In re H.D. ( 2023 )

No. 22-0464, In re H.D. FILED
June 2, 2023
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
Walker, C.J., dissenting, joined by Justice Wooton, SUPREME COURT OF APPEALS
OF WEST VIRGINIA
When a circuit court’s order relies on erroneous findings of fact, discretion
does not insulate it from error. The majority has misgivings about the findings of fact here,
footnoting that they are “unduly harsh” characterizations of the record, but, in the name of
deference, does backflips to factually justify an otherwise trumped-up order terminating
parental rights without any evidence sufficient to make the finding that the conditions of
abuse and neglect could not be remedied. For that reason, I dissent, and I am authorized
to state that Justice Wooton joins me.
Going into the dispositional hearing, both the Guardian ad Litem and the
DHHR were recommending that A.T. be put on a post-dispositional improvement period
and maintained that, ultimately, reunification remained in the best interests of the child
even if they could not yet recommend reunification. On the heels of the Guardian ad
Litem’s statement that she would like to see reunification happen and noting that she agreed
with the DHHR’s recommendation of an improvement period, the circuit court abruptly
and inexplicably concluded that continuation in the home of A.T. was contrary to the
welfare and best interests of H.D. and terminated A.T.’s parental rights. It did so even
though the only evidence presented at the dispositional hearing related to whether A.T.
should be granted a post-dispositional improvement period. There was no evidence
1
whatsoever elicited at that hearing relative to disposition, much less enough to satisfy the
DHHR’s burden to establish by clear and convincing evidence there was no likelihood that
the conditions that led to the filing of the petition could be substantially corrected, and the
facts here cannot support such a finding.
The findings that led the circuit court to conclude that the conditions could
not be remedied relied heavily on the “harsh” (in the words of the majority)
characterizations of the record. I take serious issue with the following findings, and I would
find the decisions that flowed from this faulty factual foundation warrant a vacation of the
termination order:
• “At the April 11, 2022, hearing, Adult Respondent [A.T.] admitted
that she is a current drug addict actively using.”
But at the time of the hearing, A.T. was (1) passing drug screens after her
one-time relapse and (2) residing at St. Joseph’s, an inpatient rehab, where it seems unlikely
she was permitted to actively use drugs.
• “The [c]ourt finds that Adult Respondent [A.T.] has failed to show
any success in addressing her methamphetamine use.”
2
On the contrary, A.T. passed more than 70 drug screens after her
adjudication, with only two failures for a single, isolated relapse, after which she again
began producing negative screens and never produced another positive screen.
• “The [c]ourt finds that this case was filed on July 8, 2021, and the only
effort to address her severe drug addiction was entering a rehabilitation
facility on April 12, 2022. The Court finds that during the interim she
continued her illegal drug use and remained an active addict.”
• “The [c]ourt finds that long-term rehabilitation was the most critical
condition of the improvement period due to Adult Respondent [A.T]’s severe
addiction. The Court further finds that for the first eight months of the
improvement period she failed to enter rehab and continued using illegal
drugs.”
According to these findings, a one-time use of methamphetamine that led to
the filing of the petition and a one-time, isolated relapse (for a grand total of two
methamphetamine uses throughout this entire case) constitutes a “severe”
3
methamphetamine addiction, 1 and one can somehow continue active illegal drug use whilst
simultaneously passing dozens upon dozens of drug screens.
And, in the estimation of the circuit court, the outpatient rehab A.T. attended
while waiting to be medically cleared for inpatient rehab and the sixty-day inpatient rehab
seemingly count for nothing. Finally, the circuit court backdates the failure to get into
long-term inpatient rehab for eight months to the beginning of the case as though it is
wholly unexcused, despite that A.T. had an active tuberculosis infection that prevented her
from being admitted to one of those facilities until she was cleared of the infection, which
wasn’t until February 2022.
• “Adult Respondent [A.T.] had a bed at Prestera Center which would
have met the rehabilitation requirement. The Court finds that she told the
center at intake that she did not have a drug problem and was denied
admission. The Court finds that she reported that she was not addicted to
illegal drugs at a time when she clearly was.”
