SER S.W., N.W., and M.W. v. The Hon. Patrick N. Wilson, Judge, WV DHHR, and S.K.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2020 Term FILED

_______________ June 12, 2020

released at 3:00 p.m.

No. 19-1078 EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

_______________ OF WEST VIRGINIA

STATE OF WEST VIRGINIA EX REL. S.W., N.W. AND M.W,

Petitioners

v.

THE HONORABLE PATRICK N. WILSON, JUDGE OF THE CIRCUIT COURT OF

MARION COUNTY, AND S.K,

Respondents

____________________________________________________________

PETITION FOR WRIT OF PROHIBITION

WRIT GRANTED AND REMANDED WITH INSTRUCTIONS

____________________________________________________________

Submitted: April 21, 2020

Filed: June 12, 2020

Clarissa M. Banks, Esq. Frances C. Whiteman, Esq.

Manchin Injury Law Group, PLLC Whiteman Burdette, PLLC

Fairmont, West Virginia Fairmont, West Virginia

Guardian ad Litem for S.W., N.W., Counsel for Respondent S.K.

and M.W.

Patrick Morrisey, Esq.

Attorney General

Charleston, West Virginia

Chaelyn W. Casteel, Esq.

Assistant Attorney General

Fairmont, West Virginia

Counsel for West Virginia DHHR

JUSTICE WALKER delivered the Opinion of the Court.

CHIEF JUSTICE ARMSTEAD and JUSTICE JENKINS concur in part, dissent in part

and reserve their rights to file separate opinions.

SYLLABUS BY THE COURT

1. “In determining whether to entertain and issue the writ of prohibition

for cases not involving an absence of jurisdiction but only where it is claimed that the lower

tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether

the party seeking the writ has no other adequate means, such as direct appeal, to obtain the

desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not

correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter

of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent

disregard for either procedural or substantive law; and (5) whether the lower tribunal’s

order raises new and important problems or issues of law of first impression. These factors

are general guidelines that serve as a useful starting point for determining whether a

discretionary writ of prohibition should issue. Although all five factors need not be

satisfied, it is clear that the third factor, the existence of clear error as a matter of law,

should be given substantial weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199

W. Va. 12, 483 S.E.2d 12 (1996).

2. “Prohibition is available to abused and/or neglected children to

restrain courts from granting improvement periods of a greater extent and duration than

permitted under [W. Va. Code §§ 49-4-601 et seq.].” Syllabus Point 2, State ex rel. Amy

M. v. Kaufman, 196 W. Va. 251, 470 S.E.2d 205 (1996).

i

WALKER, Justice:

In 2018, an abuse and neglect proceeding was initiated against S.K., the

mother of minor children S.W., N.W., and M.W. 1 The children have been in foster care

since that time. Clarissa M. Banks, guardian ad litem for the minor children, seeks an order

prohibiting the Circuit Court of Marion County from granting a post-dispositional

improvement period to S.K. Ms. Banks argues that the improvement period should not

have been granted because it was contrary to the statutory limitation in West Virginia Code

§ 49-4-610(9), in that the children have been in foster care for more than fifteen of the most

recent twenty-two months. S.K. argues that she has demonstrated that she is likely to

comply with the terms of an improvement period and maintains that she can correct the

conditions of abuse and neglect, so the grant of an improvement period is in the best interest

of the children.

Because we find that the circuit court committed clear error of law in granting

an improvement period that exceeded the time limits on foster care imposed by West

Virginia Code § 49-4-610(9) without sufficient findings that the grant of this improvement

period was in the best interest of the children, we grant the writ and remand this case to the

circuit court for entry of an order terminating S.K.’s parental rights. We also instruct the

1

Because this case involves minors and sensitive matters, we follow our

longstanding practice of using initials to refer to the children and the parties. See, e.g.,

State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).

1

circuit court to analyze whether granting post-termination visitation is in the best interest

of the minor children.

I. FACTUAL AND PROCEDURAL BACKGROUND

On February 20, 2018, the West Virginia Department of Health and Human

Resources (DHHR) filed an abuse and neglect petition alleging that S.K. abused controlled

substances while the minors S.W. and N.W. were in her care, custody, and control.2 At the

same time, S.W. and N.W. were removed from S.K.’s custody and placed with a foster

family. The minor child M.W. was not yet born when this petition was filed. On April 11,

2018, the Circuit Court of Marion County adjudicated S.K. as an abusing or neglectful

parent. In May 2018, S.K. moved for, and the circuit court granted, a six-month post-

adjudicatory improvement period. Between May and November 2018, S.K. failed to

submit to any drug screens and the DHHR terminated her required services due to

noncompliance.

