In re K.L. ( 2022 )

FILED
November 16, 2022
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 22-0081, In re K.L. SUPREME COURT OF APPEALS
OF WEST VIRGINIA
ARMSTEAD, Justice, dissenting:
There is ample evidence in the record supporting the termination of
Petitioner’s parental rights. The Petition included allegations of Petitioner’s drug use,
during the proceeding DHHR specifically reserved the right to introduce evidence of
Petitioner’s drug use, Petitioner acceded to the requirement of DNA drug testing by
agreeing to it during the dispositional hearing, and he thereafter refused to test pursuant to
his agreement. Termination of his parental rights was proper for failing to comply with the
terms of his post-dispositional improvement period. Therefore, I respectfully dissent.
In its opening paragraph, the majority opinion acknowledges that the Petition
in this matter contained allegations of Petitioner’s substance abuse. As noted therein,
Petitioner was never adjudicated on this allegation, having stipulated only to the allegations
of educational and medical neglect. The majority opinion goes on to say:
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.
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Following his stipulation, Petitioner moved for and was granted a post-dispositional
improvement period. On the record at the dispositional hearing, there was a long
discussion about the requirement for drug testing:
MS. GEYER: I appreciate that, but can we start with the drug
screening first and make sure that’s not an issue?
THE COURT: Yeah.
MS. GEYER: And I don’t disagree that if in fact they’re able
to successfully complete drug screens and have that not be an
issue – if it is an issue, we want them to get therapy or treatment
for it. I don’t want them to ignore a drug problem and put a
child back there. If it’s not a problem, then certainly we would
be – because that was the step we were gonna [sic] take, but
we just need the drug issues addressed, too.
THE COURT: And I can tell you now based on what heard,
you both are gonna [sic] need to be patted down every time,
every time.
MS. GEYER: Your Honor, can we just do the DNA testing,
because that’s a swab in the mouth, and then they can match
that up. That’s when they stopped doing it, when we were
going to institute the DNA testing. They do a swab one time,
they observe one time. At the same time they do that swab they
do an observed urine, and then they never have to observe them
because they can match that DNA up with a urine sample every
time. So[,] then we know it’s their urine, we don’t have any
issues with them bringing in synthetic urine, we don’t have to
question that. That was what we proposed at the one MDT.
But then when [the mother] went that day and they were gonna
do the swab, she refused.
THE COURT: Well, I’ll say this. And I imagine it’s probably
true in your case, given what I have heard about your opinion
of government. If you oppose that – do you agree with that,
first of all?
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[PETITIONER]: Yeah, that’s fine. That was never proposed to
us at an MDT.
MR. NORMAN: They were asked to do the DNA test before,
like almost immediately preceding the MDT, and then we
came into the MDT and they said, hey, we have this DNA test.
THE COURT: Well, if after talking to your attorneys or
whatever and you don’t oppose that, then let’s do that then.
That will keep you from having to be searched, I suppose,
every time.
….
THE COURT: All right. What I don’t want you guys to be
afraid to do, is if you have a drug problem and you’re using
drugs, don’t be afraid of a positive test. Just because you have
a positive test doesn’t mean I’m going to terminate your
parental rights. I don’t want you to think that. The positive
test gives us a baseline to say here’s what they’re using and
maybe here’s how much they’re using, and from there we can
figure out how we try to help you remedy that problem, and if
you don’t end up remedying then you need to worry.
Once it’s positive and once we tell you here’s what you
need to try to do in order to get off of it, and then you don’t
follow those recommendations, then you gotta [sic] worry
about it. But don’t worry about, you know, a bunch of positive
tests – not a bunch, but at least the initial positive test and even
a couple, to hopefully try to get you off. But if it’s bad, you
know, you may have to go to crisis unit, the whole works, I
don’t know, if you want your kid back. Okay.
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Documenting the hearing in which the improvement period was granted, the
circuit court order states:
WHEREUPON, the Court engaged in a discussion with
counsel about the evidence presented and the appropriate
disposition. The Court noted that [Petitioner] withdrew [his]
Motions for Post-Adjudicatory Improvement Periods and
questioned Post-Disposition Improvement Periods. Counsel
for all parties indicated there would be no objection to Post-
Disposition Improvement Periods, but the DHHR requested
that [Petitioner] drug screen first to determine what additional
services are needed to address the drug issues and requested
DNA testing given the concerns with synthetic urine. The
Court questioned whether [Petitioner was] agreeable to DNA
testing, and [he] did so agree.
(emphasis added). The circuit court then granted a post-dispositional improvement period.
Clearly, the circuit court order memorialized that Petitioner agreed to DNA drug testing as
a condition of that improvement period. As the majority opinion notes, following this
order, Petitioner refused to drug screen on the grounds that the circuit court never ordered
him to drug screen. Petitioner was also arrested for possession of controlled substances
during the course of the proceedings below and was found to be in possession of synthetic
urine. Accordingly, the circuit court terminated Petitioner’s parental rights on the grounds
that he failed to comply with the terms of the post-dispositional improvement period.
The majority opinion, in my view, incorrectly concludes that the circuit court
improperly terminated Petitioner’s parental rights. However, a proper application of
applicable West Virginia law to the facts present here demonstrates the termination of
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Petitioner’s parental rights should be affirmed. Our law requires a circuit court, when
granting a post-disposition improvement period to, “make[] a finding, on the record, of the
terms of the improvement period.” W. Va. Code § 49-4-610 (3)(B) (2015). Following the
grant of the improvement period herein, Petitioner became “responsible for the initiation
and completion of all terms of the improvement period.” W. Va. Code § 49-4-610(4)(A).
