In re S.D., W.T., E.S., and J.S. ( 2023 )

FILED
June 13, 2023
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re S.D., W.T., E.S., and J.S.
No. 22-0481 (Clay County 21-JA-27, 21-JA-28, 21-JA-29, and 21-JA-30)
MEMORANDUM DECISION
Petitioner Mother R.D.1 appeals the Circuit Court of Clay County’s April 7, 2022, order
terminating her parental rights to S.D., W.T., E.S., and J.S.2 Upon our review, we determine that
oral argument is unnecessary and that a memorandum decision affirming, in part, and vacating, in
part, the circuit court’s December 3, 2021, adjudicatory order and April 7, 2022, dispositional
order and remanding for further proceedings is appropriate, in accordance with the “limited
circumstances” requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure.
In October 2021, the DHHR filed a petition alleging that after giving birth to drug-exposed
S.D., petitioner abandoned the child at the hospital, after which the DHHR assumed legal and
physical custody of S.D. According to the petition, the maternal grandmother gained legal
guardianship of E.S. and J.S. on June 3, 2009, in family court, and that the paternal grandmother
gained legal guardianship of W.T. on April 22, 2021, in family court. The petition named the
respective guardians of E.S., J.S., and W.T. as respondents but made no allegations of abuse and
neglect against them. The petition also stated that petitioner tested positive for methamphetamine,
amphetamine, morphine, and Ecstasy after giving birth to S.D., that she failed to seek prenatal care
for S.D., and that S.D. received methadone treatment due to his drug exposure from petitioner. The
DHHR alleged that petitioner’s long-standing drug addiction impaired her ability to parent S.D.;
that she failed to provide a suitable home for S.D.; and that she abandoned S.D. as she
demonstrated a settled purpose to forgo her duties and parental responsibilities to S.D. by failing
to visit S.D., provide for his basic needs, or otherwise comfort and feed him.
1
Petitioner appears by counsel Andrew Chattin. The West Virginia Department of Health
and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey and
Assistant Attorney General Katica Ribel. Counsel Michael W. Asbury, Jr. appears as the children’s
guardian ad litem.
2
We use initials where necessary to protect the identities of those involved in this case. See
W. Va. R. App. P. 40(e).
1
Pertinent to this appeal, the petition does not contain specific allegations of petitioner’s
conduct that constitute abuse and/or neglect of E.S., J.S., and W.T. Instead, the petition includes
broad, form language tracking the relevant statutes that alleged the “infant respondents” were
abused and/or neglected and/or abandoned.3 This language was not tailored to the specifics of
petitioner’s case, making references to circumstances with no relation to the specifics of the instant
matter. The petition included general allegations that petitioner “failed to protect said children”
and “knowingly or intentionally inflict[ed] or attempt[ed] to inflict or allowed another person to
inflict physical injury or mental or emotional injury upon the infant respondents” and that the
“infant respondents were subjected to negligent treatment, maltreatment, and/or abandonment by
the adult respondent.”
At the preliminary hearing, which petitioner waived, the circuit court ordered the DHHR
to provide her reunification services, including drug screening, supervised visitations, parenting
and adult life skills, and a substance abuse and psychological evaluation. In November 2021,
petitioner filed a motion for an improvement period.
The circuit court held an adjudicatory hearing in December 2021, wherein petitioner
specifically stipulated to abusing substances while pregnant with S.D., having a drug addiction
that impaired her ability to parent and provide a suitable home for S.D., and abandoning S.D.
shortly after his birth. Based on this stipulation, the circuit court adjudicated petitioner as an
abusing parent. Critical to this appeal, the circuit court made no findings of abuse and neglect of
E.S., J.S, and W.T. The record also shows that petitioner tested positive for methamphetamine,
amphetamine, tetrahydrocannabinol, and fentanyl on December 6, 2021.
The court held a final dispositional hearing in February 2022. Petitioner testified that she
had a substance abuse problem and would enroll in inpatient drug rehabilitation if granted an
improvement period. In denying petitioner’s motion for an improvement period, the court found
that she made no efforts to address her addiction, continued to abuse substances, and previously
failed to enroll into inpatient drug treatment. The court found that petitioner refused to cooperate
with the DHHR’s offered services, such as failing to attend a psychological evaluation, participate
in regular drug screens, and attend supervised visitations with the children. The court further found
that petitioner had not obtained appropriate housing. The circuit court concluded that there was no
reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near
future and that termination was necessary for the children’s welfare. By order entered on April 7,
2022, the circuit court terminated petitioner’s parental rights to the children. Petitioner now appeals
that order.4
3
This is in contravention of Rule 18(a) of the West Virginia Rules of Procedure for Child
Abuse and Neglect Proceedings, which requires “[c]itations to statutes relied upon in requesting
the intervention of the court and how the alleged misconduct or incapacity comes within the
statutory definition of neglect and/or abuse.” (Emphasis added).
