In re A.C.-1, C.C., and A.C.-2 ( 2023 )

FILED
May 16, 2023
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re A.C.-1, C.C., and A.C.-2
No. 22-640 (Kanawha County 21-JA-349, 21-JA-350, and 21-JA-351)
MEMORANDUM DECISION
Petitioner Mother T.C.1 appeals the Circuit Court of Kanawha County’s June 29, 2022,
order terminating her parental rights to A.C.-1, C.C., and A.C.-2.2 Upon our review, we determine
that oral argument is unnecessary and that a memorandum decision vacating and remanding 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 June of 2021, the DHHR filed an abuse and neglect petition alleging that petitioner
exposed the children to domestic violence in the home and failed to provide for their needs. On
October 1, 2021, the court granted a protective order against the father on behalf of petitioner and
the children, which remained in effect until the adjudication hearing.
Following the adjudicatory hearing, the court entered an order adjudicating both petitioner
and the father as abusing parents. The adjudicatory order, however, was a form document
containing quoted statutory language with blanks next to each “finding” where the court could
include a checkmark to indicate that the “finding” was being made and a blank line where a name
could be handwritten in order to designate to whom the “finding” applied. In the order, the court
found—by checking boxes—that all three children were abused and neglected and that petitioner
and the father were abusing parents. Additionally, the order has several boxes checked that ordered
the DHHR to provide certain services, including parenting classes, life skills classes, and drug
screens. However, there is no notation in the blank spaces to specify for whom the services were
1
Petitioner appears by counsel Sandra K. Bullman. The West Virginia Department of
Health and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey
and Assistant Attorney General Andrew T. Waight. Jennifer L. Anderson 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). Additionally, because some of the children share the same initials, we
have included numbering to differentiate them.
1
ordered. It is important to stress that the adjudicatory order contains no specific findings of fact or
conclusions of law.3
Following adjudication, both petitioner and the father filed written motions for post-
adjudicatory improvement periods. The court entered an order titled “Order Regarding Motions
for Improvement Period.” Similar to the adjudicatory order, the order is a form document with
blank spaces to fill in or add checkmarks to indicate “findings” made by the court. Several issues
stand out on the face of the order. First, where the box for “mother” is checked, the father’s name
is written, and the mother’s attorney is listed. Where the box for “father” is checked, the mother’s
name is written, and the father’s attorney is listed. Second, the form only contains one section for
checking whether the motion was denied or granted, but both the petitioner and the father filed
motions for improvement periods. Only the father’s name is written in the section, and the box for
“granted” is checked. The order contains no other mention of petitioner’s motion. Although the
order only “grants” the father’s motion for an improvement period, the order contains checkboxes
for services ordered, where parenting, adult life skills, random drug screens, supervised visitation,
and bus passes are all checked. However, the order only specifies that drug screens apply to the
petitioner; there is no note as to whether the other services apply to both parents or only one parent.
The court then proceeded to disposition in June of 2022, during which both the DHHR and
the guardian supported termination of petitioner’s parental rights. The court ultimately terminated
petitioner’s parental rights. Neither the transcript from this hearing nor the dispositional order
indicate that the court explicitly ruled on petitioner’s motion for an improvement period, although
the termination of her parental rights constituted an implicit denial. Similar to the adjudicatory
order, the dispositional order is a form document containing language from applicable statutes with
a blank space for checkmarks to indicate that “findings” have been made and a space for
handwriting the names of any adult or child to whom these “findings” are meant to apply. By
checking boxes, the court “found” that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future because she failed to
follow through with the family case plan and other rehabilitative services and that the children’s
best interests required termination of her parental rights, although there are no findings specific to
petitioner contained in the order. The court then terminated petitioner’s parental rights to the
children.4 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). Further, we have explained 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
3
On appeal, petitioner raised no specific assignment of error concerning the court’s
adjudicatory order, although she correctly points out that the order does not contain any specific
findings beyond concluding that she abused and neglected the children.
4
The father is currently participating in an improvement period, and the permanency plan
is reunification with him. The concurrent permanency plan is legal guardianship with a relative.
2
disposition of cases involving children adjudicated to be abused or neglected has
been substantially disregarded or frustrated, the . . . case [will be] remanded for
compliance with that process.
Syl. Pt. 5, in part, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001)).
Upon our review, we are unable to properly address petitioner’s assignment of error
concerning the denial of her motion for a post-adjudicatory improvement period because the record
does not reveal any ruling by the circuit court on this motion. In discussing the sufficiency of
dispositional 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.
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 that is not the precise situation at issue in petitioner’s first
assignment of error, it is nonetheless instructive in a circumstance in which the court made no
ruling regarding petitioner’s motion for a post-adjudicatory improvement period. Such motions
are left to the court’s discretion. See In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359
(2002). However, this Court is unable to undertake a review of whether an abuse of discretion
occurred if the circuit court failed to include any ruling, let alone findings, in regard to this motion.
Accordingly, we must remand the matter so that the circuit court may enter a new dispositional
order with a ruling on petitioner’s motion for a post-adjudicatory improvement period, including
sufficient findings of fact and conclusions of law to support the ruling.
In her second assignment of error, petitioner alleges that the circuit court erred in
terminating her parental rights when less restrictive dispositional alternatives were available.
Again, it is impossible for this Court to review this assignment of error, given the circuit court’s
conclusory “findings” set forth in its dispositional order, which consisted simply of the court
checking boxes next to statutory language it believed was applicable. As we have previously held,
such conclusory declarations are insufficient for termination of parental rights.
Where 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
Code § [49-4-604(c)(6)] on the record or in the order, the order is inadequate.
Edward B., 210 W. Va. at 624, 558 S.E.2d at 623, Syl. Pt. 4, in part.
3
Specifically, West Virginia Code § 49-4-604(c)(6) explicitly states that, in order to
terminate parental rights, a circuit court must find that there is no reasonable likelihood that the
conditions of abuse and neglect can be substantially corrected in the near future and that
termination is necessary for the child’s welfare. Here, the order simply declared that the children’s
best interests required termination of petitioner’s parental rights. Further, the order stated that there
was no reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected because petitioner had not made efforts to rectify the circumstances that led to the filing
of the petition. However, given the conclusory nature of the orders, this Court is unable to
determine which services were ordered for petitioner specifically. Additionally, the record does
reflect that petitioner corrected at least some of the concerning conditions, as petitioner separated
from the father, was engaged in divorce proceedings, and was living with her mother at the time
of the dispositional hearing. While it is true that the court also checked a box indicating that
petitioner had not followed through with the applicable case plan, we nonetheless believe that the
overall form of the order on appeal demonstrates the conclusory nature of these findings, which
this Court has expressly found to be inadequate. As such, we find that it is necessary to vacate the
dispositional order and remand the matter for the entry of a new order containing detailed findings
of fact and conclusions of law specific to petitioner in support of the dispositional alternative the
court finds appropriate.
For the foregoing reasons, we vacate the circuit court’s June 29, 2022, order terminating
petitioner’s parental rights5 and remand the matter with instructions for the court to enter a new
dispositional order addressing petitioner’s motion for a post-adjudicatory improvement period and
the court’s determination regarding termination of petitioner’s parental rights, consistent with the
West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings and Chapter 49 of the
West Virginia Code. The Clerk is hereby directed to issue the mandate contemporaneously
herewith.
Vacated and remanded, with direction.
ISSUED: May 16, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
5
The vacation of the court’s June 29, 2022, order applies only to the termination of
petitioner’s parental rights. That order also contains additional rulings regarding the father’s
ongoing improvement period that remain unaffected by this decision.
4