In re N.L.

FILED

May 13, 2024

`STATE OF WEST VIRGINIA C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

SUPREME COURT OF APPEALS OF WEST VIRGINIA

In re N.L.

No. 23-138 (Fayette County CC-10-2020-JA-131)

MEMORANDUM DECISION

Petitioner Mother C.O.1 appeals the Circuit Court of Fayette County’s February 10, 2023,

order terminating her parental and custodial rights to R.L., arguing that it was error to deny her an

improvement period and to terminate her rights upon a motion to modify the prior dispositional

order.2 Upon our review, we determine that oral argument is unnecessary and that a memorandum

decision affirming the circuit court’s order is appropriate. See W. Va. R. App. P. 21.

In September 2020, the DHS filed a petition alleging that the petitioner and the father

abused and neglected the child, who was born drug affected, and previously voluntarily

relinquished their parental rights to three older children. After she was adjudicated in regard to the

current child, the petitioner completed a post-adjudicatory improvement period. The child was

returned to the parents’ custody with ongoing DHS services, and the proceedings were dismissed

from the court’s active docket by order entered in December 2021.

In April 2022, the DHS filed a motion to modify disposition3 in which it alleged, in addition

to the petitioner’s lengthy history of Child Protective Services and court involvement, that the

petitioner was involved in a single-vehicle accident with the child in her car. According to the

DHS, law enforcement observed her to be confused and disoriented at the scene of the accident,

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The petitioner appears by counsel Nancy S. Fraley. The West Virginia Department of

Human Services appears by counsel Attorney General Patrick Morrisey and Deputy Attorney

General Steven R. Compton. Counsel Vickie L. Hylton appears as the child’s guardian ad litem.

Additionally, pursuant to West Virginia Code § 5F-2-1a, the agency formerly known as

the West Virginia Department of Health and Human Resources was terminated. It is now three

separate agencies—the Department of Health Facilities, the Department of Health, and the

Department of Human Services. See W. Va. Code § 5F-1-2. For purposes of abuse and neglect

appeals, the agency is now the Department of Human Services (“DHS”).

2

We use initials where necessary to protect the identities of those involved in this case.

See W. Va. R. App. P. 40(e).

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The DHS later filed an amended motion to modify in which it made additional allegations

against the father.

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though she did not complain of a head injury. The DHS alleged that the petitioner’s “drug screens

at the hospital showed [she] was positive for amphetamines, benzodiazepine, opiates, and ecstasy

in her blood.” The petitioner was charged criminally with gross neglect of a child creating a

substantial risk of death or serious bodily injury and DUI. A separate bench warrant was issued

for an unresolved prior charge of felony child abuse regarding battery on a child to whom she had

previously relinquished her parental rights. Accordingly, the DHS alleged that the petitioner had

not resolved her substance abuse issues and could not care for the child. The court held a hearing

on the motion to modify that same month and ultimately set the matter for disposition.

In June 2022, a report indicated that the child displayed regression in eating and speech,

showed signs of aggression that she had not displayed before being returned to the parents, and

was behind on her immunizations. Because the child had been out of the home for more than fifteen

of the most recent twenty-two months, and because the child had an “extreme bond” with the foster

family, the DHS sought termination of the petitioner’s rights. The petitioner then filed a motion

for a post-dispositional improvement period in which she sought to participate in family drug

treatment court (“FTC”).

On August 19, 2022, the court held the first of three dispositional hearings. The court heard

testimony from a law enforcement officer regarding the petitioner’s car accident. He explained

that “[t]he car was 30 feet over a hill, into the creek, on its roof.” He also testified that the petitioner

“was positive for benzodiazepine, PCP, opiates, and amphetamines at the hospital.” The petitioner

testified and admitted that she failed to participate in the services ordered when the case was

previously dismissed. The petitioner also admitted her failure to keep the child’s immunizations

current and continue with Birth to Three services; to using multiple drugs approximately two or

three days prior to the car accident in question; and to her positive urine screen at the hospital after

her arrest, but, according to the court, she “trie[d] to place the blame for these [drugs] being in her

system on the ambulance crew.”

On October 6, 2022, the court held a second dispositional hearing, during which DHS

employees testified to the nature of the services offered to the petitioner and her failure to remain

in contact with the DHS, in addition to advocating for the termination of her rights due to the

applicable time limitations on improvement periods. At the final dispositional hearing on

December 16, 2022, the court heard from the petitioner’s mother concerning issues of the

petitioner’s substance abuse and other aspects of the child’s care. The court then ordered the parties

to submit proposed findings of fact and conclusions of law.