4
S.D. was reunified with his father and has achieved permanency. E.S. and J.S.’s father’s
parental rights were terminated below. The father of W.T. had his parental rights terminated in
2015. E.S., J.S., and W.T. will remain in their respective legal guardianships.
2
On appeal from a final order in an abuse and neglect proceeding, this Court reviews the
circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re
Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
To begin, we first address whether the circuit court properly exercised jurisdiction over
E.S., J.S., and W.T. As we recently explained,
[t]o exercise subject matter jurisdiction [in an abuse and neglect proceeding], the
court must make specific factual findings explaining how each child’s health and
welfare are being harmed or threatened by the allegedly abusive or neglectful
conduct of the parties named in the petition. Due to the jurisdictional nature of this
question, generalized findings applicable to all children named in the petition will
not suffice; the circuit court must make specific findings with regard to each child
so named.
Syl. Pt. 3, in part, In re B.V., -- W. Va. --, -- S.E.2d --, 2023 WL 2769431 (Jan. 10, 2023). As set
forth above, the circuit court did not make specific findings of fact regarding the abuse and neglect
of E.S., J.S., and W.T. in its December 3, 2021, adjudicatory order. In addition to B.V.’s
requirement that courts make specific findings with regard to each child, we have also discussed
the sufficiency of orders in these proceedings and their impact on this Court’s ability to review
possible errors. We previously explained that
[p]rocedurally, these various directives [set forth in the Rules of Procedure for
Child Abuse and Neglect Proceedings and related statutes] also provide the
necessary framework for appellate review of a circuit court’s action. Where a lower
court has not shown compliance with these requirements in a final order, and such
cannot be readily gleaned by this Court from the record, the laudable and
indispensable goal of proper appellate review is thwarted.
In re Edward B., 210 W. Va. 621, 632, 558 S.E.2d 620, 631 (2001). Further, “[a]dequate findings
must be made in order to protect the rights of litigants and to facilitate review of the record by an
appellate court.” Id. (citation omitted). Edward B. concerned a dispositional order that failed to
include specific findings required for termination of parental rights. Id. at 629-30, 558 S.E.2d at
628-29. Although the order lacking factual findings currently before us is an adjudicatory order,
the Court’s analysis in Edward B. is instructive in this circumstance because the circuit court made
no specific findings regarding petitioner’s alleged abusive and neglectful conduct of E.S., J.S., and
W.T.
On the contrary, the adjudicatory order simply declared petitioner to be an “abusive and
neglectful parent” based upon her stipulations regarding the abuse and neglect of S.D. as
contained in the petition.5 The lack of specific findings as to E.S., J.S., and W.T. is in opposition
5
Under the specific facts of this case, petitioner’s stipulation to her adjudication cannot
confer jurisdiction upon the circuit court. Not only are we without petitioner’s written stipulation,
if one was tendered, or the adjudicatory transcript necessary to add additional context to the
specifics of petitioner’s stipulation, but we have long explained that “[j]urisdiction of the person
3
to B.V. and its prohibition against “generalized findings applicable to all children named in the
petition.” -- W. Va. at --, -- S.E.2d at --, 2023 WL 2769431, at *1, Syl. Pt. 3, in part. Because the
circuit court failed to establish that it properly exercised subject matter jurisdiction over E.S.,
J.S., and W.T., we must vacate, in part, the adjudicatory order regarding the adjudication of E.S.,
J.S., and W.T. as abused and/or neglected children and vacate, in part, the dispositional order
regarding the termination of petitioner’s parental rights to E.S., J.S., and W.T. only. We remand
the matter for further proceedings consistent with this decision. See Syl. Pt. 5, In re Edward B.,
210 W. Va. 621, 558 S.E.2d 620 (2001) (permitting the vacation of dispositional orders when
“the process established by the Rules of Procedure for Child Abuse and Neglect Proceedings and
related statutes for the disposition of cases involving children [alleged] to be abused or neglected
has been substantially disregarded or frustrated”).
However, because the evidence established that S.D. was an abused and neglected child
due to petitioner’s (1) failure to seek prenatal care while pregnant with S.D., (2) abuse of
substances while pregnant with S.D., and (3) abandonment of S.D., the circuit court properly
exercised jurisdiction over S.D. As such, we address petitioner’s arguments on appeal as they
pertain to that child only.
