In re K.L. ( 2022 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2022 Term FILED
November 16, 2022
No. 22-0081 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In Re K. L.
Appeal from the Circuit Court of Ohio County
The Honorable Jason A. Cuomo, Judge
Case No. 20-CJA-91 JAC
VACATED AND REMANDED
Submitted: November 1, 2022
Filed: November 16, 2022
John M. Jurco, Esq. Patrick Morrisey, Esq.
St. Clairsville, Ohio Attorney General
Attorney for Petitioner-Father K. L. Andrea Nease Proper, Esq.
Assistant Attorney General
David A. Mascio, Esq. Charleston, West Virginia
Weirton, West Virginia Attorneys for West Virginia
Guardian ad Litem for Infant K. L. Department of Health and Human
Resources
JUSTICE WOOTON delivered the Opinion of the Court.
JUSTICE ARMSTEAD dissents and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. “‘When this Court reviews challenges to the findings and conclusions
of the circuit court, a two-prong deferential standard of review is applied. We review the
final order and the ultimate disposition under an abuse of discretion standard, and we
review the circuit court’s underlying factual findings under a clearly erroneous standard.’
Syl. [Pt. 1], McCormick v. Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996).” Syl.
Pt. 1, In re S. W., 236 W. Va. 309, 779 S.E.2d 577 (2015).
2. “Where 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.” Syl. Pt. 5, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001).
i
WOOTON, Justice:
This is an appeal from the Circuit Court of Ohio County’s January 4, 2022,
order terminating petitioner-father K. L.’s (hereinafter “petitioner”) parental rights to infant
K. L. 1 Upon the filing of an abuse and neglect petition alleging medical neglect,
educational neglect, and substance abuse, petitioner stipulated to medical and educational
neglect and was adjudicated neglectful on that sole basis. During the underlying
proceedings, petitioner either tested negative for illegal substances or refused to drug
screen, denying any substance abuse disorder. He maintained this denial throughout the
proceedings despite having admitted to prior occasional use, being arrested in possession
of methamphetamine, and being twice found in possession of synthetic urine subsequent
to adjudication—once during a drug screening.
At disposition, after finding that the Department of Health and Human
Resources (hereinafter “DHHR”) had not established that petitioner had a substance abuse
disorder, the circuit court ordered a post-dispositional improvement period. Petitioner
continued to refuse to drug screen, purportedly on the basis that no court order yet required
him to do so. The circuit court terminated petitioner’s parental rights, citing his failure to
1
Because this case involves minors and sensitive matters, we follow our
longstanding practice of using initials to refer to the children and the parties. See, e.g.,
State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990). All
references to “K. L.” refer to the subject infant, as petitioner-father is referred to as
“petitioner” herein.
1
participate in the post-dispositional improvement period and finding that there was no
reasonable likelihood the conditions of abuse and neglect could be substantially corrected.
Petitioner appeals, citing a litany of errors but arguing primarily that the circuit court erred
by terminating his parental rights on a basis—presumed substance abuse—upon which he
was not adjudicated.
Upon careful review of the briefs, the appendix record, the arguments of the
parties, and the applicable legal authority, we conclude that the circuit court’s termination
of petitioner’s parental rights is erroneously based upon a condition of abuse and neglect
upon which petitioner was never adjudicated. We further find that the circuit court’s
purported reliance on petitioner’s violation of his post-dispositional improvement period
likewise fails to support termination because the implementation of the improvement
period did not comport with West Virginia Code § 49-4-610(3) (2015). We therefore
vacate that portion of the dispositional order terminating petitioner’s parental rights and
remand for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
In August 2020, DHHR received a referral regarding K. L. which alleged that
petitioner and K. L.’s mother, D. L., were using and selling drugs, as well as failing to send
K. L. to school. An in-home safety plan was initiated requiring drug screening and adult
life skills and parenting classes. Petitioner and D. L. failed to comply with the safety plan
2
and DHHR received yet another referral regarding continued drug use; the second referral
also alleged that petitioner accidentally shot himself in the home. DHHR further
discovered that K. L. suffers from Russell-Silver Syndrome, a genetic growth disorder, and
had not been regularly attending doctor’s appointments.
On October 14, 2020, a petition was filed against both parents alleging
medical and educational neglect, as well as substance abuse. The petition alleged that D.
L. tested positive for methamphetamines and that both parents admitted to
methamphetamine use but characterized themselves as merely “weekend users.” Petitioner
waived his preliminary hearing and multi-disciplinary team (“MDT”) meetings ensued.
During these meetings, petitioner denied having a substance abuse issue and admitted only
to prior, infrequent use on weekends when playing in a band. Prior to adjudication, it
appears that petitioner and D. L. drug screened four to five times a week and were negative,
with one exception where D. L.’s screening returned a false positive.
At adjudication on January 20, 2021, the parents stipulated to medical and
educational neglect, i.e. failure to schedule regular pediatrician and specialist visits and
failure to enroll K. L. in school or take proper steps to undertake home schooling; D. L.
also admitted to a single positive drug screen. DHHR “reserved the right to produce
evidence at a future hearing of any matter not admitted,” per the adjudicatory order and,
during the adjudicatory hearing, discussed its desire that petitioner and D. L. continue to
drug screen due to “concerns” about their “past history[.]” The circuit court directed the
3
parties to have an MDT meeting and reach agreed terms for continued drug screening and
other services.
