In re M.M., H.M., and W.M ( 2020 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2020 Term
_____________________ FILED
October 30, 2020
No. 19-0926 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_____________________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
IN RE: M.M., H.M., AND W.M.
___________________________________________________________
Appeal from the Circuit Court of Randolph County
Honorable Jacob E. Reger, Judge, sitting by special assignment
Juvenile Action Nos. 18-JA-119, 120, and 121
REVERSED AND REMANDED WITH DIRECTIONS
_________________________________________________________
Submitted: September 1, 2020
Filed: October 20, 2020
J. Brent Easton, Esq. Patrick Morrisey, Esq.
Brent Easton Attorney at Law PLLC Attorney General
Davis, West Virginia Charleston, West Virginia
Counsel for Petitioner Mother Lee A. Niezgoda, Esq.
Assistant Attorney General
Timothy H. Prentice, Esq. Fairmont, West Virginia
Prentice Law Office Counsel for Respondent W.Va. Dept.
Elkins, West Virginia of Health and Human Resources
Guardian ad Litem
JUSTICE HUTCHISON delivered the Opinion of the Court.
SYLLABUS
1. “‘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).
2. “At 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.” Syl. Pt. 6, In Interest of
Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).
i
3. “The purpose of the family case plan as set out in W. Va. Code, 49-6D-
3(a) (1984) [subsequently amended and later re-codified into W. Va. Code § 49-4-408(2015) and § 49-4-604 (2020)], is to clearly set forth an organized, realistic method of
identifying family problems and the logical steps to be used in resolving or lessening these
problems.” Syl. Pt. 5, State ex rel. W. Va. Dept. of Human Services v. Cheryl M., 177 W.
Va. 688, 356 S.E.2d 181 (1987), superseded 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).
4. Pursuant to West Virginia Code § 49-4-604(f) (2020), in an abuse and
neglect case “[t]he court may not terminate the parental rights 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.”
5. The use of medication-assisted treatment is authorized by the Medication-
Assisted Treatment Program Licensing Act, West Virginia Code §§ 16-5Y-1 to 16-5Y-13
(2016), and the Act’s supporting regulations. Medication-assisted treatment will not be
appropriate or beneficial for all persons suffering from opioid use disorder. However, when
medication-assisted treatment is appropriate and potentially beneficial, any bias against its
use is contrary to the public policy of this State as announced by the Legislature.
ii
HUTCHISON, Justice:
The Petitioner Mother, M.M.-1, appeals the August 27, 2019, disposition
order of the Circuit Court of Randolph County that terminated her parental rights to her
children M.M.-2, H.M., and W.M. 1 The petitioner contends that the circuit court erred in
terminating her parental rights upon finding that she failed to successfully complete the
terms of her post-adjudicatory improvement period and that there was no likelihood the
circumstances of abuse and neglect could be remedied in the near future. She argues that
she was doing very well in her improvement period until the Respondent West Virginia
Department of Health and Human Resources (“Department”) suddenly discontinued
payment for the medication-assisted substance abuse treatments that had been approved
for her use as part of her improvement period and family case plan. The children’s guardian
ad litem supports the petitioner’s appeal. However, the Department contends that the circuit
court properly terminated the petitioner’s parental rights.
Having considered the parties’ arguments, the appendix record on appeal,
and the pertinent authorities, we conclude that under the facts of this case, the Department’s
act of stopping payment for the petitioner’s substance abuse treatments violated the
Department’s obligations to follow the approved family case plan and to make reasonable
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., 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). The Petitioner Mother and one of her children have the same initials,
so the petitioner is referenced herein as “M.M.-1” and the child as “M.M.-2.”
1
efforts to preserve the family. We also disapprove of the bias against medication-assisted
substance abuse treatment that was evident in this case. As such, the circuit court erred in
concluding that the petitioner failed to comply with the terms of her improvement period
and in terminating the petitioner’s parental rights on the same grounds. We reverse and
remand this case to the circuit court for further proceedings consistent with this opinion.
I. Facts and Procedural Background
On August 25, 2018, at around 12:30 p.m., the petitioner’s husband, I.M.,
was found “passed out” behind the wheel of a running car parked in the parking lot of a
pizza restaurant where the petitioner was working. The windows were rolled up and the
vehicle’s heater was turned on during the summer day, causing the car to be very hot inside.
The couple’s two-year-old child, W.M., was in the back seat of the car. The police were
called and W.M. was taken to a hospital for heat exhaustion. I.M. appeared to be under the
influence of drugs, and drugs were found inside the car. The petitioner was not in the car
at the time, but she came outside of the restaurant when she noticed the commotion in the
parking lot. In the course of an investigation, both the petitioner and I.M. admitted that they
were addicted to drugs. The petitioner admitted that she would test positive for either
Suboxone or methamphetamine and it was likely that drugs would be found in their home.
