In re D.J. and L.J. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re D.J. and L.J.
June 16, 2020
released at 3:00 p.m.
No. 19-0388 (Raleigh County 17-JA-259, 17-JA-260) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
The petitioner H.J. 1 appeals from the “Order Following March 12, 2019, Dispositional
Hearing” that was entered by the Circuit Court of Raleigh County on March 22, 2019. In that order,
the circuit court terminated the petitioner’s custodial rights to her son D.J and her parental rights
to her daughter L.J. The petitioner argues that the circuit court erred by terminating these rights
without allowing her to present testimony from a substance abuse treatment counselor, and without
holding the record open to accept testimony from her mother. The respondents in this appeal are
the Department of Health and Human Resources (“DHHR”), the children’s guardian ad litem, and
the intervenors J.S.C. and W.J. who are L.J.’s foster parents. All of the respondents argue in
support of the circuit court’s termination order. 2
After considering the parties’ written and oral arguments, as well as the record on appeal
and the applicable law, this Court finds no substantial question of law and no reversible error. For
these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule
21 of the Rules of Appellate Procedure.
I. Facts and Procedural Background
The petitioner is the mother of D.J., who was born in 2002, and L.J., who was born in
2014. 3 The DHHR initiated this abuse and neglect case by filing a petition in circuit court in
October 2017. The petition included multiple allegations against the petitioner including that she
had a history of drug addiction; she overdosed on heroin in September 2017, requiring the
1
Because this case involves minors and sensitive matters, we follow our longstanding
practice of using initials to refer to the children and the petitioner. See, e.g., W.Va. R. App. P.
40(e); State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2
The petitioner is represented by Steven K. Mancini, Esq. The DHHR is represented by
Patrick Morrisey, Attorney General, and Brandolyn N. Felton-Ernest, Assistant Attorney General.
The children’s guardian ad litem is P. Michael Magann, Esq. The intervenors J.S.C. and W.J. are
represented by Mary Beth Chapman, Esq.
3
The children have different fathers who did not live with them or provide them with care.
The fathers’ parental rights were terminated in the course of this abuse and neglect case. However,
this appeal only pertains to the mother’s rights.
1
administration of two cans of Narcan to revive her; she admitted using marijuana and Suboxone
that she bought off the street; she was not attentive to the children, and D.J. was often forced to be
the primary caregiver for L.J.; D.J. went to school dirty and disheveled, had to shower at school,
and slept during his classes; D.J. had a history of truancy, including missing twelve consecutive,
unexcused days from school; when D.J. recently missed the school bus, the petitioner sent him
walking to school in the rain for three to four miles along a busy highway; the petitioner and the
children lacked a permanent home and were moving from place to place; the residence where they
were staying at the time was dirty and contained no food except one small package of bologna;
and D.J. had uncontrolled type 1 diabetes and missed thirty percent of the appointments with his
endocrinologist. By order entered October 12, 2017, the circuit court removed the children from
the petitioner’s care, placed them in the legal custody of the DHHR, and appointed a lawyer for
the petitioner and a guardian ad litem for the children.
In November 2017, the DHHR filed two amended abuse and neglect petitions to add further
allegations against the mother. 4 After the children were removed from the petitioner’s care, D.J.
disclosed to Child Protective Service (“CPS”) workers that the petitioner would go to her friends’
homes to “get high”; she would leave the children with their sick grandmother and not come back
for days; she gave D.J. permission to smoke marijuana as long as he “didn’t touch anything else”;
and she smoked marijuana with D.J. on one occasion. D.J. revealed that he helped his mother find
Suboxone and “whatever else she needed” from friends so that she could use the drugs and not get
sick. D.J. knocked on doors and sold or traded his personal belongings to get drugs for his mother.
Moreover, D.J. reported that an uncle and cousin with whom they were living at the time of
removal had sold marijuana from the home and had given D.J. marijuana to sell.
The appendix record indicates that the CPS also had prior involvement with this family,
although that prior involvement had not resulted in the filing of an abuse and neglect petition. In
June 2016, D.J. went into ketoacidosis because the petitioner was not administering the appropriate
amounts of insulin to him. A CPS case was opened, and the petitioner was provided with services
to educate her on how to care for D.J.’s diabetic needs, household management, and avoiding
truancy. The petitioner completed the treatment plan and that case was closed in May 2017, just
five months before the current abuse and neglect case was opened.