On February 24, 2021, petitioner was arrested and charged with possession
of methamphetamine; he pled guilty to a misdemeanor charge of simple possession.
Shortly thereafter, Child Protective Services (“CPS”) was advised by K. L.’s kinship
placement that petitioner and D. L. were utilizing “Quick Fix,” a synthetic urine product,
to pass their drug screens. On March 9, 2021, petitioner was again stopped by police and
discovered with synthetic urine in his possession. On March 15, 2021, petitioner was found
with synthetic urine during a search at the drug screening facility. Petitioner screened only
once from that point, alleging that he was embarrassed by having to pull his pants fully
down to screen. The screening facility apparently offered DNA swab testing as a
complement to the urine screening, which would alleviate this concern; however, petitioner
continued to refuse to screen. 2
On March 25, 2021, petitioner filed a written motion for an improvement
period; however, the motion was later orally withdrawn at the hearing on the motion with
little to no explanation. In discussing the potential disposition of the case, the circuit court
noted that petitioner was adjudicated for “[s]omething other than drug usage,” and the
prosecutor responded that “we’ve reserved to [sic] right to produce evidence, and we’ve
2
The DNA swab would apparently allow petitioner to send in his urine sample,
which could then be matched to the DNA swab to ensure the sample belonged to petitioner.
4
gained evidence since [adjudication] about involvement with drug activity and such.”
(Emphasis added). The court then inquired further:
THE COURT: Do you feel you have enough in the
petition regarding drug usage to dispose of the case based upon
drug usage as causing the abusive and neglectful situation?
Because I didn’t get the sense that the petition was couched in
that language, and I was concerned that at disposition I would
not be able to consider drug usage substantively because of
that.
MS. GEYER: Well, there’s substance abuse issues that
impair their judgement [sic] and ability to parent their children.
That is actually stated in the petition.
(Emphasis added).
Dispositional hearings were held on October 1 and October 8, 2021; neither
petitioner nor D. L. testified. Multiple witnesses were called, testifying to 1) petitioner’s
arrest and plea to methamphetamine possession; 2) petitioner’s traffic stop where synthetic
urine was discovered; 3) the drug screen where petitioner was discovered with synthetic
urine; 4) petitioner’s drug treatment assessment wherein he denied a substance abuse
disorder; 5) petitioner’s unauthorized contact with K. L. and a confrontation involving the
kinship placement resulting in a protective order being entered; 6) petitioner’s admission
to the kinship placement that he had a “supplier”; and 7) petitioner’s refusal to drug screen.
However, the visitation supervisor testified that petitioner conducted himself
properly during visits with K. L., interacted appropriately with him, and appeared to have
a good relationship and substantial bond with him. She testified that on occasional visits
5
she had concerns about petitioner’s glassy eyes and avoidance of eye contact but could not
establish intoxication. The CPS worker testified that K. L. was very intelligent and mature
for his age and that any educational and/or medical neglect had been rectified since K. L.
had been in DHHR custody. 3 She further testified to DHHR’s early intention in the case
to reunify K. L. with his parents, as K. L. loved and desired to be reunified with them. She
indicated that termination was recommended only because there was a “drug issue” that
had not been “acknowledged” or addressed. The kinship placement confirmed that
petitioner and K. L. had a strong bond, that K. L. missed his parents, and was happy when
with them.
During the first of the two dispositional hearings, the circuit court expressed
interest in hearing from K. L., given the testimony regarding his maturity and intelligence.
However, when the second dispositional hearing resumed the court heard testimony from
K. L.’s therapist, who indicated that K. L. was extremely protective of his parents and
3
As to the medical neglect, it seems apparent that K. L. did not suffer from any
acute, untreated medical conditions, but rather was not following up regularly with
pediatricians and/or specialists to monitor his genetic condition. As to the educational
neglect, K. L. was enrolled in school after removal, but both parents insisted he was being
informally homeschooled through workbooks, were unaware it was necessary to
coordinate homeschooling through the board of education, and that K. L. was simply not
at grade level.
6
harbored much guilt about his removal and his success in foster care. The court never
interviewed K. L. thereafter. 4
While discussing dispositional options, the circuit court indicated that it did
not believe sufficient evidence had been produced to support termination. The court further
found that DHHR had not proven that petitioner had a drug problem based on the evidence
introduced: “I’m still not convinced that you’ve proven they have a drug problem that
interferes with their ability to parent.” In response to the prosecutor’s concerns regarding
petitioner’s refusal to acknowledge a drug issue and request an improvement period in that
regard, the court again reiterated that petitioner had not been adjudicated for substance
abuse. 5
With the agreement of the parties, the circuit court then determined that a
post-dispositional improvement period pursuant to West Virginia Code § 49-4-604(e)
4
The record indicates that, although an order was issued for K. L.’s attendance at
the second dispositional hearing, his case worker was found deceased in her home that day
and K. L. did not attend as a result.
5
The court further remarked “I was waiting for evidence of what’s in the petition,
and I haven’t gotten a whole lot.” When the prosecutor stated “[t]hey were already
adjudicated,” the court remarked, “Not for drug use.” In further response to the
prosecutor’s insistence that petitioner had failed to admit to a substance abuse problem, the
court stated, “But you don’t have evidence that he was using drugs.” When the prosecutor
countered that he was arrested for possession of methamphetamine, the court replied,
“That’s not using.” In response to the prosecutor’s representation that petitioner admitted
to personal use during an MDT meeting, the court noted that no one had testified to any
outright admission by petitioner of personal use.
