In re C.T.-1 and C.T.-2

FILED

August 31, 2022

EDYTHE NASH GAISER, CLERK

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re C.T.-1 and C.T.-2

No. 22-0047 (Kanawha County 21-JA-167 and 21-JA-168)

MEMORANDUM DECISION

Petitioner Mother A.T., by counsel Sandra K. Bullman, appeals the Circuit Court of

Kanawha County’s December 17, 2021, order terminating her parental rights to C.T.-1 and C.T.-

2. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick

Morrisey and Mindy M. Parsley, filed a response in support of the circuit court’s order. The

guardian ad litem, Jennifer L. Anderson, filed a response on behalf of the children in support of

the circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating her

parental rights without first granting her an improvement period and when less restrictive

alternatives were available.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal

arguments are adequately presented, and the decisional process would not be significantly aided

by oral argument. Upon consideration of the governing law, the briefs, and the record presented,

the Court finds that the circuit court failed to enter an order adjudicating petitioner or otherwise

make any specific findings concerning petitioner’s adjudication, thereby rendering the termination

of petitioner’s parental rights erroneous. This case satisfies the “limited circumstances”

requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure, and a memorandum

decision is appropriate to vacate and remand for further proceedings consistent with this decision.

In March of 2021, the DHHR filed a petition alleging that petitioner abused and neglected

the children, although the record shows that approximately eleven years prior to the petition’s

filing the children’s maternal grandmother obtained legal guardianship of C.T.-1 and exercised

continuous custody of that child from that point forward. As such, the DHHR’s allegations in the

petition concerned petitioner’s conduct regarding C.T.-2. According to the DHHR, petitioner had

been recently arrested for possession with intent to deliver and DUI and had a history of other

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.

254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);

State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.

Va. 641, 398 S.E.2d 123 (1990). Additionally, because both children share the same initials, they

will be referred to C.T.-1 and C.T.-2, respectively, throughout this memorandum decision.

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crimes. During the arrest, petitioner “realized her son [C.T.-2] wasn’t with her and became

inconsolable but [she] was too incapacitated to assist law enforcement in locating her child.” The

child was later found with a friend. According to the DHHR, the child “was cared for and didn’t

appear to be in any danger.” The petition also alleged that petitioner engaged in extensive drug

abuse, including Xanax, methamphetamine, and heroin, and left the child with an inappropriate

caregiver. According to one individual, petitioner described “running drugs for her boyfriend . . .

, falling asleep while caring for the infant (leaving him unsupervised around drugs), using drugs

frequently, [and] allowing unknown individuals to ride in her vehicle where they proceeded to

overdose.” Accordingly, the DHHR alleged that petitioner abused and neglected the children. 2

Thereafter, the court held a series of adjudicatory hearings that were continued for various

reasons, including awaiting the results of petitioner’s psychological evaluation and an employment

obligation causing petitioner’s absence. During this period, the DHHR indicated that petitioner

had two negative screens but overall continued to test positive for marijuana and, on one occasion,

methamphetamine. In September of 2021, the court convened another adjudicatory hearing, at

which time petitioner’s counsel requested another continuance because of petitioner’s recent

incarceration and a failure to transport her for the hearing. The court denied the motion and

proceeded with adjudication.

The DHHR then presented extensive evidence concerning the conditions that necessitated

the filing of the petition, including petitioner’s substance abuse issues resulting in inappropriate

care for at least one of the children and her threats against a caretaker, among other evidence.

However, the circuit court failed to make any specific findings concerning petitioner’s conduct,

instead simply concluding as follows at the conclusion of the DHHR’s presentation of evidence:

“All right. I will find there’s clear and convincing evidence that these children are abused and/or

neglected as defined by the state code and move—with respect to [petitioner] and move to

disposition.” This constitutes the only finding the court made concerning petitioner’s adjudication,

as the record shows that the circuit court failed to enter an order adjudicating petitioner of either

abuse or neglect. Specifically, at the subsequent dispositional hearing, the court explicitly noted

that “[t]he adjudication order was not—was never done.” Following the adjudicatory hearing,

petitioner filed a motion for a post-adjudicatory improvement period.

In December of 2021, the court held a dispositional hearing. The DHHR presented

evidence that petitioner had not been compliant with services during the proceedings. According

to a DHHR employee, petitioner stopped participating in services in September of 2021, although

she did test negative on two drug screens the month prior to the hearing. The DHHR worker further

admitted that he had not attempted to contact petitioner since he took over her case in October of

2021.

Petitioner also testified during the hearing and indicated that upon her release from

incarceration in September of 2021, she began contacting the DHHR regarding her services.

