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In re N.R.

Supreme Court of Appeals of West Virginia

November 7, 2019

IN RE: N.R., A.R., AND A.W.

          Submitted: October 1, 2019

          Appeals from the Circuit Court of Ohio County Honorable James P. Mazzone, Judge Civil Action Nos. 13-CJA-33/34/35 and 14-CJA-76/77/78 \

          Joseph J. Moses, Esq. Guardian Ad Litem Wheeling, West Virginia

          Patrick Morrisey, Esq. Attorney General Lindsay S. See, Esq. Solicitor General Charleston, West Virginia Lee Niezgoda, Esq. Assistant Attorney General Chaelyn W. Casteel, Esq. Assistant Attorney General Fairmont, West Virginia Attorneys for West Virginia DHHR

          David C. Fuellhart, III, Esq. Isner Law Office Elkins, West Virginia Attorney for Father, A.R.

          Jeremy B. Cooper, Esq. Blackwater Law PLLC Kingwood, West Virginia Attorney for Mother, A.R.

         SYLLABUS

         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)." 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 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).' Syllabus Point 4, State ex rel. David Allen B. v. Sommerville, 194 W.Va. 86, 459 S.E.2d 363 (1995)." Syl. Pt. 2, In re Kaitlyn P., 225 W.Va. 123, 690 S.E.2d 131 (2010).

         4. "'[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)." Syl. Pt. 7, in part, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

         5. "Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, [West Virginia Code § 49-4-604] may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under [West Virginia Code § 49-4-604(c)] that conditions of neglect or abuse can be substantially corrected." Syl. Pt. 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

          HUTCHISON, Justice:

         In this abuse and neglect case, the Circuit Court of Ohio County entered a final dispositional order on August 31, 2018, pursuant to West Virginia Code § 49-4-604(b)(5) (2016), placing the children, N.R., A.R., and A.W., [1] in the legal and physical custody of the West Virginia Department of Health and Human Resources ("DHHR") upon finding that the abusing parents were presently unable to adequately care for their children.[2]In these consolidated appeals, the guardian ad litem ("GAL") and DHHR argue that the circuit court erred by not terminating the mother's and father's parental rights. Conversely, the mother and father contend that the circuit court failed to comply with the Indian Child Welfare Act ("ICWA"), 25 U.S.C. §§ 1901 to -1923 (1978), and seek dismissal of the case and the return of the children to their custody.[3]

         The ICWA applies to child custody proceedings involving Indian[4] children and establishes minimum federal standards and procedural safeguards that must be followed when an Indian child is subject to placement in a foster or adoptive home. 25 U.S.C. § 1902. It is undisputed that the ICWA applies in this case because N.R. and A.R. are Indian children as defined by 25 U.S.C. § 1903.[5] Upon consideration of the parties' oral arguments and briefs, the submitted record, and applicable authorities, this Court finds no violation of the ICWA. We further find that the circuit court erred by not terminating the mother's and father's parental rights. Accordingly, we reverse, in part, and affirm, in part, the dispositional order and remand this case to the circuit court for entry of a dispositional order terminating the mother's and father's parental rights in accordance with this opinion.

         I. Facts and Procedural Background

         The mother is the biological parent of N.R., A.R., and A.W. The father is the biological parent of N.R. and A.R. and the stepfather of A.W.[6] The father is a member of the Manchester-Point Arenas Band of Pomo Indians; he lived on the Pomo Indian reservation in California until he was eighteen years old. Both the mother and father are former members of the United States military.

