In re: S.C., K.R., E.H. ( 2023 )

FILED
No. 22-0419 – In re S.C. K.R., and E.H. June 15, 2023
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
WOOTON, J., dissenting: SUPREME COURT OF APPEALS
OF WEST VIRGINIA
The crux of this appeal is whether the circuit court erred in failing to
adjudicate Respondent Father as a neglectful parent based on his admitted substance abuse.
The majority finds that the West Virginia Department of Health and Human Resources
(“DHHR”) proved by clear and convincing evidence that his substance abuse harmed or
threatened the child’s welfare, emphasizing that the inherently dangerous nature of
methamphetamine leads to a presumption that a parent who abuses that drug is necessarily
neglecting their child. While I agree with the majority that methamphetamine is an
extremely dangerous substance, and that it adversely affects children raised by parents who
abuse the substance, I write separately because I disagree with the majority’s decision to
blatantly ignore the lack of evidence linking Respondent Father’s drug use to any harm or
threatened harm to this child’s welfare. I believe that in its zeal to condemn an especially
virulent problem the majority has overlooked the statutory standard of proof requiring
allegations of abuse and neglect to be proven by clear and convincing evidence before a
circuit court may adjudicate parent as abusive/neglectful. See W. Va. Code § 49-4-601(i)
(Supp. 2022). Therefore, I respectfully dissent.
This Court has long held that in abuse and neglect cases our standard of
review is:
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) (emphasis added). There
was no evidence put before the circuit court that this child’s welfare was harmed or
threatened by the father’s drug use. Rather than requiring the DHHR to meet its evidentiary
burden, the majority simply presumes that methamphetamine use by a parent necessarily
threatens the child’s welfare, and effectively holds that the circuit court should have
inferred as much, notwithstanding the lack of an evidentiary basis for such a finding. While
I do not seek to minimize the abhorrent conduct of Respondent Father, this Court cannot
ignore the total lack of any evidence to support a finding of harm or threatened harm. To
accept less is to disregard not only our own standard of review, but the statutes that form
the basis of our abuse and neglect jurisprudence.
West Virginia Code § 49-4-601(i) plainly dictates that:
2
At the conclusion of the adjudicatory hearing, the court
shall make a determination based upon the evidence and shall
make findings of fact and conclusions of law as to whether the
child is abused or neglected and whether the respondent is
abusing, neglecting, or, if applicable, a battered parent, all of
which shall be incorporated into the order of the court. The
findings must be based upon conditions existing at the time of
the filing of the petition and proven by clear and convincing
evidence.
(Emphasis added). The circuit court’s actions are explicitly governed by this code
provision. It must consider only the evidence presented, its conclusions must be based on
conditions existing at the time of the filing of the petition, and those allegations must be
proven by clear and convincing evidence to properly adjudicate a parent as an abusing or
neglectful parent. See Syl. Pt. 1, in part, In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176(1997) (“[W. Va. Code § 49-4-601(i)], requires [the DHHR], in a child abuse or neglect
case, to prove ‘conditions existing at the time of the filing of the petition . . . by clear and
convincing [evidence].’”) (internal citations omitted). As the circuit court properly found,
the DHHR did not meet this evidentiary burden.
West Virginia Code section 49-1-201 (Supp. 2022) provides that a
“neglected child” is one
[w]hose physical or mental health is harmed or threatened by a
present refusal, failure or inability of the child’s parent,
guardian, or custodian to supply the child with necessary food,
clothing, shelter, supervision, medical care, or education, when
that refusal, failure, or inability is not due primarily to a lack
of financial means on the part of the parent, guardian, or
custodian[.]