An initial adjudicatory hearing regarding the allegations in the October abuse and neglect
petition was held on December 19, 2017. The petitioner did not appear, but was represented by
counsel. The DHHR presented evidence regarding the allegations.
While this case was pending, the petitioner overdosed on drugs again. In January 2018, she
was found unconscious at a convenience store with a hypodermic needle stuck in her arm and
heroin in her purse. As a result, she was incarcerated for several days.
Another adjudicatory hearing was held on February 27, 2018. The petitioner mother was
not present for the hearing, but through her counsel she offered to stipulate to medical neglect,
drug abuse which resulted in abuse and neglect, and failure to supervise the children which resulted
4
These amended petitions also included allegations against the children’s fathers, but those
allegations are not at issue in this appeal.
2
in truancy. The circuit court accepted the oral stipulation, subject to a written stipulation also being
filed, and adjudicated the petitioner as having abused and/or neglected the children. The
petitioner’s counsel moved for a six-month post-adjudicatory improvement period, which the court
granted. In the mother’s written stipulation that was filed on March 15, 2018, she admitted
neglecting the proper daily care of the children as the result of her substance abuse, neglecting
D.J.’s medical care, and neglecting D.J. by failing to address his truancy.
A meeting of the Multidisciplinary Treatment Team (“MDT”) was held on March 15, 2018,
to formulate a plan for the petitioner’s improvement period. The petitioner participated by
telephone, while her counsel was present in person. After discussion, the MDT identified three
deficiencies and formulated a case treatment plan to remedy these problems. First, they determined
that the petitioner’s “drug and/or alcohol use is pervasive and threatens child safety.” To remedy
this, the petitioner and all members of the MDT agreed as follows:
[Petitioner] will attend an MDT approved 6 to 12-month inpatient
drug treatment program. [Petitioner] will follow the inpatient
program treatment plan and get clean of all illegal substances and
Suboxone, methadone, and naloxone. If [petitioner] miss[es] drug
screens, tests positive for drugs that are not prescribed, is not
learning anything from classes, miss[es] any classes or counseling
sessions, the department may file a motion to terminate the
improvement period. [Petitioner] will not jump from program to
program, if [petitioner] is discharged from a program she has one
month to get enrolled into another program or the Department will
file a motion to terminate the Improvement Period. Upon
completing the inpatient Drug treatment program [petitioner] will
screen at Day Report to make sure that she is continuing to maintain
sobriety.
CPS Worker Mark Ward has explained that the inpatient treatment requirement was “so strict”
because of the need to address the petitioner’s severe and significant history of drug abuse. The
petitioner has testified that she agreed to long-term inpatient treatment because she knew she had
to remove herself from the environment where she was receiving drugs. She explained that she
was living in a trailer park with her brother where “you can go to every other trailer and get
anything you want.” 5
Second, the MDT determined that the petitioner “is unwilling or unable to perform parental
duties and responsibilities, which could result in serious harm to the child.” To remedy this, the
MDT wrote in the case plan that
[petitioner] will maintain a stable and sanitary home free of illegal
drugs, drug paraphernalia, clutter, dangerous objects that threaten[]
the child’s safety, [and] persons with a criminal history that could
5
Mr. Ward and the petitioner provided this testimony about the inpatient drug treatment
requirement during the March 2019 dispositional hearing.
3
set [her] back in her sobriety. [Petitioner] will maintain the utilities
and rent on the house. Upon completing the inpatient program
[petitioner] will work with a provider on Adult Life Skills,
Budgeting, Parenting, and cleanliness. The Parenting will consist of
the impact that [petitioner’s] drug abuse has had on [D.J.] and [L.J.].
Third, the MDT determined that the petitioner lacked “parenting knowledge[,] skills, or
motivation” that affected child safety. To address this problem, they agreed as follows:
[Petitioner] knows the importance of medical care for each of her
children and this includes but [is] not limited to a pediatrician, eye
and dental. [Petitioner] will participate in parenting classes to know
how medical neglect can have a long-lasting effect on her children.
