In re: N.H., C.H., and B.H.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2019 Term

FILED

_____________________

May 17, 2019

released at 3:00 p.m.

No. 18-0845 EDYTHE NASH GAISER, CLERK

_____________________ SUPREME COURT OF APPEALS

OF WEST VIRGINIA

IN RE: N.H., C.H., and B.H.

__________________________________________________________

Appeal from the Circuit Court of Jackson County

Honorable Lora A. Dyer, Judge

Civil Action Nos. 16-JA-22, 16-JA-23, and 16-7A-24

AFFIRMED AND REMANDED WITH DIRECTIONS

_________________________________________________________

Submitted: April 24, 2019

Filed: May 17, 2019

Lauren A. Estep, Esq. Erica Brannon Gunn, Esq.

Public Defender Corporation Spencer, West Virginia

Ripley, West Virginia Guardian ad litem

Attorney for Petitioner C.R.

Patrick Morrisey, Esq.

Attorney General

Charleston, West Virginia

Lee Niezgoda, Esq.

Assistant Attorney General

Fairmont, West Virginia

Attorneys for Respondent DHHR

JUSTICE HUTCHISON delivered the Opinion of the Court.

SYLLABUS BY THE COURT

1. “Although 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.” Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d

589 (1996).

2. “‘In a contest involving the custody of an infant the welfare of the

child is the polar star by which the discretion of the court will be guided.’ Syl. Pt. 1, State

ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972).” Syl. Pt. 4, In re J.S., 233

W.Va. 394, 758 S.E.2d 747 (2014).

3. “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

re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

4. “In making the final disposition in a child abuse and neglect

proceeding, the level of a parent’s compliance with the terms and conditions of an

improvement period is just one factor to be considered. The controlling standard that

i

governs any dispositional decision remains the best interests of the child.” Syl. Pt. 4, In re

B.H., 233 W.Va. 57, 754 S.E.2d 743 (2014).

5. “[C]ourts 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. 1, in part, In re R.J.M., 164 W.Va. 496,

266 S.E.2d 114 (1980).

6. “Where there has been a prior involuntary termination of parental

rights to a sibling, the issue of whether the parent has remedied the problems which led to

the prior involuntary termination sufficient to parent a subsequently-born child must, at

minimum, be reviewed by a court, and such review should be initiated on a petition

pursuant to the provisions governing the procedure in cases of child neglect or abuse set

forth in West Virginia Code §§ 49–6–1 to –12 (1998) [now West Virginia Code § 49-4-

601 to -610]. Although the requirement that such a petition be filed does not mandate

termination in all circumstances, the legislature has reduced the minimum threshold of

evidence necessary for termination where one of the factors outlined in West Virginia Code

§ 49–6–5b(a) (1998) [now West Virginia Code § 49-4-605(a) (2015)] is present.” Syl. Pt.

2, In the Matter of George Glen B., Jr., 205 W.Va. 435, 518 S.E.2d 863 (1999).

7. “In civil abuse and neglect cases, the legislature has made DHHR the

State’s representative. In litigations that are conducted under State civil abuse and neglect

ii

statutes, DHHR is the client of county prosecutors. The legislature has specifically

indicated through W.Va. Code § 49–6–10 (1996) [now W.Va. Code § 49-4-502 (2015)]

that prosecutors must cooperate with DHHR’s efforts to pursue civil abuse and neglect

actions. The relationship between DHHR and county prosecutors under the statute is a pure

attorney-client relationship. The legislature has not given authority to county prosecutors

to litigate civil abuse and neglect actions independent of DHHR. Such authority is granted

to prosecutors only under State criminal abuse and neglect statutes. Therefore, all of the

legal and ethical principles that govern the attorney-client relationship in general, are

applicable to the relationship that exists between DHHR and county prosecutors in civil

abuse and neglect proceedings.” Syl. Pt. 4, State ex rel. Diva P. v. Kaufman, 200 W.Va.

555, 490 S.E.2d 642 (1997).

8. “In cases involving the abuse and neglect of children, when it appears

from this Court’s review of the record on appeal that the health and welfare of a child may

be at risk as a result of the child’s custodial placement, regardless of whether that placement

is an issue raised in the appeal, this Court will take such action as it deems appropriate and

necessary to protect that child.” Syl. Pt. 6, In re Timber M., 231 W.Va. 44, 743 S.E.2d 353

(2013).

