate review, we vacate the circuit court’s. . . adjudicatory order and remand
the matter with instructions to forthwith issue a new order containing the findings of fact
and conclusions of law necessary to establish whether the children were abused and/or
neglected”).
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Likewise, the fact that the circuit court terminated the father’s parental rights to V.B.
based on a matter for which he was not adjudicated as being abusive or neglectful requires
that this case be remanded. The record shows that after the initial adjudicatory hearing
which resulted in the father being adjudicated as an abusive and neglectful parent, the
DHHR came into possession of a video which purported to show the father selling drugs
to a confidential informant. The DHHR’s possession of this video was not made known to
the father until the first disposition hearing, which was held on December 16, 2019. At the
next disposition hearing on January 6, 2020, the video was viewed by all parties in
chambers according to the circuit court’s order entered after that hearing and the matter
was continued. At the third disposition hearing on June 14, 2021, the DHHR presented
testimony from Eric Eversole, a deputy with the Boone County Sheriff’s Office. He
testified extensively about his involvement with the controlled drug buy and the contents
of the video. The matter was again continued. The video was viewed for a second time at
the next hearing, which was held on July 14, 2021, and “was placed in evidence” according
to the September 20, 2021, order entered thereafter. At the final disposition hearing held
on November 8, 2021, the father testified and the DHHR attempted to cross-examine him
about the contents of the video, but the father refused to answer those questions based upon
the advice of counsel. 15
As the record demonstrates, the video was a key piece of evidence relied upon by
the DHHR to seek termination of the father’s parental rights to V.B. Yet, the DHHR never
sought to amend the abuse and neglect petition to add allegations that the father was selling
drugs and exposing V.B. to his criminal activity. Moreover, the circuit court did not
exercise its “inherent authority to compel the Department to amend its petition to
encompass the evidence or allegations” pursuant to Rule 19 of the Rules of Procedure for
Abuse and Neglect Proceedings. 16 Syl. Pt. 5, in part, In re Randy H., 220 W. Va. 122, 640
S.E.2d 185 (2006). Instead, the circuit court seized upon this “most damning evidence,”
concluded that “the video demonstrates that [the father] was apparently willing to engage
in illegal conduct in the presence of the child,” and terminated his parental rights.
15
Although the controlled drug buy allegedly occurred in 2019, the petitioner had
not yet been prosecuted on any charges stemming therefrom.
16
Rule 19(b) of the West Virginia Rules of Procedure for Abuse and Neglect
Proceedings provides, in pertinent part:
If new allegations arise after the final adjudicatory
hearing, the allegations should be included in an amended
petition rather than in a separate petition in a new civil action,
and the final adjudicatory hearing shall be re-opened for the
purpose of hearing evidence on the new allegations in the
amended petition.
13
This Court has previously “take[n] notice of the plain error permeating the
disposition wherein the circuit court terminate[s] the parental rights on the basis of
allegations and issues which were never properly made subject to the adjudication” and
remanded for amendment of the petition. In re Lilith H., 231 W. Va. 170, 180, 744 S.E.2d
280, 290 (2013). And, in this very term of Court, we reversed the termination of a father’s
parental rights predicated on substance abuse because he was never adjudicated on that
basis, once again declaring that “termination of parental rights may not be fundamentally
premised on conditions of abuse and/or neglect upon which a parent has not been properly
adjudicated.” In re K.L., --- W.Va. ---, --- S.E.2d ---, Slip op. at 19 (No. 22-0081 November
16, 2022).
Although this Court has clearly required that proper adjudicatory orders be entered
and refused to uphold the termination of parental rights based on issues that were not the
subject of adjudication, the majority turns a blind eye to these errors in this case, as well as
the other procedural missteps that occurred, in what I can only surmise to be an effort to
provide permanency for V.B. While the best interest of the child is always the polar star
in abuse and neglect cases, this Court should not compound the errors made by the circuit
court by simply ignoring significant due process violations in order to achieve the desired
outcome. Obviously, if this case were remanded for compliance with the applicable
statutes and procedural rules, the circuit court would need to consider the evidence of abuse
and neglect reflected in the record. Having done so, I suspect that the court would reach
the same result and terminate the father’s parental rights to V.B. While the majority wants
to take a short cut and simply affirm the circuit court’s decision, I cannot overlook the
numerous procedural errors which infringed upon the father’s due process rights—rights
that this Court is constitutionally bound to protect. Therefore, I respectfully dissent to
majority’s decision to affirm the termination of the father’s parental rights to V.B.
I am authorized to state that Justice Wooton joins me in this separate opinion.
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