She explained that she had been going to a medication-assisted treatment (“MAT”) center
2
in Morgantown until her car broke down and she was no longer able to travel to the center,
resulting in a relapse of her use of illegal and illegally obtained drugs. 2
On September 11, 2018, the Department filed a petition in circuit court
alleging that the petitioner and I.M. were suffering from drug and/or alcohol addictions
that created an abusive and neglectful situation for their children. 3 On October 2, 2018,
both parents stipulated to abuse and neglect. The circuit court granted each parent a six-
month post-adjudicatory improvement period.
One term of the petitioner’s improvement period was that she had to enter an
in-state drug treatment program approved by the multidisciplinary treatment team
(“MDT”). 4 In developing a case plan for the family, the MDT agreed that the petitioner
2
“‘Medication-assisted treatment’ means the use of medications and drug
screens, in combination with counseling and behavioral therapies, to provide a holistic
approach to the treatment of substance use disorders.” W. Va. Code § 16-5Y-2 (2018).
3
The Petitioner and I.M. have two young children together, W.M. and H.M.
The circuit court ratified the Department’s emergency removal of W.M. from the home,
and W.M. was temporarily placed with his paternal grandmother. H.M. was already living
with maternal relatives in Pennsylvania pursuant to the terms of a custody order entered in
that state; the genesis of that custodial arrangement and the terms of the Pennsylvania order
are not set forth in the appendix record. The petitioner also has a teenaged child, M.M.-2,
with an unknown father; M.M.-2 has resided with her maternal grandparents for many
years without any formal custody arrangement. Both H.M. and M.M.-2 have continued
living with those same relatives throughout this abuse and neglect proceeding.
Members of an MDT include, inter alia, the Department’s case worker, the
4
respondent parents and their counsel, the prosecuting attorney who is counsel to the
Department, and the children’s guardian ad litem. W. Va. Code § 49-4-405(b) (2015).
3
would satisfy the drug treatment requirement by receiving MAT at the Clarksburg
Treatment Center.
During a status hearing on January 3, 2019, Assistant Prosecuting Attorney
Christina Harper, who was appearing on behalf of the Department, informed the circuit
court that both parents had been participating in their respective improvement periods and
both were “doing well.” Ms. Harper reported that all of the petitioner’s drug screens since
she began the improvement period had been clean of all substances except Buprenorphine,
which was the prescription medication she was taking as part of the MAT program. Ms.
Harper advised the circuit court that the petitioner was also receiving counseling at the
Clarksburg Treatment Center and was attending supervised visits with her children. 5 The
petitioner’s counsel presented the court with a December 28, 2018, note written by the
petitioner’s doctor at the Clarksburg Treatment Center advising that the petitioner was
complying with her treatment, counseling, and drug screens.
With regard to the Department’s policy about drug treatment, during the
January 3, 2019, hearing Assistant Prosecutor Harper explained that if a parent is not
already in an MAT program then the Department asks that they not begin one as part of an
improvement period. However, if they are already participating in MAT, the Department
5
According to the record, the petitioner was granted supervised visitation
with her children twice a week for two hours a day. It is unclear from the record whether
the visitation arrangements included all of her children.
4
allows them to continue so long as the program is in-state and is Medicaid-approved. Ms.
Harper noted that the petitioner was already participating in MAT and thus the Department
wanted her to continue to follow a doctor’s recommendations. Ms. Harper explained, “[w]e
have been hesitant to dictate that they titrate off of that.” Ms. Harper also informed the
circuit court that the Department had provided the petitioner with a special medical
insurance card to pay for the MAT treatments:
I know there has [sic] been some issues with Clarksburg
Treatment Center working out her acceptance of her special
medical card. She was previously attending that treatment with
a medical card. And when the children [were] removed from
her care [as part of this abuse and neglect case], she did lose
eligibility. Mr. Desilva [of the Department] did issue a special
medical card and, you know, he has done everything he can in
– to assist in that matter.
At the next status hearing on March 11, 2019, the circuit court was once again
told of the petitioner’s successful efforts in her improvement period. In addition to drug
screens at the Clarksburg Treatment Center, she had also been reporting for random drug
screens at North Central Community Corrections and her screens were clean of all
substances except the prescribed MAT medication. The improvement period was
continued, and another status hearing was scheduled for April 8, 2019.
Sometime in late March or early April 2019, the petitioner’s special medical
card expired and the Department refused to renew it. Her employment income, coupled
with the fact that W.M. had been removed from her home, left her ineligible for regular
Medicaid coverage. Because her income was limited, the petitioner was unable to afford
5
the MAT treatments and counseling. Thus, she was not able to obtain any further substance
abuse treatment from the Clarksburg Treatment Center.