9. “When an abuse and neglect petition is brought based solely upon a

previous involuntary termination of parental rights to a sibling pursuant to West Virginia

Code § [49-4-605(a)(3) (2015)], prior to the lower court’s making any disposition

iii

regarding the petition, it must allow the development of evidence surrounding the prior

involuntary termination(s) and what actions, if any, the parent(s) have taken to remedy the

circumstances which led to the prior termination(s).” Syl. Pt. 4, In the Matter of George

Glen B., Jr., 205 W.Va. 435, 518 S.E.2d 863 (1999).

10. “‘Prior acts of violence, physical abuse, or emotional abuse toward

other children are relevant in a termination of parental rights proceeding, are not violative

of W.Va.R.Evid. 404(b), and a decision regarding the admissibility thereof shall be within

the sound discretion of the trial court.’ Syl. Pt. 8, In re Carlita B., 185 W.Va. 613, 408

S.E.2d 365 (1991).” Syl. Pt. 3, In the Matter of George Glen B., Jr., 205 W.Va. 435, 518

S.E.2d 863 (1999).

iv

HUTCHISON, Justice:

The petitioner, C.R.,1 appeals the August 29, 2018, disposition order of the

Circuit Court of Jackson County terminating her parental rights to her three oldest children,

N.H., C.H., and B.H. In this appeal, the petitioner contends that the circuit court erred by

finding that it was contrary to the best interests of the children to be returned to her custody

even though she successfully completed her post-adjudicatory improvement period. Both

respondents, the West Virginia Department of Health and Human Resources (“DHHR”)

and the guardian ad litem, maintain that termination of the petitioner’s parental rights was

warranted despite her compliance with the services provided during her improvement

period.

Upon consideration of the parties’ briefs and oral arguments, the submitted

appendix record, and the pertinent authorities, we find no error. Accordingly, for the

reasons set forth below, the circuit court’s disposition order terminating the petitioner’s

parental rights to N.H., C.H., and B.H. is affirmed. However, we remand this case to the

circuit court for further proceedings because the record indicates that the petitioner gave

birth to a fourth child shortly before the disposition order was entered by the circuit court.

As discussed below, when a child is born to a parent whose parental rights to another child

1

As in all cases involving sensitive facts and minor children, we use initials to

identify the parties. See W.Va. R. App. Proc. 40(e); see also State v. Edward Charles L.,

183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).

1

have been previously terminated, our statutory and case law require the circuit court to

determine whether the problems that led to the prior involuntary termination have been

sufficiently remedied or whether the parental rights to the subsequently-born child should

be terminated.

I. Facts and Procedural Background

When the DHHR initiated this abuse and neglect proceeding in March 2016,

N.H., C.H., and B.H. were living with the petitioner and her boyfriend, M.L.2 In the abuse

and neglect petition, the DHHR alleged that the children’s health and safety were at

imminent risk because of the petitioner’s illegal drug use and their exposure to domestic

violence between the petitioner and M.L. Specifically, the petition indicated that N.H., the

oldest child,3 had disclosed that her mother “has ‘chill pills’ to help her calm down” and

that her mother “mostly just sleeps forever.” The DHHR asserted that the petitioner’s drug

use was causing her to neglect the psychological treatment and education of her children,

particularly that of C.H., who is autistic, by, among other things, not providing the school

with the requisite medical documentation so that proper education services could be

2

M.L. is not the biological father of the children, but he was made a respondent in

the proceeding below and the abuse and neglect petition was amended to include his four

biological children from a prior relationship. The biological fathers of N.H., C.H., and

B.H. were also made respondents, and their parental rights to their respective children were

terminated. M.L., M.L’s children, and the biological fathers of N.H., C.H., and B.H. are

not parties in this appeal.

3

When the petition was filed, the children were seven, five, and four years old.

2

provided. The petition further asserted that the petitioner had not been present to meet her

children at the bus stop on multiple occasions, necessitating their return to school until they

were picked up by a parent or guardian. In one instance, the petitioner could not be located,

and an aunt had to come and get the children.

