The opinion
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re J.W.-1 March 15, 2019
EDYTHE NASH GAISER, CLERK
No. 18-0872 (Putnam County 17-JA-39) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother C.W., by counsel Benjamin Freeman, appeals the Circuit Court of
Putnam County’s September 4, 2018, order terminating her custodial rights to J.W.-1.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N.
Felton-Ernest, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Rosalee Juba-Plumley, filed a response on behalf of the child, also in support of the
circuit court’s order. On appeal, petitioner argues that the time limits for improvement periods
are unconstitutional and that the circuit court erred in terminating her custodial rights without
first granting her an extension to her improvement period or a post-dispositional improvement
period.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
Prior to the initiation of the instant proceedings, petitioner’s parental rights to her first
child, J.W.-2, were involuntarily terminated due to her drug use and her exposure of the child to
the same. Petitioner gave birth to her second child, B.W., in 2015, and proceedings were initiated
against her again due to her continued drug use and exposing the child to her drug abuse. Her
parental rights to that child were subsequently involuntarily terminated in 2016.
Regarding the instant proceedings, petitioner gave birth to her third child, J.W.-1, in
March of 2017, and the DHHR filed a child abuse and neglect petition shortly thereafter in April
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.
Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419
(2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles
L., 183 W. Va. 641, 398 S.E.2d 123 (1990). Additionally, because two of the children share the
same initials, we will refer to them as J.W.-1 and J.W.-2, respectively.
1
of 2017. Because petitioner’s parental rights to her two older children were previously
permanently terminated, J.W.-1 is the only child at issue on appeal. In the petition, the DHHR
noted petitioner’s prior termination of parental rights, and alleged that petitioner continued to
abuse drugs and gave birth to J.W.-1, who was born drug-exposed. When questioned by a
hospital social worker, petitioner admitted to abusing heroin and non-prescribed Suboxone
during the first several months of her pregnancy until she was placed on Subutex through a
recovery program. Petitioner also admitted to a Child Protective Services (“CPS”) worker that
she had been living with her children J.W.-2 and B.W., despite having had her parental rights to
those children previously terminated. The DHHR concluded that petitioner’s drug use seriously
impaired her parenting skills and abilities. Petitioner waived her preliminary hearing.
The circuit court held an adjudicatory hearing in July of 2017, wherein petitioner
stipulated to the allegations contained in the petition. The circuit court accepted petitioner’s
stipulation and adjudicated her as an abusing parent. Petitioner also moved the circuit court for a
post-adjudicatory improvement period. The circuit court held the motion in abeyance and
subsequently granted petitioner a post-adjudicatory improvement period in July of 2017.
At a status hearing held in January of 2018, petitioner requested a three-month extension
to her improvement period and the circuit court granted her the same. Another status hearing was
held in April of 2018. While the circuit court found that petitioner was making progress in her
improvement period, it noted that she was not in a position to take custody of the child and set
the matter for disposition.
In July of 2018, the circuit court held a dispositional hearing. The DHHR proffered that
petitioner remained in drug treatment and was unable to take custody of the child. Petitioner had
not successfully completed her improvement period and the child had been in the custody of the
DHHR for more than fifteen months. As such, the DHHR recommended that the circuit court
terminate petitioner’s parental rights. Counsel for petitioner argued that termination of
petitioner’s parental rights was inappropriate due to the substantial progress she had made in
treatment. Petitioner’s counsel suggested that a less-restrictive alternative was proper because
petitioner had complied with every directive of the court and noted that true recovery takes
longer than the time afforded in improvement periods. The guardian also recommended a less-
restrictive alternative to termination of petitioner’s parental rights given her substantial
compliance. The circuit court found that petitioner had previously had her parental rights to two
older children terminated due to her drug use. Petitioner then gave birth to J.W.-1, who was
drug-exposed. While petitioner did participate in intensive inpatient treatment for over one year,
she was not able to successfully, timely complete the same, resulting in J.W.-1 remaining in the
custody of the DHHR for more than fifteen months. The circuit court denied petitioner’s motions
for an extension to her post-adjudicatory improvement period and a dispositional improvement
period. Because the child needed permanency, the circuit court terminated petitioner’s custodial
rights. It is from the September 4, 2018, dispositional order that petitioner appeals.2
2
The parental rights of J.W.-1’s unknown father remain intact. The permanency plan for
J.W.-1 is guardianship by B.W.’s paternal grandparents.
2
The Court has previously established the following standard of review in cases such as
this:
“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).
On appeal, petitioner argues that the time limits for improvement periods in abuse and
neglect cases are unconstitutional. Petitioner points out that there are constitutional protections
surrounding the right of a parent to the custody of his or her children and, in order to protect said
right, circuit courts should be permitted broader discretion in extending the time in which a
parent can complete an improvement period.3 Regarding her situation specifically, petitioner
3
West Virginia Code § 49-4-610 sets forth the time limits regarding improvement
periods:
(1) Preadjudicatory improvement period. - A court may grant a respondent an
improvement period of a period not to exceed three months.