At the April 8, 2019, hearing, Ms. Harper reported that the petitioner had
recently been struggling in her improvement period. The petitioner had failed to appear for
random drug screens at North Central Community Corrections, and when she did appear
on April 4, she potentially tested positive for methamphetamine. The petitioner denied that
she had used methamphetamine, and the court was advised that the April 4 sample was
going to be re-tested. (According to the transcript of a subsequent hearing, the April 4 test
result was later deemed to be a false positive.) With respect to the special medical card,
Ms. Harper told the circuit court the following:
Mr. Easton [the petitioner’s counsel] did advise me before we
started the hearing that [the petitioner] was previously getting
Suboxone 6 from the Clarksburg Treatment Center on a special
medical card. When that medical card ran out, she was cut off
from the Clarksburg Treatment Center and was no longer able
to do that. I was unaware that she had been issued a special
medical card by the prior worker in this case which is not, in
fact, appropriate. The Department doesn’t issue medical cards
for Suboxone treatment in the programs. So, um, you know,
we’re not – the Department is not able to issue her another
special medical card and should not have done so in the first
place.
6
It is unclear from the record whether the petitioner was taking Suboxone,
which is a medication comprised of both Buprenorphine and Naloxone, or just
Buprenorphine alone. See https://www.suboxone.com (retrieved Aug. 27, 2020)
(specifying composition of Suboxone). During the various hearings, the lawyers used these
drug names interchangeably.
6
(footnote added). Thus, even though Ms. Harper had explained the issuance of the special
medical card and its purpose to the circuit court at the January 3 hearing, on April 8 she
denied knowing anything about it and represented that its issuance had been improper. 7
She also admitted that the petitioner had been “cut off” from her drug treatments during
the improvement period. There was no information presented at this hearing about any
other substance abuse treatments or counselling that might have been available to the
petitioner.
Arguing that the medical insurance coverage had been halted without any
warning or opportunity for the petitioner to taper off the prescribed medication, the
petitioner’s counsel asked the circuit court to order the Department to renew the special
medical card. The petitioner’s counsel also requested a three-month extension in the post-
adjudicatory improvement period. The children’s guardian ad litem had no objection to the
extension or to the renewal of the medical card. The guardian ad litem agreed with the
petitioner that it was unfair to stop the substance abuse treatments without warning, when
the petitioner could not personally afford to pay. Noting that the petitioner had previously
been doing well, the Department had no objection to extending the improvement period;
however, the Department objected to renewing the special medical card.
7
Later during the same hearing, Ms. Harper represented that while she had
known that the petitioner was going to an MAT center, she was “not aware that she was
receiving that treatment on a special medical card.” We presume that Ms. Harper simply
had a lack of recollection about the prior proceedings in this case and was mistaken, but
nevertheless, her representations to the circuit court were inaccurate.
7
When considering these motions, the circuit judge stated that “I always have
a problem with people being on Suboxone to begin with and that’s my position.” Although
there was no evidence in the record regarding how long the petitioner had been taking MAT
prescription medication prior to this abuse and neglect case, the lawyers and judge
discussed that she had been doing so for five years. The judge stated,
Suboxone was not introduced to, in my opinion, be a long-term
treatment type situation for [people]. You know, it is hard for
me to sit up here and order the Department to make them give
her a special medical card for Suboxone when she has been
using Suboxone for five years. Mr. Easton . . . I am not
unsympathetic to her situation. I mean, she’s addicted to
Suboxone now. That’s the problem. But it’s not because of the
Department. She was addicted to Suboxone before this case
ever got started it sounds like.
There was then a discussion among the judge and lawyers about whether the Clarksburg
Treatment Center had a plan to eventually get the petitioner titrated off the MAT
medication. No evidence was presented regarding this issue. However, the judge expressed
his opinion as follows:
Well, they probably didn’t have one has been my experience,
that their plan is to keep her on Suboxone because she keeps
coming and seeing them and they keep prescribing them for
her. That’s been my observation. I know at the Chestnut Ridge
they have that program with psychologists that have treatment
involved with it. But most of the other Suboxone-type
treatment situations that I know about is they are buying
prescriptions. And it sounds to me like that’s what is going on
in Clarksburg.
At the conclusion of the hearing, the circuit court granted the three-month extension of the
petitioner’s post-adjudicatory improvement period but refused to order the Department to
renew the special medical card.
8
Another status hearing was held two months later on June 3, 2019. Ms.