With respect to the domestic violence allegations, the petition stated that the

children had disclosed that M.L. broke the television and a vase during arguments with

their mother. N.H. reported that the petitioner told her that “[M.L.] is going to burn us”

and that she attempted to break up the fights by “trying to talk [M.L.] out of beating up her

mother” or screaming to alert someone when she was unsuccessful. B.H. reported that

“[M.L.] told his mommy that he was going to kill her.” Upon the filing of the abuse and

neglect petition, the children were removed from the home and placed in foster care.

The petitioner waived her right to a preliminary hearing and, subsequently,

stipulated to the allegations set forth in the petition. The petitioner admitted that “she has

a drug abuse issue which has negatively impacted her parenting[.]” She further

acknowledged that there had been domestic violence in the home while the children were

present. Upon the court’s acceptance of the stipulated adjudication, the petitioner filed a

motion for a post-adjudicatory improvement period, which was granted on August 8, 2016.

3

Thereafter, the court granted the petitioner a three-month extension so she could complete

an Intensive Outpatient Program (“IOP”) for her drug addiction.4

Following multiple review hearings, the circuit court entered an order April

11, 2018, regarding the petitioner’s completion of her post-adjudicatory improvement

period.5 In that order, the circuit court concluded that

[t]he weight of the evidence demonstrates [the

petitioner] has substantially complied with the terms and

conditions of her improvement period;6 the only evidence

suggesting deficient compliance is [the petitioner] having

remained on Subutex,7 but she rebutted such by presenting

reliable testimony that she did so only at the direction of her

physician.

4

It was later determined that the petitioner did not qualify for an IOP because she

did not meet the addiction qualifications. Instead, she participated in relapse prevention

classes and counseling, which were approved by the multidisciplinary team.

5

The order indicates that hearings regarding the petitioner’s completion of her

improvement period were held on December 4, 2017, December 15, 2017, and February

16, 2018. Transcripts of those hearings were not included in the appendix record submitted

with this appeal.

6

During her improvement period, the petitioner was required to undergo a parental

fitness evaluation and follow the recommendations of such evaluation; undergo a substance

abuse evaluation; complete a drug abuse rehabilitation program; participate in victim’s

impact counseling; participate in parenting and adult life skills classes; submit to random

drug screening; and participate in supervised visitation with her children.

7

While the circuit court indicated that the petitioner was taking Subutex, the

medication is referred to as Suboxone in other instances in the record. As this Court has

previously noted, “[b]oth of these medications are used to wean persons addicted to

[narcotics] and to lessen withdrawal symptoms . . . . See generally Drug Identification Bible

2014/2015 Edition 881 (2014/2015) (describing both ‘Subutex’ and ‘Suboxone’ as the

‘[b]rand names for a Schedule III medication used to treat narcotic addiction’).” In re

A.L.C.M., 239 W.Va. 382, 386 n.7, 801 S.E.2d 260, 264 n. 7 (2017).

4

(Footnotes added). With regard to the petitioner’s continued use of Subutex, the order

indicated that the petitioner tried to stop taking the medication in June 2017. However, she

was pregnant at the time with her fourth child and was hospitalized for nausea and vomiting

caused by her withdrawal from the medication. According to the circuit court’s order, the

petitioner’s obstetrician testified that it was safer for her to continue to take the Subutex

during her pregnancy so he referred her to a clinic that provided a step-down regime to

have her off the medication within a year. At the final improvement period review hearing,

the petitioner testified that she was still taking Subutex but indicated she expected to be

weaned from the medication soon.

Thereafter, the circuit court scheduled the final disposition hearing, and the

DHHR filed a motion to terminate the petitioner’s parental rights. Disposition hearings

were held on July 5, and July 13, 2018.8 On August 29, 2018, the circuit court entered the

disposition order terminating the petitioner’s parental rights to N.H., C.H., and B.H., setting

forth the following findings:

The Court has heard evidence herein of the [] children’s

need for substantial ongoing care from various providers:

[C.H.] is a non-verbal, autistic child, requiring much care,

close supervision, and frequent medical and therapeutic

appointments. [B.H.] suffers from both serious behavioral

issues and health problems which have necessitated trips to

medical providers all over the State. [N.H.] suffers from

anxiety and depression, which require counseling and

psychiatric care. Contrary to the needs of her children, [the

petitioner] has not acquired a driver’s license during the

8

Transcripts of the disposition hearings were not included in the appendix record.

