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In re J.A.

Supreme Court of Appeals of West Virginia

October 18, 2019

IN RE: J.A., A.A., Z.A., S.A., AND J.A.

          Submitted: September 10, 2019

          Appeal from the Circuit Court of Mingo County Honorable Miki Thompson, Judge Juvenile Action No. 18-JA-5-6-7-8-9

          Marsha Webb-Rumora, Esq. Williamson, West Virginia Attorney for Petitioner H.A.

          Susan J. Van Zant, Esq. Williamson, West Virginia Attorney for Petitioner V.A

          Diana Carter Wiedel, Esq. Williamson, West Virginia Guardian ad litem

          Patrick Morrisey, Esq. Attorney General Thomas T. Lampman, Esq. Assistant Solicitor General Brandolyn N. Felton-Ernest, Esq. Assistant Attorney General Charleston, West Virginia Attorneys for Respondent Department of Health and Human Resources

         SYLLABUS BY THE COURT

         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)." Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

         2. "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).

         3. "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 352 (2013).

         4. When determining whether to permanently terminate the parental, custodial and guardianship rights and responsibilities of an abusing parent, West Virginia Code § 49-4-604(b)(6)(C) (2019) requires a circuit court to give consideration to the wishes of a child who is fourteen years of age or older or otherwise of an age of discretion as determined by the court. A circuit court is not obligated to comply with the child's wishes, but shall make the termination decision based upon a consideration of the child's best interests. The child's preference is just one factor for the circuit court's consideration.

         5. "'Where it appears from the record that the process established by the Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes for the disposition of cases involving children adjudicated to be abused or neglected has been substantially disregarded or frustrated, the resulting order of disposition will be vacated and the case remanded for compliance with that process and entry of an appropriate dispositional order.' Syl. Pt. 5, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001)." Syl. Pt. 5, In re T.W., 230 W.Va. 172, 737 S.E.3d 69 (2012).

          OPINION

          HUTCHISON JUSTICE

         The petitioners herein, Father H.A. and Mother V.A. (collectively "the parents"), appeal[1] the November 1, 2018, order of the Circuit Court of Mingo County that terminated their parental rights to three of their children, Z.A., S.A., and J.A.-2, on the basis of physical and educational neglect.[2] The petitioners contend that the evidence does not support termination. Upon a review of the parties' arguments and the record on appeal, we find no error in the circuit court's termination of parental rights to these three children and, accordingly, affirm the circuit court's order with regard to Z.A., S.A., and J.A.-2.

         However, upon a review of the record and the receipt of supplemental briefing, we find plain error in the circuit court's disposition of the abuse and neglect case with regard to two of the parents' other children, J.A.-1 and A.A. The circuit court made a verbal ruling to leave intact the parents' rights to teenagers J.A.-1 and A.A., but did so without having performed any analysis of these children's best interests. It appears that the circuit court also failed to enter any dispositional order for J.A.-1 and A.A. Although J.A.- 1 reached the age of majority during the appeal period and is no longer a subject of the abuse and neglect case, A.A. is still a minor. Therefore, we vacate the circuit court's verbal ruling regarding the parents' rights to A.A. and remand this case for further proceedings consistent with this opinion.

