In re K.S., B.M., and O.S. ( 2024 )

FILED
STATE OF WEST VIRGINIA February 7, 2024
SUPREME COURT OF APPEALS C. CASEY FORBES, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re K.S., B.M., and O.S.
No. 22-876 (Monongalia County 19-JA-31, 19-JA-32, and 19-JA-33)
MEMORANDUM DECISION
Petitioner Mother S.S. 1 appeals the Circuit Court of Monongalia County’s October 31,
2022, order terminating her parental rights to K.S., B.M., and O.S. 2 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.
The proceedings giving rise to this appeal were previously before the Court. In re K.S., 246
W. Va. 517, 874 S.E.2d 319 (2022). As a result of a positive drug screen in a family court matter,
the DHS filed an abuse and neglect petition against petitioner in February 2019, and petitioner
stipulated to her adjudication the following month. Id. at 522, 874 S.E.2d at 324. Over the
following fourteen months, petitioner tested positive for drugs on some occasions but also
underwent substance abuse treatment and produced many negative screens over long periods. Id.
Following a dispositional hearing in October 2020, the circuit court terminated petitioner’s
parental rights to the children. Id. at 523-24, 874 S.E.2d at 325-26. Petitioner appealed, and we
vacated the circuit court’s dispositional order for several reasons, including the DHS’s failure to
present evidence in support of termination and deficiencies in the court’s dispositional order. Id.
at 528-29, 874 S.E.2d at 330-31.
1
Petitioner appears by counsel Cheryl L. Warman. The West Virginia Department of
Human Services appears by counsel Attorney General Patrick Morrisey and Assistant Attorney
General Katica Ribel. Counsel Stephanie Nethken appears as the children’s guardian ad litem.
Additionally, pursuant to West Virginia Code § 5F-1-2, the agency formerly known as the
West Virginia Department of Health and Human Resources was terminated, effective January 1,
2024, and is now three separate agencies—the Department of Health Facilities, the Department of
Health, and the Department of Human Services. 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
On remand, the court granted petitioner a post-dispositional improvement period following
a hearing in July 2022. Petitioner was required to submit to random drug screening as a condition
of this improvement period. The parties appeared for a dispositional hearing in September 2022.
At the outset, petitioner objected to the DHS calling as a witness Dr. Kenneth Lewis, director of
OpAns Laboratory, which was the facility that conducted the tests of petitioner’s blood.
Specifically, petitioner indicated that this witness was not timely disclosed and that she was not
provided a copy of his curriculum vitae, among other issues. Due to time constraints, the court
ruled that it would permit Dr. Lewis to testify, but would ensure the appropriate information was
disclosed to petitioner and would permit her to “either call[] an expert in response or . . . make [Dr.
Lewis] available for cross[-]examination again, if you need additional time to do so at the next
hearing.”
The court then proceeded to hear testimony from Justin Kreger, director of the Monongalia
County Day Report Center where petitioner participated in drug screens. According to Mr. Kreger,
petitioner tested positive for THC and methamphetamine on several dates between July and
September 2022. It is important to note that petitioner did not object to any of Mr. Kreger’s
testimony. Dr. Lewis then testified and corroborated Mr. Kreger’s testimony concerning
petitioner’s continued abuse of THC and methamphetamine. The matter was then continued until
approximately two weeks later, at which time counsel for the DHS confirmed that petitioner was
provided a copy of Dr. Lewis’s curriculum vitae and resume. During this hearing, the DHS
indicated that “other than continued positive[ drug screens] there hasn’t been a significant change
in [petitioner’s] circumstances” since the prior hearing. According to the record, petitioner tested
positive for THC and methamphetamine the day after the prior hearing.
The parties then appeared for a final dispositional hearing in October 2022, at which time
petitioner continued her cross-examination of Dr. Lewis. The DHS also presented testimony from
a Child Protective Services worker who indicated that, although the DHS initially supported an
improvement period, the DHS sought termination of petitioner’s parental rights “after we realized
that she was, in fact, using methamphetamines, was not wanting any additional services, [and] was
not wanting to admit to substance use.” The witness also explained that termination of petitioner’s
parental rights was necessary for the children because they “have not had any kind of meaningful
contact with [petitioner] in pretty much over two years.” The witness explained that the children’s
caregivers requested that petitioner not have contact with the children “based on her history of
drug use and inconsistent participation in the children’s lives.” After hearing testimony from
additional witnesses, including petitioner, the court found that petitioner refused to accept that she
needed to correct her substance abuse. Based on petitioner’s continued positive drug screens, the
court found that there was no reasonable likelihood that petitioner could substantially correct the
conditions of abuse and neglect in the near future. Further, noting that “[t]he stability of the
children has to be [the] primary focus,” the court concluded that termination was necessary for the
children’s welfare. The court also considered the wishes of then-thirteen-year-old K.S., who
explained the impact of petitioner’s behavior, asked that petitioner not retain her parental rights or
otherwise communicate with her, and expressed a desire to be adopted by her stepmother.