1
The petition against A.T. for methamphetamine use arose from a single use during
pregnancy. The ongoing drug addiction references made by both counsel for DHHR and
the circuit court may be leveled at A.T.’s opiate addiction developed early in life, but
managed through Subutex prescription. Importantly, that was not the basis of the petition
filed against her and has no relevance to the basis for termination here.
4
This late-February Prestera encounter pre-dated A.T.’s relapse of March 24-
25, and was at a time when A.T. was passing drug screens and had been passing drug
screens for some seven months, so to say that she was “clearly” addicted to drugs at that
time is an overstatement. Moreover, active use and/or last-use inquiries are well-known
screening criterion for admission into rehabilitation facilities in a state such as ours that
doesn’t have the beds to spare for patients like A.T. who aren’t and haven’t been actively
using. And, as noted below, A.T. testified she was prompted to lie about her drug use to
gain admission to that facility and she refused to do it.
These findings, particularly relative to the failure to enter a long-term rehab
until the “eleventh-hour” are entirely inconsistent with the facts and circumstances of the
case, and, in my view, prompted the circuit court to employ a shoddy “too little, too late”
analysis quick-triggering a termination without evidence sufficient to meet the burden of
proof and without exploring less-restrictive alternatives.
Under other circumstances a “too little, too late” analysis may be an
appropriate basis for termination of parental rights when viewed against the backdrop of
drug use that continued throughout the proceedings. But contrary to the circuit court’s
findings, that simply isn’t what we have here. Notably, the majority opinion doesn’t
reiterate any of those drug use findings in its analysis of termination of rights, nor does it
conclude that the conditions of abuse and neglect were unlikely to be remedied based on
A.T.’s drug use. Instead, it hangs its hat on A.T.’s inability to remedy the conditions in the
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“near future.” In doing so, the majority maintains the notion that the “too little, too late”
to correct in the “near” future was the result of a totally unexplained eight-month delay in
getting into a long-term rehab when it is undisputed that A.T. had an active tuberculosis
infection that precluded her from inpatient rehabilitation until just before her parental rights
were terminated.
Under the majority’s analysis, the length of time it takes to get medical
records (even after you have executed a release in October 2021) counts against you and
negates any of the information contained in those medical records – which establish that
A.T. had an active tuberculosis infection. It also ignores A.T.’s testimony that she and one
of the DHHR providers “spent hours at our dining room table with lists, calling multiple
rehabs. They would tell us over the phone that I was not – I would not qualify either
because I had no recent use or because of the TB or both.”
The circuit court repeatedly made statements to the effect of “We have heard
from the beginning of the case, ‘I can’t go to rehab because I have TB.’ She provided
nothing. Her former counsel provided nothing . . . and it remained nothing until January
of [2022].” Consider, though, that at a hearing on November 2, 2021, counsel for DHHR
represented to the court “I . . . reviewed a bunch of medical records we obtained from West
Virginia University; so rehabilitation facilities will not take [A.T.] . . . [w]ithout quoting
directly from the medical records, she does have tuberculosis. She’s doing a six-month
treatment, which this was diagnosed July; so there will be no long-term place that will take
6
her because of the health problems she has.” Then, counsel for DHHR posed to the court
that the recommendation from A.T.’s psychological evaluation was for outpatient
rehabilitation, 2 and stated again “we do not have any long-term rehab for her . . . . we have
to get through the treatment for the tuberculosis or TB, so that won’t be until January
maybe.” So, DHHR acknowledged the hurdles the tuberculosis diagnosis presented for
getting A.T. into inpatient rehab (hurdles for DHHR to get her in), identified when inpatient
rehab might be a possibility, but then holds A.T. accountable for “refusing” to go during
that time.
It is later established (and confirmed by DHHR) 3 that A.T. finished the
tuberculosis treatments in early February and was medically cleared at that point.