7
(2020) 6 would be the most appropriate disposition given that the educational and medical
neglect had been rectified. The court expressed concern that only through returning K. L.
to the home could there be a meaningful assessment of whether petitioner and D. L. had
made improvement in the areas in which they had been adjudicated. However, the court
agreed that continued allegations of drug use made it imperative that efforts be made to
ensure that K. L. could be safely returned to the home. In that regard, the prosecutor
indicated that petitioner and D. L. “wouldn’t agree to some of the things that we wanted
them to do,” but relented, “if the [c]ourt would impose some things for the dispositional
agreement [sic] period, I think we can feel safe.” (Emphasis added). The court stated that
the parties should “figure out what those terms are” but agreed they should “start with the
drug screening first and make sure that’s not an issue[.]”
The circuit court then inquired more specifically of petitioner’s willingness
to undergo the DNA swab and drug screening, asking, “[D]o you agree with that, first of
all?” Petitioner replied, “Yeah, that’s fine. That was never proposed to us at an MDT.”
The court replied that “if after talking to your attorneys or whatever and you don’t oppose
that, then let’s do that then.” The court then directed the parties “to have an MDT and
hammer out the terms.” 7 The dispositional order entered following the hearing indicated
6
See discussion, infra.
7
The prosecutor further stated, “I think that we can get the MDT together soon, we
can draft agreed orders. If we can have them sign off on those, like I think you like to have
them sign off on those terms[.]"
8
that “[t]he [c]ourt questioned whether the Respondents were agreeable to DNA testing, and
they did so agree[,]” but “an MDT is needed to develop terms.” The order itself, however,
ordered nothing more than the parties to return for a status hearing.
When the parties reconvened for a status hearing on December 17, 2021, the
court was advised that since the last hearing, neither petitioner nor D. L. had drug screened.
Petitioner’s counsel explained that petitioner did not want to do so until he was ordered by
the court. However, the guardian ad litem insisted that “it was clear at the 10/8/21 hearing
that [petitioner and D. L.] were to drug test as of that day and have not.” (Emphasis added).
The court agreed. 8
The circuit court terminated petitioner and D. L.’s parental rights, finding
that petitioner “failed to participate in a Post-Disposition[al] Improvement Period by failing
to drug screen” and that, as a result, there was no reasonable likelihood the conditions of
abuse/neglect could be corrected in the near future. DHHR and the guardian ad litem both
supported termination and this appeal followed. 9
8
The guardian ad litem stated, “But it was, at least in my opinion, it was pretty d*mn
clear that they were going to drug test that day and they were to start drug testing.” The
circuit court replied, “Oh, there’s no doubt in my mind.”
9
D. L. did not file an appeal. No part of this opinion is to be read as affecting the
court’s termination of D. L.’s rights in the January 4, 2022, order.
9
II. STANDARD OF REVIEW
As is well-established,
“[w]hen this Court reviews challenges to the findings
and conclusions of the circuit court, a two-prong deferential
standard of review is applied. We review the final order and
the ultimate disposition under an abuse of discretion standard,
and we review the circuit court’s underlying factual findings
under a clearly erroneous standard.” Syl. [Pt. 1], McCormick
v. Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996).
Syl. Pt. 1, In re S. W., 236 W. Va. 309, 779 S.E.2d 577 (2015). With these standards in
mind, we proceed to the parties’ arguments.
III. DISCUSSION
Petitioner raises seven assignments of error that collectively assert errors at
the outset of the proceedings, including K. L.’s emergency removal, and at disposition. As
to his first three assignments of error, petitioner complains that DHHR failed to comply
with West Virginia Code § 49-4-303 (2015) in its emergency removal of K. L. and other
statutory provisions. As to disposition, petitioner claims the circuit court erred by
terminating his parental rights 1) based on an issue—substance abuse—which was not the
subject of his adjudication; 2) in lieu of a lesser “disposition 5” 10 ; and 3) without
considering the wishes of K. L. We will address each in turn.
10
West Virginia Code § 49-4-604(c)(5) permits the court to “commit the child
temporarily to the care, custody, and control of the department, a licensed private child
welfare agency, or a suitable person who may be appointed guardian by the court.”
10
A. EMERGENCY REMOVAL
Petitioner first asserts two specific violations of West Virginia Code § 49-4-
303 in removing K. L. from the home: 1) DHHR’s failure to obtain a ratification order
following the emergency removal of K. L.; and 2) DHHR’s failure to file the petition within
two judicial days of the removal. Petitioner claims K. L. was removed from the home on
an emergency basis on October 8, 2020, without subsequent ratification, and that the
petition was not filed until October 14, 2020—two days after the limitation on emergency
custody had expired. DHHR appears not to dispute the absence of a ratification order but
argues that petitioner waived any defect in the removal. 11
DHHR further argues that
because the record does not reflect when K. L. was removed, the alleged failure to file the
petition within two judicial days cannot be established.