         This abuse and neglect case began in 2013 when DHHR was notified that N.R. was taken to a hospital with two fractures, a classic metaphysical fracture of the left distal tibia (also referred to as a bucket handle fracture) and a healing left clavicle fracture. At that time, the child was three months old. The nature of the injuries was indicative of child abuse, and the father gave inconsistent statements regarding how N.R. was hurt. The DHHR filed the initial abuse and neglect petition against the mother and father on April 30, 2013. In addition to the allegations regarding the child's injuries, the DHHR also alleged a history of domestic violence between the mother and father.[7]

          On May 17, 2013, DHHR was contacted by Christine Dukatz, who indicated she was the ICWA representative for the Pomo Indian tribe (hereinafter "tribe"). Ms. Dukatz stated that the father had made the tribe aware of the proceeding. DHHR provided Ms. Dukatz with all the information regarding the abuse and neglect proceeding, including the children's placement with their maternal grandparents.[8] Ms. Dukatz stated that the tribe was in agreement with the case proceeding in West Virginia[9] and the children's placement with their maternal grandparents. Ms. Dukatz indicated though that there was an approved foster family on the tribe's reservation that could take custody of the children if the placement with their maternal grandparents did not work. Ms. Dukatz said that the tribe was not seeking to intervene at that time and just wanted to be kept informed and involved in the decision-making.

         At the adjudicatory hearing held on June 14, 2013, the father admitted to breaking his daughter's leg because he was frustrated, breaking her clavicle by squeezing it, and lying to DHHR about what happened. The mother admitted that she and the father had engaged in domestic violence in front of the children and that the father had injured both her and her son while they were living in Hawaii. Consequently, the mother and father were adjudicated as abusive and/or neglectful parents. Thereafter, all parties agreed to post-adjudicatory improvement periods for the mother and father.

         The mother initially separated from the father after he admitted to injuring N.R. In December 2013, the children were placed back in their mother's physical custody for a trial period because she appeared to be complying with the terms of her post-adjudicatory improvement period. During the trial period, the father was not permitted to have unsupervised visits with the children. Subsequently, the mother completed the terms of her improvement period; she indicated that she recognized the danger posed by the father and understood that she needed to protect the children. The petition against her was dismissed on March 28, 2014. The father's improvement period continued as did his supervised visitation.

         Although the father was participating in what is now known as the Batterer's Intervention and Prevention Program ("BIPPS"), another incident of domestic violence occurred between the father and mother on April 27, 2014. According to the mother, the father was intoxicated and got into a car with her and the children where an argument ensued. The father exited the car, tore off the car door handle, entered the mother's apartment, and damaged a television and other property. The day of the incident the mother refused to provide a statement to law enforcement and would not apply for a domestic violence protective order (DVPO). However, she did so the next day upon receiving advice from her attorney, and a DVPO was granted.

         On May 1, 2014, the GAL filed a motion to terminate the father's improvement period. A hearing on the motion was continued until June at the father's request. In the meantime, the mother attended a multi-disciplinary team ("MDT") meeting and accused the investigating police officer of misstating what had happened during the April 27, 2014, incident. Consequently, DHHR filed a motion to modify the mother's dispositional order and add her as a respondent again in the abuse and neglect case, which continued with respect to the father. Ms. Dukatz was notified by DHHR that additional problems had arisen and was asked if the tribe wished to intervene. Ms. Dukatz indicated that she was no longer with the tribe, nor was she acting as the ICWA representative for the tribe. The DHHR then sought to contact another tribe member.

         Thereafter, the father's improvement period expired, and he requested that a disposition hearing be scheduled. Instead of pursuing the motion to modify the mother's disposition, the parties agreed to allow her to receive additional services. The father's disposition hearing was scheduled but repeatedly continued because he failed to provide his medical records from a Veteran's Administration ("VA") hospital in Baltimore where he received treatment in July and August of 2014. Eventually, the records were produced. Although the father's medical records showed that he had received treatment for post- traumatic stress disorder, [10] there was no indication of a causal link to the violence he exhibited towards the mother and the children.

         While awaiting receipt of the father's medical records, DHHR filed a new abuse and neglect petition against the mother because her cell phone records revealed that she continued to contact the father and had an ongoing intimate relationship with him. There was also evidence that she had allowed the father to visit the children without supervision. At her second adjudicatory hearing in November 2014, the mother stipulated to most of the allegations set forth in the second petition, including the prior domestic violence.