First, petitioner argues that she should have been granted a post-adjudicatory improvement
period. According to West Virginia Code § 49-4-610(2), a circuit court may grant a post-
adjudicatory improvement period when it finds that the parent is likely to fully participate in an
improvement period. Here, petitioner failed to participate in most services, such as regular drug
screening and supervised visitation. Petitioner also failed to participate in her substance abuse and
parental fitness evaluations, which would have aided her in addressing her continued substance
abuse. The record shows that petitioner, through the DHHR, had the ability to obtain drug
treatment but that she failed to do so. Petitioner’s self-serving testimony that she would participate
in the terms and conditions of an improvement period stands in direct contravention to her
noncompliance with previously offered services. As such, the court did not find petitioner’s
testimony that she would fully participate in an improvement period credible, and we will not
disturb this determination. See Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531,
538 (1997) (“A reviewing court cannot assess witness credibility through a record. The trier of fact
is uniquely situated to make such determinations and this Court is not in a position to, and will not,
second guess such determinations.”). Accordingly, we find no abuse of discretion in the court’s
refusal to grant petitioner an improvement period. See In re Tonjia M., 212 W. Va. 443, 448, 573
S.E.2d 354, 359 (2002) (holding that a circuit court’s ruling on an improvement period is reviewed
for an abuse of discretion).
We likewise find no error in the circuit court’s conclusion that there was no reasonable
likelihood that petitioner could correct the conditions of abuse and neglect. The record shows that
petitioner made no efforts to address her drug addiction, continued to abuse substances during the
may be conferred by consent, . . . [but] jurisdiction of the subject-matter of litigation must exist as
a matter of law.” Ellithorp v. Ellithorp, 212 W. Va. 484, 490, 575 S.E.2d 94, 100 (2002) (citations
omitted). Because the circuit court failed to make the findings necessary to exercise subject matter
jurisdiction over W.T., E.S., and J.S., partial vacation is required even though petitioner stipulated
to her adjudication of being an abusing parent.
4
proceedings, failed to enroll into inpatient drug treatment or otherwise cooperate with the DHHR’s
offered services, such as a psychological evaluation, regular drug screening, and supervised
visitations with the children. See W. Va. Code § 49-4-604(d)(3) (providing that there is no
reasonable likelihood that the conditions of neglect or abuse can be substantially corrected when
“[t]he abusing parent . . . [has] 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”); see also Syl. Pt. 5, In re Kristin
Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (holding that “[t]ermination of parental rights . . . may
be employed without the use of intervening less restrictive alternatives when it is found that there
is no reasonable likelihood . . . that [the] conditions of neglect or abuse can be substantially
corrected”). Additionally, the record supports the conclusion that the termination of petitioner’s
parental rights was necessary for S.D.’s welfare as petitioner’s drug addiction remained untreated
and placed the child at risk if returned to petitioner’s care. Considering S.D.’s young age, we have
previously noted,
the early, most formative years of a child’s life are crucial to his or her development.
There would be no adequate remedy at law for these children were they permitted
to continue in this abyss of uncertainty. We have repeatedly emphasized that
children have a right to resolution of their life situations, to a basic level of
nurturance, protection, and security, and to a permanent placement.
State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 257-58, 470 S.E.2d 205, 211-12 (1996). Upon
this record, the Court finds no error in the circuit court’s termination of petitioner’s parental rights
to S.D. only.
For the foregoing reasons, we affirm, in part, and vacate, in part, the circuit court’s
December 3, 2021, adjudicatory order and the April 7, 2022, dispositional order.6 We affirm the
adjudication of S.D. as an abused and/or neglected child and affirm the termination of petitioner’s
parental rights to S.D. only. We vacate the adjudication of E.S., J.S., and W.T. as abused and/or
neglected children and vacate the termination of petitioner’s parental rights to E.S., J.S., and W.T.
This matter is remanded to the circuit court for further proceedings, including but not limited to
the entry of an order setting out the requisite findings as to whether E.S., J.S., and W.T. met the
statutory definitions of abused or neglected children, based on the evidence previously adduced.
See W. Va. Code § 49-1-201. To the extent that the evidence does not support such a determination,
we further direct the circuit court to undertake such proceedings, consistent with this decision, as
may be necessary to ascertain whether E.S., J.S., and W.T. met the statutory definitions of abused
or neglected children, so that the circuit court might properly exercise jurisdiction. The circuit
court is directed to enter an adjudicatory order within the next thirty days. The Clerk is hereby
directed to issue the mandate contemporaneously herewith.
Affirmed in part, vacated in part, and remanded.
6
The vacation of these orders applies only to petitioner. Those orders also adjudicated the
father of E.S. and J.S. as an abusing parent and terminated his parental rights. However, that father
did not appeal those decisions. Accordingly, the portions of the orders concerning the father of
E.S. and J.S. remains in full force and effect.
5
ISSUED: June 13, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
6