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In re R.Y.

Supreme Court of West Virginia

November 2, 2017

In Re: R.Y.

         (Mercer County 15-JA-199)


         T.Y. (hereinafter the "petitioner" or "mother") appeals the October 21, 2016, order of the Circuit Court of Mercer County terminating her parental rights to her daughter, R.Y.[1]The petitioner also asserts error regarding several pre-termination rulings of the circuit court. The respondents, the Department of Health and Human Resources ("DHHR") and the child's guardian ad litem, argue in support of the circuit court's actions.[2]

         After considering the parties' written and oral arguments, as well as the record on appeal and the applicable law, this Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's orders is appropriate under Rule 21 of the Rules of Appellate Procedure.

         I. Facts and Procedural History

         Upon her birth in November 2015, the infant R.Y. tested positive for the presence of opiates in her system. The hospital advised the DHHR of this test result and that R.Y. was exhibiting physical signs of withdrawal, including tremors, a hypertonic tone, regurgitation, and sneezing. The hospital categorized these symptoms as "an 8 on the withdrawal scale." The petitioner mother asserted that she had a prescription to take opiate pain medication during her pregnancy, which the DHHR later confirmed. When questioned by a DHHR worker, the petitioner denied taking any illegal drugs during her pregnancy.

         In addition, the DHHR knew the petitioner had been the subject of an abuse and neglect case that began in 2006 and resulted in the involuntary termination of her parental rights to two other children in 2008. When terminating her rights in 2008, the circuit court found the petitioner had "habitually abused or is addicted to controlled substances or drugs to the extent that her proper parenting skills have been seriously impaired, and she has not followed through with the recommended and appropriate treatment which could have improved her capacity for adequate parental functioning[.]" The petitioner was unable to complete an improvement period in that case because she was incarcerated.

         On November 17, 2015, the DHHR and the petitioner agreed to a voluntary temporary protection plan whereby the petitioner's mother, who lived nearby, would check on the petitioner and R.Y. every day. On November 20, 2015, the hospital advised the DHHR that R.Y.'s meconium (first stool) had tested positive for the presence of cocaine and marijuana, indicating that the petitioner had ingested these illegal drugs during her pregnancy. The same day, the DHHR and the petitioner agreed to a new voluntary temporary protection plan placing R.Y. in the maternal grandmother's home. Pursuant to this agreed plan, the petitioner could visit the baby at any time so long as it was under the maternal grandmother's supervision.

         On December 4, 2015, the DHHR filed an abuse and neglect petition against the petitioner citing both the petitioner's drug use while pregnant with R.Y. and the prior terminations.[3] At that time, the DHHR did not know the identity of R.Y.'s father. The circuit court entered an order on December 4, 2015, directing that the abuse and neglect petition be filed, appointing counsel for the petitioner, appointing a guardian ad litem for the child, and scheduling a status hearing. This order did not address the issue of the child's placement and did not award custody to the DHHR.

         Meanwhile, in early December 2015, the DHHR removed R.Y. from the maternal grandmother's home and placed the baby in the home of the petitioner's ex-boyfriend, B.R., and B.R.'s girlfriend, C.G.[4] Although B.R. is not R.Y.'s father, he is the biological father of the petitioner's other two children. One of those children, a teenaged boy, lives with B.R. and C.G. The DHHR removed R.Y. from the maternal grandmother's home without the petitioner's consent, without performing a suitability study of B.R. and C.G.'s home, and without obtaining a court order regarding the removal.

         On January 4, 2016, the status hearing was held during which the circuit court expressed concern about the DHHR's removal of the child without seeking a preliminary hearing or obtaining a court order. The court inquired whether the petitioner wanted a hearing on this issue. The petitioner responded in the affirmative and the court heard evidence. A DHHR worker testified that the child was moved to a sibling placement because the maternal grandmother had ongoing health issues stemming from a previous stroke. By written order entered January 29, 2016, the court concluded that the DHHR took R.Y. without affording the petitioner due process. Nonetheless, the court also found that continuation with the petitioner and the maternal grandmother would have been contrary to the child's best interests and probable cause existed to support the removal. As such, the child remained in her temporary placement with B.R. and C.G.

