In re G.A. and M.B.

FILED
February 14, 2023
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re G.A. and M.B.
No. 22-0332 (Mercer County 19-JA-91 and 19-JA-92)
MEMORANDUM DECISION
Petitioner Mother C.A. 1 appeals the Circuit Court of Mercer County’s March 29, 2022,
order terminating her custodial rights to G.A. and M.B. 2 Upon our review, we determine that oral
argument is unnecessary. This case satisfies the “limited circumstances” requirement of Rule
21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision rather
than an opinion. For the reasons expressed below, the decision of the circuit court is vacated
because the court failed to set forth sufficient findings of fact and conclusions of law to support
the termination of petitioner’s custodial rights and the case is remanded for the limited purpose
of entering a new dispositional order.
In August of 2019, the DHHR filed a child abuse and neglect petition alleging that
petitioner abused drugs, failed to seek treatment for her mental health issues, and failed to
provide for her four children, S.P., K.P., G.A. and M.B. 3 The DHHR later amended the petition
to include allegations that S.P. and K.P. participated in forensic interviews and disclosed that
petitioner extensively physically and emotionally abused them. The children also disclosed that
petitioner sold her prescription medications. S.P. and K.P., who were then teenagers, were not
returned to petitioner’s care. In September of 2019, the circuit court held a preliminary hearing,
wherein it returned then three-year-old G.A. and eight-year-old M.B. to petitioner’s home. The
court granted petitioner a custodial preadjudicatory improvement period in February of 2020. As
part of the terms and conditions, petitioner was required to maintain stable housing, employment,
1
Petitioner appears by counsel P. Michael Magann. The West Virginia Department of
Health and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey
and Assistant Attorney General Katica Ribel. Joshua J. Lawson 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).
3
As more fully explained herein, S.P. and K.P. are not at issue in this appeal.
1
cooperate with services, and address and maintain her mental health. At the conclusion of
petitioner’s preadjudicatory improvement period in September of 2020, the circuit court
adjudicated petitioner as an abusing parent and granted her a post-adjudicatory improvement
period with the same terms and conditions. G.A. and M.B. remained in her care.
The circuit court held a dispositional hearing in August of 2021 and heard evidence on
the DHHR’s previously filed motion to terminate petitioner’s parental rights to all four children.
The DHHR presented evidence that petitioner failed to seek treatment for her bipolar and
personality disorders—diagnoses she received in a court-ordered parental fitness evaluation.
Additionally, petitioner failed to accept responsibility for any of the issues that led to the
petition’s filing and instead blamed the children for those issues. Petitioner also contacted S.P.
and K.P. against the recommendation of their therapists and the members of the multidisciplinary
treatment team, expressing cruel and demeaning messages to the children. The court also heard
evidence that petitioner failed to participate in random drug screening since September of 2020.
Ultimately, the circuit court found that petitioner had severe mental health issues that affected
her ability to parent S.P. and K.P. and that there had been too much trauma inflicted on them to
place them back in petitioner’s care. Upon the guardian’s recommendation, the circuit court
terminated petitioner’s custodial rights to S.P. and K.P. This Court reviewed that decision and
affirmed the circuit court’s August 20, 2021, order. See In re S.P. and K.P., No. 21-0746, 2022
WL 710483 (W. Va. Mar. 9, 2022) (memorandum decision).
Regarding G.A. and M.B., the circuit court granted petitioner a post-dispositional
improvement period, beginning in August of 2021, and ordered her to resume weekly drug
screening and continue mental health therapy. The circuit court further ordered petitioner to
participate in a second parental fitness evaluation. Soon after the August of 2021 dispositional
hearing, petitioner tested positive for methamphetamine, and the circuit court authorized removal
of G.A. and M.B. from her home in November of 2021.
The circuit court held dispositional hearings in February and March of 2022. The DHHR
presented expert testimony that petitioner’s urine tested positive for methamphetamine on six
different occasions and her claim that a “Vick’s vapor rub inhaler” caused the false positives was
ruled out by specific testing measures. Petitioner also tested positive for marijuana multiple
times, which she also claimed was a false positive due to a prescription medication. Petitioner
denied that she had a substance abuse problem. Petitioner’s parental fitness evaluator testified
that he diagnosed petitioner with bipolar disorder, post-traumatic stress disorder, and a mild
substance abuse disorder. The evaluator recommended petitioner participate in behavioral
therapy and psychiatric treatment. The evaluator noted that petitioner minimized her behaviors
during the evaluation and shifted blame to other individuals involved in the proceedings. The
evaluator opined that petitioner made a “slight improvement” between her first evaluation in
October of 2019 and the second evaluation in December of 2021, but believed that it was
unlikely that she could achieve stability the near future given her past lack of success with
treatment. In sum, the evaluator opined that petitioner was not stable enough to function as a
parent, noting her need for psychiatric medication to stabilize her mood and additional
behavioral therapy. The court also heard evidence that petitioner completed her parenting classes
and attended some recommended therapy. While petitioner’s therapist testified that consistency
in therapy was very important for individuals with mood disorders, petitioner testified that she
2
was not consistent in attending her therapy sessions, attending about once every three weeks
rather than biweekly as recommended by her therapist. Finally, petitioner blamed the current
proceedings on her older children and did not acknowledge any need for mental health treatment
or substance abuse treatment.
