In re K.L., T.C.-1, T.C.-2, and B.C. ( 2021 )

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 K.L., T.C.-1, T.C.-2, and B.C.
No. 20-0912 (Randolph County 19-JA-153, 19-JA-154, 19-JA-155, and 19-JA-156)
MEMORANDUM DECISION
Petitioner Mother S.L., by counsel Gregory R. Tingler, appeals the Circuit Court of
Randolph County’s July 17, 2020, order terminating her parental rights to K.L., T.C.-1, T.C.-2,
and B.C. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Lee Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Heather M. Weese, filed a response on behalf of the children also in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in adjudicating her as
an abusing parent, denying her motions to suppress, and terminating her parental rights.
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 no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
In November of 2019, the DHHR filed a child abuse and neglect petition against petitioner
based upon allegations of drug abuse and domestic violence. The petition indicated that the
children’s biological parents’ parental rights had been previously terminated around 2015 and that
petitioner, the maternal grandmother, adopted the children shortly thereafter. Regarding the instant
proceedings, the DHHR alleged that it received a referral after then-six-year-old T.C.-1
complained that there was something in his shoe while at school. His teacher investigated the
situation and, upon removing his shoe, a small baggie of what was presumed to be marijuana fell
out. The teacher questioned the child, who stated that the substance was “weed,” that it belonged
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). Because two of the children share the same initials, we will refer
to them as T.C.-1 and T.C.-2, respectively, throughout the memorandum decision.
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to petitioner, and that petitioner sold weed for money. Law enforcement officers and Child
Protective Services (“CPS”) were informed of the matter.
A CPS worker spoke to T.C.-1, who made the same disclosures regarding the marijuana
and further indicated that petitioner keeps the marijuana in her purse and in the couch and that she
smokes it sometimes. The worker then spoke to T.C.-2, who did not make any disclosures
regarding marijuana. However, T.C.-2 indicated that petitioner and then-fifteen-year-old K.L.
“fight all the time” and that petitioner had previously punched K.L. in the face and left marks on
her. During T.C.-2’s interview, T.C.-1 began to talk about petitioner selling marijuana and T.C.-2
covered his mouth and stated, “grandma doesn’t sell nothing.” The children also reported that
petitioner permitted the children’s biological mother to reside in the home with them despite the
fact that her parental rights had previously been terminated due to drug abuse.
The DHHR further alleged that K.L. had issues with truancy, abused drugs such as
marijuana and methamphetamine, was in a sexual relationship with an adult, and assisted petitioner
in selling marijuana out of the home. The DHHR learned this information after a CPS worker
searched K.L.’s cellphone upon removal of the child from the home. The DHHR reported that the
home was in poor condition and that the children smelled of cat urine. Petitioner waived her
preliminary hearing.
The DHHR filed an amended petition against petitioner in February of 2020, adding
allegations of physical violence between petitioner and K.L. The amended petition also alleged
that petitioner permitted K.L. to be in a sexual relationship with an adult, and that she permitted
K.L. to assist her in drug sales.
In March of 2020, petitioner filed a motion to suppress the phone records recovered from
K.L.’s cell phone. Petitioner alleged that the cell phone belonged to her and that “[a]t no time did
the authorities seek permission from [petitioner,] the owner of said phone[,] to electronically
search it for use against her in this proceeding.” Petitioner argued that the CPS worker’s search of
the phone was an unauthorized search and seizure and that the DHHR was unable to show any
acceptable exception. Petitioner also filed a motion to suppress the introduction of the alleged
marijuana found in T.C.-1’s shoe, and a motion to dismiss the petition. Petitioner argued that the
DHHR failed to preserve the alleged marijuana, failed to take pictures of it, and failed to have it
tested in a laboratory to establish that it was, in fact, marijuana. Petitioner further argued that
because the DHHR did not possess the alleged marijuana, the DHHR could not meet its burden
and that the petition should be dismissed.