The DHHR filed an amended petition on August 27, 2018, to include the

newborn child M.W. in the abuse and neglect proceeding. The DHHR filed a second

amended petition in January 2019 to include additional allegations mistakenly excluded

2

S.K.’s parental rights to four older children have already been either voluntarily or

involuntarily terminated; those children are not parties in this case. Those other cases,

arising as early as 2012, took place in West Virginia and Maryland. Three of the total

seven children were born exposed to illegal substances, including the minor N.W. N.W.’s

exposure led to a 2016 abuse and neglect proceeding in Monongalia County, but S.K.

successfully completed the required services and regained custody of S.W. and N.W. in

March 2017. The current case was instituted less than one year later in February 2018.

2

after M.W.’s birth, and to include allegations of abandonment by M.W.’s father. At some

point after the second amended petition was filed, the circuit court terminated the parental

rights of M.W.’s father.3

The circuit court adjudicated S.K. as an abusing parent regarding the

amended petitions on April 22, 2019. Between the close of S.K.’s improvement period in

November 2018 and the April 2019 adjudicatory hearing, S.K. entered into Union

Mission’s faith-based drug rehabilitation program on three separate occasions. Each time,

she left the program and stopped participating, apparently as a result of M.W.’s father being

released from jail. Also between November 2018 and April 2019, S.K. was participating

in drug screens and the DHHR made new referrals for her to participate in parenting and

adult life skills classes. These services were later closed due to S.K.’s noncompliance.

Ultimately, in July 2019, S.K. entered the Summit Center’s Pregnant and Postpartum

Women’s drug rehabilitation facility. By that time, S.W. and N.W. had already been in

foster care for seventeen months and M.W. had been in foster care for her entire life, just

under one year.

The circuit court held dispositional hearings on September 16 and October

25, 2019. At the time of the hearings, S.K. was still in the Summit Center rehabilitation

program and had not obtained suitable housing or complied with any of the DHHR’s

3

On June 19, 2019, the DHHR filed a third amended petition to include allegations

of abandonment by S.W. and N.W.’s unknown fathers. The circuit court also terminated

the rights of those fathers.

3

services. S.K. presented testimony by her rehabilitation counselor, who said she believed

S.K. had made marked improvements and was likely to make necessary efforts to get her

children back. S.K. also moved for a post-dispositional improvement period at this time.

The DHHR and the GAL recommended termination of S.K.’s parental rights.

In its November 4, 2019 order, the circuit court declined to terminate S.K.’s

parental rights and granted S.K.’s motion for a six-month post-dispositional improvement

period. At this time, S.W. and N.W. had been in foster care for twenty months, and M.W.

had been in foster care for approximately fourteen months. The GAL immediately filed a

petition for writ of prohibition to this Court on the ground that the circuit court’s grant of

a post-dispositional improvement period was in violation of the mandate in West Virginia

Code § 49-4-610(9) that no combination of improvement periods operate to keep children

in foster care for more than fifteen of the most recent twenty-two months. The GAL also

filed a motion to stay visits between the children and S.K. pending this Court’s decision.4

The circuit court entered an order staying visits on November 12, 2019.

II. STANDARD OF REVIEW

The standard of review for issuing a writ of prohibition is well-established

by this Court. In Syllabus Point 4 of State ex rel. Hoover v. Berger,5 we held:

In determining whether to entertain and issue the writ of

prohibition for cases not involving an absence of jurisdiction

but only where it is claimed that the lower tribunal exceeded

4

According to the record in this case, the children have not been in contact with

S.K. since February 2018.

5

199 W. Va. 12, 483 S.E.2d 12 (1996).

4

its legitimate powers, this Court will examine five factors: (1)

whether the party seeking the writ has no other adequate

means, such as direct appeal, to obtain the desired relief; (2)

whether the petitioner will be damaged or prejudiced in a way

that is not correctable on appeal; (3) whether the lower

tribunal’s order is clearly erroneous as a matter of law; (4)

whether the lower tribunal’s order is an oft repeated error or

manifests persistent disregard for either procedural or

substantive law; and (5) whether the lower tribunal’s order

raises new and important problems or issues of law of first

impression. These factors are general guidelines that serve as

a useful starting point for determining whether a discretionary

writ of prohibition should issue. Although all five factors need

not be satisfied, it is clear that the third factor, the existence of

clear error as a matter of law, should be given substantial

weight.

In State ex rel. Amy M. v. Kaufman,6 this Court granted a writ of prohibition in a child

abuse and neglect proceeding, noting that “‘[o]ur modern practice is to allow the use of

prohibition, based on the particular facts of the case, where a remedy by appeal is

unavailable or inadequate, or where irremediable prejudice may result from lack of an

adequate interlocutory review.’”7 Finally, while the decision to grant or deny an

improvement period is generally an act within the circuit court’s discretion,8 we have also

6

196 W. Va. 251, 470 S.E.2d 205 (1996).

7

Id. at 257, 470 S.E.2d at 211 (quoting McFoy v. Amerigas, Inc., 170 W. Va. 526,

532, 295 S.E.2d 16, 22 (1982)).