5

pendency of this case, and still relies on others for

transportation. Furthermore, despite the children’s need for

medical treatment and care, [the petitioner] made no attempt[]

to attend any such appointments during this case, nor did she

call the [DHHR] to check on the welfare of her children. And

despite [the petitioner’s] stated desire to reclaim custody of her

children, by her own testimony, [the petitioner] has made no

attempt to acquire any knowledge of the specific physical

maladies which afflict her children, in spite of the [DHHR’s]

resources that have been made available to her for that purpose.

In short, [the petitioner] has not taken advantage of the

significant amount of time afforded to demonstrate a

willingness to meet the needs of these children.

Also, the children continue to display a fear of and a

desire to have no contact with [M.L.] with whom [the

petitioner] maintains an ongoing relationship. Although the

Court recognizes the unquestioned right of an individual to

pursue such a relationship, the Court observes [the petitioner]

has chosen to pursue her relationship with [M.L.] such that she

has been hindered in correcting the conditions of abuse and

neglect at issue in this case.

Upon entry of the disposition order, the petitioner filed this appeal.

II. Standard of Review

Our standard of review for abuse and neglect cases is well established. In

syllabus point one of In the Interest of Tiffany Marie S., 196 W.Va 223, 470 S.E.2d 177

(1996), this Court held:

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,

6

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.

With this standard in mind, we consider the parties’ arguments.

III. Discussion

A. N.H., C.H., and B.H.

In this appeal, the petitioner argues that because she successfully completed

her improvement period, the circuit court erred by not finding that it was in the children’s

best interests to be returned to her custody. According to the petitioner, the only concern

expressed by CPS worker Morgan Perrine at the disposition hearing pertained to her

continued use of Subutex. However, Ms. Perrine acknowledged that the petitioner never

failed a drug screen during the pendency of the proceeding and that she had been directed

by her physician to slowly wean from the Subutex because of her pregnancy and

subsequent breastfeeding of her newborn. With respect to the domestic violence, the

petitioner points out that M.L. underwent counseling and anger management training

during the proceeding and successfully completed his improvement period such that his

custodial visitation arrangement he had with his biological children was restored.9

9

During oral argument, the DHHR noted that rather than completing the usual

thirty-week program for anger management, M.L. only completed a two-week online

course.

7

Therefore, the petitioner maintains that there was no clear and convincing evidence that

that it would be unsafe to return her children to her custody.

Conversely, the DHHR and guardian ad litem argue that termination of

petitioner’s parental rights was warranted despite her compliance with services during her

post-adjudicatory improvement period because she failed to change her overall attitude and

approach to parenting, which was necessary for reunification with her children. In that

regard, the respondents point out that the evidence established that the children were still

traumatized by the domestic violence they witnessed and remained afraid of M.L. Yet, the

petitioner continued her relationship with M.L., became pregnant, and gave birth to his

child during the course of this proceeding. The respondents contend that the petitioner’s

lack of insight into how her relationship with M.L. has affected her children shows that she

failed to change her overall attitude and approach to parenting. The respondents further

argue that the petitioner failed to make the necessary changes with regard to her substance

abuse because she was still using Suboxone at the time of the final disposition hearing,

reflecting her failure to understand the urgency to become drug free so that her children

could be safely returned to her care. Finally, the respondents argue that the petitioner failed

to make meaningful changes to show that she has the ability to provide proper care for her

children given their special needs. They note that the petitioner remained disengaged and

disinterested in the special needs of her children throughout the proceeding below, never

asking to attend any of their medical appointments or even expressing concern when she

was told that one of her children could possibly have a brain tumor. In sum, the respondents

8

maintain that the circuit court properly determined, based upon all the evidence, that the

best interests of the children necessitated the termination of the petitioner’s parental

rights.10

It has long been established that “although 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.” Syl. Pt. 3, In re Katie S., 198

W.Va. 79, 479 S.E.2d 589 (1996). Indeed, “‘[i]n a contest involving the custody of an

infant the welfare of the child is the polar star by which the discretion of the court will be

guided.’ Syl. Pt. 1, State ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972).”

Syl. Pt. 4, In re J.S., 233 W.Va. 394, 758 S.E.2d 747 (2014). Accordingly, this Court has

held that

[a]t 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.