Here, the majority opinion essentially finds that the Petitioner was relieved of this
responsibility. However, Petitioner acquiesced to the requirement of DNA drug testing by
agreeing to it at the dispositional hearing, as memorialized in the court order.
Petitioner maintains that he was not required to drug test because the circuit
court directed that the terms of the drug testing were to be included in the family case plan
and that no such plan was developed. This argument is unpersuasive. The circuit court’s
statements during the hearing granting the Petitioner a post-dispositional improvement
period as well as the circuit court’s order granting such improvement period clearly
directed the Petitioner to participate in drug testing. The absence of a family case plan
setting forth the details of such testing does not relieve Petitioner from participating in drug
testing in which he was not only directed to participate but agreed to do on the record before
the circuit court. See In re: C.A. & R.A.-1, No. 16-0470, 2016 WL 4987285, at *3 (W.
Va. Sept. 19, 2016) (memorandum decision) (“We cannot find that the Rules of Procedure
for Child Abuse and Neglect Proceedings or the related statutes have been substantially
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disregarded or frustrated” where a case plan was not developed but abusing parent knew
what was expected of him.); In re P.P., No. 22-0168, 2022 WL 4355450, at *2 (W. Va.
Sept. 20, 2022) (memorandum decision) (DHHR’s filing of case plan five months late did
not substantially disregard the process where “petitioner was aware of the steps necessary
to remedy the conditions of abuse and neglect.”); In re E.K., No. 20-0150, 2020 WL
5653378, at *3 n.4 (W. Va. Sept. 23, 2020) (memorandum decision) (“Here, petitioner
testified that she remembered attending a multidisciplinary treatment meeting where the
terms of the family case plan were formulated and that she was fully aware of the terms of
her improvement period. Petitioner does not argue that the lack of a formal recitation of
the terms of her case plan prejudiced her. Although we agree that the DHHR's failure to
file a family case plan is problematic, we find that petitioner was fully aware of her
requirements under the agreed upon case plan and, therefore, the Rules of Procedure for
Child Abuse and Neglect Proceedings and related statutes were not
so substantially disregarded or frustrated as to warrant vacation of the resulting
dispositional order.”). The Petitioner cannot credibly assert that he did not know that he
was required to drug test. Indeed, the record before us could certainly lead to the
conclusion that the Petitioner’s objection to drug testing was not a result of confusion over
whether such testing was required, but instead results from the discovery that Petitioner
possessed synthetic urine.
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Accordingly, when the circuit court terminated Petitioner’s parental rights, it
did not do so based upon drug use impacting the ability to parent. Instead, it did so based
upon Petitioner’s failure to comply with the terms of the improvement period:
The Court did consider the evidence presented at the
Disposition Hearing, as well as [Petitioner’s] refusal to drug
screen since, and the parties’ positions and arguments; and did
and does FIND that [Petitioner has] failed to participate in a
Post-Disposition Improvement Period by failing to drug
screen; ORDER any Post-Disposition Improvement Period
terminated; FIND that there is no reasonable likelihood that the
conditions of abuse and neglect will be substantially corrected
in the near future, []and FIND it is in the best interest and
necessary for the welfare of the child [K.L.] for the
[Petitioner’s] parental rights to be TERMINATED.
Termination of parental rights based upon Petitioner’s failure to comply with the
requirement of drug testing was well within the circuit court’s discretion. “It is within the
court’s discretion to grant an improvement period ... [and] it is also within the court’s
discretion to terminate the improvement period ... if the court is not satisfied that the
[parent] is making the necessary progress.” Syl. Pt. 2, In re Lacey P., 189 W.Va. 580, 433
S.E.2d 518 (1993); See also In re B.C., No. 12-0395, 2012 WL 4069561, at *4 (W. Va.
Sept. 7, 2012) (memorandum decision) (“[T]he circuit court noted that
petitioner’s improvement period was revoked because of his failure to participate in the
services” and subsequently terminated parental rights.); In re Z.M., No. 14-0283, 2014 WL
4799387, at *2 (W. Va. Sept. 22, 2014) (memorandum decision) (Petitioner father
“exhibit[ed] noncompliance with the circuit court’s orders when he refused to test for drugs
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at the dispositional hearing. This evidence supports the circuit court’s findings and
conclusions that there is no reasonable likelihood that the conditions of neglect or abuse
can be substantially corrected and that termination is necessary for the children's welfare.”);
In re S.M., No. 13-0943, 2014 WL 629535, at *2 (W. Va. Feb. 18, 2014) (memorandum
decision) (no reasonable likelihood conditions of abuse and neglect could be corrected in
the near future when parent refused to submit to drug screens.”); In re C.L., No. 21-0926,
2022 WL 1506014, at *3 (W. Va. May 12, 2022) (memorandum decision) (failing to
submit to drug screens, among other factors, are grounds for termination of parental rights).
Because Petitioner failed to comply with the terms of the improvement period requiring
drug testing, it was entirely proper for the circuit court to terminate Petitioner’s parental
rights in this matter.
For the foregoing reasons, I respectfully dissent.
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