Confusingly, despite admitting that medical clearance wasn’t given until February 2022,
the DHHR worker testified that there was a facility (Turning Pointe) willing to look at
taking A.T. before that point if she took certain tests and concluded that A.T. could have
2
Note also that the psychological evaluation recommends that “[s]hould she test
positive during her CPS case, she should be required to complete a short-term residential
rehabilitation program[.]”
3
DHHR Worker Hall testified:
Q. Okay. Do you dispute the fact that the [Health Department] released her –
(displayed document) – February the 7th of this year –
A. No.
Q. – having TB treatment? You’re aware –
A. No.
Q. – of that ?
A. (Nodded.) I agree.
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gone to inpatient rehab all along had A.T. only taken those tests. But, that letter from
Turning Pointe states that an inquiry was made about (and it would need all records for) a
patient who had been exposed to tuberculosis and stated unequivocally that it would not
take her if she had an active tuberculosis infection because it could not adequately provide
care for an active infection. Again, A.T. did have an active infection until she was cleared
in February 2022.
Later in February, A.T. called and did intake over the phone for Prestera and
drove there for admission into the long-term rehabilitation facility. Her primary worker
met her there, but the secondary worker (who was not there) testified that A.T. was denied
admission because she stated that she did not have a current drug problem. A.T. later
clarified that she had not used methamphetamine in so long that she did not consider it a
current drug problem, and that she was encouraged 4 to lie and say she was misusing her
Subutex medication to gain admission and she refused to do so, afraid that the lie would
impugn her credibility before the court in the abuse and neglect proceedings. Not long
after, A.T. had her relapse, at which point she was then able to gain admission into an
inpatient facility. In this sense, A.T. was placed in the position that until she relapsed, she
wasn’t able to comply with the circuit court’s order to enter a long-term inpatient rehab.
4
The record is not clear whether the person referred to in this portion of the
testimony is the DHHR worker or the admissions worker at Prestera.
8
Following her relapse in March, A.T. was accepted at St. Joseph’s inpatient
rehab. However, both A.T. and her counsel stated that they were unaware the inpatient
rehab was considered by the circuit court to be short-term as it was a sixty-day 5 program.
After being informed of that at the MDT meeting on April 8, A.T.’s counsel was able to
get a bed for her at a long-term inpatient facility (Lifehouse), and counsel advised her to
go straight there. But, the DHHR worker admitted she told A.T. not to go over advice of
A.T.’s legal counsel because “the case manager said that she wanted [A.T.] to stay [at St.
Joseph’s]” because she did not feel that Lifehouse, despite being long-term, would address
the mental health issues that the case manager felt needed addressed. 6 The DHHR worker
further testified that she told A.T. they would just wait and see what the judge decided
since it was a bed (in an ever-elusive inpatient facility) even if it wasn’t long term. The
DHHR worker who told A.T. not to go to the long-term rehab prior to the hearing
nevertheless threw the blame at A.T.’s feet, testifying that she did not feel A.T. was
addressing the drug problem because “[s]he was court-ordered to go to a long-term rehab
in August. She still has not entered a long-term rehab.” The circuit court’s order likewise
reflects that A.T. had “refused” to enter long-term rehabilitation.
5
Some portions of the record refer to it as a ninety-day program.
6
Interestingly, the psychological evaluation states there is an “apparent absence of
any significant mental health issues[.]”
9
Like the circuit court, the majority appears to deem getting into the right kind
of rehab as more indicative of a parent’s ability to correct a drug problem than is actually
producing consistently negative drug screens through a different kind of rehab (outpatient,
then short-term inpatient), which, at the time, was the best she could do with her diagnosis.
As discussed above, we are dealing with a single, isolated two-screen-affected relapse that
has been extrapolated into a severe methamphetamine problem; we are not dealing with
the typical case where there is long history of methamphetamine use combined with a
failure to test or often-positive screens. While full compliance with the terms of an
improvement period is appropriately considered in determining whether to grant an
additional improvement period, 7 it does not follow that because you aren’t enrolled in the
right kind of rehab you necessarily cannot correct the conditions of abuse and neglect that
led to the filing of the petition, even if you produced a thousand negative drug screens.
