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In re A.L.C.M.

Supreme Court of West Virginia

June 9, 2017

IN RE: A.L.C.M.

          Submitted: February 28, 2017

         Certified Question from the Circuit Court of Ohio County Honorable James P. Mazzone, Judge Civil Action No. 16-CJA-22

          Patrick Morrisey Attorney General, Thomas M. Johnson, Jr. Deputy Attorney General, Erica N. Peterson, Assistant Attorney General Charleston, West Virginia Attorneys for the Petitioner, West Virginia Department of Health and Human Resources.

          Joseph J. Moses Wheeling, West Virginia Petitioner and Guardian ad Litem for the Minor Child, A.L.C.M.

          Betsy Griffith, McPhail Law Office Wheeling, West Virginia Attorney for the Respondent, Father A.C.

          CHIEF JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion.

          JUSTICE WALKER concurs and reserves the right to file a concurring opinion.

         SYLLABUS

         1. When a child is born alive, the presence of illegal drugs in the child's system at birth constitutes sufficient evidence that the child is an abused and/or neglected child, as THOSE terms are defined by W.Va. Code § 49-1-201 (2015) (Repl. Vol. 2015), to support the filing of an abuse and neglect petition pursuant to W.Va. Code § 49-4-601 (2015) (Repl. Vol. 2015).

          OPINION

          DAVIS, JUSTICE.

         The instant proceeding is before the Court upon a question certified by the Circuit Court of Ohio County regarding the parameters of an abuse and neglect proceeding. By order entered August 17, 2016, the circuit court certified the following question to this Court:

Is a Petition for Relief from Parental Abuse and Neglect alleging abuse and/or neglect of an unborn child who is subsequently born alive, actionable under West Virginia law?

         The circuit court answered this question "YES."

         Under the power vested in this Court by the governing authorities, we deem it necessary to reformulate the circuit court's certified question to more accurately address the facts involved in and issues raised by the case sub judice. See Syl. pt. 2, Martino v. Barnett, 215 W.Va. 123, 595 S.E.2d 65 (2004) ("'When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under both the Uniform Certification of Questions of Law Act found in W.Va. Code, 51-1A-1, et seq. and W.Va. Code, 58-5-2 [1967], the statute relating to certified questions from a circuit court of this State to this Court.' Syl. Pt. 3, Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993)."). Accordingly, we reformulate the subject query as follows:

When a child is born alive, is the presence of illegal drugs in the child's system at birth sufficient evidence that the child is an abused and/or neglected child to support the filing of an abuse and neglect petition?

         We answer this question in the affirmative: when a child is born alive, the presence of illegal drugs in the child's system at birth constitutes sufficient evidence that the child is an abused and/or neglected child, as those terms are defined by W.Va. Code § 49-1-201 (2015) (Repl. Vol. 2015), to support the filing of an abuse and neglect petition pursuant to W.Va. Code § 49-4-601 (2015) (Repl. Vol. 2015).

         I.

         FACTUAL AND PROCEDURAL HISTORY

         The child subject to the underlying abuse and neglect proceeding, A.L.C.M., [1]was born alive in February 2016 at 25 3/7 weeks gestation; upon birth, the child's umbilical cord tested positive for cocaine, opiates, codeine, hydrocodone, and oxycodone, which is indicative of Mother's undisputed prenatal drug use. The child's twin was not born alive; it is believed that A.L.C.M.' s twin died as a result of twin-to-twin transfusion syndrome[2] and conditions related to the twin's premature birth.[3] Following the child's birth, A.L.C.M. was transferred from Ohio Valley Medical Center in Wheeling, West Virginia, to RubyMemorial Hospital in Morgantown, West Virginia, where the child remained in the NICU until being discharged on October 26, 2016.

         It appears from the record[4] that Mother and Father had a casual relationship that began in spring 2015. During this time, Mother used illegal drugs and prescription medications that had not been prescribed for her, predominantly using heroin. Father, who has an extensive criminal record for dealing and distributing drugs, does not appear to have been dealing, distributing, or using any illegal drugs or ill-gotten prescription drugs during this time. The record also indicates that Father was working various construction jobs, while Mother was not employed. Upon learning of Mother's pregnancy in December 2015, around the 16th week of gestation, Mother and Father commenced a more committed dating relationship and began living together. Father testified that, while they cohabited, he discouraged Mother's use of drugs and would ask her to leave the apartment whenever he found evidence of Mother's drug use. Mother testified that she was aware of Father's disapproval of her drug use and admitted that she would lie to Father about needing money to buy household supplies and personal hygiene items in order to fund her addiction.