8

See Syl. Pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“It is

within the court’s discretion to grant an improvement period within the applicable statutory

requirements. . . .”).

5

recognized that discretionary acts are not immune from the extraordinary remedy of a writ

of prohibition.9

With these standards in mind, we address the parties’ arguments.

III. DISCUSSION

Ms. Banks argues that the circuit court exceeded its legitimate powers in

granting S.K. a post-dispositional improvement period because the circuit court failed to

adhere to the mandate in West Virginia Code § 49-4-610(9) barring improvement periods

for extended periods of time:

no combination of improvement periods or extensions

thereto may cause a child to be in foster care more than fifteen

months of the most recent twenty-two months, unless the court

finds compelling circumstances by clear and convincing

evidence that it is in the child’s best interests to extend the time

limits contained in this paragraph.

Ms. Banks argues that the post-dispositional improvement period granted below far

exceeded this limitation because the children had already been out of S.K.’s care for

fourteen and twenty months, respectively, at the time the circuit court granted S.K.’s

motion. And, she contends that the circuit court failed to make any findings that it was in

the children’s best interest to grant an extension.

9

See, e.g., In re J.G., 240 W. Va. 194, 204, 809 S.E.2d 453, 463 (2018) (“Discretion

granted to the circuit court within [the abuse and neglect] framework is intended to allow

the court to fashion appropriate measures and remedies to highly complex familial and

inter-personal issues—it does not serve as a blanket of immunity for the circuit court[.]”).

6

On the other hand, S.K. argues that the circuit court did not exceed its

authority in granting her a post-dispositional improvement period because the circuit court

heard testimony sufficient for it to determine that: (1) S.K. was likely to fully participate

in an improvement period; (2) S.K. experienced a substantial change in circumstances; (3)

no “compelling circumstances” justified a denial of the post-dispositional improvement

period; and (4) granting the improvement period was in the children’s best interest. For

the reasons discussed below, we agree with Ms. Banks that the circuit court exceeded its

legitimate authority.

The language of West Virginia Code § 49-4-610(9) could not be clearer that

unless the court makes detailed findings that clear and convincing evidence shows that an

extension is in the best interest of the children, its time limitations apply. It is an undisputed

fact that S.W. and N.W. were in foster care for twenty months, and M.W. was in foster care

for fourteen months when the circuit court granted S.K. a post-dispositional improvement

period. And, the circuit court’s order includes no findings, let alone detailed findings, that

granting S.K.’s motion for an improvement period in violation of the time limit imposed

by § 49-4-610(9) was in the best interest of these children. We also do not find anything

in the record to suggest as much.

Instead, the circuit stated in the order that it could not “find any compelling

circumstances to justify a denial of [S.K.]’s motion for a post-dispositional improvement

period.” The court apparently based this finding on Syllabus Point 9 of State ex rel. Diva

7

P. v. Kaufman,10 which holds that a parent is permitted to move for an improvement period,

and that such period shall be allowed “unless the court finds compelling circumstances to

justify a denial.” The Diva P. standard does not control here because, even though S.K.

was permitted to request a post-dispositional improvement period, the grant of that request

would have been (and was) in direct conflict with the clear statutory language of § 49-4-

610(9).11 So, at this stage of the proceedings, the question was not whether there were

compelling circumstances to justify denial of the improvement period, it was whether there

was clear and convincing evidence that granting the improvement period was in the best

interest of the children.

We have previously addressed the failure of courts to adhere to statutory

requirements and deadlines in abuse and neglect matters. As we recently explained, these

are not mere guidelines:

10

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

11

The holding in Diva P. also does not control here because it has been superseded

by statute as a result of the 2015 recodification of Chapter 49 of the West Virginia Code.

Diva P. was based upon a prior version of the West Virginia Code, specifically § 49-6-2(b)

(1984), which stated that

“[a]ny parent or custodian may, prior to final hearing, move to

be allowed an improvement period of three to twelve months

in order to remedy the circumstances or alleged circumstances

upon which the proceeding is based. The court shall allow one

such improvement period unless it finds compelling

circumstances to justify a denial thereof[.]”

Under the 2015 recodification, there is no comparable provision stating that courts

shall grant parental requests for improvement periods in the absence of compelling

circumstances justifying a denial.