Under the facts of this case, the “too little, too late” rationale doesn’t hold
water not only because it completely ignores the litany of negative drug screens in favor of
emphasizing two positives, but it also ignores the glaring tuberculosis diagnosis that had a
huge impact on the delay here. And, significantly, the circuit court appears to have
amended its criteria for successful completion of the improvement period by order dated
7
See West Virginia Code § 49-4-610(3), which provides, “The court may grant an
improvement period . . . . when . . . . The respondent demonstrates, by clear and convincing
evidence, that the respondent is likely to fully participate in the improvement period. . . .”
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November 2, 2021 that “If [A.T.] is eligible to attend long term rehabilitation after her TB
treatments, she shall attend a long-term rehabilitation approved by the Department.”
Even so, the circuit court and the majority backdate the timeframe of A.T.’s
eligibility to comply with admission into long-term inpatient rehabilitation to August 2021.
Consistent with that erroneous finding, the majority focuses on A.T.’s inability to complete
the long-term inpatient program “in the near future” as sufficient evidence that she could
not correct the conditions of abuse and neglect so as to terminate parental rights. The
circuit court was fixated on A.T.’s inability to meet the “timeframes” since she “waited”
so long to get into the long-term rehab. I am perplexed as to what timeframes we are
talking about here that would have demanded termination of parental rights as opposed to
some other disposition even if the court was intent on not granting a post-dispositional
improvement period. True, there are certain time limitations in the Code: the “15 of the
last 22 months” rule found at West Virginia Code § 49-4-605 and limitations on the
extension of improvement periods found at § 49-4-610. Importantly, the 15 of the last 22
months rule and the limitation on the extension of improvement periods found at West
Virginia Code § 49-4-610(9) apply only to children in foster care, and this child was in the
custody of the father until March 2022. 8
8
When those time frames are implicated, the DHHR is required to seek termination
of parental rights.
11
Even assuming the “time frame” referenced relates to whether the
rehabilitation could be completed within the statutorily-allowed six months for a post-
dispositional improvement period, the statute also allows for a three-month extension of
that post-dispositional improvement period. 9 By that time, A.T. could have completed the
nine-month inpatient rehab with a month to spare. In fact, a six-month rehab would have
been sufficient to meet the court’s “long-term” rehab requirement and would have required
no extension. I say that not because A.T. was unconditionally entitled to a post-
dispositional improvement period or an extension of one, but to point out the flaw in the
majority’s conclusion that A.T.’s inability to complete the inpatient rehab was so far
outside the “near future” that termination of rights was necessary, when, in fact, giving
A.T. the time to complete the inpatient rehab would have been entirely consistent with the
statutory framework.
Instead, what happened is that the circuit court took the “time frame” to
complete an improvement period and treated it like a time bomb that had gone off and
required the termination of parental rights. If we assume that the circuit court appropriately
exercised its discretion to deny the post-dispositional improvement period, the procedure
is simply to move to disposition, not necessarily termination. That is the crux of my dissent
– that the circuit court and the majority have supplanted the substantive standard for
termination of parental rights with a requirement that A.T. fully and technically comply
9
West Virginia Code § 49-4-610(6).
12
with the terms of an improvement period, no matter how arbitrary the terms and
irrespective of whether any improvement has actually been made during the improvement
period.
We have repeatedly stressed that termination of parental rights is the most
drastic remedy but in practice it is treated as anything but. While I personally would have
granted the post-dispositional improvement period based on the factually-correct time
frames (two months post-medical clearance to get into long-term rehab piggy-backed on a
short-term inpatient rehab prior to that, and outpatient rehab prior to that) the more pressing
concern to me is that in this case the circuit court jumped over all other dispositional
alternatives that might have been appropriate and went straight to termination of parental
rights when no one asked for it and no one proved it was necessary.