At an initial adjudicatory hearing held later that month, the circuit court denied petitioner’s
motion to suppress the phone records, finding that the Fourth Amendment does not apply to CPS
workers in abuse and neglect proceedings and that the CPS worker observed the text messages
while ensuring the safety of the children because of threats of interference with the removal and/or
absconding of K.L.
The DHHR presented the testimony of T.C.-1’s principal who testified that T.C.-1’s
teacher observed a substance presumed to be marijuana fall out of the child’s shoe. The principal
stated that the child identified the substance as weed, stated that it belonged to petitioner, and
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further indicated that petitioner sold weed for money. The child also disclosed where petitioner
stored the substance.
A law enforcement officer testified that he responded to the school after receiving a call
from the principal regarding locating marijuana that had fallen out of a child’s shoe. The officer
testified that he observed the substance and that it did appear to be marijuana. The officer testified
that he later went to petitioner’s home and that there were no signs of marijuana or odor of
marijuana when he stood in the front entry of the home. The officer testified that following the
investigation, he destroyed the substance.
An employee from North Central Community Corrections testified that following the
petition’s filing, petitioner submitted to a drug screen around November of 2019, which was
positive for marijuana. The employee testified that petitioner had submitted negative screens since
January 29, 2020.
A school-based probation officer testified regarding K.L.’s truancy issues. The probation
officer testified that the child had several absences from school and that she tried to contact
petitioner about the matter. Petitioner missed meetings with the probation officer and refused in-
home services. Eventually, petitioner permitted K.L. to enter into a diversion program. The
probation officer testified that while in the diversion program, K.L. tested positive for marijuana
and methamphetamine and admitted to being in a romantic relationship with an adult. The
probation officer testified that petitioner minimized K.L.’s drug use and would not permit the
probation officer to work with the child over the summer.
A CPS worker testified regarding removing the children. The worker stated that law
enforcement officers arrived at the home to assist her and that when she arrived a short time later,
both petitioner and K.L. were “carrying on” and screaming. Officers eventually removed K.L.
from the home because she was upsetting the younger children, and the CPS worker observed her
calling various people and reporting the situation. The CPS worker testified that she removed the
phone from K.L.’s possession at that time because she was concerned that K.L. was attempting to
have someone come to retrieve her or that she was attempting to run away. The CPS worker stated
that she opened the phone to look for messages regarding her concerns but found pictures of
marijuana and messages that indicated the child was aiding petitioner in selling marijuana. The
CPS worker further testified that K.L. disclosed that petitioner allowed her to have contact with
her biological mother and that she abused methamphetamine with her biological mother.
Following this testimony, the circuit court continued the matter, which was reconvened on June 1,
2020. Petitioner testified on her own behalf.
Ultimately, the circuit court adjudicated petitioner as an abusing and neglecting parent. The
circuit court found that there was clear and convincing evidence that there was marijuana use in
the home, that petitioner engaged in physical altercations with K.L., and that marijuana sales
occurred in the home, some of which were with K.L.’s assistance. The circuit court found that
petitioner acknowledged abusing marijuana but denied that she engaged in the sale of marijuana.
The circuit court further found that petitioner allowed the children to remain in contact with the
biological mother, which was not in their best interests. The circuit court found that it was
unnecessary to address whether the substance found in T.C.-1’s shoe was, in fact, marijuana given
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the testimony of marijuana use in the home, the child’s ability to identify the substance, and his
knowledge about its use in the home. Thereafter, petitioner filed a motion for a post-adjudicatory
improvement period.
In July of 2020, the circuit court held a dispositional hearing. The DHHR requested that
the circuit court take judicial notice of the testimony and evidence presented at the previous
hearings in the matter. Petitioner presented the testimony of three friends, all of whom testified
that petitioner was an appropriate caregiver and that she provided everything the children needed.
The witnesses stated that they never observed anything inappropriate in their home and that
petitioner and the children shared a strong bond. Petitioner’s mother also testified that she was a
good caretaker, provided for the children, and had a strong bond with them.
