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In re B.S.

Supreme Court of West Virginia

March 19, 2019


          Submitted: January 16, 2019

          Appeal from the Circuit Court of Mercer County The Honorable William J. Sadler, Judge Case No. 16-JA-152

          Shannon L. Baldwin, Esq. Baldwin Law Office, PLLC Bluefield, West Virginia Counsel for Petitioner M.S.

          Patrick Morrisey, Esq. Attorney General Brandolyn N. Felton-Ernest, Esq. Assistant Attorney General Charleston, West Virginia Counsel for Respondent DHHR

          Gerald R. Linkous, Esq. Mercer County Public Defender Corporation Princeton, West Virginia Counsel for Respondent C.O.

          P. Michael Magann, Esq. Magann Law Office, PLL CBluefield, West Virginia Guardian ad Litem for B.S.


         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 Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996)." Syllabus Point 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

         2. "A parent has the natural right to the custody of his or her infant child, and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment, or other dereliction of duty, or has waived such right, or by agreement or otherwise has permanently transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts." Syllabus Point 1, in part, Nancy Viola R. v. Randolph W., 177 W.Va. 710, 356 S.E.2d 464 (1987).

         3. "Although parents have substantial rights that must be protected, the primary goal in cases involving abuse and neglect, as in all family law matters, is the health and welfare of the child. Thus, in furtherance of the goals of balancing the substantial parental rights and notice of the children's best interests, the least restrictive alternative is employed." Syllabus Point 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).



         Petitioner M.S.[1] ("Petitioner Father") appeals the March 30, 2018, disposition order of the Circuit Court of Mercer County which terminated the custodial rights, but left intact the parental rights, of Respondent Mother C.O. ("C.O") to the minor child B.S. Petitioner Father has sole custody of B.S. In this appeal, Petitioner Father asserts that the circuit court erred by failing to terminate C.O.'s parental rights. By contrast, C.O. argues that the circuit court "did not err when it terminated C.O.'s custodial rights instead of [her] full parental rights" and asks this Court to affirm the circuit court's order.

         Based on our established standard of review, we find that the circuit court's account of the evidence is plausible in light of the record viewed in its entirety.[2] Therefore, we affirm the circuit court's order terminating C.O.'s custodial rights, but leaving intact her parental rights. We note, however, that the circuit court retains jurisdiction over this matter and has the ability to terminate C.O.'s parental rights in the future if it determines that such termination is in the child's best interest.


         C.O. and Petitioner Father are the parents of B.S. She was born in 2012. On August 10, 2016, the Department of Health and Human Resources ("DHHR") filed an abuse and neglect petition alleging that B.S. had been exposed to drug use and domestic violence while living with C.O.[3] The petition alleged that C.O., C.O.'s boyfriend, C.G., and C.O.'s stepfather, M.B., lived together in the same residence. According to the petition, C.O., C.G., and M.B. were using "heroin, meth, [and] pills" in the residence. The petition provides that "approximately two weeks ago, [C.O.'s boyfriend C.G.] overdosed and had to be taken to the hospital. Narcan was required to save his life. The child [B.S.] was present during this drug usage." Further, the petition noted that "there is no food in the home. The caregivers sell their food stamps for drug money. [B.S] will stray to the homes of neighbors to ask for food and drink." During an interview with the DHHR, B.S. reported that her mother's boyfriend C.G. "fights with her mommy . . . has bit her mom on the stomach and arm, as well as having dragged mom by the foot to her room. [B.S.] disclosed that she saw these things and that she went to hide."

         C.O. initially admitted to using marijuana but denied any other substance abuse. However, medical records obtained by the DHHR demonstrated that C.O. went to the hospital on June 23, 2016, and admitted to taking "suboxone, meth, and marijuana." A medical record from July 10, 2016, showed that C.O. had overdosed on heroin. The medical record provides that C.O. admitted to "heroin or dilaudid use . . . [and] tested positive for Amphetamines, Cannabinoids, and Opiates at that time. [C.O.] left the hospital against medical advice."

