Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re J. G.

Supreme Court of West Virginia

February 15, 2018

In re J. G., II

          Submitted: January 23, 2018

          Appeal from the Circuit Court of McDowell County The Honorable Booker T. Stephens, Judge Case No. 14-JA-081

          William O. Huffman, Esq. Princeton, West Virginia Attorney for Petitioners S. L. and S. L.

          Ronald D. Hassan, Esq. Welch, West Virginia Attorney for Respondent J. G.

          R. Keith Flinchum, Esq. Princeton, West Virginia Attorney for Respondent T. S.

          Patrick Morrisey, Esq. Attorney General Melinda C. Dugas, Esq. Assistant Attorney General Charleston, West Virginia Attorney for West Virginia Department of Health and Human Resources


         1. "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 re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

         2. "Pursuant to West Virginia Code § 49-6-12(g) (1998), before a circuit court can grant an extension of a post-adjudicatory improvement period, the court must first find that the respondent has substantially complied with the terms of the improvement period; that the continuation of the improvement period would not substantially impair the ability of the Department of Health and Human Resources to permanently place the child; and that such extension is otherwise consistent with the best interest of the child." Syl. Pt. 2, In re Jamie Nicole H., 205 W.Va. 176, 517 S.E.2d 41 (1999).

          3. "At the conclusion of the improvement period, the court shall review the performance of the parents in attempting to attain the goals of the improvement period and shall, in the court's discretion, determine whether the conditions of the improvement period have been satisfied and whether sufficient improvement has been made in the context of all the circumstances of the case to justify the return of the child." Syl. Pt. 6, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

         4. "Child abuse and neglect cases must be recognized as being among the highest priority for the courts' attention. Unjustified procedural delays wreak havoc on a child's development, stability and security." Syl. Pt. 1, in part, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

         5. "In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions." Syl. Pt. 1, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).

         6. "Although parents have substantial rights that must be protected, the primary goal in cases involving abuse and neglect, as in all family law matters, must be the health and welfare of the children." Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

          7. "In a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided." Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221 (1948).

         8. "'[C]ourts are not required to exhaust every speculative possibility of parental improvement before terminating parental rights where it appears that the welfare of the child will be seriously threatened. . . .'" Syl. Pt. 7, in part, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

         9. "When parental rights are terminated due to neglect or abuse, the circuit court may nevertheless in appropriate cases consider whether continued visitation or other contact with the abusing parent is in the best interest of the child. Among other things, the circuit court should consider whether a close emotional bond has been established between parent and child and the child's wishes, if he or she is of appropriate maturity to make such request. The evidence must indicate that such visitation or continued contact would not be detrimental to the child's well being and would be in the child's best interest." Syl. Pt. 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).

         10. "A permanency plan for abused and neglected children designating their permanent placement should generally be established prior to a determination of whether post-termination visitation is appropriate." Syl. Pt. 6, In re Billy Joe M., 206 W.Va. 1, 521 S.E.2d 173 (1999).


         Petitioners/foster parents S. L. and S. L.[1] (hereinafter "petitioners"), appeal the Circuit Court of McDowell County's August 25, 2017, disposition order in this abuse and neglect proceeding, which required the gradual transition of infant J. G., II back to the physical custody of his biological parents, respondents J. G. and T. S. Petitioners assert that the circuit court erred in failing to comply with the statutory time frames required for abuse and neglect proceedings and further abused its discretion in returning the infant to his biological parents. The Department of Health and Human Resources (hereinafter "DHHR") and the guardian ad litem concur that the circuit court abused its discretion in returning the infant to his parents.

         Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we find that the circuit court erred in failing to comply with the statutory requirements of West Virginia Code § 49-4-610 (2015) and the West Virginia Rules of Procedure for Child Abuse and Neglect. We further find that the circuit court abused its discretion in failing to terminate respondents' parental rights and ordering return of the infant to their care and physical custody. Therefore, we reverse the circuit court's disposition in this matter and remand this case with directions to the circuit court to terminate respondents' parental rights, attain permanency for the infant, and conduct any and all further proceedings, as necessary and appropriate.