10

The guardian ad litem also notes that this is a not a case where additional time for

improvement could be granted because the children had been in foster care for twenty-

seven months at the time of the disposition hearing, exceeding the statutory time frame for

improvement periods. See W.Va. Code § 49-4-610(9) (2015) (setting time limit for

improvement periods to preclude child from being in foster care more than fifteen months

of last twenty-two months absent compelling circumstances).

9

Syl. Pt. 6, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991) (emphasis added). As

we have explained, “the ultimate goal [of an improvement period] is restoration of a stable

family environment, not simply meeting the requirements of the case plan.” W.Va. Dep’t

of Human Serv. v. Peggy F., 184 W.Va. 60, 64, 399 S.E.2d 460, 464 (1990). Consequently,

[t]he question at the dispositional phase of a child abuse

and neglect proceeding is not simply whether the parent has

successfully completed his or her assigned tasks during the

improvement period. Rather, the pivotal question is what

disposition is consistent with the best interests of the child.

In re Francis J.A.S., 213 W.Va. 636, 646, 584 S.E.2d 492, 502 (2003). In other words,

[i]n making the final disposition in a child abuse and

neglect proceeding, the level of a parent’s compliance with the

terms and conditions of an improvement period is just one

factor to be considered. The controlling standard that governs

any dispositional decision remains the best interests of the

child.

Syl. Pt. 4, In re B.H., 233 W.Va. 57, 754 S.E.2d 743 (2014).

In this case, the circuit court found that although the petitioner had

substantially complied with the terms and conditions of her improvement period, she still

“demonstrated an inadequate capacity to solve the problems of abuse and neglect” and that

reunification was not in the best interests of the children. Upon review of the record, we

find that the evidence supports the circuit court’s findings. Despite the improvement

period, the petitioner failed to demonstrate a willingness to meet the needs of her children

and the ability to correct the conditions of abuse and neglect. In particular, the petitioner

made no attempt to educate herself about her children’s medical and psychological

10

diagnoses and never obtained a driver’s license so that she could take them to their doctors’

appointments. The final order indicates that during the disposition hearing, the petitioner

was asked what she had learned about autism since the beginning of the proceeding. She

replied, “During this case, nothing.” When asked why she had not taken any steps to

prepare herself to maintain the level of care her children had received during the pendency

of this case, the petitioner said, “I guess, I never really thought about it.”

It is also evident that the petitioner failed to understand her children’s fear of

M.L. and desire to have no further contact with him. According to the record, the children

were too afraid to participate in family counseling with M.L. during the improvement

period. In addition, N.H. testified11 that she was afraid that if she went home she would

get hurt. She also stated that she was did not think her brother and sister would be safe,

either. 12 Referring to M.L., N.H. explained that “he beat my mom up and I always got in

the middle of it and I didn’t [sic] want to go back there, because I’m afraid it’s going to

happen again.” When asked what M.L. did to her mommy, N.H. replied, “punch[ed] her

in the face and choke[d] her.” When asked if she ever got hurt, N.H., testified, “Almost . .

11

Prior to disposition, the circuit court received in camera testimony from N.H. As

this Court has explained, “[c]ases involving children must be decided not just in the context

of competing sets of adults’ rights, but also with a regard for the rights of the child(ren) . .

. and [therefore, the children’s] own feelings and emotional attachments should be taken

into consideration by the lower court.” In the Matter of Brian D., 194 W.Va. 623, 636, 461

S.E.2d 129, 142 (1995).

12

According to the guardian ad litem, N.H. has also expressed concern for the safety

of the baby, i.e., the petitioner’s fourth child who was born during course of this case.

11

. when I was trying to get them away from each other I almost got punched [by M.L.].”

Although the petitioner was aware of her children’s fear of M.L. and indicated at the

beginning of the case that she would end her relationship with M.L. so her children could

be returned to her custody, she did not do so. Instead, she pursued her relationship with

M.L. and gave birth to his child while this case was pending before the circuit court.

In sum, while the record shows the petitioner made some changes in order to

comply with the requirements of her case plan, it also reflects that the petitioner did not

modify her behavior to correct the conditions of abuse and neglect. “We have recognized

that it is possible for an individual to show compliance with specific aspects of the case

plan while failing to improve . . . [the] overall attitude and approach to parenting.” In re

B.H., 233 W.Va. at 65, 754 S.E.2d at 751 (additional quotations and citations omitted).