[Petitioner] knows what each aspect of medical care is needed for a
child throughout the development of the child and document [sic] it
in the[] parenting classes. [Petitioner][,] when deemed appropriate[,]
will attend each medical appointment of each child then discuss with
their parenting ASO provider what they learned and how this affects
the[] child’s development. . . .
Later that same day, the petitioner personally signed the treatment plan, indicating her agreement
to its terms. 6
The circuit court held a mid-point review hearing on the petitioner’s improvement period
on May 15, 2018. The petitioner did not attend, although she had been informed of the hearing
date during the March MDT meeting. The court was informed that the petitioner was not
progressing in her improvement period, had not enrolled in an inpatient drug treatment program,
was not attending drug screens, and was missing many of the visits with her children. The
petitioner’s counsel represented that his client was trying to be admitted into an inpatient treatment
program, but he did not have documentation to confirm this.
The circuit court held a final improvement period review hearing on August 14, 2018. The
petitioner was not present, but was reportedly on her way. The lawyers and parties who were
present agreed to hold a dispositional hearing on November 13, 2018, and the review hearing was
concluded. However, the November dispositional hearing was canceled due to the hospitalization
of the petitioner’s counsel. Another MDT meeting was held on December 14, 2018, but both the
petitioner and her lawyer missed the meeting due to a calendaring mistake by counsel.
Although her six-month improvement period had already expired, on January 15, 2019, the
petitioner filed a “Motion for Extension to Post-Adjudication Improvement Period or [Motion for]
Dispositional Improvement Period.” In this motion, the petitioner revealed for the first time that
6
There are actually two treatment plan documents, one written for each child, but the plans
are identical. The petitioner participated in the MDT meeting by telephone, but the petitioner’s
counsel represents that he took the plan documents to the petitioner and obtained her signature that
same day.
4
in June 2018 she had enrolled for outpatient methadone treatments at the Beckley Comprehensive
Treatment Center. Although her written case plan did not allow this course of treatment, the
petitioner had not asked the MDT to change the plan, and she had not filed any motion with the
circuit court to modify the terms of her improvement period.
The dispositional hearing was rescheduled for January 15, 2019, but that date was canceled
because the petitioner was hospitalized for cardiac and other medical issues. A dispositional
hearing was finally held on March 12, 2019.
During the dispositional hearing, the DHHR presented testimony from its CPS Worker,
Mr. Ward, about the treatment plan that the petitioner had agreed to follow in order to regain
custody of her children. Mr. Ward explained that the petitioner failed to complete any of the three
goals set forth in her treatment plan: attendance at a six- to twelve-month inpatient drug treatment
program approved by the MDT; obtaining a sanitary and stable home for the children; and
understanding the importance of medical care for the children. Although the petitioner had recently
disclosed that she was receiving treatment at a methadone clinic, Mr. Ward noted that the treatment
plan expressly prohibited her from using Suboxone, methadone, or Naloxone. Mr. Ward reported
that while L.J. was doing well in her foster care placement, D.J. was having troubles including a
suspension from school for drinking alcohol. D.J. is also known to talk about gangs and drugs,
which resulted in Mr. Ward recommending that there be no sibling visitation between D.J. and L.J.
Furthermore, James Miller, the director of the Raleigh County Day Report Center, testified
that parents facing drug-related abuse and neglect charges are usually administered drug tests two
times a week at the Day Report Center. During the pendency of this case, the petitioner reported
to the Day Report Center for drug testing a total of just three times. On December 5, 2017, she
tested positive for methamphetamine, amphetamine, marijuana, buprenorphine,
norburprenorphine, morphine, temazapam, and oxazepam. She tested negative for any drugs in
February 2018, and on January 2, 2019, she tested positive for methadone and methadone
metabolite. Mr. Miller testified that the petitioner missed a total of forty-eight drug screens at the
Day Report Center.