         J. G., II was born to respondents T. S. and J. G. at thirty-four weeks' gestation with opiates, marijuana, and benzodiazepines in his system. Based on T. S.'s prior involuntary termination of parental rights to a child due to substance abuse and domestic violence and the presence of drugs in J. G., II's system, an abuse and neglect petition was filed by DHHR on December 29, 2014.[2] J. G., II was placed into a variety of foster homes in his early weeks and was ultimately placed with petitioners on February 11, 2015, when he was six weeks old. He remains in their care to date.[3] Due to his prematurity and the drugs in his system, J. G., II has special needs requiring medical monitoring and treatment including ear, nose and throat difficulties, feeding/weight gain, and hypertonicity.

         Respondents waived a preliminary hearing and while awaiting a March 10, 2015, adjudicatory hearing, they cancelled multiple visits, frequently fell asleep during the visits they did attend, failed to return calls from DHHR, and had multiple positive drug screens. Nevertheless, at the March 10, 2015, hearing, the circuit court granted a six-month pre-adjudicatory improvement period. The DHHR apparently provided a report to the circuit court prior to the subsequent ninety-day hearing indicating the respondents were not cooperating with services; [4] accordingly, the circuit court ordered that respondents cooperate with services and set an adjudicatory hearing for July 30, 2015.[5] The July 30, hearing was continued to August 20 and the circuit court again entered an order requiring respondents to cooperate with drug screens. The day before the August 20, 2015, adjudicatory hearing, the DHHR advised the circuit court that respondents were cooperating "only minimally" with services and were difficult to contact; DHHR requested adjudication since the improvement period "appear[ed] to have been a failure."

         For reasons that do not appear in the record or in its order, the court continued the August 20 adjudicatory hearing until September 16, 2015. Further, the appendix record contains no transcript of the September 16, 2015, hearing; however, in an order arising from the hearing, the circuit court stated that respondents "have demonstrated the likelihood to fully participate in [an] improvement period" and therefore granted another six-month improvement period, apparently upon oral motion. [6]

         Thereafter, respondents continued to have positive drug screens. A DHHR summary stated that respondents "will over medicate either night before or morning of visits, which will result in one being unable to attend due to an 'illness'" and noted they were being evicted. A visit just before a November 19, 2015, status hearing was cancelled due to a physical altercation between respondents, which resulted in J. G. being arrested. Days before the hearing, respondents again tested positive for a combination of opiates, benzodiazepiness, and suboxone. A letter from DHHR the day before the hearing stated that there had been domestic violence incidents each month since the last hearing, resulting in charges to each respondent. At the November 19, 2015, hearing, the circuit court set adjudication for December 10, 2015, noting the respondents' continued positive drug screens.

         Respondents appeared at the December 10, 2015, hearing in an impaired state. The DHHR advised that respondents continued to test positive in the drug screens in which they actually participated, but that T. S. noted that there was no reason to attend them because "her rights were going to be terminated." The DHHR noted respondents were living in hotels and about to be evicted from their most recent home. The circuit court continued the adjudicatory hearing to December 16, 2015, at which time both respondents stipulated to substance abuse resulting in abuse and neglect. The DHHR noted that the drug screens were "just as bad if not worse" than at the outset of the case and that the case had been "dragging." The guardian ad litem concurred that there was no improvement. Nevertheless, the circuit court granted yet another six-month post-adjudicatory improvement period upon oral motion[7] over the objection of the guardian ad litem and DHHR. The order states that respondents "have demonstrated the likelihood to fully participate in the improvement period" and that although "[a]n earlier improvement period was granted[, ] . . . there has been a substantial change in circumstances supporting the likelihood of full participation in a further improvement period." The order does not note what those changes in circumstances were.[8]

         Shortly before the next status hearing, the DHHR noted that both parents were admitted to rehabilitation facilities, but continued to have positive drug screens until admission. At a July 14, 2016, status hearing, the parties appeared and orally moved for a six-month extension of their post-adjudicatory improvement period. The circuit court granted another improvement period, congratulating them on completing rehab and noting they "looked better" than he had previously seen them, and making the improvement period conditional upon respondents obtaining a home.