....
(2) Post-adjudicatory improvement period. - After finding that a child is an abused or
neglected child pursuant to section six hundred one of this article, a court may grant a
respondent an improvement period of a period not to exceed six months.
....
(3) Post-dispositional improvement period. - The court may grant an improvement
period not to exceed six months as a disposition.
....
(continued . . .)
3
states that serious recovery from substance abuse “does not happen overnight” and “treatment
[is] always destined to outlast the time allowed for the completion of an improvement period as
prescribed by the [West Virginia C]ode.” Here, petitioner asserts that she was successfully
addressing her substance abuse issues when the circuit court terminated her custodial rights
because the child had been in the custody of the DHHR for fifteen months. According to
petitioner, termination of her custodial rights was not in the best interests of the child. Moreover,
she argues “it is incongruous to try to reconcile the fluid and subjective ‘best interests of the
child’ standard discussed by the [c]ourts with the rigid and arbitrary time limits imposed.”
Lastly, petitioner argues that her custodial rights should not have been terminated without first
granting her an extension of her improvement period or a post-dispositional improvement
period.4 Upon our review, we find no merit to petitioner’s arguments.
Petitioner correctly states that parents have a right to parent their children. We have
previously held
“[i]n the law concerning custody of minor children, no rule is more firmly
established than that the right of a natural parent to the custody of his or her infant
(6) Extension of improvement period. - A court may extend any improvement period
granted pursuant to subdivision (2) or (3) of this section for a period not to exceed
three months when the court finds that the respondent has substantially complied with
the terms of the improvement period; that the continuation of the improvement period
will not substantially impair the ability of the department to permanently place the
child; and that the extension is otherwise consistent with the best interest of the child.
....
(9) Time limit for improvement periods. - Notwithstanding any other provision of this
section, no combination of any improvement periods or extensions thereto may cause
a child to be in foster care more than fifteen months of the most recent twenty-two
months, unless the court finds compelling circumstances by clear and convincing
evidence that it is in the child’s best interests to extend the time limits contained in
this paragraph.
4
Pursuant to West Virginia Code § 49-4-610(3)(D), a circuit court may grant a post-
dispositional improvement period if “the respondent demonstrates that since the initial
improvement period, the respondent has experienced a substantial change in circumstances.
Further, the respondent shall demonstrate that due to that change in circumstances, the
respondent is likely to fully participate in the improvement period.” In her brief on appeal,
petitioner fails to cite to the record to show she submitted any evidence that she underwent a
substantial change of circumstances since her post-adjudicatory improvement period.
Accordingly, we find that the circuit court did not err in denying petitioner a post-dispositional
improvement period as she failed to demonstrate that she was entitled to the same.
4
child is paramount to that of any other person; it is a fundamental personal liberty
protected and guaranteed by the Due Process Clauses of the West Virginia and
United States Constitutions.” Syl. Pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d
129 (1973).
Syl. Pt. 5, In re J.G., 240 W. Va. 194, 809 S.E.2d 453 (2018). However, we have also held that
“[a]lthough parents have substantial rights that must be protected, the primary goal in cases
involving abuse and neglect, as in all family law matters, must be the health and welfare of the
children.” Id. at 197, 809 S.E.2d at 456, syl. pt. 7 (quoting syl. pt. 3, In re Katie S., 198 W. Va.
79, 479 S.E.2d 589 (1996)).
Regarding improvement periods, this Court has noted that “[i]mprovement periods are . .
. regulated, both in their allowance and in their duration, by the West Virginia Legislature, which
has assumed the responsibility of implementing guidelines for child abuse and neglect
proceedings generally.” In re Emily, 208 W. Va. 325, 334, 540 S.E.2d 542, 551 (2000). We have
noted that the requirements set forth in West Virginia Code § 49-4-610
are not mere guidelines. . . . The time limitations and standards contained therein
are mandatory and may not be casually disregarded or enlarged without detailed
findings demonstrating exercise of clear-cut statutory authority. Discretion
granted to the circuit court within this framework is intended to allow the court to
fashion appropriate measures and remedies to highly complex familial and inter-
personal issues – it does not serve as a blanket of immunity for the circuit court to
manage abuse and neglect cases as its whim, personal desire, or docket may
fancy.
J.G., 240 W. Va. at 204, 809 S.E.2d at 463. “Critically, ‘[a] parent’s rights are necessarily
limited . . . [as to improvement periods] because the pre-eminent concern in abuse and neglect
proceedings is the best interest of the child subject thereto.’” Id. at 204, 809 S.E.2d at 463
(quoting Emily, 208 W. Va. at 336, 540 S.E.2d at 553). Finally,
the statutory limits on improvement periods (as well as our case law limiting the
right to improvement periods) dictate that there comes a time for decision,
because a child deserves resolution and permanency in his or her life, and because
part of that permanency must include at minimum a right to rely on his or her
caretakers to be there to provide the basic nurturance of life.