West Virginia Code § 49-4-303 provides that if a child is removed from the
home on an emergency basis,
the worker shall forthwith appear before a circuit judge or
referee of the county where custody was taken and immediately
11
At oral argument, contrary to repeated references to the “emergency removal of
the child” in its brief, counsel for DHHR claimed that there was no emergency removal
because the parents agreed to a kinship placement, obviating the necessity of an emergency
removal and ratification. However, like the actual date of K. L.’s removal, the appendix
record is equally devoid of information supporting DHHR’s newfound position about the
timing and circumstances surrounding his removal.
We further caution DHHR that, to the extent it failed to comply with the
requirements of West Virginia Code § 49-4-303 in its removal of K. L. from the home, our
conclusion that this issue is moot and/or was waived in this particular matter should not be
read as condoning lack of strict compliance with these requirements, which remain of
paramount importance.
11
apply for an order. . . . This order shall ratify the emergency
custody of the child pending the filing of a petition. . . .
....
. . . If the emergency taking is ratified by the judge or referee,
emergency custody of the child or children is vested in the
department until the expiration of the next two judicial days, at
which time any child taken into emergency custody shall be
returned to the custody of his or her parent or guardian or
custodian unless a petition has been filed and custody of the
child has been transferred under section six hundred two of this
article.
(Emphasis added). DHHR is correct that the appendix record does not reflect the date of
K. L.’s emergency removal; however, ordinarily the ratification order itself—which
DHHR did not obtain—would provide evidence of that date. We therefore accept for
purposes of this issue petitioner’s representation that K. L. was removed from the home on
an emergency basis on October 8.
However, we find that petitioner’s failure to take action to enforce the
provisions of West Virginia Code § 49-4-303 and have K. L. returned to the home, as well
as the ensuing proceedings, during which petitioner stipulated to allegations of neglect,
have rendered errors surrounding K. L.’s emergency removal moot. See In re B. N., No.
16-1098, 2017 WL 2230138, at *2 n.2 (W. Va. May 22, 2017) (memorandum decision)
(“Having failed to properly bring the issue [seeking return of removed child] before this
Court when it was a ‘live’ controversy, and in light of the intervening termination of his
parental rights, the issue has been rendered moot[.]”). Further, petitioner’s “Waiver of
Preliminary Hearing” provides that he “acknowledges that [] removal of the child was
12
necessary pursuant to applicable law and hereby consents to same.” That acknowledgment,
coupled with the initial and preliminary hearing orders in which the circuit court found that
there was “imminent danger” necessitating K. L.’s removal, renders these assignments of
error meritless. 12 See also In re R. Y., No. 16-1125, 2017 WL 5037071, at *5 (W. Va. Nov.
2, 2017) (memorandum decision) (finding no error in failure to obtain ratification where
court mitigated violation of statutory procedures by subsequently finding removal was
necessary to protect child).
12
We likewise dispense with petitioner’s contention that the initial orders in the case
were statutorily defective. Petitioner claims that certain language required by West
Virginia Code §§ 49-4-601(e)(5) (2019) and 602(b) (2015) was absent, specifically 1)
notice that the proceedings “can result in the permanent termination of [] parental rights”;
and 2) findings regarding whether “continuation in the home” is contrary to the child’s best
interests and whether “reasonable efforts” were made by DHHR to prevent removal and
facilitate return of the child. See also W. Va. R. P. Child Abuse & Neglect Proc. 20 (“The
notice of hearing shall specify the time and place of the first hearing, the right of parties to
counsel, and the fact that the proceeding can result in the permanent termination of parental,
custodial or guardianship rights.”) and W. Va. R. P. Child Abuse & Neglect Proc. 16(e)
(requiring removal order to contain same findings as required in preliminary hearing order
under W. Va. Code § 49-4-602(b)(1)-(5)).
As to the notice of potential termination of parental rights, the petition itself asks
the court to enter a disposition “which may include an Order whereby the parental and
custodial rights and responsibilities of [petitioner] shall be terminated.” This is
undoubtedly sufficient to provide petitioner notice that his parental rights may be
terminated. As to the “continuation in the home” and “reasonable efforts” language, we
find that in reading the initial order and preliminary hearing order collectively, this
language is substantially present. See “Initial Order” (finding that “[t]here are no
reasonable alternatives to removing the infant child [and] . . . [t]he danger presented . . .
creates an emergency situation making efforts to avoid removing the infant child . . .
unreasonable and impossible”) and “Preliminary Hearing Order” (finding that DHHR “has
made reasonable efforts to preserve the family and prevent removal of the child; however,
under the circumstances the DHHR had no choice but to remove custody of the child[.]”).
We therefore find no merit to this assignment of error.
13
B. TERMINATION BASED UPON SUBSTANCE ABUSE
Petitioner’s primary assignment of error asserts that the circuit court
erroneously terminated his parental rights on the basis of substance abuse—a matter upon
which he was not adjudicated abusive or neglectful. Petitioner’s concerns are well-placed,
as substance abuse appears to have been the primary issue discussed and in contention
throughout the proceedings and particularly at disposition, yet he neither stipulated to
substance abuse nor was he adjudicated on that basis.
DHHR counters that substance abuse was alleged in the petition and
remained a persistent concern throughout the proceedings; it submits that “evidence of drug
use was introduced at the two day dispositional hearing to no objection[.]” DHHR
contends that petitioner was therefore properly terminated on this basis because he would
neither “acknowledge his substance abuse issue nor seek [] treatment for it[.]”
