In re B.B., J.M., K.M., H.C., D.C., K.C., and W.C. ( 2024 )

FILED
March 6, 2024
C. CASEY FORBES, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re B.B., J.M., K.M., H.C., D.C., K.C., and W.C.
No. 23-4 (Boone County CC-03-2020-JA-108, CC-03-2020-JA-109, CC-03-2020-JA-110, CC-
03-2020-JA-111, CC-03-2020-JA-112, CC-03-2020-JA-113, and CC-03-2020-JA-114)
MEMORANDUM DECISION
Petitioner Mother C.C.1 appeals the Circuit Court of Boone County’s December 2, 2022,
order terminating her parental, custodial, and guardianship rights to B.B., J.M., K.M., H.C., D.C.,
K.C., and W.C.2 On appeal, petitioner argues that the circuit court failed to comply with statutory
time frames, permitted evidence that fell below the evidentiary standard required for preliminary
hearings, and erroneously found that reasonable efforts were made to preserve the family. Upon
our review, we determine that oral argument is unnecessary and that a memorandum decision
affirming the circuit court’s order is appropriate. See W. Va. R. App. P. 21.
In July 2020, the DHS filed an abuse and neglect petition against petitioner after she gave
birth to B.B. and admitted using heroin and methamphetamine while pregnant. According to the
petition, B.B. was born prematurely in June 2020, was positive for Suboxone, and suffered from
withdrawal symptoms. While petitioner had a prescription for Suboxone at the time of B.B.’s
birth, she admitted to using heroin and methamphetamine during the early part of her pregnancy.
Petitioner’s medical records indicated that she tested positive for methamphetamine, heroin, and
fentanyl during the course of her pregnancy. The petition further alleged that petitioner disclosed
domestic violence occurred in the home where J.M. resided with petitioner and the father. The
DHS removed B.B. and J.M. from petitioner’s custody. At the time the petition was filed, the
1
Petitioner appears by counsel Lauren Thompson. The West Virginia Department of
Human Services appears by counsel Attorney General Patrick Morrisey and Deputy Attorney
General Steven R. Compton. Counsel Moriah N. Myers appears as the children’s guardian ad
litem.
Additionally, pursuant to West Virginia Code § 5F-2-1a, the agency formerly known as
the West Virginia Department of Health and Human Resources was terminated. It is now three
separate agencies—the Department of Health Facilities, the Department of Health, and the
Department of Human Services. See W. Va. Code § 5F-1-2. For purposes of abuse and neglect
appeals, the agency is now the Department of Human Services (“DHS”).
2
We use initials where necessary to protect the identities of those involved in this case.
See W. Va. R. App. P. 40(e).
1
remaining children, K.M., H.C., D.C., K.C., W.C., and T.C., were in a legal guardianship with
their grandmother.
A preliminary hearing was initially set for August 18, 2020, but was rescheduled for
September 15, 2020, because the courthouse was closed due to the COVID-19 pandemic. At the
hearing, the DHS presented evidence supporting the allegations in the petition through testimony
of the assigned Child Protective Services (“CPS”) worker. Based on that evidence, the circuit
court found that the removal of B.B. and J.M. was proper. An adjudicatory hearing was initially
scheduled for October 2020 but was continued until April 2021 because petitioner and the father
“disappeared for a period of time.” Meanwhile, the DHS filed an amended petition in March
seeking legal and physical custody of K.M., H.C., D.C., K.C., W.C., and T.C. because of the
grandmother’s death.
At a hearing in April 2021, petitioner requested to continue the adjudicatory hearing. In
May 2021, the adjudicatory hearing was continued on two occasions because of the withdrawal
of petitioner’s and the father’s counsel and conflicts of interest with their new appointed counsel.
At a hearing in June 2021, petitioner was not present and had not been in contact with her
counsel. The matter was continued until July 2021. At the hearing in July 2021, petitioner was
present, and the circuit court asked her if she would pass a drug screen following the hearing.
Petitioner first stated that she would, but later recanted during the hearing and told the circuit
court she would test positive for fentanyl and Suboxone. The circuit court ordered petitioner to
enter a long-term drug treatment program immediately. The matter was again continued. At the
next hearing in August 2021, the DHS requested a continuance to amend the petition with new
information concerning the children. The circuit court also noted that petitioner did not complete
long-term drug treatment as ordered. The matter was continued until October 2021.
In October 2021, the DHS filed a second amended petition adding additional allegations
of substance abuse and abandonment of the children by petitioner. The second amended petition
also outlined the CPS worker’s unsuccessful attempts to contact petitioner and the father. The
circuit court set the adjudicatory hearing for November 2021.
