In re: N.R., A.R., AND A.W.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2019 Term

_____________________ FILED

November 7, 2019

Nos. 18-0842, 18-0849, 18-0850, and 18-0854 released at 3:00 p.m.

_____________________ EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

IN RE: N.R., A.R., AND A.W.

___________________________________________________________

Appeals from the Circuit Court of Ohio County

Honorable James P. Mazzone, Judge

Civil Action Nos. 13-CJA-33/34/35 and 14-CJA-76/77/78

AFFIRMED, IN PART, REVERSED, IN PART,

AND REMANDED WITH DIRECTIONS

_________________________________________________________

Submitted: October 1, 2019

Filed: November 7, 2019

Joseph J. Moses, Esq. David C. Fuellhart, III, Esq.

Guardian Ad Litem Isner Law Office

Wheeling, West Virginia Elkins, West Virginia

Attorney for Father, A.R.

Patrick Morrisey, Esq. Jeremy B. Cooper, Esq.

Attorney General Blackwater Law PLLC

Lindsay S. See, Esq. Kingwood, West Virginia

Solicitor General Attorney for Mother, A.R.

Charleston, West Virginia

Lee Niezgoda, Esq.

Assistant Attorney General

Chaelyn W. Casteel, Esq.

Assistant Attorney General

Fairmont, West Virginia

Attorneys for West Virginia DHHR

JUSTICE HUTCHISON delivered the Opinion of the Court.

SYLLABUS BY THE COURT

1. “‘Although conclusions of law reached by a circuit court are subject

to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts

without a jury, the circuit court shall make a determination based upon the evidence and

shall make findings of fact and conclusions of law as to whether such child is abused or

neglected. These findings shall not be set aside by a reviewing court unless clearly

erroneous. A finding is clearly erroneous when, although there is evidence to support the

finding, the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed. However, a reviewing court may not

overturn a finding simply because it would have decided the case differently, and it must

affirm a finding if the circuit court’s account of the evidence is plausible in light of the

record viewed in its entirety.’ Syl. Pt. 1, In re 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).

2. “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).

3. “‘“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

i

ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972).’ Syllabus Point 4, State ex

rel. David Allen B. v. Sommerville, 194 W.Va. 86, 459 S.E.2d 363 (1995).” Syl. Pt. 2, In

re Kaitlyn P., 225 W.Va. 123, 690 S.E.2d 131 (2010).

4. “‘[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).” Syl. Pt. 7, in part, In re Carlita B., 185 W.Va. 613, 408

S.E.2d 365 (1991).

5. “Termination of parental rights, the most drastic remedy under the

statutory provision covering the disposition of neglected children, [West Virginia Code §

49-4-604] may be employed without the use of intervening less restrictive alternatives

when it is found that there is no reasonable likelihood under [West Virginia Code § 49-4-

604(c)] that conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 2, In re

R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

ii

HUTCHISON, Justice:

In this abuse and neglect case, the Circuit Court of Ohio County entered a

final dispositional order on August 31, 2018, pursuant to West Virginia Code § 49-4-

604(b)(5) (2016), placing the children, N.R., A.R., and A.W.,1 in the legal and physical

custody of the West Virginia Department of Health and Human Resources (“DHHR”) upon

finding that the abusing parents were presently unable to adequately care for their children.2

In these consolidated appeals, the guardian ad litem (“GAL”) and DHHR argue that the

circuit court erred by not terminating the mother’s and father’s parental rights. Conversely,

the mother and father contend that the circuit court failed to comply with the Indian Child

1

In cases involving minor children and sensitive facts, 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). In this case, one of the children and both

parents have the same initials. Therefore, to avoid confusion, we refer to the child as A.R.

and the parents as “mother” and “father” rather than using their initials.

2

West Virginia Code § 49-4-604(b) provides, in pertinent part:

The circuit court shall give precedence to dispositions

in the following sequence:

....

(5) Upon a finding that the abusing parent or battered parent

or parents are presently unwilling or unable to provide

adequately for the child’s needs, commit the child temporarily

to the care, custody, and control of the state department, a

licensed private child welfare agency, or a suitable person who

may be appointed guardian by the court.

1

Welfare Act (“ICWA”), 25 U.S.C. §§ 1901 to -1923 (1978), and seek dismissal of the case

and the return of the children to their custody.3

The ICWA applies to child custody proceedings involving Indian4 children

and establishes minimum federal standards and procedural safeguards that must be

followed when an Indian child is subject to placement in a foster or adoptive home. 25

U.S.C. § 1902. It is undisputed that the ICWA applies in this case because N.R. and A.R.

are Indian children as defined by 25 U.S.C. § 1903.5 Upon consideration of the parties’

oral arguments and briefs, the submitted record, and applicable authorities, this Court finds

no violation of the ICWA. We further find that the circuit court erred by not terminating

the mother’s and father’s parental rights. Accordingly, we reverse, in part, and affirm, in

part, the dispositional order and remand this case to the circuit court for entry of a

3

All parties have appealed the circuit court’s dispositional order, and each appeal

has been assigned a separate docket number. The GAL’s appeal is Docket No. 18-0842;

DHHR’s appeal is Docket No. 18-0850; the mother’s appeal is Docket No. 18-0849; and

the father’s appeal is Docket No. 18-0854. As noted, the appeals have been consolidated

for purposes of argument and decision.

4

The term “Indian” is used in this opinion, instead of Native American, only to

maintain consistency with the ICWA and applicable regulations, all of which use the term

“Indian.”

5

Under 25 U.S.C. § 1903(4), “Indian child” is defined as “any unmarried person

who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for

membership in an Indian tribe and is the biological child of a member of an Indian tribe[.]”

2

dispositional order terminating the mother’s and father’s parental rights in accordance with

this opinion.

I. Facts and Procedural Background

The mother is the biological parent of N.R., A.R., and A.W. The father is

the biological parent of N.R. and A.R. and the stepfather of A.W.6 The father is a member

of the Manchester–Point Arenas Band of Pomo Indians; he lived on the Pomo Indian

reservation in California until he was eighteen years old. Both the mother and father are

former members of the United States military.

This abuse and neglect case began in 2013 when DHHR was notified that

N.R. was taken to a hospital with two fractures, a classic metaphysical fracture of the left

distal tibia (also referred to as a bucket handle fracture) and a healing left clavicle fracture.

At that time, the child was three months old. The nature of the injuries was indicative of

child abuse, and the father gave inconsistent statements regarding how N.R. was hurt. The

DHHR filed the initial abuse and neglect petition against the mother and father on April

30, 2013. In addition to the allegations regarding the child’s injuries, the DHHR also

alleged a history of domestic violence between the mother and father.7

6

The parental rights of A.W.’s biological father were terminated in 2014, and he is

not a party in this appeal. A.W. is not an Indian child as defined by the ICWA.

7

Prior to moving to West Virginia, the mother and father lived in Hawaii where

they were also subject to abuse and neglect proceedings after the mother called the police

3

On May 17, 2013, DHHR was contacted by Christine Dukatz, who indicated

she was the ICWA representative for the Pomo Indian tribe (hereinafter “tribe”). Ms.