Petitioner testified in support of her motion for an improvement period and stated that she
would comply with its terms and conditions. Petitioner stated that she was willing to do anything
to regain custody of the children and that she had a strong bond with them. However, petitioner
denied having marijuana in her home and claimed that the CPS worker fabricated the children’s
disclosures.
Following testimony, the circuit court found that the evidence clearly established that
petitioner loved the children. The circuit court noted, however, that petitioner permitted K.L. to be
in a relationship with an adult male and allowed drugs to be in and sold from her home. The circuit
court found that the children had knowledge of drug use and the sale of drugs in the home and that
K.L. facilitated drug sales. The circuit court found that, other than stating that she would comply
with services, petitioner failed to acknowledge “what took place in the home and the impact on
the children.” As such, the circuit court found that there was no indication that petitioner would
comply with an improvement period. The circuit court denied petitioner’s motion for an
improvement period and terminated her parental rights upon finding that there was no reasonable
likelihood that the conditions of abuse and neglect could be corrected in the near future and that
termination was necessary for the children’s welfare. Petitioner appeals the July 17, 2020,
dispositional order. 2
The Court has previously established the following standard of review in cases such as this:
“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
2
The children were placed in foster homes and the permanency plan for the children is
adoption in those respective homes.
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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).
On appeal, petitioner argues that the circuit court erred in denying her motions to suppress.
Petitioner states that her motion to suppress the introduction of the alleged marijuana should have
been granted because the DHHR failed to preserve, test, or photograph the substance. Petitioner
contends that not a single witness could positively identify the substance found in T.C.-1’s shoe,
but it was nevertheless assumed to be an illegal substance supporting a finding of abuse and
neglect. Petitioner argues that by depriving her of the opportunity to examine or test the alleged
marijuana, she was denied an opportunity to adequately defend herself. Given the foregoing,
petitioner concludes that the circuit court erred in not excluding evidence of the alleged marijuana.
Petitioner further contends that the circuit court erred in refusing to suppress K.L.’s phone
records when no search warrant was obtained, violating her Fourth Amendment rights. Petitioner
argues that the CPS worker wrongfully searched K.L.’s phone and used the information found to
make allegations against petitioner. Petitioner contends that the DHHR’s argument below that
exigent circumstances were present is without merit as the CPS worker read messages preceding
the date of the removal to support its allegations. While petitioner acknowledges that this Court
has declined to extend the exclusionary rule in civil matters, she urges this Court to “adopt a limited
exclusionary rule that prohibits the introduction of evidence obtained without a warrant when the
evidence exceeds the scope of the exigent circumstances at hand.” Petitioner argues that because
this evidence should have been suppressed, the circuit court erred in adjudicating her as an abusing
parent as, absent this evidence, there was insufficient evidence presented to support her
adjudication.
First, we find that petitioner is not entitled to relief because the circuit court specifically
noted that confirmation that the substance found in T.C.-1’s shoe was marijuana was not relevant
to her adjudication. Instead, the circuit court found relevant T.C.-1’s ability to identify a substance
as marijuana, knowledge that the substance was used in the home, and knowledge that petitioner
sold the substance for money. T.C.-1 consistently disclosed this information to the CPS worker
and during a Child Advocacy Center (“CAC”) interview performed upon the children’s removal.
Further, petitioner admitted to using marijuana at the time of the children’s removal and admitted
to having a history of marijuana use during the biological mother’s case, which resulted in the
temporary removal of the children from her care. Accordingly, to the extent petitioner argues the
circuit court erred in admitting testimony indicating that the substance found in the child’s shoe
was marijuana, we find no error as the circuit court did not make any findings that the substance
was marijuana, and T.C.-1’s extensive knowledge of marijuana was sufficient to help form a basis
for adjudication.