3
A thorough review of the evidentiary record illustrates that none of these factors were
established. The Child Protective Services (“CPS”) worker who visited Respondent
Father’s home prior to the filing of the petition testified that the home appeared to be
appropriate for the child, that the child was healthy and receiving appropriate medical care,
and that Respondent Father was appropriate and attentive to the child. In this regard, she
testified that he provided the child with necessary food, clothing, shelter, medical
treatment, and supervision. Admittedly, the worker stated that “in her experience”
methamphetamine use impairs parenting abilities, but she explicitly testified that she had
not witnessed any such impairment here. In fact, she could not identify a single instance
in which Respondent Father’s substance abuse affected his ability to parent this child. This
testimony negates each and every factor set forth in the above definition of “neglected
child,” and thoroughly rebuts any evidence upon which the circuit court could have
adjudicated Respondent Father as neglectful.
The only other evidence regarding conditions existing at the time of the
petition is a single failed drug screen at the preliminary hearing, and the father’s own
testimony, wherein he conceded to using methamphetamine approximately twice per week
at work, but vehemently denied using any controlled substances in the presence of or while
caring for the child.1 I do not disagree that the evidence of substance abuse weighs against
1
In that regard, the majority posits that even when the child is in the care of a
temporary custodian, such as when a child is left with a relative while the parent works or
is otherwise absent, the parent who is the designated physical custodian must not be
impaired. Logically extended, a custodial parent who has entrusted his or her child to a
4
Respondent Father, but this Court has made abundantly clear that the failure to “link such
substance abuse to threatening the health and safety of the children” precludes termination
because of substance abuse. In re J.L.-1 and E.L., No. 20-0168, 2020 WL 6482940, *4
(W. Va. Nov. 4, 2020) (memorandum decision).
The majority finds J.L-1 factually distinguishable because in that case the
DHHR had custody of the children rather than the parent. Even so, that fact does nothing
to undercut the reasoning employed in that opinion that evidence of substance abuse must
be linked to some harm or threatened harm to the child’s welfare in order to adjudicate a
parent on that basis. This is supported by our decision in In re D.A. and J.A.-1, No. 22-
0151, 2022 WL 16549292 (W. Va. Oct. 31, 2022) (memorandum decision), which is not
subject to that factual distinction insofar as the respondent father in that case, not the
DHHR, was the primary custodian of the children when he allegedly abused drugs. In fact,
he tested positive on several occasions for buprenorphine and at least once for Naloxone,
amphetamines, and methamphetamine. Id. at *1. Those drug screens were the basis for
the DHHR’s amended petition alleging that the father subjected the children to “unsafe
conditions” and “drug abuse and/or a drug endangered environment.” Id. Unlike this case,
the circuit court in D.A. did find that the father’s drug abuse alone was sufficient to
temporary custodian for a day or a weekend and who becomes impaired (perhaps inebriated
from alcohol consumption) during the period the child is with a temporary custodian is an
abusing or neglectful parent. While that may be a laudatory goal, it suggests a parenting
standard far more rigorous than any authorized by statute.
5
adjudicate him. This Court vacated that order, finding that “simply declar[ing] that
petitioner had a substance abuse problem and also had custody of the children, instead of
making detailed findings that demonstrated petitioner’s substance abuse impacted his
parenting ability and harmed or threatened the children” was “insufficient for purposes of
adjudication.” Id. at *2.
The majority addresses In re D.A. in a footnote, but summarily disregards it
because the circuit court in this case set out detailed findings regarding the father’s drug
abuse while serving as the child’s custodian. I do not disagree that the circuit court made
several findings regarding Respondent Father’s substance abuse; rather, the issue is that
the circuit court clearly explained that it could not make the requisite findings linking his
substance abuse to any actual or threatened harm to the child’s welfare—findings which
were clearly necessary to adjudicate Respondent Father—because the DHHR failed to meet
its burden of proof in that regard. Despite this, the majority of this Court now sanctions (if
not explicitly requires) circuit courts to do the very thing we disapproved of in D.A.: to wit,
to find that evidence of a parent’s drug abuse, without anything linking that drug abuse to
any harm or threat of harm to the child’s welfare, is sufficient to adjudicate that parent as
abusive or neglectful. That is plainly contrary to the statutory requirements governing
abuse and neglect proceedings, and to this Court’s precedents. Accordingly, I respectfully
dissent.
6