Petitioner argues that the instant case mirrors the termination this Court
reversed in In re Lilith H., 231 W. Va. 170, 744 S.E.2d 280 (2013). In Lilith H., the abuse
and neglect petition alleged a single instance of violence between the respondent father and
his father-in-law; the respondent parents were adjudicated exclusively on the basis of the
fight with the father-in-law and their failure to protect the children from being exposed to
the fight. Id. at 175, 744 S.E.2d at 285. At disposition, however, the testimony “centered
exclusively around the allegedly contentious relationship between [the parents],” rather
than the father-in-law, against whom the parents had sought a domestic violence protective
14
order and eliminated continued contact. Id. at 176, 744 S.E.2d at 286 (footnote omitted).
The circuit court terminated both parents’ rights based on their failure to address their
internal domestic violence and the mother’s refusal to leave the father as a result of
domestic violence. Id. at 177-78, 744 S.E.2d at 287-88.
The Court reversed, observing that petitioners’ contentious relationship
“overwhelmed” the evidence at disposition and “formed the sole basis of the court’s
termination of their parental rights. Yet, at no time did the circuit court [adjudicate them
as abusive/neglectful due to domestic violence].” Id. at 181, 744 S.E.2d at 291. The Court
found it to be “plain error” for the circuit court to “terminate[] the parental rights on the
basis of allegations and issues which were never properly made subject of the
adjudication.” Id. at 180, 744 S.E.2d at 290.
The Lilith H. Court explained that the failure to adjudicate the parents on
matters upon which termination was based allowed “troubling allegations [to] wholly
elude[] . . . commensurate attention” during the proceedings—a fundamental prerequisite
to the goal of reunification of families. Id. at 181, 744 S.E.2d at 291. Recognizing the
dynamic nature of issues underlying abuse and neglect proceedings, the Lilith H. Court
reminded circuit courts of “their authority, if not obligation, to compel newly-discovered
or developed abuse and neglect allegations to be made part of a petition” through
15
amendment of the petition lest those issues remain “unaddressed.” Id. at 182, 744 S.E.2d
at 292 (some emphasis added). 13
Similarly, in the instant case, petitioner’s alleged substance abuse was
essentially the sole focus of the proceedings below and the core underpinning of the circuit
court’s termination of his parental rights, yet he was not adjudicated as abusive or
neglectful on that basis. The prosecutor conceded that “we’ve reserved to [sic] right to
produce evidence, and we’ve gained evidence since [adjudication] about involvement with
drug activity and such”; however, DHHR never amended the petition and/or sought to
reopen adjudication to establish substance abuse. (Emphasis added). Further, the court
expressly recognized that it would be hamstrung at disposition in its ability to consider
Rule 19(b) of the West Virginia Rules of Procedure for Child Abuse and Neglect
13
Proceedings provides:
Amendments After the Adjudicatory Hearing.—If new
allegations arise after the final adjudicatory hearing, the
allegations should be included in an amended petition rather
than in a separate petition in a new civil action, and the final
adjudicatory hearing shall be re-opened for the purpose of
hearing evidence on the new allegations in the amended
petition.
See also Syl. Pt. 5, In re Randy H., 220 W.Va. 122, 640 S.E.2d 185 (2006) (“To facilitate
the prompt, fair and thorough resolution of abuse and neglect actions, if, in the course of a
child abuse and/or neglect proceeding, a circuit court discerns from the evidence or
allegations presented that reasonable cause exists to believe that additional abuse or neglect
has occurred or is imminent which is not encompassed by the allegations contained in the
Department of Health and Human Resource’s petition, then pursuant to Rule 19 of the
Rules of Procedure for Child Abuse and Neglect Proceedings [1997] the circuit court has
the inherent authority to compel the Department to amend its petition to encompass the
evidence or allegations.”).
16
substance abuse because petitioner had not been adjudicated on that basis, making clear its
belief that DHHR had not proven that petitioner suffered from a substance abuse problem
by clear and convincing evidence. While certainly substance abuse was alleged in the
petition, petitioner quite deliberately declined to stipulate to those allegations and DHHR
made no effort to ensure that this alleged condition of abuse and/or neglect was properly
adjudicated.
In fact, DHHR’s contention that petitioner was properly terminated for
failure to “acknowledge” his substance abuse problem merely highlights the deficiency in
the proceedings. Had petitioner been adjudicated as having a substance abuse problem
which led to the “conditions of neglect or abuse,” the circuit court would have been
statutorily authorized to find that his refusal to acknowledge the problem was evidence that
there was “no reasonable likelihood the conditions of neglect or abuse can be substantially
corrected in the near future.” See W. Va. Code § 49-4-604(c)(6); In re: Charity H., 215
W. Va. 208, 217, 599 S.E.2d 631, 640 (2004) (quoting W. Va. Dept. of Health and Human
Res. ex rel. Wright v. Doris S., 197 W.Va. 489, 498, 475 S.E.2d 865, 874 (1996)) (“‘[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, i.e., the truth of the basic allegation
pertaining to the alleged abuse and neglect or the perpetrator of said abuse and neglect,
results in making the problem untreatable[.]’” (Emphasis added)). However, at no time
17
was substance abuse legally determined to constitute a “condition[] of neglect or abuse”
requiring acknowledgment or correction as pertained to petitioner. 14
The Court’s insistence upon proper adjudication of the issues underlying
abuse and neglect is not a “hollow formality.” In re A. P.-1, 241 W. Va. 688, 695, 827
S.E.2d 830, 837 (2019). Rather, this Court has made clear that defects in adjudication
implicate the due process protections afforded to parents and that proper adjudication is a
jurisdictional prerequisite to continuation of the proceedings. See id. at 694, 827 S.E.2d at
836 (“‘The two-stage [adjudicatory and dispositional] process supports the constitutional
protections afforded to parents in permanent child removal cases—constitutional rights
guaranteed by the Due Process Clause of the Fourteenth Amendment.’” (quoting In re K.