The DHHR also presented testimony about the petitioner’s visitation with her children
during the pendency of the case. She was permitted two-hour supervised visits every week. Amber
Stewart was a service provider hired to transport the petitioner and the children to the visits, as
well as to provide the supervision. Ms. Stewart testified that visits between the petitioner and L.J.
occurred on November 16, 20, and 27, 2017, and visits between the petitioner and both children
took place on December 5 and 18, 2017. 7 Ms. Stewart testified that the petitioner did not bring
snacks for the children, had to be reminded to stay off of her cell phone and pay attention to L.J.,
ended the November 20 visitation one hour early, and had to go to the bathroom to vomit during
each of the first four visits. Ms. Stewart testified that during the December 5 visitation, D.J. cried
and hung on his mother but the petitioner did not attempt to console him, while L.J. was left to
play on the floor without interacting with the petitioner or D.J.
7
D.J. did not attend the first few visits because he was hospitalized due to his diabetes.
5
The last time the petitioner saw either of her children was during a supervised visit on
December 18, 2017. Although Ms. Stewart felt that the visit went well, a few days later she learned
that D.J. was found in the possession of marijuana and told his foster parent that the petitioner had
given him the drugs. All visitation between the petitioner and children was temporarily halted, and
Ms. Stewart was no longer permitted to transport the petitioner because the petitioner had
apparently carried these drugs in Ms. Stewart’s car.
Ms. Stewart testified that in March 2018, CPS permitted her to resume arranging visits
between the petitioner and L.J. According to Ms. Stewart, she scheduled eight visits for the
petitioner and L.J. between March and May 2018, but they were all canceled. One was canceled
by L.J.’s foster parent because the child was ill. One visit set for April 27 was canceled because
the petitioner apparently lacked transportation; she told Ms. Stewart that the ball joint on her
sister’s car was being repaired that morning. The remaining six visits were canceled by the
petitioner because she was sick, had overslept, or because the petitioner failed to call and confirm
that she would attend the planned visit. After these several failed attempts, the CPS instructed Ms.
Stewart to stop trying to arrange visits. CPS Worker Mr. Ward testified that the petitioner never
contacted him to inquire about her children, to request visitation or telephone calls with her
children, or to request transportation for visitation or for drug screens.
Mr. Ward reported that the children had been in the foster care system for more than fifteen
of the preceding twenty-two months. 8 In his opinion, there was no reasonable belief that allowing
the petitioner extra time to complete an improvement period would result in completing the goals
of the case plan. The DHHR therefore recommended that the Court terminate the petitioner’s
parental rights. The children’s guardian ad litem concurred with Mr. Ward’s assessment and asked
that parental rights to L.J. be terminated. However, the guardian ad litem reported that the sixteen-
year-old D.J. wished for his mother’s parental rights to remain intact. 9
8
West Virginia Code § 49-4-605(a)(1) (2018) requires the DHHR to
file or join in a petition or otherwise seek a ruling in any pending
proceeding to terminate parental rights: (1) If a child has been in
foster care for 15 of the most recent 22 months as determined by the
earlier of the date of the first judicial finding that the child is
subjected to abuse or neglect or the date which is 60 days after the
child is removed from the home[.]
Exceptions to this provision are not applicable here. Accord W.Va. Code § 49-4-610(9) (2015)
(prohibiting court from granting improvement period that may cause child to be in foster care more
than fifteen of most recent twenty-two months absent compelling circumstances).
9
West Virginia Code § 49-4-604(b)(6)(C) (2019) directs that “[n]otwithstanding any other
provision of this article, the court shall give consideration to the wishes of a child 14 years of age
or older or otherwise of an age of discretion as determined by the court regarding the permanent
termination of parental rights.” Although the Legislature amended West Virginia Code § 49-4-604
effective June 5, 2020, including renumbering the provisions, the amendments do not impact this
case.
6
During the dispositional hearing the petitioner testified that she did not go to inpatient drug
treatment because she needed to care for her mother who had “come out of” a nursing home. She
explained that since June 27, 2018, she had received drug counseling and daily methadone
treatments on an outpatient basis from the Beckley Comprehensive Treatment Center, and that she
was doing well on her road to recovery. She reported that she underwent random drug tests from
the methadone clinic which were mostly clean. The reports of her drug screens at the clinic, which
were provided to the DHHR and the guardian ad litem, showed that she tested positive for
methamphetamines on October 31, 2018. These test results also showed that she had marijuana in
her system throughout the summer of 2018, in December 2018, and in January 2019.