Second, we find no error in the circuit court’s admission of testimony regarding any
photographs of K.L.’s text messages from her phone. This Court has declined to extend the
exclusionary rule to child abuse and neglect proceedings because of the potential harm to the
children:
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While the mother urges us to extend the exclusionary rule to abuse and neglect
proceedings because parental rights are implicated, we decline to do so because of
the potential harm to the children. See Abid v. Abid, 133 Nev. 770, 406 P.3d 476,
481 (2017) (explaining that courts routinely hold that evidence obtained in violation
of [the] Fourth Amendment is admissible in abuse and neglect proceedings because
“the substantial social costs of ignoring children’s safety exceeds the minimal
additional deterrence achieved by applying the exclusionary rule” (internal
quotations and citations omitted)); In re Mary S., 186 Cal.App.3d 414, 230 Cal.
Rptr. 726, 728 (1986) (“[T]he potential harm to children in allowing them to remain
in an unhealthy environment outweighs any deterrent effect which would result
from suppressing evidence unlawfully seized.” (internal quotation marks omitted)).
See In re N.R., 242 W. Va. 581, 597 n.24, 836 S.E.2d 799, 815 n.24 (2019). Accordingly, we find
no error in the circuit court’s refusal to extend the exclusionary rule to this matter and further find
that petitioner is entitled to no relief in this regard.
Additionally, having reviewed the record, we find no error in the circuit court’s decision
to adjudicate petitioner as an abusing parent. We have previously held as follows:
At the conclusion of the adjudicatory hearing, the 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 . . . . The findings must be based upon
conditions existing at the time of the filing of the petition and proven by clear and
convincing evidence.
In re F.S., 233 W. Va. 538, 544, 759 S.E.2d 769, 775 (2014). This Court has explained that “‘clear
and convincing’ is the measure or degree of proof that will produce in the mind of the factfinder a
firm belief or conviction as to the allegations sought to be established.” Id. at 546, 759 S.E.2d at
777 (citation omitted). However, “the clear and convincing standard is ‘intermediate, being more
than a mere preponderance, but not to the extent of such certainty as is required beyond a
reasonable doubt as in criminal cases.’” Id. (citation omitted). Further, West Virginia Code § 49-
1-201 defines “abused child” as “[a] child whose health or welfare is being harmed or threatened
by ... [a] parent ... who knowingly or intentionally inflicts, attempts to inflict, or knowingly allows
another person to inflict, physical injury or mental or emotional injury, upon the child or another
child in the home.” Moreover, a “neglected child” is defined as a child
[w]hose physical or mental health is harmed or threatened by a present refusal,
failure or inability of the child’s parent, guardian, or custodian to supply the child
with necessary food, clothing, shelter, supervision, medical care, or education,
when that refusal, failure, or inability is not due primarily to a lack of financial
means on the part of the parent, guardian, or custodian.
Id.
Even assuming that the substance found in T.C.-1’s shoe was not marijuana, we find that
sufficient evidence existed upon which to adjudicate petitioner as an abusing parent. The record
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shows that a six-year-old child had extensive knowledge of marijuana; knew that petitioner
smoked the substance, stored it in her purse, and tucked it in her couch; and knew that petitioner
sold the substance for money. Testimony further demonstrated that petitioner permitted K.L. to
use drugs, permitted K.L. to facilitate drug sales, permitted her to see her biological mother, and
permitted her to be in a romantic and sexual relationship with an adult male. Further, petitioner
engaged in physical altercations with K.L., which was either observed or overheard by the younger
children, and they reported seeing marks on K.L.’s face as a result. Accordingly, it is clear that
sufficient evidence existed to adjudicate petitioner as an abusing and neglecting parent.
Petitioner also argues that the circuit court erred in terminating her parental rights.
According to petitioner, the evidence did not support the circuit court’s conclusion that there was
no reasonable likelihood that she could correct the conditions of abuse or neglect in the near future.
