In re E.R., Z.D., and L.R.

FILED
STATE OF WEST VIRGINIA June 3, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re E.R., Z.D., and L.R.
No. 20-0433 (Wyoming County 19-JA-24, 19-JA-25, and 19-JA-26)
MEMORANDUM DECISION
Petitioner Mother H.D., by counsel Thomas H. Evans III, appeals the Circuit Court of
Wyoming County’s April 17, 2020, order terminating her parental rights to E.R., Z.D., and L.R. 1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Angela
Alexander Walters, filed a response in support of the circuit court’s order. The guardian ad litem,
Sidney H. Bell, filed a response on behalf of the children in support of the circuit court’s order.
On appeal, petitioner argues that the circuit court erred in terminating her improvement period and
terminating her parental rights without proper notice and the opportunity to be heard.
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 standard of review, the briefs, and the record
presented, the Court finds that the circuit court below erred in holding the final dispositional
hearing without ensuring that petitioner was properly noticed of the same. Accordingly, 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 resolve the issues presented.
In February and April of 2019, the DHHR received referrals regarding alleged sexual abuse
of the children that occurred at the home of a male friend of petitioner. The DHHR implemented
a temporary protection plan with petitioner in June of 2019, but shortly thereafter, petitioner
abruptly left the three children in the care of another person who was not a parent, guardian, or
custodian and with no indication of when she would return. Upon further investigation, the DHHR
learned that petitioner had a history of substance abuse; the children had failed their grade levels
in school; petitioner regularly left the children for weeks at a time with various people; and
petitioner had not made long-term arrangements for the care, supervision, and custody of the
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
children. Accordingly, in July of 2019, the DHHR filed a child abuse and neglect petition against
petitioner based upon her drug abuse, her failure to provide basic necessities and a stable home for
the children, and her failure to make proper arrangements for the children’s care.
The circuit court held an adjudicatory hearing in September of 2019. Petitioner failed to
appear, but she was represented by her counsel. The DHHR presented evidence that petitioner’s
substance abuse negatively impacted her ability to parent the children as she often left them in the
care of others without a permanent structure of supervision. Ultimately, the circuit court
adjudicated petitioner as an abusing parent.
Petitioner appeared for a multidisciplinary team (“MDT”) meeting in October of 2019,
during which the team agreed that she needed to complete inpatient drug rehabilitation. An intake
worker for various drug rehabilitation programs offered to help petitioner secure admission.
Petitioner tested positive for opiates, methamphetamine, and tetrahydrocannabinol at the MDT.
In February of 2020, the DHHR moved to terminate petitioner’s parental rights based on
her failure to cooperate with her family case plan, which had been formulated following an MDT
meeting in October of 2019. The same month, the circuit court held a dispositional hearing. The
DHHR worker testified that petitioner failed to cooperate with services and regular drug screening,
claiming that she was homeless and lacked transportation, and refused to give an address or
location to the worker to arrange transportation. The worker indicated that petitioner had not
exercised visitation with the children during the proceedings and confirmed that petitioner was
required to attend inpatient drug rehabilitation according to her family case plan. However,
petitioner had not explicitly agreed to attend inpatient drug rehabilitation at the MDT in October
of 2019. Next, the maternal grandmother testified that the children were doing well in her care and
that she had taken care of them regularly for several weeks at a time for the past three years during
stints when petitioner would suddenly leave the area. She stated petitioner had also left the children
with her adult son who was unable to care for them. She said that petitioner had been addicted to
drugs for at least ten years and was unable to take care of the children. Ultimately, the court did
not rule on the DHHR’s motion to terminate petitioner’s parental rights at this time.
Petitioner testified at a status hearing in October of 2019 and admitted to testing positive
for methamphetamine. She also stated that she failed to attend prior hearings because she did not
know the dates and times and blamed the maternal grandmother for not forwarding her mail to her.
When asked if she acknowledged her drug abuse problem, petitioner answered, “Yes, I have a drug
problem if it will help me get my kids back. I’ll say I do have a problem.” The circuit court deferred
ruling on the termination of petitioner’s parental rights and granted petitioner’s motion for an
improvement period to allow petitioner the opportunity to enroll into and complete drug
detoxification and inpatient drug rehabilitation. However, the circuit court cautioned that if
petitioner failed to do so, it would hold another hearing and terminate her improvement period and
parental rights. The circuit court set the next hearing for May of 2020 but noted that if petitioner
left the inpatient drug rehabilitation program before then, the circuit court would set an earlier
hearing date.