         In January 2015, yet another incident occurred when the father became involved in a fight at a bar/restaurant with another patron. He appeared to be intoxicated and became combative with a police officer who tried to place him under arrest. The mother was present and tried to intervene in the father's arrest. She was also arrested and charged with obstruction.

         During this same time period, DHHR successfully contacted the tribe and was informed that Lorraine Laiwa had assumed the duties of the ICWA director and had appointed her daughter, Liz DeRouen, as the tribe's ICWA representative in this case.[11]Ms. DeRouen asserted that DHHR needed to do more to satisfy the "active efforts" requirement of the ICWA, [12] and at a hearing on June 4, 2015, Ms. DeRouen orally moved to intervene in the case on behalf of the tribe. At that hearing, the mother and father indicated that they intended to file motions to dismiss the abuse and neglect case because of ICWA violations. Thereafter, the motions were filed and a hearing was held in September 2015. On November 11, 2015, the circuit court entered an order finding no violations of the ICWA and denying the mother's and father's motions to dismiss.

         Also in late summer of 2015, DHHR filed motions to compel the mother and father to undergo additional psychological evaluations.[13] The evaluations were conducted by Barbara Nelson, MA, and Dr. Timothy Saar of Saar Psychological Group. The psychological reports indicated the children could not be safely returned to the mother and father. Termination of parental rights was recommended.

          According to the father's psychological report, during the evaluation, he denied being a risk to his children. He claimed that he had successfully completed all the treatment programs, although the records indicated otherwise. He denied that alcohol was involved in the incidents of domestic violence, despite evidence to the contrary, and stated that he had "exaggerated" his alcohol use in order to get treatment at the VA Hospital in Baltimore. He stated that none of his admissions and stipulations regarding the injuries to N.R. were true and that his attorney told him he needed to make those statements to get an improvement period. He stressed that he is a Native American and claimed that he was a victim of racial and ethnic discrimination throughout the abuse and neglect case. The father's personality assessment was indicative of obsessive-compulsive personality disorder and narcissistic personality disorder. Although the father reported his prior diagnosis of post-traumatic stress disorder, Ms. Nelson found that he did not meet the criteria for such diagnosis during the psychological evaluation. Ms. Nelson concluded that based upon the father's comments, he had not accepted any responsibility for the abuse of the children and had not benefitted from the programs, services, and treatment provided to him. The father had exhibited a pattern of alcohol abuse, aggression, and violence since at least 2011, and there was no expectation for change or parental improvement, putting the children's welfare at risk.

         The same conclusion was reached with respect to the mother. Like the father, she denied there was any abuse of the children and also claimed that her husband admitted to harming N.R. only because "he had to." Likewise, she said she claimed to be afraid of her husband because she was "forced to." Ms. Nelson concluded that the mother's chances of improved parenting were "virtually nonexistent" because she continuously chose her husband over the children despite receiving instructions and advice necessary to make the right decision. In short, Ms. Nelson concluded that the mother's decision to remain with her husband was "willful disobedience rather than ignorance." Ms. Nelson opined that further services would not be beneficial.

         The results of the psychological evaluations were relayed to the circuit court by Ms. Nelson during the disposition hearing that was held over the course of several different days. In addition to testimony from Ms. Nelson, the GAL and DHHR provided testimony from numerous other witnesses in support of their position that the mother and father's parental rights should be terminated. The mother and father presented expert testimony from Dr. Al Martinez, a clinical psychologist with knowledge of the tribe's culture.[14] Notably, Dr. Martinez testified that the children would not be safe in the father's care and that the father needed more services. Although Dr. Martinez opined that the children could be "safely returned to their mother," he acknowledged that he was not aware that the mother and father were still together. Dr. Martinez also did not appear to have a complete understanding of how the case had proceeded and was unaware of some of the instances of domestic violence that had occurred.[15]

         At the end of the disposition hearing, the circuit court asked the parties to prepare findings of facts and conclusions of law. Thereafter, the circuit court issued its dispositional order on August 31, 2018, terminating the mother and father's custodial rights only and placing the children in the legal and physical custody of DHHR. These appeals followed.