After a year of continuances, the adjudicatory hearing began in November 2021. At the
hearing, the CPS worker testified about petitioner’s lack of cooperation with the DHS and the
services she was provided. The CPS worker explained that petitioner was ordered to drug test
twice a week, but she only tested a total of fifteen times in sixteen months. The CPS worker also
explained that although petitioner completed a short-term drug treatment program, petitioner
refused to go a long-term drug treatment program as ordered by the circuit court. Further, the
CPS worker testified that she had no contact with petitioner or the father from September 2020 to
April 2021, and petitioner failed to appear at a Multidisciplinary Team meeting (“MDT”) in
December 2020. The CPS worker explained that she tried to communicate with petitioner and
the father by calling, texting, emailing, leaving messages, driving to the home where petitioner
was reportedly staying, and driving around the town of Whitesville to locate petitioner. In
addition, the CPS worker stated that petitioner had not seen the children in sixteen months, had
not provided them with any financial support, and only asked about them on three occasions
since the filing of the petition.
2
A continuation of the adjudicatory hearing was held in February 2022. At this hearing,
petitioner testified that she had used methamphetamine and heroin the week before and admitted
to using methamphetamine while pregnant with B.B. Following the hearing, petitioner submitted
to a drug screen and tested positive for amphetamine, methamphetamine, buprenorphine,
norbuprenorphine, and norfentanyl. The final adjudicatory hearing was held in April 2022.
Petitioner did not attend but was represented by counsel. Based on the evidence presented, the
circuit court adjudicated petitioner as a neglectful parent due to her substance abuse issues.
The dispositional hearings began in June 2022 and concluded in August 2022. Petitioner
did not attend any of the dispositional hearings but was represented by counsel at all hearings.
The evidence established that, throughout the proceedings, petitioner failed to keep in contact
with the DHS, failed to go to a long-term drug treatment program, failed to consistently drug test
after September 2021, failed to appear for hearings, and admitted to continued use of heroin and
methamphetamine. The circuit court noted that petitioner had not appeared for or participated in
the proceedings for more than eight months. Based on this evidence, the circuit court found that
there was no reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected in the near future and that termination was necessary for the children’s welfare and
best interests. As a result, the circuit court terminated petitioner’s parental, custodial, and
guardianship rights to B.B., J.M., K.M., H.C., D.C., and W.C.3 It is from the dispositional order
that petitioner appeals.4
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). Before this Court, petitioner asserts four
assignments of error.5
3
Petitioner’s parental rights to B.C. and T.C. were not terminated in this dispositional
order. B.C. reached the age of majority prior to the dispositional hearing. The circuit court held
the motion to terminate petitioner’s parental rights to T.C. in abeyance pending further evidence
of the circuit court’s jurisdiction. That issue has since been resolved, and the circuit court
terminated petitioner’s parental rights to T.C. in December 2022.
4
The parental rights of the father of B.B. and J.M. were terminated, as were the parental
rights of the father of K.M. The father of H.C., D.C., K.C., and W.C. is deceased. The
permanency plan for B.B., J.M., K.M., H.C., D.C., and W.C. is adoption in their current
placements. K.C. has reached the age of majority.
5
One of petitioner’s assignments of error is that the DHS instigated petitioner’s
abandonment of the children by refusing to allow petitioner contact with the children. However,
petitioner fails to include citation to the evidentiary record in support of this alleged error, in
violation of our rules. See W. Va. R. App. P. 10(c)(7) (“The brief must contain an argument
exhibiting clearly the points of fact and law presented, . . . . The Court may disregard errors that
are not adequately supported by specific references to the record on appeal.” (emphasis added).).
Accordingly, the Court will not address this assignment of error on appeal.
3
Petitioner first argues that it was error for the circuit court to not hold the preliminary and
adjudicatory hearings within the time frames required by the West Virginia Rules of Procedure
for Child Abuse and Neglect Proceedings.6 Petitioner contends she was prejudiced by the delays
because she had no contact with her children and was not provided services. We acknowledge
that the circuit court’s delay in holding the preliminary and adjudicatory hearings did not
comport with the applicable timeframes. We have held that “[t]he time limitations and standards
contained [within Chapter 49 of the West Virginia Code, the Rules of Procedure for Child Abuse
and Neglect Proceedings, and our extensive body of caselaw] are mandatory and may not be
casually disregarded or enlarged without detailed findings demonstrating exercise of clear-cut
statutory authority.” In re J.G., II, 240 W. Va. 194, 205, 809 S.E.2d 459, 464 (2018).
Nonetheless, as we have explained on numerous occasions, “the best interests of the child is the
polar star by which decisions must be made which affect children.” See, e.g., Michael K.T. v.