Ultimately, the circuit court found that petitioner was not making sufficient progress in
her improvement period and that “the children ha[d] been in [the DHHR’s] custody for the last
eighteen (18) months.” The court found on the record that petitioner was “just not ready to have
custody of [the] children” and was “out of time” due to the statutory limitation on improvement
periods and extensions. It concluded that termination of petitioner’s custodial rights was in the
best interests of the children. Accordingly, the circuit court terminated petitioner’s custodial
rights to G.A. and M.B. by its March 29, 2022, order. Petitioner now appeals that order.
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). Upon our review of the circuit court’s
March 29, 2022, dispositional order, we find the court failed to make sufficient findings of fact
and conclusions of law to support its decision. 4
Rule 36(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings requires that, “[a]t the conclusion of the disposition hearing, the court shall make
findings of fact and conclusions of law, in writing or on the record, as to the appropriate
disposition in accordance with the provisions of W. Va. Code § 49-4-604.” Further, West
Virginia Code § 49-4-604(c) sets forth the various dispositions to be imposed at the conclusion
of abuse and neglect proceedings. To terminate a parent’s custodial rights, the circuit court must
find that “there [is] no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected in the near future” and that termination is necessary for the children’s
welfare. W. Va. Code § 49-4-604(c)(6). West Virginia Code § 49-4-604 also includes other
factors that the circuit court must consider prior to the termination of a parent’s custodial rights.
Id.
Here, the required findings are not presented in the circuit court’s written order or the
record. This Court has held that
[w]here 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] on the record or in the order, the order is inadequate.
4
In light of the circuit court’s lack of required findings and conclusions on the matter, we
decline to address petitioner’s argument that the circuit court should have imposed a less
restrictive disposition than the termination of her custodial rights.
3
Syl. Pt. 4, in part, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001). Further,
[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.
Id. at 624, 558 S.E.2d at 623, Syl. Pt. 5. In Edward B., we explained that “[c]lear and complete
findings by the trial judge are essential to enable [the appellate court to] properly exercise and
not exceed our powers of review.” Id. at 632, 558 S.E.2d at 631 (citation omitted). Due to the
complete lack of required findings, we find it necessary to vacate and remand the circuit court’s
final dispositional order for the limited purpose of entry of an order that contains the required
findings of fact and conclusions of law for appellate review.
Furthermore, to the extent that the circuit court’s decision was premised upon its finding
that “the children have been in the custody [of the DHHR] for the last eighteen (18) months,” we
determine that this finding is clearly erroneous. Although not explicit in its order or on the
record, in making this finding, the circuit court appears to invoke the statutory limit on
improvement periods found in West Virginia Code § 49-4-610(9), which provides:
Notwithstanding any other provision of this section, no combination of any
improvement periods or extensions thereto may cause a child to be in foster care
more than fifteen months of the most recent twenty-two months, unless the court
finds compelling circumstances by clear and convincing evidence that it is in the
child’s best interests to extend the time limits contained in this paragraph.
It is apparent from the record and transcript of the dispositional hearings that the circuit
court was concerned with this statutory limitation, finding that petitioner was “out of time” to
improve. However, G.A. and M.B. were in petitioner’s care throughout much of the
proceedings, and at the time of the final dispositional hearing, the children had been out of
petitioner’s home for approximately five months. Clearly, the circuit court’s finding that the
children had been in the DHHR’s custody for the most recent eighteen months is erroneous.
Upon remand, the circuit court shall review the record and issue a sufficient dispositional order
with proper factual findings.
Accordingly, the circuit court’s March 29, 2022, order, is hereby vacated and remanded
for the limited purpose of entry of a new order consistent with this decision. 5 The circuit court
is directed to enter a new final order within thirty days of the date this decision is entered. The
Clerk is hereby directed to issue the mandate contemporaneously herewith.
5
This Court vacates the circuit court’s dispositional order only as it relates to petitioner’s
custodial rights to G.A. and M.B.
4
Vacated and remanded with directions.
ISSUED: February 14, 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