2
On March 31, 2020, the DHHR sent out a timely notice of telephonic 2 hearing set for April
7, 2020. However, that date was continued to April 9, 2020. The details surrounding when and
how the date was rescheduled are not apparent in the record. 3 At the April 9, 2020, hearing,
petitioner failed to appear, but counsel represented her. The DHHR presented evidence that
petitioner completed the drug detoxification program and enrolled into a nine-to-twelve-month
inpatient drug rehabilitation program but was removed from the program after thirty days. The
circuit court found that the primary issue in petitioner’s case was her untreated chronic substance
abuse, which made petitioner a “part-time mother” to the children as she routinely “left the children
at different times with different people without the children knowing when she would return.” The
court noted that for the majority of the proceedings, petitioner failed to acknowledge her substance
abuse and resultant inability to care for the children and only had a change of heart at the hearing
upon the DHHR’s motion for termination of her parental rights in February of 2020. Having found
that petitioner failed to comply with the most crucial term of her improvement period—completion
of long-term inpatient drug rehabilitation— the circuit court terminated petitioner’s improvement
period. Ultimately, the circuit court found that 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. The circuit court
terminated petitioner’s parental rights by order entered on April 17, 2020. 4 It is from the
dispositional order that petitioner appeals.
The Court has previously established the following standard of review:
“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).
2
Due to COVID-19 pandemic guidelines, the circuit court held the hearing telephonically
rather than in-person.
3
The guardian ad litem asserts that the April 9, 2020, hearing date “was passed by
agreement of all the parties,” but fails to cite to the record showing that the agreement, in fact,
occurred.
4
The father’s parental rights were also terminated. The permanency plan for the children is
adoption by the maternal grandmother.
3
On appeal, petitioner argues that the circuit court erred by failing to give proper notice of
the final dispositional hearing which prevented her from appearing and having the opportunity to
be heard. According to petitioner, on March 31, 2020, the DHHR sent notices to the parties via
mail and facsimile that the telephonic hearing would be held on April 7, 2020. However, that
hearing date was changed to April 9, 2020, “with no additional notice.” Due to the short notice of
the continuance, petitioner argues that she did not receive adequate notice of the new hearing date
which resulted in her failure to call in for the telephonic hearing and explain her dismissal from
the drug rehabilitation program. 5
Pursuant to Rule 31 of the Rules of Procedure for Child Abuse and Neglect Proceedings,
“[n]otice of the date, time, and place of the disposition hearing shall be given to all parties, their
counsel, and persons entitled to notice and the right to be heard.” Further, “[c]ircuit courts must
provide the parties with notice of the disposition hearing prior to actually holding the
hearing.” In re Travis W., 206 W. Va. 478, 483, 525 S.E.2d 669, 674 (1999). We note that it is
unclear from the record when the April 7, 2020, date was changed to April 9, 2020, as there was
no notice of the April 9, 2020, hearing filed below and there is no transcript of the April 9, 2020,
hearing in the record. There is also no evidence that petitioner had actual notice of the April 9,
2020, hearing date. However, it appears that any notice of the April 9, 2020, hearing date fell short
of the required ten days for timely notice. See W. Va. Code § 49-4-601(e)(1) (requiring “at least
10 days’ notice of any . . . hearing”).
We have previously 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 [alleged] to be abused or neglected has been
substantially disregarded or frustrated, the resulting order . . . will be vacated and
the case remanded for compliance with that process and entry of an appropriate . .
. order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620(2001).
Syl. Pt. 3, In re Emily G., 224 W. Va. 390, 686 S.E.2d 41 (2009). Here, the record shows that the
circuit court held a final dispositional hearing without proper notice to petitioner.
See Travis W., 206 W. Va. at 483, 525 S.E.2d at 674 (holding that a circuit court’s failure to
comply with Rule 31 of the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings was a substantial disregard of process and required remand).
Accordingly, we find that because the circuit court substantially disregarded the process
established by the rules, the resulting dispositional order must be vacated, and the case must be
remanded for compliance with that process. As such, it is unnecessary to address petitioner’s
5
Petitioner incorrectly cites Rule 6 of the West Virginia Rules of Civil Procedure, in
support of her argument. Rule 81(a)(7) of the West Virginia Rules of Civil Procedure provides that
“rules 5(b), 5(e) and 80 [of these rules] apply, but the other rules do not apply, to juvenile
proceedings brought under the provisions of chapter 49 [§ 49-1-101 et seq.] of the West Virginia
Code.” Accordingly, Rule 6 of the West Virginia Rules of Civil Procedure is inapplicable.
4
arguments regarding her improvement period and the termination of her parental rights as our
ultimate determination is controlled by the circuit court’s failure to properly notice a final
dispositional hearing.
For the foregoing reasons, we vacate the circuit court’s April 17, 2020, order, insomuch as
it relates to petitioner’s parental rights only, and remand this matter to the circuit court for the
holding of a properly noticed dispositional hearing within thirty days of the issuance of this
memorandum decision, and for further proceedings 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.
ISSUED: June 3, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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