In her testimony at the dispositional hearing, the petitioner denied giving D.J. marijuana
during the December 2017 visit and blamed a lack of DHHR-provided transportation for her failure
to visit the children at other times. The petitioner testified that she made regular attempts to call
L.J. on the telephone, but her calls were not answered. The petitioner admitted that she never
contacted CPS Worker Mr. Ward about the children, visitation, or telephone calls. Moreover, she
never filed any motion with the circuit court seeking an order to re-establish visitation, DHHR-
provided transportation, or telephone calls. Finally, the petitioner testified that she was living with
a roommate, M.C., and did not have her own residence.
At approximately 2:00 p.m. on the day before the March 12, 2019, dispositional hearing,
the petitioner disclosed that she intended to call three witnesses to testify at the hearing: Brandy
Saddler, her drug counselor at the Beckley Comprehensive Treatment Center; D.B., her mother;
and M.C., her roommate. On the day of the hearing, however, the petitioner did not seek to present
any testimony from her roommate. Moreover, the petitioner’s mother was unavailable to testify
because she was hospitalized, so the petitioner’s counsel asked that the record be kept open for
supplementation with her mother’s testimony. The DHHR objected to the testimony of Ms. Saddler
and the petitioner’s mother, arguing that these witnesses were untimely disclosed and that their
testimony would be irrelevant to the question of whether the petitioner had complied with her case
plan. The circuit court delayed a ruling on this evidence until the end of the hearing. Ultimately,
the circuit court accepted as true the fact that the petitioner had been receiving methadone
treatments, but excluded Ms. Saddler’s testimony as not relevant to the question of whether the
petitioner had complied with her MDT-approved case plan. The circuit court was also concerned
that achieving success with the methadone treatments would require many more months of
treatments but D.J. and L.J. had already been in foster care for seventeen months. With regard to
the petitioner’s mother, the circuit court accepted the proffer of the petitioner’s counsel that she
would testify that the petitioner has been enrolled in a methadone program and is now sober and
able to care for her and the children. However, the Court found that it was unnecessary to hear this
testimony in person and declined to hold the disposition in abeyance. 10
After considering the testimony, the proffers of the petitioner’s counsel, and the arguments
of counsel, the circuit court denied the petitioner’s motion for an additional improvement period
10
The petitioner’s mother has since died.
7
and ordered the termination of her parental rights to L.J. and her custodial right to D.J.11 In a thirty-
one page order entered on March 22, 2019, the court found, inter alia, that the petitioner failed to
comply with the requirements of her case plan and demonstrated an inadequate capacity to solve
the problems of abuse or neglect. The court found no reasonable likelihood that the conditions of
abuse or neglect could be substantially corrected in the near future and that reunification with the
petitioner would not be in the children’s best interests. Moreover, the children needed continuity
of care and dependable caretakers and had already been out of the home for seventeen months.
This is the order from which the petitioner appeals. 12
II. Standard of Review
This Court has established the following standard of appellate review for abuse and neglect
cases:
Although conclusions of law reached by a circuit court are
subject to de novo review, when an action, such as an abuse and
neglect case, is tried upon the facts without a jury, the circuit court
shall make a determination based upon the evidence and shall make
findings of fact and conclusions of law as to whether such child is
abused or neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is clearly
erroneous when, although there is evidence to support the finding,
the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed. However, a
reviewing court may not overturn a finding simply because it would
have decided the case differently, and it must affirm a finding if the
circuit court’s account of the evidence is plausible in light of the
record viewed in its entirety. Syl. Pt. 1, In Interest of Tiffany Marie
S., 196 W. Va. 223, 470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). The petitioner assigns error
regarding the circuit court’s exclusion of certain testimony, which we examine for abuse of
11
The decision to terminate only her custodial rights to the sixteen-year-old D.J. was based
upon D.J.’s stated preference, which the circuit court was required to consider pursuant to West
Virginia Code § 49-4-604(b)(6)(C) (2019). See supra n. 9.