14
Further, as discussed infra, prior to termination, the circuit court ordered a post-
dispositional improvement period pursuant to West Virginia Code § 49-4-604(e). The
language of that statute similarly evidences that the period of improvement must be
designed to address the conditions of abuse and neglect upon which adjudication was
based:
The court may, as an alternative disposition, allow the
parents or custodians an improvement period not to exceed six
months. During this period the court shall require the parent to
rectify the conditions upon which the [abuse and neglect]
determination was based. The court may order the child to be
placed with the parents, or any person found to be a fit and
proper person, for the temporary care of the child during the
period. At the end of the period, the court shall hold a hearing
to determine whether the conditions have been adequately
improved and at the conclusion of the hearing shall make a
further dispositional order in accordance with this section.
Id. § 49-4-604(e) (emphasis added).
18
H., No. 18-0282, 2018 WL 6016722, at *5 (W. Va. Nov. 16, 2018)); Syl. Pt. 1, State v. T.
C., 172 W. Va. 47, 303 S.E.2d 685 (1983) (“In a child abuse and neglect hearing, before a
court can begin to make any of the dispositional alternatives under W. Va. Code, 49-6-5,
it must hold a hearing under W. Va. Code, 49-6-2, and determine ‘whether such child is
abused or neglected.’ Such a finding is a prerequisite to further continuation of the case.”).
For the same reasons that we have established that disposition may not ensue
absent an adjudication of abuse and/or neglect, termination of parental rights may not be
fundamentally premised on conditions of abuse and/or neglect upon which a parent has not
been properly adjudicated. The record makes abundantly clear that petitioner’s termination
presumed a substance abuse disorder which was never proven and therefore was not the
subject of his adjudication.
C. POST-DISPOSITIONAL IMPROVEMENT PERIOD
The foregoing notwithstanding, we observe that the circuit court’s order
terminating petitioner’s parental rights is couched in terms of his “failure to participate” in
his post-dispositional improvement period—a statutorily-recognized basis upon which this
Court regularly affirms termination of parental rights. See W. Va. Code § 49-4-604(c)(6)
and (d)(1)-(3) (permitting termination of parental rights where “no reasonable likelihood
that the conditions of neglect or abuse can be substantially corrected in the near future”
including failure to respond to or follow through with recommended treatment or refusal
19
to cooperate in development of family case plan). 15 As a result, we find it necessary to
further examine the post-dispositional improvement period imposed by the circuit court.
Petitioner denies that his failure to drug screen constitutes a refusal to
participate in his post-dispositional improvement period because he had not yet been
ordered to do so. Petitioner contends that, contrary to the circuit court’s directive, no MDT
meeting to develop terms for the improvement period was ever held; proposed
improvement period terms were only received nine days before the termination hearing;
and he never received a family case plan. DHHR fails to dispute these assertions, arguing
generally that petitioner verbally agreed to drug screen during the dispositional hearing and
thereafter failed to do so in violation of his improvement period. The guardian ad litem
puts a finer point on petitioner’s alleged failure, asserting that “it is transcribed and in the
Court Order . . . that both parents would go to the Lee Day Report Center and drug screen
immediately following the October 8, 2021, [dispositional] hearing.” (Emphasis added).
15
West Virginia Code § 49-4-604(d)(3) further provides that “no reasonable
likelihood the conditions of abuse/neglect can be corrected” may be found where the parent
ha[s] not responded to or followed through with a reasonable
family case plan or other rehabilitative efforts of social,
medical, mental health, or other rehabilitative agencies
designed to reduce or prevent the abuse or neglect of the child,
as evidenced by the continuation or insubstantial diminution of
conditions which threatened the health, welfare, or life of the
child[.]
(Emphasis added). As the circuit court found, the conditions alleged in the petition which
threatened the health and welfare of K. L. were medical and educational neglect, which
had been rectified following K. L.’s removal from the home.
20
To the contrary, however, the requirement to drug screen that day is neither in the transcript
nor the dispositional hearing order. 16
West Virginia Code § 49-4-610(3) governs the post-dispositional
improvement periods and provides, in pertinent part:
(3) Post-dispositional improvement period. -- The court may
grant an improvement period not to exceed six months as a
disposition pursuant to section six hundred four of this article
when:
....
(B) The respondent demonstrates, by clear and convincing
evidence, that the respondent is likely to fully participate in the
improvement period and the court further makes a finding, on
the record, of the terms of the improvement period;
....
(E) The order granting the improvement period shall require
the department to prepare and submit to the court an
individualized family case plan in accordance with section four
hundred eight of this article.
(Emphasis added). Per subsection (E)’s requirement of submission of a family case plan
compliant with West Virginia Code § 49-4-408 (2015), that statute provides, in pertinent
part:
16
The guardian ad litem’s brief further makes representations about “numerous
attempts” to compel petitioner to drug screen and to review the “Post Dispositional Plan of
Improvement”; he further represents that petitioner “reviewed the Post Dispositional Plan
on the phone with his Counsel . . . on November 1, 2021.” However, there is no evidence
of these efforts contained anywhere in the appendix record, nor does the plan itself appear
in the record.
