1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re D.R

.

No. 22

- 0 3 48 ( Randolph County 21

- JA

- 39 )



### MEMORANDUM DECISION

Petitioner Father C.R

. 1 appeals the Circuit Court of Randolph County’s April 5 , 2022,

order termina ting h is parental rights to D.R

. 2 Upon our review, we determine that oral argument is unnecessary and that a memorandum decision vacating and remanding the circuit court’s order is appropriate , in accordance wi th the “limited circumstances” requirement of Rule 2 1(d) of the West Virginia Ru les of Appellate Procedure

.

The DHHR filed its initial petition in May of 2021 and alleg ed that petitioner abused drugs, failed to provide the child 3 with adequate care, and exposed him to inappropriate people.

The DH HR’ s al le gations stemmed from petiti oner’s substance abuse and the child’s lack of hygiene, developmental delays, and neglected education. The DHHR also alleged that one home

in which the child resided was in depl orable condition, as it was unsanitary and str uctu ra lly unsafe. During the DHHR’s investigation, petitioner admitted to a “long history” of substance abuse, including recent ly having abuse d methamphetamine , and to permitting his mother to care

for the chil d while he abused drugs, despite the fa ct that “[s ]h e has knowingly allowed multiple children to be sexually abused in her home.” At the time the petition was filed, petitioner was incarcerated, though he was released shortly thereafter.

1 P e titioner appears by counsel Gre gory R. Tingler

. The W est Vir ginia De partment of

Health and Huma n Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey

and Assistant Attorney General K atica Ribel

. Heather M. Weese appears as the child ’s guardian

ad litem.

2 We use initi als wher e ne ces s ary to p r otect t he ident ities of those involved in this case.

See W. Va. R. A pp

. P . 40(e)

.

3 The proceedings below concerned an additional child, D.H., who is not petitioner’s biological child. The court found at disposition that no legal right s t o D. H

. had be en g ranted to petit ioner . Accordingly, D.H. is not at issue in this memorandum decis ion. 

### FILED February 7 , 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 Following the pet ition’s filing, petitioner stipulated t o negle ctin g the child by virtue of his drug use, failure to adequately care for the child, and exposure of the child to inappropriate

individuals. The circuit court accepted this stipulation and adjudicated petitione r as an abusing and neglecting parent i n July of 2 02 1.

At the tim e of the final dispo sitional hearing in March of 2022, petitioner was again incarcerated, though he attended the hearing

. During the hearing, the DHHR presented extensive evidence concerning disclosure s from the child and another child who h a d bee n in t he home but

who is not at i ssue on appeal. 4 These disclosures included allegations of physical abuse and sexual abuse by petitioner. However, the DHHR never filed an amended petiti on in regard to

these alle gations or sough t pe ti tioner’s adjud ic ation upon them. In fact, the DHHR admitted during the hearing that it lacked “concrete information until more recently” and that the DHHR had “discussed previously whether it was appropriate to file an amended petitio n and felt like the

in formation [the D HHR] was gi ven was not detailed enough to do so.” Instead of attempting to prove that there was no reasonable likelihood that petitioner could substantially correct the

conditions of abuse and neglect upon which he was properly ad judi ca ted, the DHHR inst ea d

argue d to the court that “[t]he sole issue . . . before the [c]ourt today is . . . what is in the children’s best interest.” (Emphasis added).

The circuit court agreed with the DHHR ’ s position and d etermined t hat petitioner wa s

p res ently unwilling or u nable to care for the child , although the only finding in support of this conclusion was that petitioner “presents today again incarcerated, though the circumstances surrounding that i ncarceration are not curre ntly clear .” (Emphas is add ed). Th is wa s in s pi te of

the fact that the court expressly found that petitioner “has done more, frankly, than most people

in his situation

— he has participated in the Call

- To

- Test [drug screen] program , maintained

e mp l oyment, and more recently, has had cle an drug screens.” T he court noted that “[t]hose things are good and those things will continue to benefit [petitioner]; however, this case is not

about w hat is in the best interest of [petitioner], but about what is i n the best interest” of the

child. The court found there w as no reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near future “given the level of trauma t he

child [] ha [s] displayed and expressed. ” Ultim a tely, the court terminated petitioner’s parental

r ig hts to the child. 5

On appeal from a final order in an abuse and neglect proceeding, this Court reviews the circuit court’s finding s of fact for clear error a nd its conclusions of law de novo

. Syl . Pt. 1

, In re

Cecil T

., 228 W. Va. 89, 717 S.E.2d 873 (20 11 ) . Before this Court , petitioner argues that it was

error to terminate his parental rights

. 6 We agree that te rmination was in e rror , g ive n that the

4 See supra note 3.

5 The mother’s parental rights were also terminated. The permanency plan for the child is adoption in the current foster home.