Dukatz stated that the father had made the tribe aware of the proceeding. DHHR provided

Ms. Dukatz with all the information regarding the abuse and neglect proceeding, including

the children’s placement with their maternal grandparents.8 Ms. Dukatz stated that the

tribe was in agreement with the case proceeding in West Virginia9 and the children’s

placement with their maternal grandparents. Ms. Dukatz indicated though that there was

an approved foster family on the tribe’s reservation that could take custody of the children

if the placement with their maternal grandparents did not work. Ms. Dukatz said that the

tribe was not seeking to intervene at that time and just wanted to be kept informed and

involved in the decision-making.

At the adjudicatory hearing held on June 14, 2013, the father admitted to

breaking his daughter’s leg because he was frustrated, breaking her clavicle by squeezing

and reported an incident of domestic violence, stating that the father had threatened to kill

her son, A.W., by choking him and had beat her. The mother required medical treatment

for her injuries. After the incident, the mother moved with her children to the United States

mainland to get away from the father but subsequently reunited with him and recanted her

prior statements to law enforcement and child protective services in Hawaii causing the

proceedings there to be closed. Thereafter, the family moved to West Virginia.

8

As discussed more thoroughly herein, the ICWA requires the child’s tribe to be

notified of any abuse and neglect proceeding and provides for the tribe’s participation in

the case should it elect to do so. See 25 U.S.C. §§ 1911-1912.

9

The ICWA provides for the transfer of the proceeding to the jurisdiction of the

child’s tribe in some circumstances. See 25 U.S.C. § 1911. In this case, the tribe did not

seek to assume jurisdiction over this proceeding.

4

it, and lying to DHHR about what happened. The mother admitted that she and the father

had engaged in domestic violence in front of the children and that the father had injured

both her and her son while they were living in Hawaii. Consequently, the mother and father

were adjudicated as abusive and/or neglectful parents. Thereafter, all parties agreed to

post-adjudicatory improvement periods for the mother and father.

The mother initially separated from the father after he admitted to injuring

N.R. In December 2013, the children were placed back in their mother’s physical custody

for a trial period because she appeared to be complying with the terms of her post-

adjudicatory improvement period. During the trial period, the father was not permitted to

have unsupervised visits with the children. Subsequently, the mother completed the terms

of her improvement period; she indicated that she recognized the danger posed by the father

and understood that she needed to protect the children. The petition against her was

dismissed on March 28, 2014. The father’s improvement period continued as did his

supervised visitation.

Although the father was participating in what is now known as the Batterer’s

Intervention and Prevention Program (“BIPPS”), another incident of domestic violence

occurred between the father and mother on April 27, 2014. According to the mother, the

father was intoxicated and got into a car with her and the children where an argument

ensued. The father exited the car, tore off the car door handle, entered the mother’s

apartment, and damaged a television and other property. The day of the incident the mother

5

refused to provide a statement to law enforcement and would not apply for a domestic

violence protective order (DVPO). However, she did so the next day upon receiving advice

from her attorney, and a DVPO was granted.

On May 1, 2014, the GAL filed a motion to terminate the father’s

improvement period. A hearing on the motion was continued until June at the father’s

request. In the meantime, the mother attended a multi-disciplinary team (“MDT”) meeting

and accused the investigating police officer of misstating what had happened during the

April 27, 2014, incident. Consequently, DHHR filed a motion to modify the mother’s

dispositional order and add her as a respondent again in the abuse and neglect case, which

continued with respect to the father. Ms. Dukatz was notified by DHHR that additional

problems had arisen and was asked if the tribe wished to intervene. Ms. Dukatz indicated

that she was no longer with the tribe, nor was she acting as the ICWA representative for

the tribe. The DHHR then sought to contact another tribe member.

Thereafter, the father’s improvement period expired, and he requested that a

disposition hearing be scheduled. Instead of pursuing the motion to modify the mother’s

disposition, the parties agreed to allow her to receive additional services. The father’s

disposition hearing was scheduled but repeatedly continued because he failed to provide

his medical records from a Veteran’s Administration (“VA”) hospital in Baltimore where

he received treatment in July and August of 2014. Eventually, the records were produced.

Although the father’s medical records showed that he had received treatment for post-

6

traumatic stress disorder,10 there was no indication of a causal link to the violence he

exhibited towards the mother and the children.

While awaiting receipt of the father’s medical records, DHHR filed a new

abuse and neglect petition against the mother because her cell phone records revealed that

she continued to contact the father and had an ongoing intimate relationship with him.

There was also evidence that she had allowed the father to visit the children without

supervision. At her second adjudicatory hearing in November 2014, the mother stipulated

to most of the allegations set forth in the second petition, including the prior domestic

violence.

In January 2015, yet another incident occurred when the father became

involved in a fight at a bar/restaurant with another patron. He appeared to be intoxicated

and became combative with a police officer who tried to place him under arrest. The

mother was present and tried to intervene in the father’s arrest. She was also arrested and

charged with obstruction.

During this same time period, DHHR successfully contacted the tribe and

was informed that Lorraine Laiwa had assumed the duties of the ICWA director and had

10

The father was deployed to Iraq on two occasions. His first tour of duty was from

November 2007 until February 2009, and his second tour of duty was from June 2010 until

June 2011.

7

appointed her daughter, Liz DeRouen, as the tribe’s ICWA representative in this case.11

Ms. DeRouen asserted that DHHR needed to do more to satisfy the “active efforts”

requirement of the ICWA,12 and at a hearing on June 4, 2015, Ms. DeRouen orally moved

to intervene in the case on behalf of the tribe. At that hearing, the mother and father

indicated that they intended to file motions to dismiss the abuse and neglect case because

of ICWA violations. Thereafter, the motions were filed and a hearing was held in

September 2015. On November 11, 2015, the circuit court entered an order finding no

violations of the ICWA and denying the mother’s and father’s motions to dismiss.

Also in late summer of 2015, DHHR filed motions to compel the mother and

father to undergo additional psychological evaluations.13 The evaluations were conducted

by Barbara Nelson, MA, and Dr. Timothy Saar of Saar Psychological Group. The

psychological reports indicated the children could not be safely returned to the mother and

father. Termination of parental rights was recommended.

11

The record indicates that Ms. Laiwa and Ms. DeRouen are related to the father.

12

As discussed more thoroughly herein, the ICWA requires any party seeking to

effect a foster care placement or termination of parental rights of an Indian child to make

“active efforts” to keep the Indian family together by providing remedial services and

rehabilitation programs. See 25 U.S.C. § 1912(d).

13

Prior psychological evaluations occurred in 2013.