However, she asserted that she was given incorrect information about the location of her drug

screens, as the DHHR “gave [her] an address that they were no longer taking testing at.” Petitioner

2

The DHHR later filed an amended petition to include an additional adult respondent.

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further testified that after her release, she submitted to substance abuse treatment and continued

participating in that treatment at the time of disposition. Petitioner also explained that she had

submitted to a drug screen as recently as the week prior to the hearing. Regarding missed drug

screens, petitioner explained that her provider had not responded to her messages, answered her

calls, or called her back. Petitioner renewed her request for an improvement period during the

hearing.

At the conclusion of evidence, the court found as follows:

[A]fter hearing the testimony and reviewing all the records and taking notice of all

the different proceedings that we’ve been through in this case, it does not appear

that [petitioner]’s situation can be or will be remedied any time in the near future.

The [c]ourt’s also aware that she has had a long-standing drug problem and

sometimes has periods of sobriety, but she is also still facing felony drug charges

for possession of heroin and a firearm in Jackson County. And that termination has

been requested by the State and the guardian and the [c]ourt will grant that request

with respect to [both children].

Following the hearing, the court entered a dispositional order that appears to be a form with a

series of boxes checked in regard to petitioner. For example, the order contained a checkmark next

to the following: “That there is no reasonable likelihood that the conditions of abuse and neglect

can be substantially corrected in the near future, as the following [r]espondents have not made

efforts to rectify the circumstances which led to the filing of this [p]etition.” Under this statement,

petitioner’s name was written in by hand. Several other “findings” regarding petitioner were made

in this manner, including that termination of her rights was necessary for the children’s best

interests and that there were no reasonable alternatives to termination of her rights. This stock

order contained no specific findings concerning petitioner. 3 It is from the dispositional order that

petitioner appeals.

The Court has previously established the following standard of review:

“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

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C.T.-2 has achieved permanency in the custody of the nonabusing father. According to

the guardian, the father of C.T.-1 was recently adjudicated of abandoning the child. The guardian

states that C.T.-1’s permanency plan is adoption in the current placement.

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evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1, In

Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).

Upon our review, we find that it is unnecessary to address petitioner’s specific assignments

of error because the record is clear that the circuit court failed to enter an order adjudicating

petitioner of abuse and/or neglect and also failed to make any specific findings concerning

petitioner’s adjudication on the record. In similar circumstances, this Court has recognized plain

error upon deficiencies in abuse and neglect proceedings. See In re Lilith H., 231 W. Va. 170, 180,

744 S.E.2d 280, 290 (2013) (“[T]his Court takes notice of the plain error permeating the disposition

wherein the circuit court terminated the parental rights on the basis of allegations and issues which

were never properly made subject of the adjudication.”). In Lilith H., the court noted that “[i]t is

within the authority of this Court to ‘sua sponte, in the interest of justice, notice plain error.’” Id.

(quoting Cartwright v. McComas, 223 W. Va. 161, 164, 672 S.E.2d 297, 300 (2008)). Having

recognized that it was appropriate to notice the lower court’s plain error, we went on to explain

that

[w]here it appears from the record that the process established by the Rules of

Procedure for Child Abuse and Neglect Proceedings and related statutes for the

disposition of cases involving children adjudicated to be abused or neglected has

been substantially disregarded or frustrated, the . . . case [will be] remanded for

compliance with that process[.]

Id. (quoting Syl. Pt. 5, in part, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001)). As more

fully explained below, we conclude that the court’s failure to enter an order adjudicating petitioner

of either abuse and/or neglect and the failure to make specific findings regarding petitioner’s

adjudication on the record constitute a similar frustration or disregard of the clear language of the

relevant rules and statutes such that vacation of the order on appeal is necessary.

As we have long held,

“before a court can begin to make any of the dispositional alternatives under W.Va.

Code [§ 49-4-604], it must hold a hearing under W.Va. Code [§ 49-4-601], and

determine ‘whether such child is abused or neglected.’ Such a finding is a

prerequisite to further continuation of the case.” Syllabus Point 1, State v. T.C., 172

W. Va. 47, 303 S.E.2d 685 (1983).

Syl. Pt. 3, in part, In re A.P.-1, 241 W. Va. 688, 827 S.E.2d 830 (2019). Additionally, West Virginia

Code § 49-4-601 sets forth the following:

At the conclusion of the adjudicatory hearing, the court shall make a determination

based upon the evidence and shall make findings of fact and conclusions of law as

to whether the child is abused or neglected and whether the respondent is abusing,

neglecting, or, if applicable, a battered parent, all of which shall be incorporated

into the order of the court.

