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In re N.H.

Supreme Court of West Virginia

May 17, 2019

IN RE: N.H., C.H., and B.H.

          Submitted: April 24, 2019

          Appeal from the Circuit Court of Jackson County Honorable Lora A. Dyer, Judge Civil Action Nos. 16-JA-22, 16-JA-23, and 16-7A-24

          Lauren A. Estep, Esq. Public Defender Corporation Ripley, West Virginia Attorney for Petitioner C.R.

          Patrick Morrisey, Esq. Attorney General Charleston, West Virginia Lee Niezgoda, Esq. Assistant Attorney General Fairmont, West Virginia Attorneys for Respondent DHHR

          Erica Brannon Gunn, Esq. Spencer, West Virginia Guardian ad litem


         1. "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).

         2. "'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. 1, State ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972)." Syl. Pt. 4, In re J.S., 233 W.Va. 394, 758 S.E.2d 747 (2014).

         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. "In making the final disposition in a child abuse and neglect proceeding, the level of a parent's compliance with the terms and conditions of an improvement period is just one factor to be considered. The controlling standard that governs any dispositional decision remains the best interests of the child." Syl. Pt. 4, In re B.H., 233 W.Va. 57, 754 S.E.2d 743 (2014).

         5. "[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. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

         6. "Where there has been a prior involuntary termination of parental rights to a sibling, the issue of whether the parent has remedied the problems which led to the prior involuntary termination sufficient to parent a subsequently-born child must, at minimum, be reviewed by a court, and such review should be initiated on a petition pursuant to the provisions governing the procedure in cases of child neglect or abuse set forth in West Virginia Code §§ 49-6-1 to -12 (1998) [now West Virginia Code § 49-4-601 to -610]. Although the requirement that such a petition be filed does not mandate termination in all circumstances, the legislature has reduced the minimum threshold of evidence necessary for termination where one of the factors outlined in West Virginia Code § 49-6-5b(a) (1998) [now West Virginia Code § 49-4-605(a) (2015)] is present." Syl. Pt. 2, In the Matter of George Glen B., Jr., 205 W.Va. 435, 518 S.E.2d 863 (1999).

         7. "In civil abuse and neglect cases, the legislature has made DHHR the State's representative. In litigations that are conducted under State civil abuse and neglect statutes, DHHR is the client of county prosecutors. The legislature has specifically indicated through W.Va. Code § 49-6-10 (1996) [now W.Va. Code § 49-4-502 (2015)] that prosecutors must cooperate with DHHR's efforts to pursue civil abuse and neglect actions. The relationship between DHHR and county prosecutors under the statute is a pure attorney-client relationship. The legislature has not given authority to county prosecutors to litigate civil abuse and neglect actions independent of DHHR. Such authority is granted to prosecutors only under State criminal abuse and neglect statutes. Therefore, all of the legal and ethical principles that govern the attorney-client relationship in general, are applicable to the relationship that exists between DHHR and county prosecutors in civil abuse and neglect proceedings." Syl. Pt. 4, State ex rel. Diva P. v. Kaufman, 200 W.Va. 555, 490 S.E.2d 642 (1997).

         8. "In cases involving the abuse and neglect of children, when it appears from this Court's review of the record on appeal that the health and welfare of a child may be at risk as a result of the child's custodial placement, regardless of whether that placement is an issue raised in the appeal, this Court will take such action as it deems appropriate and necessary to protect that child." Syl. Pt. 6, In re Timber M., 231 W.Va. 44, 743 S.E.2d 353 (2013).

         9. "When an abuse and neglect petition is brought based solely upon a previous involuntary termination of parental rights to a sibling pursuant to West Virginia Code § [49-4-605(a)(3) (2015)], prior to the lower court's making any disposition regarding the petition, it must allow the development of evidence surrounding the prior involuntary termination(s) and what actions, if any, the parent(s) have taken to remedy the circumstances which led to the prior termination(s)." Syl. Pt. 4, In the Matter of George Glen B., Jr., 205 W.Va. 435, 518 S.E.2d 863 (1999).

         10. "'Prior acts of violence, physical abuse, or emotional abuse toward other children are relevant in a termination of parental rights proceeding, are not violative of W.Va.R.Evid. 404(b), and a decision regarding the admissibility thereof shall be within the sound discretion of the trial court.' Syl. Pt. 8, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991)." Syl. Pt. 3, In the Matter of George Glen B., Jr., 205 W.Va. 435, 518 S.E.2d 863 (1999).