8

According to the father’s psychological report, during the evaluation, he

denied being a risk to his children. He claimed that he had successfully completed all the

treatment programs, although the records indicated otherwise. He denied that alcohol was

involved in the incidents of domestic violence, despite evidence to the contrary, and stated

that he had “exaggerated” his alcohol use in order to get treatment at the VA Hospital in

Baltimore. He stated that none of his admissions and stipulations regarding the injuries to

N.R. were true and that his attorney told him he needed to make those statements to get an

improvement period. He stressed that he is a Native American and claimed that he was a

victim of racial and ethnic discrimination throughout the abuse and neglect case. The

father’s personality assessment was indicative of obsessive-compulsive personality

disorder and narcissistic personality disorder. Although the father reported his prior

diagnosis of post-traumatic stress disorder, Ms. Nelson found that he did not meet the

criteria for such diagnosis during the psychological evaluation. Ms. Nelson concluded that

based upon the father’s comments, he had not accepted any responsibility for the abuse of

the children and had not benefitted from the programs, services, and treatment provided to

him. The father had exhibited a pattern of alcohol abuse, aggression, and violence since at

least 2011, and there was no expectation for change or parental improvement, putting the

children’s welfare at risk.

The same conclusion was reached with respect to the mother. Like the father,

she denied there was any abuse of the children and also claimed that her husband admitted

to harming N.R. only because “he had to.” Likewise, she said she claimed to be afraid of

9

her husband because she was “forced to.” Ms. Nelson concluded that the mother’s chances

of improved parenting were “virtually nonexistent” because she continuously chose her

husband over the children despite receiving instructions and advice necessary to make the

right decision. In short, Ms. Nelson concluded that the mother’s decision to remain with

her husband was “willful disobedience rather than ignorance.” Ms. Nelson opined that

further services would not be beneficial.

The results of the psychological evaluations were relayed to the circuit court

by Ms. Nelson during the disposition hearing that was held over the course of several

different days. In addition to testimony from Ms. Nelson, the GAL and DHHR provided

testimony from numerous other witnesses in support of their position that the mother and

father’s parental rights should be terminated. The mother and father presented expert

testimony from Dr. Al Martinez, a clinical psychologist with knowledge of the tribe’s

culture.14 Notably, Dr. Martinez testified that the children would not be safe in the father’s

care and that the father needed more services. Although Dr. Martinez opined that the

children could be “safely returned to their mother,” he acknowledged that he was not aware

that the mother and father were still together. Dr. Martinez also did not appear to have a

14

Dr. Martinez testified that he regularly provides testimony in cases involving the

ICWA.

10

complete understanding of how the case had proceeded and was unaware of some of the

instances of domestic violence that had occurred.15

At the end of the disposition hearing, the circuit court asked the parties to

prepare findings of facts and conclusions of law. Thereafter, the circuit court issued its

dispositional order on August 31, 2018, terminating the mother and father’s custodial rights

only and placing the children in the legal and physical custody of DHHR. These appeals

followed.

II. Standard of Review

The issues presented herein require interpretation and application of the

ICWA. Our standard of review for issues involving questions of law is de novo. See Syl.

Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995)

(“Where the issue on appeal from the circuit court is clearly a question of law . . . involving

an interpretation of a statute, we apply a de novo standard of review.”). As for factual

findings made by the circuit court, we employ a clearly erroneous standard of review. In

that regard, this Court has long held:

“Although conclusions of law reached by a circuit court

are subject to de novo review, when an action, such as an abuse

15

During his testimony, Dr. Martinez explained that he did a “brief assessment”

before rendering his psychological report, “meaning that I met with them at—individually,

and then together for approximately 60 to 90 minutes each. Then had a break . . . then

revisited and did a second visit, both individually and then went over some of the . . . issues

of the removal.” It appears that the interviews all occurred during the course of one day.

11

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 re

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). With these standards in

mind, we consider the parties’ arguments.

III. Discussion

In this case, we must interpret the ICWA and determine its proper application

within the framework of our state abuse and neglect law. The ICWA was enacted in 1978

“to counteract the large scale separations of Indian children from their families, tribes, and

culture through adoption or foster care placement, generally in non-Indian homes.” C.E.H.

v. L.M.W., 837 S.W.2d 947, 951 (Mo. Ct. App. 1992). In enacting the legislation, Congress

expressly found that

an alarmingly high percentage of Indian families are

broken up by the removal, often unwarranted, of their children

from them by nontribal public and private agencies and that an

alarmingly high percentage of such children are placed in non-

Indian foster and adoptive homes and institutions[.]

25 U.S.C. § 1901. Thus, Congress declared that

12

it is the policy of this Nation to protect the best interests

of Indian children and to promote the stability and security of

Indian tribes and families by the establishment of minimum

Federal standards for the removal of Indian children from their

families and the placement of such children in foster or

adoptive homes which will reflect the unique values of Indian

culture, and by providing for assistance to Indian tribes in the

operation of child and family service programs.

25 U.S.C. § 1902. To that end, the ICWA “impose[s] more exacting requirements than a

typical termination proceeding.” In re Adoption of T.A.W., 383 P.3d 492, 497 (Wash.

2016). Although, “[t]he Act does not deprive a state of its traditional jurisdiction over an

Indian child within its venue[,] it [does] establish minimum standards and procedural

safeguards designed to protect the rights of the child as an Indian and the integrity of the

Indian family.” In re Maricopa Cty. Juv. Act. No. JS-8287, 828 P.2d 1245, 1248 (Ariz. Ct.

App. 1991) (quotations and citation omitted). In other words, the “ICWA does not alter

the requirements for state law proceedings, but instead requires an additional finding with

a higher burden of proof in cases involving termination of parental rights to Indian

children.” In re K.S.D., 904 N.W.2d 479, 486 (N.D. 2017); see also In re Bluebird, 411

S.E.2d 820, 823 (N.C. Ct. App. 1992) (explaining “a dual burden of proof is created in

which the state provisions and federal provisions must be satisfied separately”). Under our

state law, the burden of proof for terminating parental rights is clear and convincing

evidence. See Syl. Pt. 6, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1974) (“The standard

of proof required to support a court order limiting or terminating parental rights to the

custody of minor children is clear, cogent and convincing proof.”). Under the ICWA, the

13

burden of proof for termination of parental rights is beyond a reasonable doubt. 25 U.S.C.

§ 1912(f).

In addition to a heightened burden of proof, the ICWA imposes other

requirements that must be satisfied before an Indian child can be removed from his or her

Indian family. In their appeals, the mother and father contend that some of these

requirements were not met, and, therefore, this abuse and neglect case should be

“invalidated.” In that regard, the ICWA provides:

Any Indian child who is the subject of any action for

foster care placement or termination of parental rights under

State law, any parent or Indian custodian from whose custody

such child was removed, and the Indian child’s tribe may

petition any court of competent jurisdiction to invalidate such

action upon a showing that such action violated any provision

of sections 1911, 1912, and 1913 of this title.

25 U.S.C. § 1914 (emphasis supplied).

In this case, the mother and father contend that DHHR did not comply with

the notice requirements set forth in 25 U.S.C. § 1912(a); that DHHR did not satisfy the

“active efforts” requirements of 25 U.S.C. § 1912(d); that the circuit court erred by not

holding a hearing prior to disposition to obtain qualified expert testimony with regard to

foster care placement as required by 25 U.S.C. § 1912(e); that the “qualified expert

testimony” required by 25 U.S.C. § 1912(f) was not presented at the disposition hearing;

and that the circuit court failed to follow the foster care placement requirements of 25

U.S.C. § 1915(b). Conversely, the GAL and DHHR maintain that there were no violations

14

of the ICWA and argue that the mother and father’s parental rights should have been

terminated. We consider each of these arguments in turn below.