         The DHHR interviewed Petitioner Father who stated that C.O. had a substance abuse problem. Petitioner Father said that C.O. told him she was using heroin a few months prior to July 2016. According to the abuse and neglect petition, Petitioner Father had observed C.O. under the influence of drugs in "early July 2016. [Petitioner Father] left [B.S.] in C.O.'s care and has not intervened as far as filing for a change in custody or reporting concerns." The petition therefore named Petitioner Father as a respondent, providing that he "has neglected [B.S.] due to failure to protect the child from exposure to substance abuse."

         The circuit court entered an initial order on August 10, 2016, finding that imminent danger existed to the well-being of B.S. "due to the substance abuse in the home." The court transferred custody of B.S. to the DHHR. The circuit court held an adjudicatory hearing on October 7, 2016. At this hearing, C.O. stipulated to neglecting B.S. due to substance abuse. The circuit court adjudicated her as an abusing parent and granted her motion for a post-adjudicatory improvement period pursuant to W.Va. Code § 49-4-610(2) (2015).[4]

         Additionally, the circuit ordered that Petitioner Father be granted a pre-adjudicatory improvement period pursuant to W.Va. Code § 49-4-610(1), [5] and that B.S. be placed in his custody. On January 30, 2017, the circuit court entered an order finding that Petitioner Father's pre-adjudicatory improvement period was "a success." The circuit court ordered that B.S. would remain in his custody.

         As part of her post-adjudicatory improvement period, C.O. participated in a multi-disciplinary treatment team meeting which resulted in the creation of a family case plan. This plan set forth the following requirements for C.O. before she could be reunified with B.S.: "that she address her substance abuse issues, successfully complete substance abuse services, remain substance free, participate in parenting skills and adult life skills classes, address domestic violence issues, and be self-sufficient."

         C.O. entered a sober living facility in February 2017 and remained there until September 2017. A number of review orders entered by the circuit court during this time reflect the success C.O. had while residing at the sober living facility. In April 2017, the circuit court entered the following order: "The Court is advised that [C.O.] is doing well and GRANTS an extension to her post-adjudication improvement period." During a review hearing on July 14, 2017, the circuit court found that C.O. "is doing very well at [the sober living facility]. She has completed all classes through the Day Report Center, her drug screens are negative, and she is complying with all services. Visitation has been increased to three nights and four days with the child [B.S.] at the [sober living facility]." On August 11, 2017, the circuit court ordered that C.O. "be allowed to pick up her child, [B.S.], when [C.O.] is exercising her custody and visitation with [B.S.]."

         C.O. moved out of the sober living facility in September 2017. The circuit court held an emergency hearing regarding C.O.'s visitation with B.S. on September 21, 2017. In its order following this hearing the circuit court provided "the Court is advised that [C.O.] has relapsed in her drug use. [Petitioner] Father wants to stop all visitation by [C.O.]" The court ordered that C.O. submit to a drug screen and that she only have supervised visitation with B.S. Further, the court ordered that if C.O. was impaired, "the visit shall not occur."

         The next review hearing occurred in October of 2017. During this hearing, the guardian ad litem recommended that C.O.'s visitations be suspended until she enrolled in a substance abuse treatment program. The circuit court agreed, granted the guardian ad litem's motion, and recommended that C.O. return to the sober living facility. During a November 17, 2017, review hearing, the DHHR advised the circuit court that C.O. "relapsed in September on cocaine, opiates, and marijuana. [C.O.] admitted to using suboxone. [C.O.] is currently pregnant, has not entered a detox program and is not complying with services."

         On January 23, 2018, the DHHR filed a motion to terminate C.O.'s parental rights. The DHHR's motion provided that after C.O. moved out of the sober living facility in September 2017, she

did not remain substance free; she refused to seek additional substance abuse treatment as ordered by the Court, and she has not successfully complied with the Family Case Plan. [C.O.] is no longer in contact with the Department and her whereabouts are currently unknown. [C.O.] cannot show this Court by clear and convincing evidence that she is likely to fully participate in any further improvement period. . . . There is no reasonable likelihood that the conditions of neglect can be substantially corrected in the near future, ...

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