21
The department shall convene a multidisciplinary
treatment team, which shall develop the case plan. . . . The case
plan may be modified from time to time to allow for flexibility
in goal development, and in each case the modifications shall
be submitted to the court in writing. . . . The court shall
examine the proposed case plan or any modification thereof,
and upon a finding by the court that the plan or modified plan
can be easily communicated, explained and discussed so as to
make the participants accountable and able to understand the
reasons for any success or failure under the plan, the court shall
inform the participants of the probable action of the court if
goals are met or not met.
(Emphasis added).
In ordering the post-dispositional improvement period, the circuit court
neither orally nor in its dispositional order identified the terms of the improvement period.
Rather, the court directed the parties to “figure out what those terms are” and “to have an
MDT and hammer out the terms.” The court agreed generally that before K. L. was
returned to the home the parties should “start with the drug screening first,” and inquired
of petitioner’s willingness to undergo the DNA swab. However, despite petitioner’s
expressed willingness, the court encouraged petitioner to discuss it further with his counsel:
“[I]f after talking to your attorneys or whatever and you don’t oppose that, then let’s do
that then.” (Emphasis added). Thereafter, there is no indication in the record that an MDT
meeting was conducted, that terms were reached, submitted to the court, or ordered by the
court before petitioner’s parental rights were terminated.
22
The record further contains no family case plan required under the post-
dispositional improvement period as contemplated by West Virginia Code § 49-4-
610(3)(E). 17 Rule 37 of the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings provides that where an improvement period is ordered as an alternative
disposition, “the court shall order the Department to submit a family case plan within thirty
(30) days of such order containing the information required by W. Va. Code §§ 49-4-408and 49-4-604.” However, the dispositional order itself was not entered until over two
months after the dispositional hearing in violation of Rule 36 of the Rules of Procedure for
Child Abuse and Neglect Proceedings (“The court shall enter a disposition order, including
findings of fact and conclusions of law, within ten (10) days of the conclusion of the
hearing.”). It contained no requirement that a family case plan be submitted as required
by West Virginia Code § 49-4-610(3)(E) and the circuit court terminated petitioner’s
parental rights within eleven days of entry of the order. As this Court has cautioned,
[t]he procedural and substantive requirements of West Virginia
Code § 49-4-601 et seq., the Rules of Procedure for Child
Abuse and Neglect, and our extensive body of caselaw are not
mere guidelines. . . . The time limitations and standards
contained therein are mandatory and may not be casually
17
The only family case plan contained in the appendix record was prepared prior to
the dispositional hearing where the improvement period was ordered, is unsigned by the
parties and their attorneys, is designated an “original” child case plan, and reflects only one
MDT meeting on May 17, 2021—months before the dispositional hearing. The plan is
fairly described as pro forma and cursory, with the lone reference to services or treatment
stating: “Service/Service Provider: Drug screens, substance abuse evaluation, substance
abuse treatment.” Sections for referral dates, dates of participation, goals, beginning and
completion dates, as well as frequency are left blank. The transcripts of the various
hearings reveal no substance abuse treatment plan aside from an evaluation conducted early
in the proceedings during which petitioner denied a substance abuse disorder.
23
disregarded or enlarged without detailed findings
demonstrating exercise of clear-cut statutory authority.
In re J. G., 240 W. Va. 194, 204, 809 S.E.2d 453, 463 (2018).
Our caselaw further makes clear that failure to comply with amorphous
improvement period requirements cannot form the basis of a termination of parental rights,
and that the failure to prepare a family case plan containing clear requirements designed to
rectify conditions of abuse or neglect is reversible error. See In re Desarae M., 214 W. Va.
657, 665, 591 S.E.2d 215, 223 (2003) (finding lower court committed reversible error in
failing to require a family case plan as mandated by statute); State ex rel. W.Va. Dep’t of
Hum. Servs. v. Cheryl M., 177 W. Va. 688, 356 S.E.2d 181 (1987), superceded by statute
on other grounds as stated in State ex rel. Virginia M. v. Virgil Eugene S. II, 197 W. Va.
456, 461 n.9, 475 S.E.2d 548, 553 n.9 (1996) (same); In re K. B., No. 18-0255, 2018 WL
6119921, at *1 (W. Va. Nov. 21, 2018) (memorandum decision) (vacating termination
finding that “[a]lthough . . . terms were provided by the circuit court, the DHHR never filed
a case plan memorializing the goals for petitioner’s improvement”).
In Desarae M., the Court explained that even where terms of a family case
plan were laid upon the record, the absence of the plan itself was reversible error,
explaining, “[w]ithout a family case plan, the individuals seeking to assist a parent are
limited in their ability to formulate distinct goals, methods of achieving such goals, or
means by which success will be judged.” 214 W. Va. at 663, 591 S.E.2d at 221. The Court
24
acknowledged that it was “tempting to circumvent the statutory requirement by focusing
upon . . . the absence of clear indication that the [parent] is capable of improvement even
given a concise family case plan, or the recalcitrance of the [parent]” but that the statutory
requirements must be followed regardless. Id. at 664, 591 S.E.2d at 222. The Court
reiterated that the family case plan provides “a means of measuring progress and effort[]
[and] of dealing promptly with failure to provide or avail oneself of services[.]” Id.; see
also Cheryl M., 177 W. Va. at 693-94, 356 S.E.2d at 186-87 (stating that family case plan
“is designed to foreclose a natural parent from being placed in an amorphous improvement
period where there are no detailed standards by which the improvement steps can be
measured. It also provides a meaningful blueprint that the [DHHR] can monitor and which
will also give the court specific information to determine whether the terms of the
improvement period were met.”).