         Shortly after this hearing, petitioner S. L. apparently communicated with the guardian ad litem objecting to overnight visits, noting that J. G., II would be in danger with his parents. And in fact, on October 1, 2016, an incident occurred at the end of an overnight visit. Apparently, a CPS worker arrived at respondents' home to pick up J. G., II and received no answer at the door; she then heard J. G., II screaming and entered the home. She went upstairs and observed large amounts of blood, finding the infant on the bed beside J. G., who was completely unresponsive; T. S. emerged from the bathroom with a large gash over her eye, indicating she had fallen. The infant was in a saturated diaper, screaming and reaching for the CPS worker. The CPS worker reported that T. S. was stumbling and had difficulty speaking; she stated her "eyes were dilated and her pupils were the size of pins. . . . [S]he was high as a kite." It was later discovered that both had stopped attending their AA and NA meetings and neighbors suspected a relapse. The DHHR once again advised the circuit court by written report that the "improvement period has been a failure[.]" The guardian ad litem shortly thereafter requested termination by letter to the circuit court and the DHHR filed a written motion for termination on November 7, 2016.

          At the termination hearing of December 15, 2016, respondents contended that they had not relapsed and that the incident of October 1 was the result of J. G.'s appropriate use of prescription medication and T. S.'s vertigo. T. S. admitted, however, to having smoked three joints due to her brother's death in early October. Without explanation, the circuit court stated: "I'm going to give them 90 days to see what happens." The court further gave respondents thirty days to settle into a fourth home which was reportedly located in a "known drug area."

         Petitioners thereafter moved to intervene, which motion was granted. At the next status hearing on March 23, 2017, DHHR reported that the family moved into a trailer partially damaged by fire and that supervised visits had been reinitiated. Respondents' preceding three drug screens were positive; however, respondents claimed to have prescriptions to explain the most recent screens and the circuit court decided to wait for confirmation of the preceding day's drug screen, resetting the hearing for April 4, 2017. At the April 4 hearing, respondents continued to maintain that their positive screens were for prescribed medications, with the exception of the "small amount of marijuana."[9]Ultimately, the circuit court stated that "[n]otwithstanding it's been 26, 27 months, I'm going to hold in abeyance the motion to terminate, and you have-I'm going to give you until July. If there are no positive screenings between now and July, I'm inclined then to lift the supervised visitations and let you have this child . . . ." The court noted that its ruling was based "on the fact that, actually, we're supposed to work to try and reunite the families, if we can."

         The parties returned upon petitioners' motion for permanent placement, which motion contained the recommendation of the Children's Home Society. CHS observed that the infant was bonded with petitioners and called their daughter "sissy." CHS stated that returning J. G., II to respondents "could be traumatizing and risky to [his] stability and safety[.]" Both parents tested positive on three occasions for any combination of hydrocodone, morphine, "extended opiates"; in early July, T. S. tested positive for amphetamines. Respondents continued to attribute these results to prescription medications.[10] Counsel and the circuit court argued at length about the significance of the positive findings, but no evidence of the prescriptions was apparently made part of the record. Respondents further failed to offer any expert testimony regarding the current necessity of the prescriptions or whether the results were within therapeutic limits. For reasons which do not appear on the record, the circuit court ordered the parties to return on August 7, 2017 for its "ruling."

          On August 7, 2017, testimony was taken at the disposition hearing. Respondents maintained they were drug-free[11] and continued to attribute positive drug screens to prescriptions; they insisted they had obtained adequate housing and were prepared to care for J. G., II and attend to his various medical appointments by J. G. re-obtaining his drivers' license which had apparently expired.[12] Petitioner/foster mother S. L. testified about her desire to adopt J. G., II and explained his various medical issues. She testified that he was set to begin preschool and explained his resistance to visits with his biological parents, as well as sleep disturbances and behavioral disturbances after visits. The CPS worker confirmed anxiety when she went to pick him up for parental visits and again recounted the events of October 1.

         The circuit court made no ruling at the time of the disposition hearing, but entered an order eighteen days later on August 25, 2017, noting that the respondents had made "considerable improvements, " testing negative for months "except for prescribed medication, " and ordering gradual transition of J. G., II to their physical care and custody. Petitioners then filed the instant appeal.

         II. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.