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In re J.W.-1

Supreme Court of West Virginia

March 15, 2019

In re J.W.-1

          Putnam County 17-JA-39

          MEMORANDUM DECISION

         Petitioner Mother C.W., by counsel Benjamin Freeman, appeals the Circuit Court of Putnam County's September 4, 2018, order terminating her custodial rights to J.W.-1.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Brandolyn N. Felton-Ernest, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Rosalee Juba-Plumley, filed a response on behalf of the child, also in support of the circuit court's order. On appeal, petitioner argues that the time limits for improvement periods are unconstitutional and that the circuit court erred in terminating her custodial rights without first granting her an extension to her improvement period or a post-dispositional improvement period.

         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 standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Prior to the initiation of the instant proceedings, petitioner's parental rights to her first child, J.W.-2, were involuntarily terminated due to her drug use and her exposure of the child to the same. Petitioner gave birth to her second child, B.W., in 2015, and proceedings were initiated against her again due to her continued drug use and exposing the child to her drug abuse. Her parental rights to that child were subsequently involuntarily terminated in 2016.

         Regarding the instant proceedings, petitioner gave birth to her third child, J.W.-1, in March of 2017, and the DHHR filed a child abuse and neglect petition shortly thereafter in April of 2017. Because petitioner's parental rights to her two older children were previously permanently terminated, J.W.-1 is the only child at issue on appeal. In the petition, the DHHR noted petitioner's prior termination of parental rights, and alleged that petitioner continued to abuse drugs and gave birth to J.W.-1, who was born drug-exposed. When questioned by a hospital social worker, petitioner admitted to abusing heroin and non-prescribed Suboxone during the first several months of her pregnancy until she was placed on Subutex through a recovery program. Petitioner also admitted to a Child Protective Services ("CPS") worker that she had been living with her children J.W.-2 and B.W., despite having had her parental rights to those children previously terminated. The DHHR concluded that petitioner's drug use seriously impaired her parenting skills and abilities. Petitioner waived her preliminary hearing.

         The circuit court held an adjudicatory hearing in July of 2017, wherein petitioner stipulated to the allegations contained in the petition. The circuit court accepted petitioner's stipulation and adjudicated her as an abusing parent. Petitioner also moved the circuit court for a post-adjudicatory improvement period. The circuit court held the motion in abeyance and subsequently granted petitioner a post-adjudicatory improvement period in July of 2017.

         At a status hearing held in January of 2018, petitioner requested a three-month extension to her improvement period and the circuit court granted her the same. Another status hearing was held in April of 2018. While the circuit court found that petitioner was making progress in her improvement period, it noted that she was not in a position to take custody of the child and set the matter for disposition.

         In July of 2018, the circuit court held a dispositional hearing. The DHHR proffered that petitioner remained in drug treatment and was unable to take custody of the child. Petitioner had not successfully completed her improvement period and the child had been in the custody of the DHHR for more than fifteen months. As such, the DHHR recommended that the circuit court terminate petitioner's parental rights. Counsel for petitioner argued that termination of petitioner's parental rights was inappropriate due to the substantial progress she had made in treatment. Petitioner's counsel suggested that a less-restrictive alternative was proper because petitioner had complied with every directive of the court and noted that true recovery takes longer than the time afforded in improvement periods. The guardian also recommended a less-restrictive alternative to termination of petitioner's parental rights given her substantial compliance. The circuit court found that petitioner had previously had her parental rights to two older children terminated due to her drug use. Petitioner then gave birth to J.W.-1, who was drug-exposed. While petitioner did participate in intensive inpatient treatment for over one year, she was not able to successfully, timely complete the same, resulting in J.W.-1 remaining in the custody of the DHHR for more than fifteen months. The circuit court denied petitioner's motions for an extension to her post-adjudicatory improvement period and a dispositional improvement period. Because the child needed permanency, the circuit court terminated petitioner's custodial rights. It is from the September 4, 2018, dispositional order that petitioner appeals.[2]

         The Court has previously established the following standard of review in cases such as this:

"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).

         On appeal, petitioner argues that the time limits for improvement periods in abuse and neglect cases are unconstitutional. Petitioner points out that there are constitutional protections surrounding the right of a parent to the custody of his or her children and, in order to protect said right, circuit courts should be permitted broader discretion in extending the time in which a parent can complete an improvement period.[3] Regarding her situation specifically, petitioner states that serious recovery from substance abuse "does not happen overnight" and "treatment [is] always destined to outlast the time allowed for the completion of an improvement period as prescribed by the [West Virginia C]ode." Here, petitioner asserts that she was successfully addressing her substance abuse issues when the circuit court terminated her custodial rights because the child had been in the custody of the DHHR for fifteen months. According to petitioner, termination of her custodial rights was not in the best interests of the child. Moreover, she argues "it is incongruous to try to reconcile the fluid and subjective 'best interests of the child' standard discussed by the [c]ourts with the rigid and arbitrary time limits imposed." Lastly, petitioner argues that her custodial rights should not have been terminated without first granting her an extension of her improvement period or a post-dispositional improvement period.[4] Upon our review, we find no merit to petitioner's arguments.

         Petitioner correctly states that parents have a right to parent their children. We have previously held

"[i]n 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).

         Syl. Pt. 5, In re J.G., 240 W.Va. 194, 809 S.E.2d 453 (2018). However, we have also held that "[a]lthough 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." Id. at 197, 809 S.E.2d at 456, syl. pt. 7 (quoting syl. pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996)).

         Regarding improvement periods, this Court has noted that "[i]mprovement periods are . . . regulated, both in their allowance and in their duration, by the West Virginia Legislature, which has assumed the responsibility of implementing guidelines for child abuse and neglect proceedings generally." In re Emily, 208 W.Va. 325, 334, 540 S.E.2d 542, ...


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