         The petitioner, C.R., [1] appeals the August 29, 2018, disposition order of the Circuit Court of Jackson County terminating her parental rights to her three oldest children, N.H., C.H., and B.H. In this appeal, the petitioner contends that the circuit court erred by finding that it was contrary to the best interests of the children to be returned to her custody even though she successfully completed her post-adjudicatory improvement period. Both respondents, the West Virginia Department of Health and Human Resources ("DHHR") and the guardian ad litem, maintain that termination of the petitioner's parental rights was warranted despite her compliance with the services provided during her improvement period.

         Upon consideration of the parties' briefs and oral arguments, the submitted appendix record, and the pertinent authorities, we find no error. Accordingly, for the reasons set forth below, the circuit court's disposition order terminating the petitioner's parental rights to N.H., C.H., and B.H. is affirmed. However, we remand this case to the circuit court for further proceedings because the record indicates that the petitioner gave birth to a fourth child shortly before the disposition order was entered by the circuit court. As discussed below, when a child is born to a parent whose parental rights to another child have been previously terminated, our statutory and case law require the circuit court to determine whether the problems that led to the prior involuntary termination have been sufficiently remedied or whether the parental rights to the subsequently-born child should be terminated.

         I. Facts and Procedural Background

         When the DHHR initiated this abuse and neglect proceeding in March 2016, N.H., C.H., and B.H. were living with the petitioner and her boyfriend, M.L.[2] In the abuse and neglect petition, the DHHR alleged that the children's health and safety were at imminent risk because of the petitioner's illegal drug use and their exposure to domestic violence between the petitioner and M.L. Specifically, the petition indicated that N.H., the oldest child, [3] had disclosed that her mother "has 'chill pills' to help her calm down" and that her mother "mostly just sleeps forever." The DHHR asserted that the petitioner's drug use was causing her to neglect the psychological treatment and education of her children, particularly that of C.H., who is autistic, by, among other things, not providing the school with the requisite medical documentation so that proper education services could be provided. The petition further asserted that the petitioner had not been present to meet her children at the bus stop on multiple occasions, necessitating their return to school until they were picked up by a parent or guardian. In one instance, the petitioner could not be located, and an aunt had to come and get the children.

         With respect to the domestic violence allegations, the petition stated that the children had disclosed that M.L. broke the television and a vase during arguments with their mother. N.H. reported that the petitioner told her that "[M.L.] is going to burn us" and that she attempted to break up the fights by "trying to talk [M.L.] out of beating up her mother" or screaming to alert someone when she was unsuccessful. B.H. reported that "[M.L.] told his mommy that he was going to kill her." Upon the filing of the abuse and neglect petition, the children were removed from the home and placed in foster care.

         The petitioner waived her right to a preliminary hearing and, subsequently, stipulated to the allegations set forth in the petition. The petitioner admitted that "she has a drug abuse issue which has negatively impacted her parenting[.]" She further acknowledged that there had been domestic violence in the home while the children were present. Upon the court's acceptance of the stipulated adjudication, the petitioner filed a motion for a post-adjudicatory improvement period, which was granted on August 8, 2016. Thereafter, the court granted the petitioner a three-month extension so she could complete an Intensive Outpatient Program ("IOP") for her drug addiction.[4]

         Following multiple review hearings, the circuit court entered an order April 11, 2018, regarding the petitioner's completion of her post-adjudicatory improvement period.[5] In that order, the circuit court concluded that

[t]he weight of the evidence demonstrates [the petitioner] has substantially complied with the terms and conditions of her improvement period;[6] the only evidence suggesting deficient compliance is [the petitioner] having remained on Subutex, [7] but she rebutted such by presenting reliable testimony that she did so only at the direction of her physician.

(Footnotes added). With regard to the petitioner's continued use of Subutex, the order indicated that the petitioner tried to stop taking the medication in June 2017. However, she was pregnant at the time with her fourth child and was hospitalized for nausea and vomiting caused by her withdrawal from the medication. According to the circuit court's order, the petitioner's obstetrician testified that it was safer for her to continue to take the Subutex during her pregnancy so he referred her to a clinic that provided a step-down regime to have her off the medication within a year. At the final improvement period review hearing, the petitioner testified that she was still taking Subutex but indicated she expected to be weaned from the medication soon.

         Thereafter, the circuit court scheduled the final disposition hearing, and the DHHR filed a motion to terminate the petitioner's parental rights. Disposition hearings were held on July 5, and July 13, 2018.[8] On August 29, 2018, the circuit court entered the disposition order terminating the ...

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