         Although she did not initially identify R.Y.'s father, at some point the petitioner advised the DHHR that the father is M.W. The circuit court ordered testing to establish M.W.'s paternity and, in February 2016, the DHHR amended its abuse and neglect petition to add a claim against M.W. for the failure to support this child.

         The adjudication hearing began on February 8, 2016. At that time, the petitioner testified and denied the use of cocaine or marijuana during her pregnancy. She claimed that she only took opiate pain medication pursuant to a prescription, and suggested that the results of the drug tests of R.Y.'s meconium were incorrect. However, when the adjudication hearing resumed on March 4, 2016, the petitioner offered to stipulate that R.Y.'s meconium had tested positive for the presence of cocaine and marijuana. By order entered on March 16, 2016, the circuit court adjudicated the petitioner as an abusive parent because she abused drugs during her pregnancy. The court also adjudicated the father M.W. as neglectful for having failed to provide proper support when he knew he had a relationship with the petitioner that could have resulted in the birth of a child.[5] The court awarded M.W., but not the petitioner, a post-adjudicatory improvement period.

         During the adjudication hearing, both the petitioner and the DHHR objected to the child remaining in the home of B.R. and C.G. To address these objections, the circuit court held a separate hearing on the placement issue on March 25, 2016. Although no testimony was offered at the March 25 hearing, counsel referenced an alleged prior domestic violence incident between B.R. and his former wife. There was also a report of bacteria found in the water inside B.R. and C.G.'s home. The petitioner requested that the child be placed with the paternal grandparents, whose home had since been approved by the DHHR. The petitioner argued that placement with the paternal grandparents would facilitate the DHHR's plan of ultimate reunification of the child and the father. At the March 25 hearing, the DHHR withdrew its objection to the placement with B.R. and C.G. The DHHR had satisfied itself that the facts of the domestic violence claim were not a problem, and it had confirmed the installation of a water filtration system inside B.R. and C.G.'s home. The guardian ad litem supported leaving the child in B.R. and C.G.'s home because the child had already been there for a few months and because a half-sibling resided in the home. At the conclusion of the March 25 hearing, the circuit court relied upon the guardian ad litem's recommendation and ordered that R.Y. would remain in her temporary placement.

         A disposition hearing was held on July 11, 2016, and October 6, 2016. The petitioner presented evidence from two service providers that she was doing well with her weekly, four-hour-long, supervised visits with R.Y. and with parenting education lessons. The petitioner's parole officer testified that in three drug screens administered in a two-year period, the petitioner only tested positive for prescribed medication. The last of those screens was administered approximately two months before R.Y. was born with illegal drugs in her system. One of the service providers testified that since the current abuse and neglect petition has been pending, the petitioner tested positive for marijuana. At the end of the July 11 hearing, the petitioner admitted that, if tested that very day, she would be positive for marijuana. During the October 6 hearing, her attorney admitted that the petitioner had a drug problem. The petitioner moved for a post-adjudicatory improvement period that would include drug treatment, which the court denied. The circuit court verbally ruled that "based upon the evidence from prior hearings and the evidence that she's still having problems today, I'm going to terminate the rights of" the petitioner.

         The termination decision was finalized by written order entered on October 21, 2016, and the petitioner appealed. The parties have notified the Court that during the pendency of this appeal, R.Y. was moved into the home shared by the father M.W. and his parents.

         II. Standard of Review

         When reviewing a circuit court's order in an abuse and neglect case, we apply a "compound standard of review: conclusions of law are subject to a de novo review, while findings of fact are weighed against a clearly erroneous standard." In re Emily, 208 W.Va. 325, 332, 540 S.E.2d 542, 549 (2000). In further elaboration of these standards, this Court explained:

"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 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). With these standards in mind, we will separately address each of the petitioner's assignments of error.

         III. Discussion

         A. The DHHR's unauthorized ...

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