A. Compliance with the ICWA

Our analysis begins with consideration of the ICWA requirements that are

the basis of the mother’s and father’s appeals. As set forth above, under 25 U.S.C. § 1914,

an abuse and neglect proceeding may be “invalidated” if any provision of 25 U.S.C. §§

1911, 1912, or 1913 is violated.

1. Notice. The mother and father first contend that DHHR failed to comply with

the notice requirement set forth in 25 U.S.C. § 1912(a), which provides:

In any involuntary proceeding in a State court, where

the court knows or has reason to know that an Indian child is

involved, the party seeking the foster care placement of, or

termination of parental rights to, an Indian child shall notify

the parent or Indian custodian and the Indian child’s tribe, by

registered mail with return receipt requested, of the pending

proceedings and of their right of intervention. If the identity or

location of the parent or Indian custodian and the tribe cannot

be determined, such notice shall be given to the Secretary in

like manner, who shall have fifteen days after receipt to

provide the requisite notice to the parent or Indian custodian

and the tribe. No foster care placement or termination of

parental rights proceeding shall be held until at least ten days

after receipt of notice by the parent or Indian custodian and the

tribe or the Secretary: Provided, That the parent or Indian

custodian or the tribe shall, upon request, be granted up to

twenty additional days to prepare for such proceeding.

15

It is undisputed that DHHR did not notify the tribe of this abuse and neglect

proceeding by registered mail with return receipt requested. However, the record shows

that DHHR was in the process of determining how to contact the tribe when Ms. Dukatz

called and indicated that she had been informed about the proceeding by the father. The

phone call occurred less than a month after the abuse and neglect petition was filed, and

from that point forward, DHHR kept the tribe apprised of the proceedings and provided

the requisite documentation. During the initial call, Ms. Dukatz voiced no objection to the

case and expressly indicated that the tribe did not wish to intervene. While the tribe did

eventually seek to intervene in this matter, it did not do so until June 2015, more than two

years after the initial petition was filed. During the intervening two years, the tribe

participated in MDT meetings and hearings.

The circuit court found that the tribe was not prejudiced by DHHR’s failure

to send notice in accordance with 25 U.S.C. § 1912(a) because it received actual notice and

became involved in the proceedings. The circuit court concluded that any violation of the

ICWA notice provision had been remedied and did not warrant dismissal of the case. We

agree.

Without question, “[n]otice is a key component of the congressional goal to

protect and preserve Indian tribes and Indian families.” In re Kahlen W., 285 Cal. Rptr.

507, 511 (Cal. Ct. App. 1991). “The requisite notice to the tribe serves a twofold purpose:

(1) it enables the tribe to investigate and determine whether the minor is an Indian child;

16

and (2) it advises the tribe of the pending proceedings and its right to intervene or assume

tribal jurisdiction.” In re Desiree F., 99 Cal. Rptr. 2d 688, 695 (Cal. Ct. App. 2000). While

notice is mandatory, courts have held that when a tribe receives actual notice of the

proceeding, there has been substantial compliance with 25 U.S.C. § 1912(a). In other

words, “failure to provide the required notice requires remand unless the tribe has

participated in the proceedings or expressly indicated they have no interest in the

proceedings.” In re Kahlen W., 285 Cal. Rptr. at 513 (emphasis supplied). In those

circumstances, the error is considered harmless because the tribe was aware of the

proceeding and was able to exercise its right to participate. Id.; see also In re M.B., 176

P.3d 977, 984 (Kan. Ct. App. 2008) (“[E]ven if the provisions of the ICWA are not initially

followed, subsequent remedial action . . . may bring a termination of parental rights case

into compliance with the requirements of the Act.”).

For example, in In re H.A.M., 961 P.2d 716 (Kan. Ct. App. 1998), the

Chickasaw Indian Nation was not given notice of a child custody proceeding involving

three Indian children who were eligible for tribe membership until two years after they

were placed in protective custody by the Kansas Department of Social and Rehabilitation

Services. At that juncture, the tribe became involved in the case, but eventually, parental

rights were terminated. On appeal, the parents sought reversal of the termination decision

based on the untimely notice given to the tribe. The Kansas court found the error did not

necessitate reversal, explaining that “[c]onsidering the Chicasaw Nation’s involvement in

this case, albeit belated, there was substantial compliance with the ICWA purpose of

17

involving the tribe in the child care proceedings.” Id. at 720; see also In re Dependency

and Neglect of A.L., 442 N.W.2d 233, 236 (S.D. 1989) (finding tribe was properly notified

even though it did not receive registered notice because it had actual notice); In re B.J.E.,

422 N.W.2d 597, 600 (S.D. 1988) (actual notice that ongoing petition involved newborn

was sufficient compliance with ICWA).

In this case, the tribe received actual notice of the proceeding and became

involved in the case less than a month after the initial petition was filed. The tribe

participated in MDT meetings, hearings, and eventually exercised its right to intervene.

Accordingly, we find no basis to invalidate this action under 25 U.S.C. § 1912(a).

2. Active Efforts. The mother and father next argue that DHHR failed to

make “active efforts” to keep their family together as required by 25 U.S.C. § 1912(d),

which provides in pertinent part:

Any party seeking to effect a foster care placement of,

or termination of parental rights to, an Indian child under State

law shall satisfy the court that active efforts have been made to

provide remedial services and rehabilitative programs

designed to prevent the breakup of the Indian family and that

these efforts have proved unsuccessful.

The mother and father contend that DHHR failed to provide any cultural accommodation

and failed to make any efforts exceeding its typical “reasonable efforts” to provide services

to them. Rejecting this argument below, the circuit court found that “active efforts” were

made by the DHHR, and it was not required to provide “culturally sensitive services.”

18

The ICWA does not define “active efforts” and does not set forth any

guidance with regard to the amount of services that must be provided before parental rights

may be terminated. In re Adoption of T.A.W., 383 P.3d at 498. Courts that have examined

the issue of what constitutes “active efforts” have generally concluded that the ICWA

“seems to only require that timely and affirmative steps be taken to accomplish the goal

which Congress has set: to avoid the breakup of Indian families whenever possible by

providing services designed to remedy problems which might lead to severance of the

parent-child relationship.” Letitia V. v. Super. Ct., 97 Cal. Rptr. 2d 303, 309 (Cal. Ct. App.

2000). Nonetheless, courts have recognized that “the term active efforts, by definition

implies heightened responsibility compared to passive efforts.” In re A.N., 106 P.3d 556,

560 (Mont. 2005); see also State ex rel. C.D. v. State, 200 P.3d 194, 206 (Utah Ct. App.

2008) (“[T]he phrase active efforts connotes a more involved and less passive standard

than that of reasonable efforts.”). Because “no pat formula exists for distinguishing

between active and passive efforts,” determining whether there was a sufficient attempt at

reunification requires a case-by-case analysis. Chloe W. v. State Dep’t. of Health & Soc.