2
Accordingly, the court terminated petitioner’s parental rights. 3 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). Before this Court, petitioner first argues that she
was denied a meaningful dispositional hearing because of the DHS’s late disclosure of Dr. Lewis
as a witness and the introduction of his testimony “regarding results of dried blood spot analysis
samples” that “purportedly showed the presence of illicit drugs.” Further compounding this issue,
petitioner asserts that the DHS did not attempt to qualify Dr. Lewis as an expert. We find, however,
that it is unnecessary to address this assignment of error because petitioner cannot establish
prejudice, assuming any error occurred. Indeed, it is confusing that petitioner challenges this
witness’s testimony to petitioner’s drug screen results, when petitioner raised no objection to Mr.
Kreger’s testimony on this same issue. The record reflects that Mr. Kreger testified before Dr.
Lewis and discussed, at length, petitioner’s many failed drug screens. As such, petitioner cannot
establish any prejudice in Dr. Lewis testifying to the same evidence. “‘This Court . . . succinctly
explained . . . that “where a nonconstitutional error has been asserted, we have adopted the rather
general rule that the case will not be reversed unless the error is prejudicial to the defendant.”’
State v. White, 223 W. Va. 527, 532, 678 S.E.2d 33, 38 (2009) (citation omitted).” State v. Rexrode,
243 W. Va. 302, 317 n.22, 844 S.E.2d 73, 88 n.22 (2020). Accordingly, we find that petitioner is
entitled to no relief.
Finally, petitioner argues that it was error to terminate her parental rights because it was
not the least restrictive dispositional alternative. According to petitioner, her rights could have
been left intact because two children were placed with their fathers and the third was already placed
with a legal guardian. However, petitioner ignores the following:
“Termination of parental rights, the most drastic remedy under the statutory
provision covering the disposition of neglected children, [West Virginia Code § 49-
4604] may be employed without the use of intervening less restrictive alternatives
when it is found that there is no reasonable likelihood under [West Virginia Code
§ 49-4-604(c)(6)] that conditions of neglect or abuse can be substantially
corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).
Syl. Pt. 5, In re Kristen Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Here, the circuit court correctly
found that petitioner’s continued substance abuse constituted a circumstance in which there was
no reasonable likelihood that the conditions could be corrected. See W. Va. Code § 49-4-604(d)(1).
This is in stark contrast to the cases upon which petitioner relies in support of her argument,
including In re B.S., 242 W. Va. 123, 829 S.E.2d 754 (2019). In that case, we affirmed the
termination of a mother’s custodial rights only because the record demonstrated compliance with
services over an extended period, including producing many clean drug screens. Id. at 130, 242
3
K.S. and O.S. were returned to the custody of their nonabusing fathers. B.M.’s father was
granted disposition under West Virginia Code § 49-4-604(c)(5), and the permanency plan for that
child is legal guardianship in the current placement.
3
S.E.2d at 761. Unlike in that matter, petitioner initially showed some compliance, but, following
remand, she continued abusing drugs up to the final dispositional hearing in this matter.
Further, the court concluded that termination of petitioner’s rights was necessary for the
children’s welfare, taking into account K.S.’s desire to be adopted by her stepmother and the
overall need for stability and security for all three children. On appeal, petitioner argues that she
should have been entitled to disposition under West Virginia Code § 49-4-604(c)(5). We find,
however, that although such a disposition is appropriate in some cases, the circuit court in this
matter was not required to impose the same when the evidence overwhelmingly supported the
findings necessary for termination of petitioner’s parental rights. See W. Va. Code § 49-4-
604(c)(6) (permitting circuit court to terminate parental rights upon finding no reasonable
likelihood conditions of abuse and/or neglect can be substantially corrected in the near future and
when necessary for child’s welfare). Petitioner’s reliance on In re Z.B., No. 17-0203, 2017 WL
2628570 (W. Va. June 19, 2017)(memorandum decision), in which this Court affirmed a
disposition under West Virginia Code § 49-4-604(c)(5) is misplaced. While petitioner accurately
represents this Court’s discussion of the definition of permanent placement as set forth in Rule
3(n) of the Rules of Procedure for Child Abuse and Neglect Proceedings, she ignores the fact that
disposition was upheld in that case, in critical part, because the circuit court in that matter did not
make a finding that there was no reasonable likelihood the conditions of abuse and neglect could
be substantially corrected. Id. at *3. This precluded termination of parental rights, unlike in the
current matter where the court made the necessary findings.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 31, 2022, order is hereby affirmed.
Affirmed.
ISSUED: February 7, 2024
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
4