12
In April 2020 the parties filed updates on the children’s status pursuant to Rule 11(j) of
the Rules of Appellate Procedure. Because some of the information provided in these updates was
not available to the circuit court, we will not use it as a basis for our decision. However, of
particular concern to this Court is a report from the DHHR that D.J., who will turn eighteen years
old later this year, has periodically been refusing meals in order to shrink his stomach to return
home to his mother where he believes there will be less food available. This causes complications
for his diabetes. We direct the DHHR and the guardian ad litem to ensure that D.J. is currently
receiving all medical services he needs, including mental health services, and to encourage D.J. to
participate in the services available to young adults when they age out of the foster care system.
8
discretion: “A trial court’s evidentiary rulings, as well as its application of the Rules of Evidence,
are subject to review under an abuse of discretion standard.” Syl. Pt. 4, State v. Rodoussakis, 204
W. Va. 58, 61, 511 S.E.2d 469 (1998).
Finally, our consideration of every abuse and neglect case must ultimately be guided by
the best interests of the children. “Although parents have substantial rights that must be protected,
the primary goal in cases involving abuse and neglect, as in all family law matters, must be the
health and welfare of the children.” Syl. Pt. 3, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996).
With these principles in mind, we turn to the parties’ arguments.
III. Discussion
On appeal, the petitioner argues that the circuit court erred in terminating her parental rights
to L.J. and her custodial rights to D.J. without allowing her to call Ms. Saddler as a witness at the
dispositional hearing and without holding the record open for her mother’s testimony.
The circuit court excluded Ms. Saddler’s testimony about the outpatient care administered
at the Beckley Comprehensive Treatment Center upon finding that it would be wholly irrelevant
to the question of whether the petitioner had complied with the terms of her post-adjudicatory
improvement period as set forth in the agreed case plan. This Court has held that
“[a]t the conclusion of the improvement period, the court
shall review the performance of the parents in attempting to attain
the goals of the improvement period and shall, in the court’s
discretion, determine whether the conditions of the improvement
period have been satisfied and whether sufficient improvement has
been made in the context of all the circumstances of the case to
justify the return of the child[ren].” Syllabus Point 6, In the Interest
of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).
Syl. Pt. 4, In re Faith C., 226 W. Va. 188, 699 S.E.2d 730 (2010). We agree that Ms. Saddler’s
testimony would be irrelevant to the question of whether the petitioner complied with her case
plan, inasmuch as the plan required inpatient substance abuse treatment and expressly prohibited
the use of methadone. Notably, the petitioner consented to the terms of the case plan and, as time
progressed, never asked the MDT or the circuit court to alter the requirements. Both the petitioner
and her lawyer were members of the MDT and could have sought a modification of the plan from
either the MDT or the circuit court. See W.Va. Code §§ 49-4-404(c) (2015), 49-4-405(b) (2015).
Instead, the petitioner embarked upon a different course and concealed her use of methadone from
the DHHR and the other parties for six months.
Despite the petitioner’s failure to follow the terms of her case plan and improvement
period, she argues that Ms. Saddler’s testimony would still be relevant to the ultimate issue of what
disposition the circuit court should impose. This is a valid argument inasmuch as we have held
that “[i]n making the final disposition in a child abuse and neglect proceeding, the level of a
parent’s compliance with the terms and conditions of an improvement period is just one factor to
be considered. The controlling standard that governs any dispositional decision remains the best
9
interests of the child.” Syl. Pt. 4, In re B.H., 233 W. Va. 57, 754 S.E.2d 743 (2014). Nonetheless,
we conclude that the circuit court’s evidentiary ruling was harmless error, if it was error at all.
“Most errors, including constitutional ones are subject to harmless error analysis.” State ex rel.
Waldron v. Scott, 222 W. Va. 122, 126, 663 S.E.2d 576, 580 (2008) (citation omitted). The circuit
court correctly decided this case based upon the best interests of the children.
We initially observe that these witnesses were disclosed in an untimely manner, late on the
day prior to the dispositional hearing. Rule 30 of the Rules of Procedure for Child Abuse and
Neglect Proceedings directs that “[a]t least five (5) judicial days prior to the disposition hearing,
each party shall provide the other parties . . . and the court a list of possible witnesses, with a brief
summary of the testimony to be presented[.]” The petitioner’s untimely witness disclosure
obviously would have hampered the ability of the other parties to prepare for the dispositional
hearing. 13
Importantly, the circuit court did not exclude all evidence of the petitioner’s medication-
assisted treatment. The court accepted as true the proffers by her counsel that the petitioner had
been receiving methadone treatments. The court also accepted the proffer that the petitioner’s
mother would testify regarding these treatments and the petitioner’s improvements. The petitioner
herself was permitted to testify about the methadone treatments and the counseling provided by
the Beckley Comprehensive Treatment Center, as well as her efforts and progress toward recovery.