Serv., Office of Children’s Serv., 336 P.3d 1258, 1268 (Alaska 2014) (internal quotations

and citations omitted); see also State ex rel. C.D., 200 P.3d at 206 (“determination of

whether [] [‘active efforts’] standard has been met should be made on a case-by-case

basis”). It is clear, however, that the ICWA does not require the DHHR “to engage in

futile, nonproductive efforts to reunify th[e] Indian family.” In re Annette P., 589 A.2d

924, 929 (Me. 1991); see, e.g., A.M. v. State, 945 P.2d 296 (Alaska 1997) (parent’s lack of

willingness to participate a factor in determining sufficiency of remedial efforts); In re

19

L.N.W., 457 N.W.2d 17 (Iowa Ct. App. 1990) (active but unsuccessful efforts made to

reunify family because of mother’s lack of cooperation); People in Interest of S.R., 323

N.W.2d 885 (S.D. 1982) (active efforts requirement satisfied where mother provided

various types of assistance and direction for caring for child but exhibited no interest in

proffered help).

In this case, the record shows that DHHR made available a variety of services

to the mother and father and assisted with their participation in those programs. In

particular, the mother and father were provided parenting classes, supervised visitations

with the children, adult life skills classes, psychological evaluations, and counseling. In

addition, the father was enrolled in COPE classes for anger management, although he only

attended a few times. The mother was offered domestic violence victim classes but chose

not to participate. During his improvement period, the father elected to seek treatment

through VA centers located in West Virginia, Ohio, Pennsylvania, and Maryland rather

than participate in DHHR’s counseling services. DHHR did not object. In fact, when the

father moved to Pennsylvania for a short time to attend therapy at the VA center in

Pittsburgh, DHHR transported him to and from West Virginia so that he could participate

in other services and visitation with the children. The mother also sought treatment at VA

centers in West Virginia and Ohio. DHHR also helped the mother obtain housing, supplies

for her home, and food stamps. She was provided with Medicaid for most of 2014, and

the children were provided medical cards. All these services and programs were aimed at

reunifying the family.

20

Given the extensive services that were provided to the mother and father, we

find no merit to their argument that DHHR failed to make active efforts to keep the family

together as required by the ICWA. While the mother and father maintain that DHHR

should have provided “culturally sensitive services,” there is no such requirement under

the ICWA. To support their argument, the mother and father rely upon the 2015 guidelines

for interpreting the ICWA issued by the United States Department of the Interior, Bureau

of Indians Affairs (“BIA”).16 However, their reliance is misplaced because the guidelines

were not in effect at the time DHHR began providing the mother and father services. More

importantly, the subsequent binding regulations promulgated by the BIA based upon those

guidelines make clear that active efforts17 are “to be tailored to the facts and circumstances

of the case” and only to the “extent possible” should active efforts “be provided in a manner

consistent with the prevailing social and cultural conditions and way of life of the Indian

child’s Tribe.” 25 C.F.R. § 23.2 (2016). While the tribe’s ICWA representative, Ms.

16

When the ICWA was enacted, the BIA issued guidelines providing its

interpretation of the Act to assist state courts in its application. See Guidelines for State

Courts in Indian Custody Proceedings, 44 Fed. Reg. 67,584 (Nov. 26, 1979). In 2015, the

BIA promulgated additional, updated guidelines because of the inconsistent interpretation

and implementation of the ICWA among the states over the past thirty years. See

Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed.

Reg. 10,146 (Feb. 25, 2015). Following a notice and comment period, a final rule with

binding regulations was issued in 2016 along with a new set of nonbinding guidelines that

replaced the 1979 and 2015 guidelines. See Indian Child Welfare Act Proceedings Final

Rule, 81 Fed. Reg. 38,778 (June 14, 2016); 25 C.F.R. §§ 23.1 to -23.144 (2016).

17

A definition of “active efforts” is now provided by 25 C.F.R. § 23.2 (2016). The

regulation defines “active efforts” as “affirmative, active, thorough, and timely efforts

intended primarily to maintain or reunite an Indian child with his or her family.” Id.

21

DeRouen, provided a list of culturally appropriate providers to DHHR, none of them were

located in West Virginia. Attempting to utilize service providers who were located

hundreds of miles away was simply not feasible and not necessary given the fact that

neither the mother nor the children have ever resided with or near the tribe. The services

provided by the DHHR were tailored to address the severe physical abuse and domestic

violence that was the conduct giving rise to this abuse and neglect proceeding. Thus, the

active efforts requirement of the ICWA was satisfied.

3. Expert testimony to support foster care placement prior to

disposition. The mother and father next argue that the circuit court violated the ICWA by

not holding a hearing pursuant to 25 U.S.C. § 1912(e) to determine whether the initial

placement of the children in foster care was necessary to prevent serious emotional or

physical damage to the children. The ICWA provides:

No foster care placement may be ordered in such

proceeding in the absence of a determination, supported by

clear and convincing evidence, including testimony of

qualified expert witnesses, that the continued custody of the

child by the parent or Indian custodian is likely to result in

serious emotional or physical damage to the child.

25 U.S.C. § 1912(e). “Foster care” is defined by the ICWA as

any action removing an Indian child from its parent or

Indian custodian for temporary placement in a foster home or

institution or the home of a guardian or conservator where the

parent or Indian custodian cannot have the child returned upon

demand, but where parental rights have not been terminated[.]

22

25 U.S.C. § 1903(1)(i). The mother and father concede that emergency removal of Indian

children may occur without prior expert testimony,18 but argue that such testimony is

required thereafter based upon the definition of “foster care” set forth in the ICWA. In

other words, the mother and father contend that such testimony must occur before the

disposition phase.

The ICWA does not provide a specific time frame for submission of the

evidence required by 25 U.S.C. § 1912(e); however, other courts have generally considered

such evidence at the adjudicatory stage. As one court has explained, “[t]he [ICWA]

requires qualified expert testimony both in child-custody proceedings (here, the

adjudicatory phase at which the children may be temporarily placed in State custody) and

for termination of parental rights. 25 U.S.C. § 1912(e).” In re L.M.B.. 398 P.3d 207, 222

(Kan. Ct. App. 2017); see also In re Esther V., 248 P.2d 863, 874 (N.M. 2011) (explaining

that similarities between New Mexico’s adjudicatory hearing requirements and ICWA’s

involuntary foster care placement requirements make adjudicatory hearing best procedural

phase to make findings required by 25 U.S.C. § 1912(e)).

18

See 25 U.S.C.A. § 1922 (“Nothing in this subchapter shall be construed to prevent

the emergency removal of an Indian child . . . from his parent or Indian custodian or the

emergency placement of such child in a foster home or institution, under applicable State

law, in order to prevent imminent physical damage or harm to the child.”).