Such is the case here. Simply put, in the context of all the circumstances, the petitioner

failed to make sufficient improvement to justify the return of her children. See Carlita B.,

185 W.Va. at 616, 408 S.E.2d at 368, syl. pt. 6. This Court has explained, “[i]n the difficult

balance which must be fashioned between the rights of the parent and the welfare of the

child[ren], the paramount and controlling factor must be the child[ren]’s welfare.” Id. at

629, 408 S.E.2d at 381. To that end, “courts 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. 1, in part, In re R.J.M., 164

W.Va. 496, 266 S.E.2d 114 (1980). Accordingly, for the reasons set forth above, we affirm

12

the circuit court’s August 29, 2018, disposition order terminating the petitioner’s parental

rights to her three oldest children.

In light of our decision affirming the termination of the petitioner’s parental

rights to N.H., C.H., and B.H., the DHHR must make every effort to obtain permanency

for these children as soon as possible. According to the status updates filed with this Court

pursuant to Rule 11(j) of the Rules of Appellate Procedure, the children are currently

residing in three separate foster homes in close proximity to one another, and each foster

family has expressed a willingness to adopt the child placed in their care and to facilitate

visitation between children. Given that these children have been in foster care for more

than three years, the need for each child to have a stable and permanent home cannot be

overstated.

Rule 39(b) of the Rules of Procedure for Child and 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.

Moreover, permanent placement for the children must occur within twelve months of the

date of the disposition order. As this Court has held:

13

[t]he [twelve]-month period provided in Rule 43 of the West

Virginia Rules of Procedures 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.

Syl. Pt. 6, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

It is well established that “an adoptive home is the preferred permanent out-

of-home placement.” Syl. Pt. 2, in part, State v. Michael M., 202 W.Va. 350, 504 S.E.2d

177 (1998). Consequently,

[i]n determining the appropriate permanent out-of-

home placement of a child under [West Virginia Code § 49-4-

604(b)(6) (2015)], 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.

Id. at 352, 504 S.E.2d at 179, syl. pt. 3. Obviously, “[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).

B. Petitioner’s Fourth Child

As noted above, the petitioner gave birth to another child during the

pendency of this case. However, that child was not included in the proceeding below.

14

While no party assigned any error in that regard, we cannot ignore the fact that this child

is now living in the same household from which N.H., C.H., and B.H. were removed. This

Court has made clear that

[w]here there has been a prior involuntary termination

of parental rights to a sibling, the issue of whether the parent

has remedied the problems which led to the prior involuntary

termination sufficient to parent a subsequently-born child

must, at minimum, be reviewed by a court, and such review

should be initiated on a petition pursuant to the provisions

governing the procedure in cases of child neglect or abuse set

forth in West Virginia Code §§ 49–6–1 to –12 (1998) [now

West Virginia Code § 49-4-601 to -610]. Although the

requirement that such a petition be filed does not mandate

termination in all circumstances, the legislature has reduced the

minimum threshold of evidence necessary for termination

where one of the factors outlined in West Virginia Code § 49–

6–5b(a) (1998) [now West Virginia Code § 49-4-605(a)

(2015)] is present.

Syl. Pt. 2, In the Matter of George Glen B., Jr., 205 W.Va. 435, 518 S.E.2d 863 (1999);

see also W.Va. Code § 49-4-605(a)(3) (2015) (requiring DHHR to file abuse and neglect

petition when “the parental rights of the parent to another child have been terminated

involuntarily”).

Given the record in this case, we find it extremely troubling that no action

was taken after the fourth child was born to amend the abuse and neglect petition to include

that child in the proceeding below, nor was any petition filed with regard to that child after

the disposition order was entered by the circuit court. During oral argument in this case,

the DHHR indicated that although it requested that the petition be amended, the county

prosecutor declined to do so. This Court has made it abundantly clear that prosecuting

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attorneys must fully and promptly cooperate with the DHHR as mandated by West Virginia

Code § 49-4-502 (2015). That statute provides:

It is the duty of every prosecuting attorney to cooperate

fully and promptly with persons seeking to apply for relief,

including copetitioners with the department, under this article

in all cases of suspected child abuse and neglect; to promptly

prepare applications and petitions for relief requested by those

persons, to investigate reported cases of suspected child abuse

and neglect for possible criminal activity; and to report at least

annually to the grand jury regarding the discharge of his or her

duties with respect thereto.