Harper reported that the petitioner “still has not been visiting or fully participating in her
improvement period.” The petitioner’s counsel reported that because the MAT treatments
had been stopped so suddenly when the Department withdrew funding, the petitioner was
having difficulty weaning herself off the medication. He reported that since the last hearing,
the petitioner had failed a drug test by testing positive for methamphetamine. 8 Arguing that
the only “safe and proper way to come off of [the drugs used in MAT] is through a
controlled system with a physician,” the petitioner’s counsel once again made a verbal
motion to the circuit court seeking an order requiring the Department to provide medical
coverage. The circuit court again refused the motion. The court referenced the petitioner’s
recent positive test for methamphetamine and stated that MAT is used for the treatment of
opioid addiction, not methamphetamine addiction. The court added that
it’s unfortunate that people get addicted to Suboxone, and it
sounds to me like that is what has happened with your client. I
am not going to require the Department to provide her a
medical card so she can continue to use it, because it seems to
me that what happens is people become addicted – I mean, I’ve
heard it described that it’s harder for them to get off Suboxone
than it is Heroin.
The improvement period was allowed to continue for the remaining one month, and a
disposition hearing was scheduled for July 22, 2019.
8
Counsel was referencing a drug test administered on May 23, 2019.
9
During the July 22 disposition hearing, there was evidence that all of the
petitioner’s drug tests administered at North Central Community Corrections had been
negative for any drugs other than her prescribed MAT medication up through May 23,
2019. On that date, she tested positive for methamphetamine, amphetamine, and
Buprenorphine. The petitioner failed to appear for any drug screens after May 23, 2019.
After May 16, 2019, the petitioner stopped participating in supervised visitation with her
children, even though she had not missed any of the prior visits, and she stopped attending
parenting and adult life skills classes. When questioned by petitioner’s counsel, the
Department’s caseworker acknowledged that participation in MAT at the Clarksburg
Treatment Center was a condition of the petitioner’s improvement period and that after the
Department refused to renew the special medical card, the petitioner was left to pay for
these treatments herself. 9 The caseworker suggested that the MDT had discussed other
During the disposition hearing, the following exchange took place when the
9
Department’s caseworker was questioned by petitioner’s counsel:
Q. Ms. Webley, . . . do you recall that one of the terms of the
improvement period was that [the petitioner] participate in the
Buprenorphine program in Clarksburg Treatment Center?
A. Yes.
Q. Okay. And so is it your recollection that at the beginning of
that treatment program, the Department agreed to fund that
treatment?
A. I was not aware of that. I was not the worker at that time.
Q. Okay. Are you aware of the fact that at the six-month point
in the improvement period, the Department determined that it
would not fund that [MAT] treatment?
A. Yes.
Q. Okay. So, at that point, that left [the petitioner] to figure out
how to fund that treatment on her own, is that correct?
10
“detox” options with the petitioner, but she provided no specifics and it is unclear from the
record when such discussion might have taken place.
A. Correct.
Q. But up until that six months, the Department had been
providing that financially, correct?
A. I think she was given a special medical card, yes.
Q. Okay. So was it your understanding that she didn’t qualify
for a medical card on her own due to her income?
A. Yes.
Q. Why was she given a special medical card to begin with if
she didn’t – if the Department wouldn’t provide it after six
months?
A. I am not sure. Like I said, I wasn’t the worker at the time.
We usually give special medical cards when they are denied a
regular medical to help with certain services.
Q. Does the Department have a policy whereby special medical
cards were not issued for Suboxone or Buprenorphine
treatment in general?
A. Yes.
Q. But, to your understanding, she was issued one of those
cards at the beginning of the improvement period?
A. Yes.
Q. For that purpose; is that correct?
A. Correct.
Q. Okay. So was the Department’s position that after the six
month period, it was up to [the petitioner] to fund the
Buprenorphine treatment on her own?
A. When I took over the case, she had contacted me about her
medical card not working due to expiring. And that’s when I
informed her she could not get a medical card for
Buprenorphine.
Q. So, to your understanding, because she could no longer
afford one on her own, the treatment at Clarksburg Treatment
Center – was denied treatment at that center, correct?
A. Correct.
Q. Okay. So, after six months, she was basically left without a
term of the improvement period that she had basically been
previously been provided by the Department, at least
financially speaking?
A. Correct.
11
The Department asked the circuit court to rule that the petitioner had failed
to complete her post-adjudicatory improvement period and to terminate her parental rights
to the children. By counsel, the petitioner objected and argued that she had performed very
well in the improvement period until the Department ceased funding the substance abuse
treatments and counseling that were previously approved for her. After hearing evidence
and arguments, the circuit court found that the petitioner violated the terms of her
improvement period by testing positive for methamphetamine on May 23, 2019; by missing
thirteen random drug screens since May 23, 2019; and by missing visitation with her
children and parenting skills classes since May 16, 2019. Accordingly, the circuit court
concluded that there was no likelihood that the circumstances of abuse and neglect could
be remedied in the near future and ordered that the petitioner’s parental rights be
terminated. These findings were reflected in a written order entered on August 27, 2019,
from which the petitioner now appeals.