Ultimately, the court found that the petitioner subjected the child to chronic abuse in the

form of substance abuse, as her drug problem had been ongoing for more than two years of the

child’s life. Further, the court concluded that the petitioner only acknowledged her drug problem

“when [she] get[s] caught.” The court highlighted the petitioner’s medical neglect of the child

upon her return to the petitioner’s care as a basis for termination. Critically, the court stressed that

the child’s regression occurred in a short period of time while the petitioner was still receiving

services. Finding that there was no reasonable likelihood that the petitioner could substantially

correct the conditions of abuse and neglect in the near future and that termination was necessary

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for the child’s welfare, the court terminated the petitioner’s parental and custodial rights.4 It is

from the dispositional order that the petitioner appeals.

On appeal from a final order in an abuse and neglect proceeding, this Court reviews the

circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re

Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Before this Court, the petitioner first argues that

the DHS should not have been permitted to seek termination of her parental rights upon a motion

to modify the prior dispositional order. We find, however, that the plain language of West Virginia

Code § 49-4-606(a) explicitly grants the circuit court the ability to modify a prior dispositional

order upon a motion from the DHS and upon clear and convincing evidence of “a material change

of circumstances and that the modification is in the child’s best interests.” As we have explained,

“‘[a] statutory provision which is clear and unambiguous and plainly expresses the legislative

intent will not be interpreted by the courts but will be given full force and effect.’ Syl. Pt. 2, State

v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).” Syl. Pt. 6, State ex rel. Biafore v. Tomblin, 236

W. Va. 528, 782 S.E.2d 223 (2016). Here, the court was presented with ample evidence of a

substantial change in circumstances in the form of the petitioner’s escalating abusive and

neglectful conduct, including ongoing substance abuse and a car accident with the child in the

vehicle. Further, the evidence clearly established that modification was in the child’s best interests,

given that the child’s health regressed in the short period she was returned to the petitioner’s care.

Accordingly, the statutory requirements for modification were met, and the court was free to

impose the appropriate disposition in accordance with West Virginia Code § 49-4-604, the statute

governing disposition.

As to disposition, the petitioner argues that an improvement period would have been more

appropriate than termination of her rights because she could have participated in FTC, an option

that was not available to her prior to the first disposition. However, she also recognizes that the

child had already been in foster care for more than fifteen of the most recent twenty-two months.

According to West Virginia Code § 49-4-610(9),

no combination of any improvement periods or extensions thereto may cause a

child to be in foster care more than fifteen months of the most recent twenty-two

months, unless the court finds compelling circumstances by clear and convincing

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

this paragraph.

The mere fact that the petitioner was presented with a rehabilitative tool that was previously

unavailable is insufficient to demonstrate that extending these time limits was in the child’s best

interests.

Further, an improvement period was not appropriate because the petitioner refused to

acknowledge her abuse and neglect of the child. While the petitioner points to certain evidence to

assert that she did, in fact, acknowledge the conditions constituting abuse and neglect, the entirety

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The father’s rights were also terminated. The permanency plan for the child is adoption

in the current placement.

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of the record supports the circuit court’s conclusion that the petitioner only admitted to her

parenting deficiencies after being “caught.” As we have explained,

[i]n 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.

In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re Charity H., 215

W. Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Because of the petitioner’s refusal to acknowledge

the existence of a problem, denial of an improvement period and termination of her parental and

custodial rights was appropriate. See also Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d

55 (2011) (permitting termination of parental and custodial rights upon a finding that there is no

reasonable likelihood that conditions can be substantially corrected).

For the foregoing reasons, we find no error in the decision of the circuit court, and its

February 10, 2023, order is hereby affirmed.

Affirmed.

ISSUED: May 13, 2024

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Elizabeth D. Walker

Justice William R. Wooton

DISSENTING:

Justice John A. Hutchison

Justice C. Haley Bunn

Hutchison, Justice, and Bunn, Justice, dissenting:

We dissent to the majority’s resolution of this case. We would have set this case for oral

argument to thoroughly address the errors alleged in this appeal. Having reviewed the parties’

briefs and the issues raised therein, we believe a formal opinion of this Court was warranted, not

a memorandum decision. Accordingly, we respectfully dissent.

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