Id. Accordingly, this Court has held:

[i]n civil abuse and neglect cases, the legislature has

made DHHR the State’s representative. In litigations that are

conducted under State civil abuse and neglect statutes, DHHR

is the client of county prosecutors. The legislature has

specifically indicated through W.Va. Code § 49-6-10 (1996)

[now W.Va. Code § 49-4-502 (2015)] that prosecutors must

cooperate with DHHR’s efforts to pursue civil abuse and

neglect actions. The relationship between DHHR and county

prosecutors under the statute is a pure attorney-client

relationship. The legislature has not given authority to county

prosecutors to litigate civil abuse and neglect actions

independent of DHHR. Such authority is granted to

prosecutors only under State criminal abuse and neglect

statutes. Therefore, all of the legal and ethical principles that

govern the attorney-client relationship in general, are

applicable to the relationship that exists between DHHR and

county prosecutors in civil abuse and neglect proceedings.

Syl. Pt. 4, State ex rel. Diva P. v. Kaufman, 200 W.Va. 555, 490 S.E.2d 642 (1997). In

other words, “prosecutors [are not] statutorily entrusted with independent enforcement of

civil abuse and neglect proceedings. To the contrary . . . the State ha[s] reposed that

responsibility upon the DHHR.” Id. at 565, 490 S.E.2d at 652. See also In re Ashton M.,

228 W.Va. 584, 589, 723 S.E.2d 409, 414 (2012) (observing that prosecuting attorney had

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duty to convey DHHR’s recommendation in abuse and neglect proceeding to the court

because of attorney-client relationship). Thus, in this case, the prosecutor should have

complied with the DHHR’s request and amended the abuse and neglect petition to include

the petitioner’s fourth child in the proceeding below.

Because an abuse and neglect petition has not been filed with respect to the

petitioner’s fourth child despite the statutory and case law requirements, we are remanding

this case to the circuit court for further proceedings in that regard. As we have held,

[i]n cases involving the abuse and neglect of children,

when it appears from this Court’s review of the record on

appeal that the health and welfare of a child may be at risk as a

result of the child’s custodial placement, regardless of whether

that placement is an issue raised in the appeal, this Court will

take such action as it deems appropriate and necessary to

protect that child.

Syl. Pt. 6, In re Timber M., 231 W.Va. 44, 743 S.E.2d 353 (2013); see also In re A.N., 241

W.Va. 275, 823 S.E.2d 713 (2019) (remanding for re-evaluation of appropriateness of

allowing father to retain custody of his son where father’s parental rights to his daughter

were terminated). Upon remand, the circuit court shall order the State to immediately file

an abuse and neglect petition with respect to the petitioner’s fourth child in accordance

with West Virginia Code § 49-4-605(a)(3).

In remanding this case, we take no position with regard to the ultimate

resolution as to petitioner’s fourth child. Syllabus point four of In re George B. holds:

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When an abuse and neglect petition is brought based

solely upon a previous involuntary termination of parental

rights to a sibling pursuant to West Virginia Code § [49-4-

605(a)(3) (2015)], prior to the lower court’s making any

disposition regarding the petition, it must allow the

development of evidence surrounding the prior involuntary

termination(s) and what actions, if any, the parent(s) have

taken to remedy the circumstances which led to the prior

termination(s).

Id. at 437, 518 S.E.2d at 865, syl. pt. 4. However, the circuit court should be mindful that

“[p]rior acts of violence, physical abuse, or emotional

abuse toward other children are relevant in a termination of

parental rights proceeding, are not violative of W.Va. R. Evid.

404(b), and a decision regarding the admissibility thereof shall

be within the sound discretion of the trial court.” Syl. Pt. 8, In

re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

In re George B., 205 W.Va. at 437, 518 S.E.2d at 865, syl. pt. 3.

IV. Conclusion

Accordingly, for the reasons set forth above, the disposition order entered on

August 29, 2018, terminating the petitioner’s parental rights to N.H., C.H., and B.H. is

affirmed, and this case is remanded to the circuit court for further proceedings consistent

with this opinion, including the immediate filing of an abuse and neglect petition as set

forth herein. The Clerk is directed to issue the mandate forthwith.

Affirmed and remanded with directions.

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