         I. Facts and Procedural Background

         The petitioners in this consolidated appeal are the parents of eight children, five of whom were minors living in the family's home on February 9, 2018 when the Department of Health and Human Resources ("DHHR") filed an abuse and neglect petition in circuit court. Children J.A.-1 and A.A. are teenagers, while Z.A., S.A., and J.A.-2 are younger. The DHHR alleged that the parents committed both physical and educational neglect of these five children. Specifically, the abuse and neglect petition asserted that the family's home was dirty, with pet waste on the floors and a urine smell throughout, and there was garbage all over the yard. The DHHR reported that during the then-current school year, J.A.-1 had not attended school at all; A.A. had seventy unexcused absences from school; Z.A. had twenty unexcused absences from school; S.A. had thirteen unexcused absences from school; and J.A.-2 had been absent from school a total of twenty-one days with eleven days being unexcused. The DHHR submitted school records to the court documenting the absences. Although he was seventeen years old, J.A.-1 had completed only a few high school freshman credits. The DHHR explained that it had worked with the family since June 2017 in an attempt to correct the truancy, without success. Before the February 2018 abuse and neglect petition was filed, the parents withdrew J.A.-1 and, subsequently, A.A. from public high school with the stated intention of having them home schooled. However, the DHHR found no evidence that any home school lessons were completed. Moreover, pursuant to state statute, the parents are not qualified to provide a home school education because they both lack high school or graduate equivalency diplomas.[3] The abuse and neglect petition asserted that Mother V.A. told the school system that the children's maternal grandmother would teach the home school lessons, but there is no evidence that the maternal grandmother did so and, furthermore, there was a registered sex offender residing in the maternal grandmother's home. There was also no computer or internet access available for J.A.-1 and A.A. to pursue a home school curriculum.

         The abuse and neglect petition was filed on a non-emergency basis and the children were permitted to remain in the home. A guardian ad litem ("GAL") was appointed for the children, and each parent filed an answer denying the allegations. A preliminary hearing was held on February 28, 2018, where all parties were given the opportunity to present evidence.

         During the preliminary hearing, a DHHR Child Protective Services ("CPS") worker testified about the truancy and the soiled condition of both the children and the home. She testified that although the home had been cleaned "for the most part" in the days since the February 2018 petition was filed, and the home was "better than it was," more cleaning was still needed. This witness also testified about some of the DHHR's prior involvement with the family, including a petition for abuse and neglect that was filed in 2010 for the same types of issues.[4] The CPS worker testified about services the DHHR had provided to the family in the months leading up to the filing of the current abuse and neglect petition, including paying a utility bill and providing a visiting worker through the "Safe at Home" program. The CPS worker explained that despite receiving these services, the problems had persisted. J.A.-1 and A.A. were not completing any home school lessons, and the maternal grandmother was not physically able to teach the lessons, yet the parents were considering removing the younger three children from school for home schooling. In response, during the preliminary hearing the Mother presented testimony from the "Safe at Home" worker that the parents had been compliant with the services provided, J.A.-1 and A.A. did not want to go to school, and the "Safe at Home" worker was trying to find alternative educational services for J.A.-1 and A.A.

         At the conclusion of the preliminary hearing, the circuit court found probable cause to proceed with the abuse and neglect petition. The circuit court awarded temporary legal custody of the five minor children to the DHHR, but left the children in the physical care of the parents. The circuit court gave strict warnings to the parents that all five of the children must be enrolled in school and if they missed or were tardy for even one day without an excuse, then the DHHR would remove the children from the parents' home for placement in foster care.

         One month later, on March 28, 2018, the GAL filed a motion asking the circuit court to order the immediate removal of the children from the parents' home. The GAL reported that J.A.-1 and A.A. had been re-enrolled in school, but both were suspended on March 13, 2018 for skipping classes. The GAL learned that some of the other children also missed school in March. Furthermore, when a CPS worker took the children for haircuts, several were found to have untreated lice. During a home visit, the GAL observed that although the home was no longer messy, it still had a foul odor; there was dirt and grime throughout the home; and there was trash all over the yard. The GAL spoke with school personnel who reported that there had been concerns for years about the children's welfare. The children were sent to school in dirty clothes and frequently smelled so bad that people complained. The GAL also reported that in addition to the abuse and neglect petition that was filed in 2010, this family had been involved with, and had received intermittent services from, the DHHR over a period of approximately twenty years. By written order entered on April 9, 2018, the circuit court granted the GAL's motion and removed the five children from the home. J.A.-1 was placed in a children's shelter, while the other four children were placed with their paternal grandmother. At a hearing held two days later, the circuit court heard a verbal report from the GAL and reaffirmed the removal of the children from the home. Thereafter, the parents were given additional DHHR services including parenting classes, as well as supervised visitation.