         II. Standard of Review

         The issues presented herein require interpretation and application of the ICWA. Our standard of review for issues involving questions of law is de novo. See Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on appeal from the circuit court is clearly a question of law . . . involving an interpretation of a statute, we apply a de novo standard of review."). As for factual findings made by the circuit court, we employ a clearly erroneous standard of review. In that regard, this Court has long held:

"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).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). With these standards in mind, we consider the parties' arguments.

         III. Discussion

         In this case, we must interpret the ICWA and determine its proper application within the framework of our state abuse and neglect law. The ICWA was enacted in 1978 "to counteract the large scale separations of Indian children from their families, tribes, and culture through adoption or foster care placement, generally in non-Indian homes." C.E.H. v. L.M.W., 837 S.W.2d 947, 951 (Mo.Ct.App. 1992). In enacting the legislation, Congress expressly found that

an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions[.]

25 U.S.C. § 1901. Thus, Congress declared that

it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

25 U.S.C. § 1902. To that end, the ICWA "impose[s] more exacting requirements than a typical termination proceeding." In re Adoption of T.A.W., 383 P.3d 492, 497 (Wash. 2016). Although, "[t]he Act does not deprive a state of its traditional jurisdiction over an Indian child within its venue[, ] it [does] establish minimum standards and procedural safeguards designed to protect the rights of the child as an Indian and the integrity of the Indian family." In re Maricopa Cty. Juv. Act. No. JS-8287, 828 P.2d 1245, 1248 (Ariz.Ct.App. 1991) (quotations and citation omitted). In other words, the "ICWA does not alter the requirements for state law proceedings, but instead requires an additional finding with a higher burden of proof in cases involving termination of parental rights to Indian children." In re K.S.D., 904 N.W.2d 479, 486 (N.D. 2017); see also In re Bluebird, 411 S.E.2d 820, 823 ( N.C. Ct. App. 1992) (explaining "a dual burden of proof is created in which the state provisions and federal provisions must be satisfied separately"). Under our state law, the burden of proof for terminating parental rights is clear and convincing evidence. See Syl. Pt. 6, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1974) ("The standard of proof required to support a court order limiting or terminating parental rights to the custody of minor children is clear, cogent and convincing proof."). Under the ICWA, the burden of proof for termination of parental rights is beyond a reasonable doubt. 25 U.S.C. § 1912(f).

         In addition to a heightened burden of proof, the ICWA imposes other requirements that must be satisfied before an Indian child can be removed from his or her Indian family. In their appeals, the mother and father contend that some of these requirements were not met, and, therefore, this abuse and neglect case should be "invalidated." In that regard, the ICWA provides:

Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.

25 U.S.C. § 1914 (emphasis supplied).

         In this case, the mother and father contend that DHHR did not comply with the notice requirements set forth in 25 U.S.C. § 1912(a); that DHHR did not satisfy the "active efforts" requirements of 25 U.S.C. § 1912(d); that the circuit court erred by not holding a hearing prior to disposition to obtain qualified expert testimony with regard to foster care placement as required by 25 U.S.C. § 1912(e); that the "qualified expert testimony" required by 25 U.S.C. § 1912(f) was not presented at the disposition hearing; and that the circuit court failed to follow the foster care placement requirements of 25 U.S.C. § 1915(b). Conversely, the GAL and DHHR maintain that there were no violations of the ICWA and argue that the mother and father's parental rights should have been terminated. We consider each of these arguments in turn below.

         A. Compliance with the ICWA

         Our analysis begins with consideration of the ICWA requirements that are the basis of the mother's and father's appeals. As set forth above, under 25 U.S.C. § 1914, an abuse and neglect proceeding may be "invalidated" if any provision of 25 U.S.C. §§ 1911, 1912, or 1913 is violated.

         1. ...


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