Particularly germane to the instant case, the Deserae Court rejected the
“mere recital of goals” as sufficient to replace a family case plan as such ambiguity would
only “lead to uncertainty regarding whether the failure to achieve one or more of the goals
arises from mere obstinacy, the lack of . . . services to the family, or some other cause or
circumstances.” Id. Therefore, DHHR’s insistence that petitioner had a “clear path” to
reunification is belied by the complete absence of identifiable and certain terms for his
improvement period including the necessity, initiation, and frequency of drug screening.
Moreover, despite DHHR’s insistence that petitioner failed to “address” his alleged
substance abuse issue, at no time was anything more than drug screening discussed; drug
25
screening is mere detection, not treatment. DHHR’s failure to establish a substance abuse
problem through adjudication substantially impaired its ability to require petitioner to
actually address this alleged problem through treatment. 18 In that regard, the deficiencies
in both phases of the proceedings provided petitioner countless opportunities to evade what
DHHR now claims to be the root cause of the conditions of abuse and neglect. It is well-
established 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 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.
Syl. Pt. 5, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001).
We do not suggest that drug screening may only be required in cases where
adjudication is based upon substance abuse. In this case, we find that petitioner’s failure
to drug screen was an improper basis for termination—not because he was not adjudicated
as having a substance abuse issue—but because it was not properly incorporated into the
terms of petitioner’s improvement period and a statutorily required family case plan.
18
As indicated, the only drug treatment-related service identified in the appendix
record is a drug abuse evaluation conducted by the screening facility, during which
petitioner denied a substance abuse disorder. The record reflects no further efforts by
DHHR to seek to require petitioner to enroll in a substance abuse treatment program or
rehabilitation facility.
26
Finally, we wish to make clear that this Court is not ignorant of, nor
unconcerned with, petitioner’s patently obvious efforts to avoid drug screening. We agree
that the specter of substance abuse looms heavily over the proceedings below, as evidenced
by the petition itself, the testimony adduced, and petitioner’s brazen resistance to drug
screening and possession of synthetic urine. However, it is the predominance of these
issues which should have compelled a more stringent adherence to the adjudicatory process
and the statutory requirements such as to eliminate any lack of clarity as to the conditions
of abuse and neglect involved and the requirements placed upon petitioner to correct them.
Because of these failures, the abuse and neglect process has failed to meaningfully address
the alleged issues underlying this case and, as a result, K. L. has thus far been deprived of
potential reunification with a father with whom he indisputably has a significant bond. In
that regard, the proceedings have unfortunately “fail[ed] of their essential purpose.” Lilith
H., 231 W. Va. at 180, 744 S.E.2d at 290.
Based upon the foregoing, we conclude that the circuit court erred in
terminating petitioner’s parental rights based upon 1) issues which were not the subject of
petitioner’s adjudication; and 2) failure to comply with an improvement period which was
not properly implemented in accordance with statutory requirements. 19 We therefore
19
Petitioner also assigns as error the circuit court’s failure to interview K. L. prior
to termination, after previously having indicated its intention to do so. West Virginia Code
§ 49-4-604(c)(6)(C) provides that the court “shall” consider the wishes of a child fourteen
or older or “otherwise of an age of discretion as determined by the court” regarding
termination. K. L., then nine years old, was not of the requisite age to mandate
(continued . . .)
27
vacate that portion of the circuit court’s January 4, 2022, order as to petitioner’s parental
rights, and remand for further proceedings as to petitioner including but not limited to
reopening of adjudication, amendment of the subject petition, and/or implementation of a
post-dispositional improvement period which comports with the requirements of West
Virginia Code § 49-4-610(3), as appropriate in light of our ruling herein. 20
IV. CONCLUSION
Therefore, for the reasons set forth herein, we vacate the January 4, 2022,
order of the Circuit Court of Ohio County as to its termination of petitioner’s parental rights
and remand for further proceedings consistent with this opinion.
Vacated and remanded.
consideration of his wishes; however, the guardian ad litem recommended the court speak
with K. L., indicating that conversing with him was “like [you’re] talking to a mature
teenager[.]” The court agreed; however, upon determining that a post-dispositional
improvement period would be ordered in lieu of termination, it found that speaking with
K. L. was unnecessary at that time.
In light of our remand of this matter, we find it unnecessary to further address this
assignment of error as well as petitioner’s contention that the court’s termination order was
inadequate, and that he was entitled to a “disposition 5,” i.e. a legal guardianship pursuant
to West Virginia Code § 49-4-604(c)(5).
20
By way of Rule 11 update, the parties advise that petitioner has been arrested for
possession of a controlled substance during the pendency of this appeal. Obviously, on
remand, the circuit court may consider any intervening developments in determining the
manner in which to proceed that best protects and serves the interests of K. L. See W. Va.
R. App. P. 11(j).
28