         From December 2015, when Mother's pregnancy was discovered, until the child's birth in February 2016, Father took Mother to two[5] prenatal doctor's appointments.[6] The record also demonstrates that Father drove Mother to an out-of-state Subutex[7] clinic for treatment and paid for her Subutex prescription when he could afford to do so.[8] Additionally, Father stated that he contemplated having Mother involuntarily committed to a mental health facility so that she could receive treatment for her drug addiction, but Mother convinced him that she would agree to a voluntary commitment. Upon arrival at the facility, however, Mother changed her mind and refused to enter the facility's rehabilitation program. Father testified that, during this time, he continued to live with Mother in order to provide her support and to make sure she received the proper nutrition she needed for her pregnancy; he also said that he believed if he could provide Mother with a stable home environment, he might be able to encourage her to stop using drugs, particularly for the sake of the babies.

         As previously noted, the twins were born prematurely in February 2016. On the day of their birth, Father stayed at the Wheeling hospital with the deceased twin and Mother until Mother's friend arrived to stay with her. Father then drove to Morgantown to visit A.L.C.M., who had been transferred there by helicopter following birth. Mother left the Wheeling hospital later that same day against medical advice. Father stated that, out of concern for Mother, her ongoing drug use, and her ability to parent A.L.C.M., he filed a mental hygiene petition that resulted in Mother's involuntary commitment to Hillcrest Behavioral Health Services on February 27, 2016, during which time she went through withdrawal.

         On March 4, 2016, the West Virginia Department of Health and Human Resources ("DHHR") filed the instant abuse and neglect petition against both Mother and Father alleging that A.L.C.M. was an abused and/or neglected child.[9] The allegations of Father's misconduct vis-a-vis his child[10] include his failure to protect A.L.C.M. From Mother's drug use - both prenatal and ongoing after the twins' births - and his continued association with Mother, who DHHR considers to be a danger to and an unsuitable guardian for the child in light of her ongoing drug use and history of prior abuse and neglect proceedings.[11] In this regard, the petition specifically alleged that:

The Respondent [Father] has been dating [Mother] for the last year and a half. [Father] knew or should have known of [Mother's] drug abuse during her pregnancy and took no steps to try to stop the same.
[Father] has a history involving drug abuse and drug dealing and/or involvement with drugs himself, and this has led to criminal activity that has resulted in his incarceration.
[Father] has a criminal history including a conviction for unlawful taking of a vehicle in 1996; a conviction for conspiracy with intent to deliver crack cocaine in 1998, for which he was incarcerated for 87 months; a revocation of his supervised release in 2005; conviction for distribution of cocaine in 2005, with a 40 month sentence; a conviction in 2012 for delivery of marijuana, with a 1 to 5 year sentence; a conviction in 2013 for manufacturing or delivery of a controlled substance with a sentence of 1 to 5 years.
The Department cannot ensure the safety of the child in the care of [Father] or [Mother].
The infant [A.L.C.M.] has significant health issues, and [the child] will require extensive medical care and very attentive custodians. The Department cannot rely on Respondents [Mother and Father] to make sure this necessary medical care and attention is provided for the infant.

         The petition further alleged that A.L.C.M. is an abused child and/or neglected child, as those terms are defined by W.Va. Code § 49-1-201 (2015) (Repl. Vol. 2015). Finally, the petition alleged that

Respondents' [Mother's and Father's] drug and/or alcohol use is pervasive and threatens the child's safety.
The infant [A.L.C.M.] is in imminent danger inasmuch as an emergency situation exists that threatens the welfare or the life of the child, pursuant to West Virginia Code § 49-1-201, as there is reasonable cause to believe that the infant is threatened by non-accidental trauma; substantial emotional injury inflicted by a parent, guardian or custodian; and the parent, guardian or custodian's abuse of alcohol or drugs or other controlled substance has impaired his or her parenting skills to a degree as to pose an imminent risk to the child's health or safety.[12]

(Footnote added).

         Though both parents waived their preliminary hearings, Father nevertheless questioned his paternity of A.L.C.M. because of the possibility that another man was the child's father. During her dispositional hearing on June 2, 2016, [13] Mother voluntarily relinquished her parental rights to A.L.C.M. Following confirmation through paternity testing that Father is A.L.C.M.'s biological father, Father's adjudicatory hearing was scheduled. Prior to said hearing, however, Father filed a motion to dismiss the subject petition claiming that, pursuant to this Court's recent decision in State v. Louk, 237 W.Va. 200');">237 W.Va. 200, 786 S.E.2d 219 (2016), an abuse and neglect proceeding could not be brought to protect a child who has not yet been born, and, thus, by extension, a parent could not be charged with injuries sustained in utero. The circuit court heard both Father's motion to dismiss and evidence regarding his adjudication on August 9, 2016.

         Following the conclusion of the hearing, the circuit court held in abeyance a determination as to whether Father should be adjudicated to be an abusive and/or neglectful parent pending resolution of Father's motion to dismiss. As to this issue, the parties agreed to certify the following question to this Court insofar as it was deemed to be determinative of Father's motion to dismiss:

Is a Petition for Relief from Parental Abuse and Neglect alleging abuse and/or neglect of an unborn child who is subsequently born alive, ...

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