After full appellate briefing, the parties appeared for oral argument before
our Court on September 1, 2020. During oral argument, Assistant Attorney General Lee A.
Niezgoda, appearing on behalf of the Department, reported that some of the information
given to the circuit court about the Department’s MAT policy had been mistaken. She
represented that the Department’s policy permits payment for MAT if the treatment is
provided through an in-state, Medicaid-approved program. According to Ms. Niezgoda,
when the petitioner sought to renew her special medical card, a Department supervisor had
mistakenly thought that the petitioner was obtaining treatment outside of West Virginia
12
and therefore had denied the request. Ms. Niezgoda informed this Court that it would not
have been against the Department’s policy to renew the petitioner’s special medical card.
II. Standard of Review
Our standard of review of a circuit court’s order terminating parental rights
is well-settled.
“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). In addition, the question
of whether the petitioner was successful in her post-adjudicatory improvement period is
critical to this appeal. With regard to improvement periods, our Court has said:
At 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.
13
Syl. Pt. 6, In Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991) (emphasis
added). Thus we review a circuit court’s factual decisions regarding the completion of an
improvement period for abuse of discretion. With these standards in mind, we consider the
parties’ arguments.
III. Discussion
The petitioner argues that the circuit court erred in finding that she was
unsuccessful in her improvement period inasmuch as she was doing well until the
Department suddenly discontinued payment for her MAT, a service that had been provided
as a term of her improvement period and family case plan. Furthermore, she contends that
it was error for the circuit court to have terminated her parental rights on this same basis.
Under the particular facts of this case, we agree with the petitioner.
Whenever a court determines that a child has been abused or neglected, the
Department and the MDT are required to develop a child and family case plan. 10 West
Virginia Code § 49-4-604 (2020) specifies many requirements for the case plan, including
that, “at a minimum,” there must be a discussion of
how the agency which is responsible for the child plans to
assure that the child receives proper care and that services are
10
See W. Va. Code § 49-4-408(a) (2015) (“The Department . . . shall develop
a unified child and family case plan . . . .”); W. Va. Code § 49-4-408(b) (“The department
shall convene a multidisciplinary treatment team, which shall develop the case plan.”). See
supra n.4 (identifying some members of MDT).
14
provided to the parents, child, and foster or kinship parents in
order to improve the conditions that made the child unsafe in
the care of his or her parent(s) . . . .
Id. at § 49-4-604(a)(1) (emphasis added). This statute also requires the Department to make
“reasonable efforts, with the child’s health and safety being the paramount concern, to
preserve the family, or some portion thereof, and to prevent or eliminate the need for
removing the child from the child’s home and to make it possible for the child to safely
return home.” Id. at § 49-4-604(c)(5)(B). 11 Similarly, a different section of the Code directs
that the Department “shall develop a unified child and family case plan for every family
wherein a person has been referred to the department after being allowed an improvement
period or where the child is placed in foster care.” W. Va. Code § 49-4-408(a) (2015);
accord W. Va. Code § 49-4-610(2)(E) (2015) (requiring that an order granting an
improvement period must also order the Department to prepare and submit to the court an
individualized family case plan in accordance with § 49-4-408). 12
“The purpose of the family case plan as set out in W. Va. Code § 49-6D-3(a)
(1984) [subsequently amended and later re-codified into W. Va. Code § 49-4-408 (2015)
11
This statute also delineates circumstances when the Department is not
required to make reasonable efforts to preserve the family, see W. Va. Code § 49-4-
604(c)(7), but none of those circumstances are present in this case.
12
West Virginia Code § 49-4-610(2)(E) requires a case plan for a post-
adjudicatory improvement period. West Virginia Code § 49-4-610(1)(D) imposes this
requirement for a preadjudicatory improvement period, and § 49-4-610(3)(E) imposes this
requirement for a post-dispositional improvement period.
15
and § 49-4-604 (2020)], is to clearly set forth an organized, realistic method of identifying
family problems and the logical steps to be used in resolving or lessening these problems.”
Syl. Pt. 5, State ex rel. W. Va. Dept. of Human Services v. Cheryl M., 177 W. Va. 688, 356
S.E.2d 181 (1987), superseded 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). 13 The
“goal” of the improvement period and family case plan “should be the development of a
program designed to assist the parent(s) in dealing with any problems which interfere with
his [or her] ability to be an effective parent and to foster an improved relationship between
parent and child with an eventual restoration of full parental rights a hoped-for result.”