23

Although the testimony and evidence required by 25 U.S.C. § 1912(e) was

not provided at the adjudicatory hearings in this case, the circuit court found no violation

of the ICWA. The circuit court concluded that the mother’s and father’s stipulations at the

adjudicatory hearing established that the children were properly removed through an

emergency custody proceeding and placed in foster care because they were likely to suffer

physical or emotional damage. The circuit court explained that although expert testimony

was available from the physicians who had treated N.R. for her broken bones, DHHR did

not need to present the evidence because the father admitted to causing the injuries. In

particular, the father admitted that “he grabbed [N.R.’s] leg at a time when he was frustrated

and caused the bucket handle fracture; he also squeezed her on a prior occasion, resulting

in the clavicle fracture.” He said that “he was going through a lot and lost control.” In

addition, the mother acknowledged that she and the father had engaged in domestic

violence while the children were present and that the father’s actions caused physical,

mental, and emotional injuries to her and the children.19 Based on these stipulations, the

mother and father were adjudicated as abusing parents, and the children were found to be

abused children.

Upon review, we find no error with the circuit court’s determination that the

mother’s and father’s stipulations alleviated the need for the expert testimony required by

19

The mother made similar stipulations at the adjudicatory hearing for the 2014

petition.

24

25 U.S.C. § 1912(e) at the adjudicatory hearing. The record shows that the court

questioned the parents to ensure there was no coercion and that their stipulations were made

voluntarily. The court made clear to them that their parental rights could be terminated

and both indicated that they understood. See In re Esther V., 248 P.2d at 876-77 (holding

court must ensure parental admission is voluntary before accepting it to make 25 U.S.C.

1912(e) finding).

Even if there was a violation of 25 U.S.C. § 1912(e) because of the circuit

court’s failure to require expert testimony at the adjudicatory phase, we find that the error

was harmless because such testimony was provided during the disposition phase. As

discussed below, expert testimony was provided by DHHR at the disposition hearing that

indicated the children would likely suffer serious emotional or physical damage if returned

to the mother and father’s custody. When such testimony is provided to support

termination of parental rights pursuant to 25 U.S.C. § 1912(f), the failure to provide

testimony pursuant to 25 U.S.C. § 1912(e) is harmless because

the burden of proof that was required at termination (beyond a

reasonable doubt) was higher than what was needed at

adjudication (clear and convincing evidence) . . . [therefore]

qualified expert testimony at the termination hearing

effectively cured any possible harm that resulted from not

having such testimony at the adjudication stage.

In re L.M.B., 398 P.3d at 223; see also In re Enrique P., 709 N.W.2d 676 (Neb. Ct. App.

2006) (failure to provide expert testimony at adjudication harmless because evidence

25

adduced at disposition clearly and convincingly supported a finding of harm).

Accordingly, we find no merit to this argument.

4. Qualified expert testimony at disposition. The mother and father also

argue that the expert testimony provided by DHHR during the disposition phase was not

sufficient under the ICWA to support the circuit court’s finding that the evidence proved

beyond a reasonable doubt that restoring their custodial rights would likely result in serious

emotional or physical damage to the children. Pursuant to 25 U.S.C. § 1912(f),

[n]o termination of parental rights may be ordered in

such proceeding in the absence of a determination, supported

by evidence beyond a reasonable doubt, including testimony of

qualified expert witnesses, that the continued custody of the

child by the parent or Indian custodian is likely to result in

serious emotional or physical damage to the child.

The mother and father contend that “qualified expert witness” means an expert who has

knowledge of the social and cultural standards of the child’s tribe. Because DHHR’s

experts, Ms. Nelson and Dr. Saar, had no such knowledge, the mother and father argue that

they were not “qualified expert witnesses” under 25 U.S.C. § 1912(f).

The phrase “qualified expert witness” is not defined by the ICWA. However,

25 C.F.R. § 23.122(a) (2016), which became effective prior to the disposition hearing in

this case, provides, in pertinent part:

A qualified expert witness must be qualified to testify

regarding whether the child’s continued custody by the parent

or Indian custodian is likely to result in serious emotional or

physical damage to the child and should be qualified to testify

26

as to the prevailing social and cultural standards of the Indian

child’s tribe.

(Emphasis supplied.) Notably, the phrases “must be” and “should be” are both used within

the definition, with the latter pertaining to the testimony regarding the prevailing social and

cultural standards of the Indian child’s tribe. The phase “should be” suggests that state

courts have discretion to determine whether such testimony is required given the particular

circumstances of the case. Indeed, the BIA made clear that courts have such discretion

when it explained the parameters of the testimony to be provided by the qualified expert

witness. The BIA has stated:

The final rule requires that the qualified expert witness

must be qualified to testify regarding whether the continued

custody of the child by the parent or Indian custodian is likely

to result in serious emotional or physical damage to the child.

This requirement flows from the language of the statute

requiring a determination, supported by evidence . . ., including

testimony of qualified expert witnesses, that the continued

custody of the child by the parent or Indian custodian is likely

to result in serious emotional or physical damage to the child.

....

The final rule does not, however, strictly limit who may

serve as a qualified expert witness to only those individuals

who have particular Tribal social and cultural knowledge. The

Department recognizes that there may be certain circumstances

where a qualified expert witness need not have specific

knowledge of the prevailing social and cultural standards of the

Indian child’s Tribe in order to meet the statutory standard. For

example, a leading expert on issues regarding sexual abuse of

children may not need to know about specific Tribal social and

cultural standards in order to testify as a qualified expert

witness regarding whether return of a child to a parent who has

a history of sexually abusing the child is likely to result in

serious emotional or physical damage to the child. Thus, while

a qualified expert witness should normally be required to have

27

knowledge of Tribal social and cultural standards, that may not

be necessary if such knowledge is plainly irrelevant to the

particular circumstances at issue in the proceeding.

81 Fed. Reg. 38,778, 38,829-30 (June 14, 2016) (citations omitted and emphasis supplied).

Clearly, a “qualified expert witness” under the ICWA is not required to have

specialized knowledge of tribal social and cultural standards in every instance. Whether

an expert with such knowledge is required depends on the particular circumstances that are

the basis of the termination proceeding. This approach is consistent with the case law prior

to the enactment of the regulation in 2016. See, e.g., K.E. v. State, 912 P.2d 1002, 1005

(Utah Ct. App. 1996) (noting that “professionals having substantial education and

experience in child welfare might well qualify as expert witnesses under [ICWA], even

though their experience with Indians is limited”); In re Baby Boy Doe, 902 P.2d 477, 485

(Idaho 1995) (stating “[s]pecial knowledge of Indian life is not necessary where a

professional person has substantial education and experience and testifies on matters not

implicating cultural bias” (internal quotations and citations omitted)); State ex rel.

Children’s Serv. Div. v. Campbell, 857 P.2d 888, 889 (Or. Ct. App. 1993) (explaining

cultural bias clearly not implicated in case involving mentally ill mother, therefore,

“necessary proof may be provided by expert witnesses who do not possess special

knowledge of Indian life” (internal quotations and citations omitted); In re N.L., 754 P.2d

863, 868 (Okla. 1988) (stating cultural bias clearly not implicated in shaken baby syndrome

case so expert witnesses who do not possess special knowledge of Indian life may provide

28

the necessary proof that continued custody of child by parent will result in serious

emotional or physical harm).