State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 260, 470 S.E.2d 205, 214 (1996). While we
acknowledge that parents have a right to parent their children, our caselaw makes it abundantly
clear that this right is not upheld to the detriment of the children.
Here, we find no error in the circuit court’s decision to deny petitioner an extension to her
post-adjudicatory improvement period. Circuit courts may grant an extension when
the court finds that the respondent has substantially complied with the terms of
the improvement period; that the continuation of the improvement period will not
5
substantially impair the ability of the department to permanently place the child;
and that the extension is otherwise consistent with the best interest of the child.
W. Va. Code § 49-4-610(6). Petitioner had the opportunity to participate in three separate
improvement periods with various extensions throughout three separate abuse and neglect
proceedings spanning the course of four years. The time she has had to address her substance
abuse issue is substantial. However, petitioner’s parental rights to two of her older children were
previously terminated due to her inability or refusal to address her substance abuse issues. While
we commend petitioner for her progress, we note that her improvement period in the instant
proceedings alone lasted over one year and left the child in a foster placement for more than
fifteen months, the child’s entire life. As of the dispositional hearing, petitioner remained in
treatment and was not in a position to take custody of the child. Contrary to petitioner’s
argument, the circuit court was not forced to terminate petitioner’s custodial rights due to the
“rigid” timelines for improvement periods set forth in West Virginia Code § 49-4-610. Indeed,
West Virginia Code § 49-4-610(9) sets forth that
[n]otwithstanding any other provision of this section, no combination of any
improvement periods or extensions thereto may cause a child to be in foster care
more than fifteen months of the most recent twenty-two months, unless the court
finds compelling circumstances by clear and convincing evidence that it is in the
child’s best interests to extend the time limits contained in this paragraph.
(Emphasis added). Rather, the circuit court denied petitioner’s request for an extension to her
improvement period because she failed to demonstrate that she was entitled to the same or that
an extension was in the child’s best interests. Accordingly, we find no error in this regard.
We likewise find no error in the circuit court’s decision to terminate petitioner’s custodial
rights. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental,
custodial, and guardianship rights upon findings 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 child’s welfare. According to West Virginia Code § 49-4-
604(c)(3), a situation in which there is no reasonable likelihood the conditions of abuse and
neglect can be substantially corrected includes one in which
[t]he abusing parent or parents have not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts of social, medical,
mental health or other rehabilitative agencies designed to reduce or prevent the
abuse or neglect of the child, as evidenced by the continuation or insubstantial
diminution of conditions which threatened the health, welfare or life of the child.
As mentioned above, petitioner has been the subject of three separate abuse and neglect
proceedings. Her parental rights to two older children were terminated due to her inability to
address her substance abuse. During the underlying proceedings, petitioner’s substance abuse
persisted and she entered a long-term inpatient treatment program. However, despite her
progress, petitioner was unable to address her issues with substance abuse in a timely manner,
which left the child in foster care and without permanency. We have previously held that “courts
6
are not required to exhaust every speculative possibility of parental improvement before
terminating parental rights where it appears that the welfare of the child will be seriously
threatened. . . .” Syl. Pt. 7, in part, In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365
(1991) (citation omitted). Having reviewed the record, we find that there was no reasonable
likelihood that petitioner could correct the conditions of abuse and neglect in the near future and
that termination of petitioner’s custodial rights was necessary for the child’s welfare.
Accordingly, we also find that the circuit court did not err in terminating petitioner’s custodial
rights.
Lastly, because the parental rights of J.W.-1’s unknown father remain intact, this Court
reminds the circuit court of its duty to establish permanency for the child. Rule 39(b) of the
Rules of Procedure for Child Abuse and Neglect Proceedings requires:
At least once every three months until permanent placement is achieved as
defined in Rule 6, the court shall conduct a permanent placement review
conference, requiring the multidisciplinary treatment team to attend and report as
to progress and development in the case, for the purpose of reviewing the progress
in the permanent placement of the child.
Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules
of Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child
within twelve months of the date of the disposition order. As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia
Rules of Procedure[] for Child Abuse and Neglect Proceedings for permanent
placement of an abused and neglected child following the final dispositional order
must be strictly followed except in the most extraordinary circumstances which
are fully substantiated in the record.
Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 6. Moreover, this Court has stated that
[i]n determining the appropriate permanent out-of-home placement of a
child under [West Virginia Code § 49-4-604(b)(6)], the circuit court shall give
priority to securing a suitable adoptive home for the child and shall consider other
placement alternatives, including permanent foster care, only where the court
finds that adoption would not provide custody, care, commitment, nurturing and
discipline consistent with the child’s best interests or where a suitable adoptive
home can not be found.
Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W. Va. 648, 408
S.E.2d 400 (1991).
For these reasons, we find no error in the decision of the circuit court, and its September
4, 2018, order is hereby affirmed.
7
Affirmed.
ISSUED: March 15, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
8