Carlita B., 185 W. Va. at 625, 408 S.E.2d at 377. 14
As the Department’s caseworker admitted during her testimony at the
disposition hearing, the petitioner’s participation in MAT at the Clarksburg Treatment
Center was a condition of her post-adjudicatory improvement period. It was to satisfy a
13
The purpose of a family case plan that is set forth in syllabus point five of
Cheryl M. included a direct quote from the 1984 version of West Virginia Code § 49-6D-
3(a), a statute that was subsequently re-written and was then incorporated into West
Virginia Code §§ 49-4-408 and 49-4-604. When the statute was re-written, the language
quoted in syllabus point five of Cheryl M. was not expressly included. Nonetheless, there
can be no debate that the sentiment expressed in the syllabus point—the need for an
organized, realistic plan to identify and lessen the problems leading to the abuse and
neglect—has been incorporated into the directives of the current §§ 49-4-408 and 49-4-
604, as quoted above.
14
While Carlita B. was also decided under W. Va. Code § 49-6D-3 (1984),
its recognition of the goal of an improvement period and parenting plan is still a correct
statement of the current statutory law. See supra n.13.
16
term of the family case plan that had been approved by the MDT. Moreover, during the
January 3, 2019, status hearing, the Department’s counsel explained how the Department
had made arrangements to pay for the treatment via a special medical card in order to assist
the petitioner. Under these facts and circumstances, the provision of the special medical
card was one way in which the Department was abiding by the case plan and providing
services to the petitioner in order to make reasonable efforts to preserve the family and
improve the conditions that made the children unsafe in the parents’ care. See W. Va. Code
§§ 49-4-408, 49-4-604. When the Department suddenly reversed course and refused to pay
for these services, the petitioner was left without the financial ability to comply with her
improvement period and family case plan. This directly undermined the goal of assisting
the family.
The Department asserts that pursuant to West Virginia Code § 49-4-
610(4)(A) (2015), a parent is responsible for the initiation and completion of all terms of
his or her improvement period. 15 This same statute provides that the circuit court “may”
order the Department to pay the expenses associated with an improvement period, thus the
court is not required to do so. Id. 16 Accordingly, the Department argues that the circuit
15
Accord In re Katie S., 198 W. Va. 79, 90, 479 S.E.2d 589, 600 (1996)
(recognizing that “[a]lthough the Department is required ‘to make reasonable efforts to
reunify a family’ . . . the parents or custodians have the responsibility ‘for the initiation and
completion of all terms of the improvement period.’”) (internal citations omitted).
16
West Virginia Code § 49-4-610(4)(A) provides:
17
court did not err when refusing to order the Department to renew the petitioner’s special
medical card.
While the Department’s arguments about West Virginia Code § 49-4-
610(4)(A) are true in a general sense, they wholly ignore the particular facts of this case.
Here, the Department agreed to pay for these services at the beginning of the improvement
period, did pay for the services for six months, and then, without any notice to the
petitioner, suddenly stopped payment and forced a halt to the successful substance abuse
treatment before the end of the petitioner’s post-adjudicatory improvement period. In this
particular case, the Department’s agreement to pay for the MAT was one way in which it
provided services to the family in furtherance of the case plan. The Department’s sudden
halt to the payment for the petitioner’s drug treatment services, and the circuit court’s
failure to rectify that action, resulted in the Department’s failure to make reasonable efforts
to preserve the family. Our conclusion is reinforced by the Department’s admission during
oral argument that, in actuality, there is no agency policy that would prohibit the reissuance
of the petitioner’s special medical card. As reported by the Department’s appellate counsel,
Responsibilities of the respondent receiving improvement
period. –
(A) When any improvement period is granted to a
respondent pursuant to this section, the respondent shall be
responsible for the initiation and completion of all terms of the
improvement period. The court may order the state department
to pay expenses associated with the services provided during
the improvement period when the respondent has demonstrated
that he or she is unable to bear the expenses.
18
the decision to not renew the card was the result of a misunderstanding by Department
staff. With our opinion today, we are not holding that the Department must always pay for
a parent’s substance abuse treatments in an abuse and neglect case. However, under the
specific facts of this case, the Department should have continued paying for these services
at least through the end of the extended improvement period.
The Department also argues that even before her special medical card
expired, the petitioner was not fully compliant with her improvement period because she
missed a few random drug screens at North Central Community Corrections. This position
is contrary to the reports given to the circuit court during the January 3 and March 11, 2019,
status hearings, where the assistant prosecuting attorney advised that the petitioner was in
compliance. Importantly, when ruling that the petitioner failed to comply with her
improvement period, the circuit court cited only to the petitioner’s conduct after the
medical card had expired. 17
We are also troubled by the apparent bias against MAT that was evident
during the circuit court hearings. According to the information given during the January 3,
2019, status hearing, the Department’s policy either discourages or prohibits the use of
MAT for persons who are not already enrolled in an MAT program regardless of whether
17
Moreover, during the appellate oral argument, the children’s guardian ad
litem explained that it is common for people to miss a few of the random, and numerous,
drug screens administered at North Central Community Corrections.