In this case, the basis for removing the children from the mother and father’s

custody was severe physical abuse and domestic violence. The GAL and DHHR sought

termination of the father’s parental rights because he was the perpetrator of the abuse; he

refused to acknowledge the abuse; and he failed to successfully complete his improvement

period. With respect to the mother, the GAL and DHHR sought termination of her parental

rights because of her refusal to acknowledge the abuse and the potential risk to the children

caused by her continued relationship with the father. Cultural bias was simply not

implicated, and under these circumstances, DHHR was not required to present testimony

from an expert with knowledge of the tribe’s social and cultural standards. Accordingly,

we find no merit to the mother and father’s argument that DHHR failed to provide qualified

expert testimony pursuant to the 25 U.S.C. § 1912(f).

5. Placement in ICWA compliant foster care. Finally, the mother and

father seek to invalidate this proceeding under the ICWA because the children are currently

placed in two separate, non-Indian foster homes. They assert that this placement does not

comply with 25 U.S.C. § 1915(b), which provides:

Any child accepted for foster care or preadoptive

placement shall be placed in the least restrictive setting which

most approximates a family and in which his special needs, if

any, may be met. The child shall also be placed within

reasonable proximity to his or her home, taking into account

29

any special needs of the child. In any foster care or preadoptive

placement, a preference shall be given, in the absence of good

cause to the contrary, to a placement with—

(i) a member of the Indian child’s extended family;

(ii) a foster home licensed, approved, or specified by the Indian

child’s tribe;

(iii) an Indian foster home licensed or approved by an

authorized non-Indian licensing authority; or

(iv) an institution for children approved by an Indian tribe or

operated by an Indian organization which has a program

suitable to meet the Indian child’s needs

We find no merit to this argument for two reasons.

First and foremost, an Indian child’s foster care placement is not a basis to

invalidate an abuse and neglect proceeding under the ICWA.

[T]he act does not make the violation of the placement

preferences a basis for dismissing a petition for termination.

ICWA provides that an Indian child who is the subject of foster

care placement or parental rights termination, the parent of the

child or an Indian custodian may petition the court to invalidate

the court’s action “upon a showing that such action violated

any provision of [25 U.S.C. §§ 1911, 1912, 1913].” Failure to

comply with the foster care placement preferences in § 1915(b)

is not a basis for invalidating a court order terminating parental

rights. 25 U.S.C. § 1914.

State ex rel. Juvenile Dep’t. of Multnomah Cty. v. Woodruff, 816 P.2d 623, 625 (Or. Ct.

App. 1991) (footnote omitted). Second, the record reflects the children were placed with

their maternal grandmother and step-grandfather in accordance with 25 U.S.C. § 1915(b)(i)

during almost all of the proceedings below. The placement with the grandparents was not

30

challenged by the mother and father or the tribe. In fact, Ms. Dukatz expressed approval

of the children’s placement with their maternal grandparents when she first contacted

DHHR.

The record indicates that in the summer of 2018, just a few weeks before the

dispositional order was entered, the children’s placement with their grandparents was

disrupted because the mother and father took them from the grandparents’ home and fled

to Ohio.20 The grandparents did not report to DHHR or the police that the children had

been taken from them. Upon learning that the children were in Ohio with their mother and

father, DHHR, with police assistance, removed the children and brought them back to West

Virginia. The children were then placed in two separate foster homes21 but were

subsequently reunited when a foster home that could accommodate all three became

available. Thereafter, A.W.’s placement was again disrupted, and he was moved to a

separate foster home. According to the Rule 11 status updates, 22 the children are now

residing in two separate, non-relative, non-Indian foster homes but have regular visitation

with each other.

20

It appears that the mother and father were living in Ohio at this time.

21

Ironically, the mother and father told DHHR that they took the children because

their step-grandfather has post-traumatic stress disorder and was aggressive with one of the

children. According to DHHR, the children were not returned to their grandparents

because of the mother and father’s allegations with respect to the step-grandfather and

because the grandparents did not report that the children had been taken from their home.

22

See W.Va. R. App. Proc. 11(j).

31

The record indicates that the circuit court has now stayed all proceedings

with respect to placement pending this appeal. While the mother and father argue that the

children should be placed with a foster family that resides on the tribe’s reservation in

California, there has been no hearing before the circuit court to determine the suitability of

that placement. Until the circuit court makes such a determination, the matter will not be

addressed by this Court.23 See Syl. Pt. 1, Mowery v. Hitt, 155 W.Va. 103, 181 S.E.2d 334

(1971) (“In the exercise of its appellate jurisdiction, this Court will not decide

nonjurisdictional questions which were not considered and decided by the court from

which the appeal has been taken.”).

Having found no merit to the mother’s and father’s appeals,24 we now

consider the appeals of the GAL and DHHR.

23

According to the GAL and DHHR, the children have repeatedly stated they do

not wish to be moved to California to live on the tribe’s reservation and, instead, want to

be placed back in the custody of their maternal grandparents. The GAL and DHHR also

note that there is no basis to send A.W. to California as he is not an Indian child. Finally,

they point out that the ICWA indicates that the children should be placed in close proximity

to their home. See 25 U.S.C. § 1915(b). We note that the ICWA provides for consideration

of the children’s preference with regard to placement and allows for a “good cause”

determination to depart from the placement preferences. See 25 U.S.C. § 1915; 25 C.F.R.

§§ 23.131-32 (2016). These are matters for the circuit court’s consideration during the

permanent placement hearing.

24

The mother also assigned error to the circuit court’s failure to apply the

exclusionary rule to preclude admission of certain evidence at the preliminary hearing on

the second abuse and neglect petition filed against her. The record shows that DHHR

learned of the mother’s continued relationship with the father in 2014 when her cell phone

was seized by a police officer who testified that he stopped the mother’s vehicle because

her license plate was obstructed by a license plate frame. The mother’s cell phone

32

B. Disposition

In their appeals, the GAL and DHHR contend that the circuit court erred by

only terminating the mother’s and father’s custodial rights pursuant to West Virginia Code

§ 49-4-604(b)(5). They maintain that the circuit court made all the requisite findings for

termination of parental rights under West Virginia Code § 49-4-604(b)(6). That disposition

provision provides for the termination of parental, custodial, and guardianship rights and

responsibilities of the abusing parents “[u]pon a finding that there is no reasonable

likelihood that the conditions of neglect or abuse can be substantially corrected in the near

future and, when necessary for the welfare of the child[.]” Id. Upon review, we agree that

the circuit court should have terminated parental rights.

contained images of marijuana and evidence of contact with the father which led to the

filing of the second abuse and neglect petition against her. During the preliminary hearing,

the mother objected to the submission of the cell phone evidence arguing that it was

obtained during an illegal stop. Upon review, we find no error in the circuit court’s refusal

to apply the exclusionary rule. Even if we assume for argument’s sake that there was an

illegal stop, this Court has held that the exclusionary rule does not apply to civil matters.