In addition, the results of the drug tests administered at the Beckley Comprehensive Treatment
Center were used by the petitioner and all of the parties as part of the evidence in this case.
A theme underlying the petitioner’s arguments seems to be that the DHHR and the circuit
court are biased against the use of medication-assisted treatment for substance abuse. After oral
argument, the petitioner submitted a notice of additional authority with a citation to West Virginia
Code § 49-4-604(e) (2019) which provides that a court “may not terminate the parental right of a
parent on the sole basis that the parent is participating in a medication-assisted treatment program,
as regulated in [W.Va. Code] § 16-5Y-1 et seq., for substance use disorder, as long as the parent
is successfully fulfilling his or her treatment obligations in the medication-assisted treatment
program.” 14 This Court expressly disapproves of any bias against medication-assisted treatment
for substance abuse. However, as discussed below, the petitioner’s use of methadone treatments
was not the reason why her rights were properly terminated in this case. Moreover, when her case
plan was developed, there were very good reasons to require inpatient care—including that one of
the drugs petitioner was regularly abusing was Suboxone that she obtained off the street, including
Suboxone that she had D.J. acquire for her. Her drug addiction was severe. She had overdosed on
heroin twice, and in a single drug test administered at the Day Report Center in December 2017
13
Although the untimeliness of the witness list was not a reason given by the circuit court
for excluding Ms. Saddler’s testimony and for refusing to hold the record open for the petitioner’s
mother’s testimony, this Court may affirm for any reason apparent from the record. See, e.g., Syl.
Pt. 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965) (“This Court may, on appeal,
affirm the judgment of the lower court when it appears that such judgment is correct on any legal
ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower
court as the basis for its judgment.”).
14
This provision was moved to West Virginia Code § 49-4-604(f) effective June 5, 2020.
10
she was positive for a long list of drugs: methamphetamine, amphetamine, marijuana,
buprenorphine, norburprenorphine, morphine, temazapam, and oxazepam. When developing the
case plan in March 2018, the MDT evaluated the situation and concluded that inpatient substance
abuse treatment without the use of methadone or Suboxone was the best course of action to address
the petitioner’s severe addiction to multiple substances. In her testimony, the petitioner admitted
that she agreed to attend inpatient treatment because she needed to escape the environment where
she was surrounded by easily-accessible drugs. During the one and one-half years this case was
pending in circuit court, the petitioner never asserted that methadone treatments would be
appropriate and never asked the MDT or the circuit court for an alteration of the case plan. Thus,
while we will not condone a bias against medication-assisted treatments, no bias has been shown
from the facts of this case.
With regard to the petitioner’s request to hold the record open for testimony from her
mother, the dispositional hearing had already been continued twice, for a total of four months, at
the request of the petitioner and her counsel. At that point in time, the children had been in foster
care for seventeen months. It also appears that the petitioner could have elicited much the same
evidence that her mother would have given if she had called her roommate to testify, but she did
not. The circuit court accepted the petitioner’s proffer of what her mother’s testimony would be,
and did not abuse its discretion when deciding that the disposition, and these children, should not
wait any longer.
Most importantly, even if the circuit court had heard Ms. Saddler’s and the petitioner’s
mother’s testimony, it is clear to this Court that termination would still have been the proper
outcome. West Virginia Code § 49-4-604(b)(6) (2019) directs a circuit court to terminate 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 children’s
welfare. West Virginia Code § 49-4-604(c)(3) (2019) provides that a situation in which there is
“[n]o reasonable likelihood that [the] conditions of neglect or abuse can be substantially corrected”
includes when the abusing 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.