19
the program may be clinically advisable. 18 Additionally, the Department cut off funding
for the petitioner’s MAT during her improvement period, contrary to what we now know
is the agency’s policy. Furthermore, the circuit court expressed a personal viewpoint
against the use of MAT and, without evidence, theorized that people may be “buying
prescriptions” from the Clarksburg Treatment Center.
It is undeniable that drug addiction, including opioid use disorder, has
wreaked havoc on thousands of West Virginia families. The Centers for Disease Control
and Prevention (“CDC”) reports that in 2018, West Virginia had the highest rate of death
due to drug overdose in the United States. CDC, Drug Overdose Deaths,
https://www.cdc.gov/drugoverdose/data/statedeaths.html (last revised Mar. 19, 2020).
As defined in West Virginia law, “‘[m]edication-assisted treatment’ means
the use of medications and drug screens, in combination with counseling and behavioral
therapies, to provide a holistic approach to the treatment of substance use disorders.” W.
Va. Code § 16-5Y-2 (2018). Although MAT will not be the answer for all people who are
addicted to opioids, experts have determined that it is a successful treatment option for
some. According to the Substance Abuse and Mental Health Services Administration of
the U.S. Department of Health and Human Services (“SAMHSA”),
18
It is unclear exactly what the Department’s policy on MAT is because a
written copy of the policy was never presented to the court.
20
[r]esearch shows that a combination of medication and therapy
can successfully treat these [opioid use] disorders, and for
some people struggling with addiction, MAT can help sustain
recovery. MAT is also used to prevent or reduce opioid
overdose. . . . MAT has proved to be clinically effective and to
significantly reduce the need for inpatient detoxification
services for these individuals. MAT provides a more
comprehensive, individually tailored program of medication
and behavioral therapy that address the needs of most patients.
SAMHSA, Medication-Assisted Treatment (MAT) (last updated Sept. 1, 2020),
https://www.samhsa.gov/medication-assisted-treatment. 19
In West Virginia, the use of MAT is authorized by the Medication-Assisted
Treatment Program Licensing Act, West Virginia Code §§ 16-5Y-1 to 16-5Y-13 (2016).
The Legislature determined that allowing MAT in our state meets a need for quality, safe
treatment of substance abuse use disorders:
The purpose of this act is to establish licensing and
registration requirements for facilities and physicians that treat
patients with substance use disorders to ensure that patients
may be lawfully treated by the use of medication and drug
19
The benefits of MAT have also been recognized in various legal journals.
For example, one author observed that “[r]esearch signals medication-assisted treatment
(MAT) as one of the most successful tools in the fight against OUD [opioid use disorder]
and overdose deaths; yet, it is underutilized.” Jennifer L. Brinkley, Opioid Crisis and the
Law: An Examination of Efforts Made in Kentucky, 70 S.C. L. Rev. 741, 745 (2019) (citing
Kathryn F. Hawk et al., Reducing Fatal Opioid Overdose: Prevention, Treatment, and
Harm Reduction Strategies, 88 Yale J. Biology & Med. 235, 237 (2015).”). Indeed, “MAT
is considered life-saving medication.” Barbara Andraka-Christou, What Is “Treatment”
for Opioid Addiction in Problem-Solving Courts? A Study of 20 Indiana Drug and Veterans
Courts, 13 Stan. J. Civ. Rts. & Civ. Liberties 189, 219–20 (2017) (citing several sources
including Robert Schwartz et al., Opioid Agonist Treatments and Heroin Overdose Deaths
in Baltimore, Maryland, 1995-2009, 103 Am. J. Pub. Health 917 (2013)).
21
screens, in combination with counseling and behavioral
therapies, to provide a holistic approach to the treatment of
substance use disorders and comply with oversight
requirements developed by the Department of Health and
Human Resources. The Legislature recognizes the problem of
substance use disorders in West Virginia and the need for
quality, safe treatment of substance use disorders to adequately
protect the people of West Virginia.
W. Va. Code § 16-5Y-1 (2016). The Department’s Secretary is authorized to promulgate
rules for MAT programs “to ensure adequate care, treatment, health, safety, welfare and
comfort of patients at these [MAT] facilities.” W. Va. Code § 16-5Y-13(a) (2016).
Effective March 8, 2019, which was before the disposition hearing was held
in this case, the Legislature added a prohibition on the termination of parental rights on the
sole basis of a parent’s compliant use of MAT. See W. Va. Code § 49-4-604(e) (2019),
now codified at § 49-4-604(f) (2020). Specifically, the Legislature directed that in an abuse
and neglect case,
[t]he court may not terminate the parental rights 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.