See Syl. Pt. 3, Miller v. Toler, 229 W.Va. 302, 729 S.E.2d 137 (2012) (holding exclusionary

rule did not apply to a civil, administrative driver’s license revocation or suspension

proceeding). While the mother urges us to extend the exclusionary rule to abuse and

neglect proceedings because parental rights are implicated, we decline to do so because of

the potential harm to the children. See Abid v. Abid, 406 P.3d 476, 481 (Nev. 2017)

(explaining that courts routinely hold that evidence obtained in violation of Fourth

Amendment is admissible in abuse and neglect proceedings because “the substantial social

costs of ignoring children’s safety exceeds the minimal additional deterrence achieved by

applying the exclusionary rule” (internal quotations and citations omitted)); In re Mary S.,

230 Cal. Rptr. 726, 728 (Cal. Ct. App. 1986) (“[T]he potential harm to children in allowing

them to remain in an unhealthy environment outweighs any deterrent effect which would

result from suppressing evidence unlawfully seized.” (internal quotation marks omitted)).

33

In the final dispositional order, the circuit court found that the GAL and

DHHR presented evidence that established beyond a reasonable doubt that returning

custody to the mother and father would likely result in serious emotional and/or

physical damage to the children, satisfying the heightened burden of proof imposed by

the ICWA as discussed above, as well as our state law. In that regard, the circuit court’s

order includes the following findings of fact:

[T]here has not been a full acknowledgement of the violence,

danger and harm to the children by either [mother or father].

[T]he [mother and father] have not remedied the issues which

led to the abuse and neglect of their children. At this time, it

appears that [] [m]other does not intend to separate from [the

father], despite the need for her to do so and despite [the]

number of chances CPS or this Court has given her to do so.

[The mother and father] were provided more than enough time

to remedy these issues.

[T]he Court believes that additional improvement efforts for

[the mother] would be futile. The first term of any

improvement period would be that she discontinue

involvement with [the father], and she has testified and

evidenced that she has no present intent to do so.

[G]ranting an additional improvement period or ongoing

services would cause further delay in this case, and the same is

not warranted and would be contrary to the law.

[T]he WVDHHR and GAL have proven beyond a reasonable

doubt the continued custody of the children by the Respondent

Father is, at this time likely to result in serious emotional or

physical damage to the children, and this is supported by the

testimony of all the qualified expert witnesses in this case.25

25

The circuit court found Ms. Nelson, Dr. Saar, and Dr. Martinez were all “qualified

expert witnesses” under the ICWA.

34

[T]he WVDHHR and GAL have also proven beyond a

reasonable doubt that the continued custody of the children by

the Respondent Mother at this time is likely to result in serious

emotional or physical damage to the children, and this is

supported by the testimony of qualified expert witnesses who

testified in this case. Although Dr. Martinez opined in his

report that the children may be able to return safely to the

mother’s care, this was based upon his mistaken belief she was

separated from Respondent Father. That is admittedly not true.

Given Dr. Martinez’s opinion that the children could not safely

be returned to the father, it follows that the children cannot be

safely returned to the mother who continues to reside with the

father.

[R]eturn of the children to the [mother and father] would

subject the children to substantial and immediate danger or

threat of danger at this time.

[A]lthough committed efforts to remedy the issues which led

to the removal of the children appear to have been repeatedly

initiated by both [mother and father], neither [] has followed

through with these efforts to completion with the goal of

accomplishing long term change.

(Footnote added).

With respect to correcting the conditions of abuse and neglect, it has long

been established that

in order to remedy the abuse and/or neglect problem, the

problem must first be acknowledged. Failure to acknowledge

the existence of the problem, i.e., the truth of the basic

allegation pertaining to the alleged abuse and neglect or the

perpetrator of said abuse and neglect, results in making the

problem untreatable and in making an improvement period an

exercise in futility at the child’s expense.

35

W. Va. Dep’t. of Health & Human Res. v. Doris S., 197 W.Va. 489, 498, 475 S.E.2d 865,

874 (1996). While the circuit court recognized the mother’s and father’s failure to

acknowledge the abuse, it inexplicably determined that they should have yet another

chance to be involved in the children’s lives. Specifically, the circuit court concluded that

it is in the best interest of the children for the [mother

and father] to be placed on a Disposition 5, as contemplated by

W.Va. Code § 49-4-604(b)(5) which shall continue until [the

mother and father] have both carried their burden of proving

that they both truly and honestly acknowledge the issues which

led to the removal of their children from their custody and until

they have carried their burden of proving that they have made

a concerted and committed, long term effort to correct the

same.

This conclusion is not supported by the circuit court’s own findings or the record in this

case. Moreover, it is contrary to the ICWA standard for terminating parental rights and

our statutory and case law.

We have recognized 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.” 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).’

Syllabus Point 4, State ex rel. David Allen B. v. Sommerville, 194 W.Va. 86, 459 S.E.2d

363 (1995).” Syl. Pt. 2, In re Kaitlyn P., 225 W.Va. 123, 690 S.E.2d 131 (2010).

Accordingly, this Court has held that

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“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).

Syl. Pt. 7, in part, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991). Moreover,

[t]ermination of parental rights, the most drastic remedy

under the statutory provision covering the disposition of

neglected children, [West Virginia Code § 49-4-604] may be

employed without the use of intervening less restrictive

alternatives when it is found that there is no reasonable

likelihood under [West Virginia Code § 49-4-604(c)] that

conditions of neglect or abuse can be substantially corrected.

Syl. pt. 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980). Under West Virginia Code

§ 49-4-604(c),

“[n]o reasonable likelihood that 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.

Such conditions exist when

[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[.]

W.Va. Code § 49-4-604(c)(3).

Here, the evidence established beyond a reasonable doubt that returning

custody of the children to the mother and father would likely result in emotional and

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physical damage to the children. The evidence also showed that there was no reasonable

likelihood that the conditions of abuse could be substantially corrected in the near future.

The circuit court found that the mother and father failed to demonstrate a full

acknowledgement and/or understanding of the issues that led to the removal of their

children and failed to demonstrate the ability to follow through with long term correction

of the same. Despite improvement periods and myriad services and programs provided

over the course of five years and multiple opportunities to correct the conditions of abuse

and neglect, the mother and father failed to do so. We have explained that

although it is sometimes a difficult task, the trial court

must accept the fact that 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 a

decision, because a child deserves resolution and permanency

in his or her life[.]

State ex rel. Amy M. v. Kaufman, 196 W.Va. 251, 260, 470 S.E.2d 205, 214 (1996). The

GAL and DHHR satisfied their dual burden of proof under the ICWA and our state law.

Given that children have a right to eventual permanency, the best interests of N.R., A.R.,

and A.W. require termination of the mother’s and father’s parental rights pursuant to West

Virginia Code § 49-4-604(b)(6).

IV. Conclusion

For the foregoing reasons, the August 31, 2018, order of the Circuit Court of

Ohio County is reversed only insofar as it orders disposition under West Virginia Code §

49-4-604(b)(5), and this case is remanded for entry of a final dispositional order

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terminating the mother’s and father’s parental rights pursuant to West Virginia Code § 49-

4-604(b)(6).

Affirmed, in part, reversed, in part, and remanded with directions.

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