I cannot imagine a more appropriate case for a section 5 disposition 10 than
this one – that at present, A.T. is unable to provide adequately for H.D. due to her
participation in inpatient rehab (delayed because of her tuberculosis diagnosis). And, upon
completion of that inpatient rehab, she could move the court for a modified disposition to
dismiss the petition and reunite with H.D. by operation of West Virginia Code § 49-4-606,
10
West Virginia Code § 49-4-604(c)(5) provides, in relevant part, that as a preferred
alternative disposition to termination of parental rights, and “[u]pon a finding that the
abusing parent or battered parent or parents are presently unwilling or unable to provide
adequately for the child’s needs,” the court may “commit the child temporarily to the care,
custody, and control of the department, a licensed private child welfare agency, or a
suitable person who may be appointed guardian by the court.”
13
the change of circumstances being that she has successfully completed a long-term
inpatient rehabilitation. Conversely, if she failed to successfully complete the long-term
inpatient rehabilitation and/or began actively using drugs, DHHR or the Guardian ad Litem
could move under that same provision to modify the disposition to terminate rights at that
point.
If A.T. is in the type of rehabilitation facility that allows children, even a
disposition 4 might have been appropriate, 11 but none of those options were explored
because no evidence on disposition was ever taken. In the wake of a denial of an
improvement period that all parties recommended be granted, the circuit court treated
termination as the default, not the last resort. While it will seemingly always be in the
child’s best interest to not have to wait, the statute has a tiered structure of dispositional
preference for a reason. And, despite continued reliance on “permanency” for the child,
all statutory dispositions are permanency options; termination of parental rights in favor of
adoption is not the only way to afford a child permanency. Either of these dispositional
options would have been especially appropriate given the Guardian ad Litem’s testimony
that it was in the best interest of the child to reunify with A.T.
West Virginia Code § 49-4-604(c)(4) provides that as a preferred alternative
11
disposition to termination of parental rights, the circuit court may “[o]rder terms of
supervision calculated to assist the child and any abusing parent or battered parent or
parents or custodian which prescribe the manner of supervision and care of the child and
which are within the ability of any parent or parents or custodian to perform[.]”
14
I decline to join the majority in deferring to the findings and ultimate
conclusion of the circuit court, not only because I would have decided the case differently,
but because I find that the circuit court’s order terminating parental rights constitutes an
abuse of discretion this Court should not bend over backwards to save. The unembellished
facts of this case are substantively inadequate to show that the conditions of abuse and
neglect cannot be remedied. Due process places a substantial burden of proof upon the
DHHR to justify a termination of parental rights and affirming on these facts stomps on it.
The majority has rewritten the standard for termination of parental rights as having little to
nothing to do with actual progress and likelihood of remediation and everything to do with
whether the technical and arbitrary 12 terms of an improvement period have been completed
within a circumstance-ignorant timeframe. 13 Because I would hold the DHHR accountable
12
It seems important to point out that under West Virginia Code § 49-4-604(c) the
definition of “no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected” means that “based upon the evidence before the court, the abusing
adult or adults have demonstrated an inadequate capacity to solve the problems of abuse or
neglect on their own or with help.” (emphasis added). And, while the failure to “respond[]
to or follow[] through the recommended and appropriate treatment” can meet that
definition, the circuit court arbitrarily determined that A.T. required long-term, inpatient
treatment when the recommendation of the psychological evaluation was that outpatient
treatment was sufficient and that even upon relapse, short-term inpatient would have
sufficed. So, the failure to explore less restrictive alternatives to termination when she was
medically prevented from inpatient rehab is particularly harsh.
13
This is especially true here where DHHR admitted the failure to get into inpatient
rehab – a special term set by the court, not the MDT – was the only deficiency. A.T.
received a favorable psychological evaluation during which she took responsibility for her
drug use, completed parenting and life skills education, visited with H.D. under
supervision, completed overnight visitations with H.D., entered therapy, and completed
outpatient rehabilitation in addition to consistently testing negative for methamphetamine.
15
to meet its burden of proof and hold the circuit court’s order to the proverbial due process
fire, I respectfully dissent.
16