22
Id. This prohibition is important inasmuch as the legislative rules promulgated by the
Department’s Secretary recognize that some people require an ongoing maintenance dose
of MAT medication. 20
Recently, our Court decided an appeal where a mother’s parental rights were
terminated even though she began an MAT program during the abuse and neglect
proceedings. In re D.J., No. 19-0388, 2020 WL 3259627 (W. Va. June 16, 2020)
(memorandum decision). We concluded that under the facts of that case, the MDT had
good reasons for not approving the use of MAT for the mother, and that there was no error
in the circuit court’s decision to terminate parental rights based upon the mother’s other
actions. Id. at *9. Nonetheless, we “expressly disapprove[d] of any bias against medication-
assisted treatment for substance abuse.” Id.
For example, W. Va. Code R. § 69-12-2 (2019) defines “maintenance treatment”
20
and “maintenance dose” as follows:
2.24. Maintenance Treatment – Treatment following
induction and stabilization phases of treatment, and means the
prescribing of a partial agonist treatment medication at stable
dosage levels for a period in excess of twenty-one days in the
treatment of an individual for opioid use disorder;
2.25. Maintenance Dose – The level of medication-
assisted treatment medication considered medically necessary
to consistently suppress signs or symptoms of substance use
disorders and substance cravings for individuals with a
substance use disorder; and is generally administered at the end
of the induction period and is individualized for each patient
and may gradually change over time[.]
23
We take this opportunity to formally hold that the use of medication-assisted
treatment is authorized by the Medication-Assisted Treatment Program Licensing Act,
West Virginia Code §§ 16-5Y-1 to 16-5Y-13, and the Act’s supporting regulations.
Medication-assisted treatment will not be appropriate or beneficial for all persons suffering
from opioid use disorder. However, when medication-assisted treatment is appropriate and
potentially beneficial, any bias against its use is contrary to the public policy of this State
as announced by the Legislature.
In the present case, the MDT determined that the use of MAT was
appropriate for the petitioner. Initially, the circuit court supported and approved this course
of treatment. The use of MAT was clearly beneficial for the petitioner because, as the
evidence overwhelmingly demonstrates, she was compliant with her improvement period
until the Department suddenly stopped paying for the MAT and the treatment was halted.
Her random drug test results showed that while receiving MAT, she was clean of all drugs
except the MAT medication. She was also visiting with her children, attending parenting
classes, and maintaining employment. As soon as the Department pulled the funding, the
petitioner’s condition took a dramatic downturn. The petitioner was given no notice and
opportunity to titrate off the prescribed medication and could not afford to personally pay
for the treatments, which obviously resulted in her relapse into substance abuse. Under the
facts and circumstances of this case, we conclude that the circuit court abused its discretion
when determining that the petitioner failed to satisfy the conditions of her improvement
24
period. The circuit court also abused its discretion when refusing to order the Department
to renew the petitioner’s special medical card.
West Virginia Code § 49-4-604(c)(6) provides that circuit courts are 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. The statute lists scenarios when there
is no likelihood of substantial correction in the near future, including if the parent “ha[s]
demonstrated an inadequate capacity to solve the problems of abuse or neglect on . . . [her]
own or with help” and the parent has “not responded to or followed through [with] the
recommended and appropriate treatment” to address a drug addiction. Id. at W. Va. Code
§§ 49-4-604(d), 604(d)(1). Because the circuit court erroneously concluded that the
petitioner had not complied with her improvement period, it was clear error for the circuit
court to have terminated the petitioner’s parental rights on this basis. Having reviewed this
case, we are “left with the definite and firm conviction that a mistake has been committed.”
See Tiffany Marie S., 196 W.Va. at 226, 470 S.E.2d at 180, syl. pt. 1, in part.
Accordingly, we reverse the August 27, 2019, disposition order and remand
this case to the circuit court for further proceedings. The circuit court is directed to reinstate
the petitioner’s post-adjudicatory improvement period for a period of six months and to
order the Department to provide a special medical card to cover her MAT treatments during
that time period. During the improvement period, the petitioner and MDT should consult
25
with the petitioner’s MAT provider to determine whether she should be titrated completely
off the MAT medication or whether a maintenance dose is required. 21 At the end of the
improvement period, the circuit court shall determine an appropriate disposition pursuant
to West Virginia Code § 49-4-604.
IV. Conclusion
For the foregoing reasons, the circuit court’s August 27, 2019, disposition
order is reversed, and this case is remanded to the circuit court for further proceedings
consistent with this opinion.
Reversed and Remanded with Directions
21
We remind the parties that if a long-term maintenance dose is prescribed
for the petitioner, then the petitioner’s parental rights may not be terminated solely on the
basis of her participation in the MAT program as long as she is successfully fulfilling her
treatment obligations. See W. Va. Code § 49-4-604(f).
26