         The circuit court held the adjudicatory hearing on April 11, 2018. None of the parties called any witnesses but, upon the DHHR's motion and without objection, the circuit court took notice of all prior testimony and documents submitted in this case. Upon considering the evidence, the circuit court adjudicated both parents as abusive and/or neglectful. Each parent made a motion for a post-adjudicatory improvement period, arguing that they had cleaned their home and had done everything asked of them. The DHHR opposed the motions, asserting that the parents had been receiving services for many years but there was never any lasting improvement. The circuit court agreed with the DHHR's argument and denied the motions.

         The dispositional hearing was held on August 15, 2018. Without objection, the court began by taking notice of all prior evidence offered in the case. The DHHR offered testimony from a CPS supervisor who, in addition to testifying about the current truancy and cleanliness issues, explained the DHHR's long involvement with this family. A CPS case was opened as early as 1998 because children in the home had poor hygiene, their dental health was neglected, and the home was dirty and in poor condition. According to this CPS supervisor, the family received services from 1998 until 2005, and then again from 2007 to 2010, when the DHHR found it necessary to file the previous abuse and neglect petition in 2010. The witness testified that through the years, there have been ongoing "truancy referrals, problems with the younger kid's [sic] teeth, issues with hygiene, the house, [and] electricity" and the parents have been unable to take care of the children without dependence upon the DHHR. The witness explained that the parents "participated with services each time they had services out and they didn't have any issues, but as soon as the services were gone it went back to the same situation." In addition, records kept of the mother's Adult Life Skills classes reflect that she did not accept responsibility for the neglect of her children. Rather, she insisted that "she had been done wrong by the DHHR and . . . had been harassed [by the DHHR] for 26 years."

         Although his counsel participated in cross-examination, Father H.A. did not offer any witnesses or evidence during the dispositional hearing. Mother V.A. testified and claimed that she kept her home and her children clean. She testified that she had trouble making the two older children attend school, but to remedy this, she had filed a truancy petition against J.A.-1. The paternal grandmother testified that while four of the children have been in her care, the children have been doing well. She sends them to school clean, she treated their lice, and A.A. has not had problems missing school. The paternal grandmother also testified that supervised visitation with the parents was going well, but the children miss and "cry for" their parents.

         During the dispositional hearing, after taking into consideration all of the evidence presented throughout the entire case, the circuit court found that the parents were unwilling or unable to correct the conditions of abuse and/or neglect and there was no reasonable likelihood that they could correct these conditions in the near future. The circuit court determined that termination of parental rights was in the children's best interests and was the least restrictive alternative. Seeking clarification of the court's ruling, the GAL inquired whether the court meant to terminate "the rights" to the two older children, J.A.-1 and A.A. These two children were over the age of fourteen, and the GAL represented that they did not want their parents' rights to be terminated.[5] Without providing any analysis, the judge responded, "I guess not. I feel so bad for these children. Do you think they'll be able to graduate?" The GAL responded that efforts would be made to keep J.A.-1 in a GED program. The judge responded, "[s]ee what you can do about this matter. That will conclude this matter." Thereafter, the circuit court entered its written dispositional order on November 1, 2018. This order terminated the parents' parental rights to the three youngest children Z.A., S.A., and J.A.-2, but made no mention of J.A.-1 and A.A.[6]

         In their appeals to this Court, the parents challenge the termination of their parental rights to Z.A., S.A., and J.A.-2. After reviewing the parties' briefs and the record on appeal, this Court sua sponte required supplemental briefing on the question of whether the circuit court erred by not terminating the parents' custodial and guardianship rights to A.A., who is now sixteen years old.[7] Having received the parties' original and supplemental briefs, the parties' Rule 11(j) updates, [8] two appendix records and a supplement thereto, and oral argument, this appeal is ready for decision.

         II. Standard of Review

         This Court has established the following standard of appellate review for abuse and neglect cases:

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). The overarching consideration in all abuse and neglect cases must be the children's best interests. This Court held in syllabus point three of In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996), that "[a]lthough parents have substantial rights that must be protected, the primary goal in cases involving abuse and neglect, as in all ...


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