Tina L.T., 182 W. Va. 399, 405, 387 S.E.2d 866, 872 (1989). As such, “a mere procedural
technicality does not take precedence over the best interests of the children.” In re Tyler D., 213
W. Va. 149, 160, 578 S.E.2d 343, 354 (2003). After reviewing the record, the removal of B.B.
and J.M. was supported by more than sufficient evidence. Therefore, vacating the order
following the preliminary hearing and remanding the matter for compliance with long-expired
time frames would serve no purpose. It is also clear from the record that the adjudicatory hearing
was delayed in large part because of petitioner’s actions. The record shows that following the
preliminary hearing, petitioner refused to communicate with the DHS, failed to appear at
proceedings, requested multiple continuances, and made frivolous motions to recuse and
disqualify the circuit court. Accordingly, we find no reversible error.7
Petitioner next argues that the circuit court erred by permitting evidence that fell below
the evidentiary standard required for preliminary hearings. Petitioner contends that the DHS was
required to prove the conditions existing at the time of the filing of the petition by clear and
convincing proof at the preliminary hearing to justify removal of the children. Specifically,
petitioner asserts that the evidence offered by the DHS at the preliminary hearing was
insufficient because it occurred months before the petition was filed rather than at the time the
petition was filed. We find no merit in petitioner’s argument as petitioner has applied the wrong
evidentiary standard. Pursuant to Rule 3(g) of the West Virginia Rules of Procedure for Abuse
and Neglect Procedures, a preliminary hearing is held, in part, to determine “whether there is
6
Rule 22 requires circuit courts to conduct a preliminary hearing within ten days after a
child is placed in the emergency custody of the DHS at the time an abuse and neglect petition is
filed. Rule 25 requires adjudicatory hearings to be held within thirty days of the temporary
custody order entered following the preliminary hearing when a child is placed in the temporary
custody of the DHS.
7
Additionally, in support of this assignment of error, petitioner generally asserts that the
circuit court erred by not holding preliminary hearings after the amended petitions were filed.
Because petitioner fails to provide any meaningful analysis concerning this issue in her brief, we
decline to address this issue. See State v. Larry A.H., 230 W. Va. 709, 716, 742 S.E.2d 125, 132
(2013) (“Although we liberally construe briefs in determining issues presented for review, issues
. . . mentioned only in passing but [that] are not supported with pertinent authority, are not
considered on appeal.”).
4
reasonable cause to believe that the child is in imminent danger.” As defined by West Virginia
Code § 49-1-201, “‘imminent danger to the physical well-being of the child’ means an
emergency situation in which the welfare or the life of the child is threatened.” Such a situation
exists when “[t]he parent, guardian, or custodian’s abuse of alcohol or drugs or other controlled
substance . . . has impaired his or her parenting skills to a degree as to pose an imminent risk to a
child’s health or safety.” Id. In this case, the CPS worker testified that petitioner admitted to
using heroin and methamphetamine while pregnant and that petitioner’s prenatal records
confirmed petitioner had used fentanyl, methamphetamine, and heroin. Further, the CPS worker
testified that petitioner said the father was “physical” with her during an argument while he was
intoxicated. Based on that testimony, we find that the circuit court had sufficient evidence to find
that B.B. and J.M. were in imminent danger because their welfare was threatened by the risk
petitioner’s drug use and domestic violence posed to their health and safety.
Finally, petitioner argues that the circuit court erred in finding that the DHS made
reasonable efforts to preserve the family. Specifically, petitioner contends that the DHS failed to
make reasonable efforts as required by West Virginia Code § 49-4-604(c)(6) because the DHS
only provided drug testing and denied her contact with the children despite her passing multiple
drug tests. We find no merit to this argument. Pursuant to West Virginia Code § 49-4-604(c)(6),
a circuit court is required to consider whether the DHS made reasonable efforts to preserve the
family when terminating parental rights. Here, the circuit court clearly outlined in its
dispositional order the efforts made by the DHS, which included holding MDT meetings, setting
up drug testing, arranging transportation to and from drug testing and court hearings, attempting
to contact petitioner through multiple means, driving around petitioner’s town to locate her,
assisting petitioner in finding in-patient substance abuse rehabilitation centers, and offering
visitation with the children upon clean screens. Accordingly, the circuit court found that the DHS
made reasonable efforts to preserve the family and make it possible for the children to return
home. Contrary to petitioner’s argument, the record shows that the DHS provided services
beyond drug testing and that the petitioner continually resisted the DHS’s efforts by not
participating or failing to cooperate. The evidence established that petitioner was informed
multiple times that visits would begin with her children following three clean drug tests.
Nevertheless, petitioner refused to consistently test. Moreover, the record is devoid of any
evidence that petitioner had three clean drug tests, reached out to the DHS to set up visitation, or
that she was denied visitation. The record is also devoid of any evidence where petitioner
requested additional services or efforts that the DHS refused. For these reasons, we find that the
DHS did make reasonable efforts to achieve reunification as required by § 49-4-604(c)(6), and
the circuit court’s finding on this issue is not erroneous.
The circuit court properly found there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future and that termination of
her parental rights was necessary for the children’s welfare and best interests. See id. (permitting
circuit court to terminate parental rights upon finding no reasonable likelihood that the
conditions of neglect can be substantially corrected in the near future and when necessary for the
child’s welfare); see also Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011)
(permitting termination of parental rights “without the use of intervening less restrictive
alternatives when it is found that there is no reasonable likelihood . . . that conditions of neglect .
5
. . can be substantially corrected”). Accordingly, termination of petitioner’s parental rights to
B.B., J.M., K.M., H.C., D.C., and W.C. was appropriate.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 2, 2022, order is hereby affirmed.
Affirmed.
ISSUED: March 6, 2024
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
6