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(Emphasis added). As set forth above, the court made no findings of fact and, instead, simply

concluded that the children were abused and neglected. In other contexts of abuse and neglect

proceedings, we have found such conclusory rulings insufficient. See Syl. Pt. 4, In re Edward B.,

210 W. Va. 621, 623, 558 S.E.2d 620, 624 (2001) (holding that a dispositional order was

inadequate because the court “merely declare[d]” there was no reasonable likelihood that the

conditions of neglect could be eliminated “without explicitly stating factual findings in the order

or on the record supporting such conclusion”).

Here, the record clearly demonstrates the problematic nature of such declarations in the

absence of detailed factual findings, as the court’s finding of abuse has no basis in the record. West

Virginia Code § 49-1-201 defines “[a]bused child,” in relevant part, as

[a] child whose health or welfare is being harmed or threatened by: (A) A parent,

guardian, or custodian who knowingly or intentionally inflicts, attempts to inflict,

or knowingly allows another person to inflict, physical injury or mental or

emotional injury, upon the child or another child in the home.

The court made this finding despite the fact that there is simply no evidence in the record that

petitioner either inflicted, attempted to inflict, or knowingly allowed another person to inflict any

sort of injury upon the children. Accordingly, it is clear that adjudicating petitioner of abusing the

children was in error. Further, we are unable to undertake a review of the appropriateness of the

court’s conclusion that petitioner neglected the children, given that it made no factual findings in

support. See Edward B., 210 W. Va. at 632, 558 S.E.2d at 631 (“Adequate findings must be made

in order to protect the rights of litigants and to facilitate review of the record by an appellate

court.”).

This is especially true in regard to C.T.-1, who had been in the legal custody of the maternal

grandmother for approximately eleven years prior to the filing of the petition in this matter. We

recently had occasion to address a similar set of circumstances in In re C.S. and B.S., -- W. Va. -- ,

-- S.E.2d --, 2022 WL 2155209 (2022). In that case, we addressed a circuit court’s adjudication

and subsequent termination of parental rights to a child who had resided in a legal guardianship

prior to the proceedings. Id. at *9. Ultimately, we concluded that B.S., the child who resided

outside of petitioner’s home, “did not qualify as either an ‘abused child’ or a ‘neglected child’ as

those terms are defined by statute.” Id. at *11. This was due to the fact that, for the five years

preceding the filing of the petition in that matter, B.S. lived outside the parents’ home under a

permanent legal guardianship. Id. We concluded that because B.S. lived outside the home with

permanent legal guardians, that

B.S.’s health and welfare were not harmed or threatened by the petitioner’s drug

addiction, and there is no evidence that any person inflicted abuse or neglect upon

B.S. or upon another child in the home where B.S. was living. . . . Critically, the

petitioner did not have custody of B.S. and could not have simply gone to the

guardians’ home to retrieve B.S. any time she wished. To obtain custody of B.S.,

the petitioner would have to file a petition to terminate the legal guardianship

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pursuant to West Virginia Code § 44-10-3, and a court would have to grant that

petition.

Id.

This is the exact situation present in the current matter on appeal. Here, C.T.-1 resided with

the legal guardian, the maternal grandmother, for eleven years prior to the filing of the instant

petition. Just as it was undisputed that the guardians in C.S. were nonabusing, the DHHR levied

no allegations against C.T.-1’s guardian in the current matter. Id. Further, the petition in this matter

contains no specific allegations that C.T.-1 was abused or neglected and instead focused all of its

allegations on petitioner’s conduct concerning C.T.-2. As we have recently explained,

[f]or a circuit court to have jurisdiction over a child in an abuse and neglect

case, the child must be an “abused child” or a “neglected child” as those terms are

defined in West Virginia Code § 49-1-201 (2018). Pursuant to West Virginia Code

§ 49-4-601(i) (2019), a circuit court’s finding that a child is an “abused child” or a

“neglected child” must be based upon the conditions existing at the time of the

filing of the abuse and neglect petition.

Id. at --, -- S.E.2d at --, 2022 WL 2155209 at *2, Syl. Pt. 8. Because we concluded that the court

lacked subject matter jurisdiction over B.S., we ultimately concluded that it was error to terminate

the petitioner’s parental rights to that child. Id. at *11. Accordingly, it is clear that the circuit

court’s adjudication of petitioner in regard to C.T.-1 was erroneous and that it further lacked

jurisdiction to terminate petitioner’s parental rights to that child.

For the foregoing reasons, we vacate the circuit court’s December 17, 2021, order

terminating petitioner’s parental rights and further remand the matter for the entry of an

adjudicatory order with detailed findings of fact and conclusions of law sufficient to support

adjudication of C.T.-2, if appropriate, and for further proceedings consistent with the applicable

statutes and rules. The Clerk is hereby directed to issue the mandate contemporaneously herewith.

Vacated and remanded, with direction.

ISSUED: August 31, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice C. Haley Bunn

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