The petitioner, her lawyer, and the rest of the MDT designed a three-part case plan to address the
petitioner’s abusive and neglectful conduct. The plan required inpatient treatment for her severe
addiction to drugs. The petitioner never attended or even sought inpatient drug treatment. She
submitted to testing at the Day Report Center only three times. Even after she began methadone
treatments in June 2018, the results of testing at the Beckley Comprehensive Treatment Center
showed that the petitioner was still using methamphetamines in October 2018 and was using
marijuana in 2018 and in January 2019. According to the guardian ad litem, who reviewed the
drug test reports from the methadone clinic, nearly half of the petitioner’s drug screens were
positive for marijuana. Methamphetamines and marijuana are two of the drugs that the petitioner
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was abusing when the children were in her care. Another requirement of the case plan was for the
petitioner to obtain a sanitary and stable home for the children, but the circuit court found that she
had failed to so. The case plan also required the petitioner to understand the importance of medical
care for the children and to attend their medical appointments, but she never attended any of their
appointments and never bothered to inquire of the DHHR about their health and well-being.
During the dispositional hearing, the petitioner blamed her failure to visit the children and
her failure to take drug tests at the Day Report Center on the DHHR’s withdrawal of transportation
services in December 2017. However, these transportation services were only canceled when it
was determined that the petitioner had carried marijuana to her teenaged son in the vehicle of a
DHHR service provider. It is very telling that the petitioner never filed any motions with the circuit
court challenging the DHHR’s conclusion that she gave her son marijuana during the visit, and she
never filed any motion with the court seeking the reinstatement of transportation services or
visitation. Moreover, Ms. Stewart testified that of the visits she attempted to arrange between the
petitioner and L.J. in 2018, the petitioner only blamed a lack of transportation for one of the seven
visits that she failed to attend.
All of this evidence demonstrates that even if the petitioner is making some progress in her
recovery through methadone treatments, there is still no reasonable likelihood that the petitioner
can correct all of the conditions of abuse and neglect in the near future. As such, West Virginia
Code § 49-4-604 required the circuit court to terminate the petitioner’s rights to the children. For
the foregoing reasons, the circuit court’s March 22, 2019, dispositional order is affirmed.
Affirmed.
ISSUED: June 16, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
JENKINS, JUSTICE, CONCURRING AND WRITING SEPARATELY:
This case presents yet another example of the opioid crisis that is rampant in the State of
West Virginia and the devastating effects of addiction on our State’s children. I agree with the
majority’s decision that termination of the petitioner mother’s parental rights is in the children’s
best interests in this case because they have suffered far too much and deserve a safe and secure
permanent home.
However, I write separately because it became apparent during the oral arguments of this
case that medication-assisted treatment programs often are viewed with disfavor when establishing
family case plans and improvement periods designed to facilitate the reunification of these families
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in crisis. Although I understand the service providers’ belief that the mother’s addiction was so
severe that they viewed a medication-free treatment program as the only solution to ensuring her
recovery, I do not believe that there is a single method by which an afflicted individual can
overcome his or her addiction and achieve and maintain sobriety. Here, the mother claimed that,
due to her familial obligations, she could not enter an inpatient treatment program as she had been
directed to do because that would have left her mother without a caretaker. Although she informed
various entities throughout the proceedings that she had entered an outpatient, medication-assisted
treatment program and had complied with its requirements for nearly nine months, including
making daily visits to the facility to receive her medication therapy, participating in counseling
sessions, and submitting to drug screens, both the circuit court and this Court have found that this
is not sufficient because she did not make the proper motion or request to change the terms of her
required recovery program. Rather than chastising the mother for what may have been her
counsel’s shortcomings in ensuring the appropriate procedures had been followed to ratify this
different course of treatment, we should instead acknowledge the mother’s efforts to recognize her
problems with addiction and make significant strides to overcome them. This is particularly true
when the Legislature, itself, has forbidden the termination of parental rights to be based solely
upon a parent’s receipt of medication-assisted treatment to overcome addiction. See W. Va. Code
§ 49-4-604(e) (“The court may not terminate the parental right[s] of a parent on the sole basis that
the parent is participating in a medication-assisted treatment program, as regulated in § 16-5Y-1
et seq., for substance use disorder, as long as the parent is successfully fulfilling his or her treatment
obligations in the medication-assisted treatment program.”).
Nevertheless, because the children’s best interest is the determinative factor in the
resolution of abuse and neglect proceedings, I concur in the majority’s ultimate decision in this
case.
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