Petitioner argues that she was never granted an improvement period despite admitting to using
marijuana and other allegations contained in the petition. Petitioner claims that she submitted to
drug screens during the case and remained “consistently clean” from January of 2020 through
March of 2020, demonstrating that she is able to cease using marijuana rather quickly. Petitioner
further states that she does not dispute that K.L. used drugs while in her care, but claims that,
contrary to the DHHR’s argument, she did not approve of the child’s drug use and timely sought
assistance for the child. Petitioner further argues that she did not approve of the child’s relationship
with her adult boyfriend, evidenced by the fact that she engaged in two altercations with the child
over that issue. Petitioner acknowledges that a few physical altercations between her and K.L.
occurred, but that they “did not rise to the level of severity suggested by the DHHR.” Indeed, K.L.
denied any altercations between her and petitioner during her CAC interviews. Accordingly,
petitioner contends that the evidence was simply insufficient to terminate her parental rights or
that, at a minimum, she should have been granted an improvement period.
We find that the record reveals no abuse of discretion in denying petitioner an improvement
period. Syl. Pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“It is within the
court’s discretion to grant an improvement period within the applicable statutory requirements. . .
.”); In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia law allows the
circuit court discretion in deciding whether to grant a parent an improvement period.”). This Court
has established that “[t]he circuit court has the discretion to refuse to grant an improvement period
when no improvement is likely.” In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359
(2002). While petitioner states that she admitted to using marijuana, the record reveals that
petitioner minimized her actions and the effects of the same upon the children. Despite T.C.-1’s
consistent disclosures that petitioner sold marijuana in the home, petitioner continued to deny the
same throughout the proceedings. Although K.L. initially denied facilitating drug sales for
petitioner during her CAC interview, the CPS worker testified that K.L. eventually admitted that
she had facilitated the sales for petitioner, that petitioner permitted her to be around her biological
mother, and that she abused drugs with her biological mother. However, petitioner denied these
disclosures and claimed that the CPS worker was lying and fabricating the allegations against her.
As this Court has long held, “[i]n order to remedy the abuse and/or neglect problem, the problem
must first be acknowledged. Failure to acknowledge the existence of the problem . . . results in
making the problem untreatable and in making an improvement period an exercise in futility at the
child’s expense.” In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation
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omitted). Because petitioner rendered the conditions of abuse and neglect untreatable, we find no
error in the denial of her motion for an improvement period.
We likewise find no error in the circuit court’s termination of petitioner’s parental rights.
West Virginia Code § 49-4-604(c)(6) provides that a circuit court may terminate a parent’s parental
rights upon finding 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 welfare
of the children. Further, “‘[n]o reasonable likelihood that conditions of neglect or abuse can be
substantially corrected’ means that, based upon the evidence before the court, the abusing adult or
adults have demonstrated an inadequate capacity to solve the problems of abuse or neglect on their
own or with help.” W. Va. Code § 49-4-604(d).
As noted above, petitioner denied that she sold drugs in the home despite the disclosures
of T.C.-1 and K.L. and further minimized the effect her actions had on the children. Petitioner also
minimized her physical altercations with K.L. Moreover, while petitioner claims that she timely
sought assistance for K.L.’s drug abuse, the child’s school probation officer testified that petitioner
repeatedly cancelled appointments with her and refused in-home services for the child, eventually
removing her from the program during summer months. Again, petitioner’s refusal to acknowledge
the conditions of abuse and neglect resulted in those conditions being untreatable, which fully
supports the circuit court’s finding that there was no reasonable likelihood that the conditions of
abuse and neglect could be substantially corrected in the near future. Given petitioner’s inability
to correct the conditions of abuse and neglect due to her refusal to acknowledge them, it is clear
that the circuit court did not err in making this finding. Additionally, the court found that the
children’s welfare required termination of petitioner’s rights. Under West Virginia Code § 49-4-
604(c)(6), a circuit court may terminate parental rights upon these findings. Moreover,
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [West Virginia
Code § 49-4-604] 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(d)] 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 Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Based on this evidence, we find
no error in the circuit court’s termination of petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its July
17, 2020, order is hereby affirmed.
Affirmed.
ISSUED: June 3, 2021
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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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