8

[t]he procedural and substantive requirements of West

Virginia Code § 49-4-601 et seq., the Rules of Procedure for

Child Abuse and Neglect, and our extensive body of caselaw

are not mere guidelines. The requirements contained therein

are not simply window dressing for orders which substantively

fail to reach the issues and detail the findings and conclusions

necessary to substantiate a court’s actions. The time

limitations and standards contained therein are mandatory and

may not be casually disregarded or enlarged without detailed

findings demonstrating exercise of clear-cut statutory

authority. [12]

And, we have held that “[p]rohibition is available to abused and/or neglected children to

restrain courts from granting improvement periods of a greater extent and duration than

permitted under [W. Va. Code §§ 49-4-601 et seq.].”13

The circuit court’s grant of S.K.’s motion for an improvement period

undeniably caused these children to be in foster care in excess of fifteen of the most recent

twenty-two months in violation of the time limitation contained in West Virginia Code §

49-4-610(9). And, the circuit court failed to make appropriate detailed findings that the

grant of this improvement period was in the best interest of the children, nor do we find

anything in the record to suggest as much. So, we conclude that the circuit court’s grant

of S.K.’s motion for a post-dispositional improvement period was clearly erroneous as a

matter of law, and we grant Ms. Banks’s petition for a writ of prohibition.

12

In re J.G., 240 W. Va. at 204, 809 S.E.2d at 463.

13

Syl. Pt. 2, State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 470 S.E. 2d 205

(1996).

9

Having prohibited the circuit court’s order granting S.K.’s motion for an

improvement period, we conclude that this case must be remanded to the circuit court for

disposition. Ms. Banks requests that we direct the circuit court to terminate S.K.’s parental

rights under West Virginia Code § 49-4-604(c)(6) because there is no reasonable likelihood

S.K. can correct the conditions that led to the filing of the abuse and neglect petition in the

near future. On the other hand, S.K. argues that a less-restrictive disposition is more

appropriate. For the reasons discussed below, we agree with Ms. Banks that the circuit

court must terminate S.K.’s parental rights.

The record is clear that S.K. had eighteen months, between the start of her

post-adjudicatory improvement period in May 2018 to disposition in October 2019, to

rectify the conditions that led to the filing of the underlying abuse and neglect petition. In

that time she failed to make any measure of improvement as (1) she failed to successfully

complete a drug rehabilitation program three times, and (2) she failed to participate in any

of the services required to successfully complete her improvement period. While we

acknowledge that S.K. may have attained some level of sobriety toward the end of the

underlying proceeding, and we wish her well in her continued efforts, we cannot ignore

that those efforts came far too late in this process—approximately 90 days prior to

disposition—and that the long period awaiting those efforts was not in the best interest of

the children. We also cannot ignore that S.K. has made no progress in completing the other

requirements of an improvement period since she attained sobriety.

10

Though the record indicates that S.K. has obtained full-time employment and

that she has applied for housing assistance, we are careful to note that she failed to

participate in any of the DHHR’s provided services and that she has not yet obtained

suitable housing for her and the children. Finally, we are also mindful that, in the several

months it would take for S.K. to successfully complete an improvement period, the infant

children in this matter would remain in a prolonged state of uncertainty. We have made

abundantly clear that

[l]ack of permanency is without a doubt psychologically

harmful to children irrespective of their age and/or awareness

of the proceedings given the profound impact this uncertainty

has on their caregivers, daily surroundings, and routine.

Unwarranted delay in obtaining permanency merely

compounds the circumstances which give rise to the abuse and

neglect petition in the first instance.[14]

So, we conclude that it is in the children’s best interest to terminate S.K.’s parental rights,

and we instruct the circuit court to do so on remand. Because S.K. is now making strides

in her treatment program, we instruct the circuit court to analyze whether post-termination

visitation would be in the best interest of the children, and we leave that determination to

the circuit court based upon the outcome of that analysis.

14

In re J.G., 240 W. Va. at 203 n.15, 809 S.E.2d at 462 n.15. We also disagree with

the circuit court’s finding that “permanency of the children is not hindered with the

granting of this improvement period” because the children are placed in the same foster

home where they have been for the duration of the underlying proceedings. While keeping

these children in foster care may maintain their current living arrangement, it does nothing

to move toward permanency. The extended uncertainty about the children’s final home is

precisely what the time limit set forth by West Virginia Code § 49-4-610(9) seeks to

prevent. So, we find that the circuit court’s reasoning is flawed, and permanency would

be hindered by the grant of this improvement period.

11

IV. CONCLUSION

For these reasons, we conclude that granting S.K.’s motion for a post-

dispositional improvement period was clearly erroneous as a matter of law, and we grant

Ms. Banks’s petition for a writ of prohibition. We also remand this matter for disposition

and instruct the circuit court to terminate S.K.’s parental rights. Finally, we instruct the

circuit court to determine whether an order granting post-termination visitation would be

in the best interest of the children.

Writ granted, and remanded with instructions.

12