6 Pe ti tioner also argue s th at i t was e r ror to deny his motion for an improvemen t period.

B ecause th e matter is being remand ed for the holding of a new di spositional hearing and

(continued . . . )3 order esse ntially ignored the statutorily mandat ed find i ngs required to terminate parental rights and, ins te ad, focused almost entirely on the child ’s best interests

. W hile it is t rue that the child ’ s b est inter est is the “ pola r star by which the discretion of the c ourt will be guided

, ” 7 t he Legislature has ma d e it expressly clear that parental ri ghts may be t er minated only “[u] pon a finding that there is no reasonable likelihood that the conditions of neglect or abuse can be

su bstantially corrected in the near futur e and, when necessary for the welfare of the c hild .” W. Va. Code § 49

- 4

- 604(c)(6). Further, “ ‘[n ] o reasonable likelihood that conditions of neglect or abuse can be substantially corrected ’ means that, based upon the e vidence before the court, the abusing a dult or adults have demonstrated an in adequat e capacity to solve the problems of ab use or neglec t on their own or with help .” W. Va. Code § 49

- 4

- 604(d).

At disposition, the DHHR ign ored it s burden of proo f as set fo rth by West Virginia Code § 49

- 4

- 604(c) (6) and, instead, argued that the sole issue w as the child ’ s best interest. While the

child ’ s be st interest is undoubtedl y an important consideration, this position is not in keeping with our prior dire cti o n

. As we have explained

[t] ermination of parental rights, the most restrict ive alt e rnative, is authorized only “[u]pon a finding that there is no r easonable likelihood that the conditions of neglect o r abuse can be substantially corrected in the near future, and when necessary for the welfare of the child.” W.Va. Code § [49

- 4

- 604 (c)(6)]

. The State must produce clear and convincing evidence to suppo rt this finding before the court may sever the custodia l rights of the natural parents

. State v. Carl B.

, [171] W. Va. [774], 301 S.E.2d 864 (1983); In re Willis , 157 W. Va. 225, 207 S.E .2d

129 (1973).

State v. C.N.S. , 173 W. Va. 651, 656, 319 S.E.2d 775, 7 80 (1984) (emphasis add ed). In short, th e DHHR fail ed to meet its burden of proo f because it willfully chose not to submit ev idence as to

whether t here was no reasonable likelihood tha t petit i oner could substantially correct the

conditions of abuse and n eg lect at issue in this case

.

Further compounding the i s sue is the fact that the court made only one finding 8 in support of its conclusion that there was no rea sonable likelihood that petitio n er could

petitioner will be free to ag ain move for an improvement period , it is unnece ssary to address this

arg umen t o n appeal

. 7 Syl. Pt. 3, in part, In re S.W. , 233 W . Va. 91, 755 S.E.2d 8 (2014) (citation om itted).

8 In the dispositional order, the circuit court attempted to tie many of its findings to the

conclusion that there was no rea sonable likelihood that p etit i o n er coul d substantially correct the

conditions of abuse and neglect. However, all of these f indings sp ok e, instead, to the child’s best

interest . While this evidence ma y have supported the requirement that the court find that

termina tion of petitio ne r’s p a r ental r i ghts was necessary for the child’s welfar e, it does not speak

to whether petitioner was capab le of correcting the conditions of abuse and neglect at issue. It must further be noted that the DHHR’s presentation of ext ensive t estimony at dis po siti o n

concern i ng disclosures from D.R. and another chil d in the home related to allege d sexual an d

(continued . . . )4 subs tantially correct the conditions of abuse and neg le ct; that petitioner was presently unwilling

or unable to care for the children because he was incarcerated. Critically, the court also explicitly

found that “ th e circumstances surround ing tha t incarceratio n are not currently clear.” This runs

afoul of th is Court’s prior direction concerning incarceration as it relates to the determination that there is no reasonable likelihood that the conditions of abuse and neg lect can be substantiall y

corre c ted. As we ex plained,

[w] hen no factors and circumsta nces oth er than in carceration are raised at a disposition hearing in a child abuse and neglect proceeding with regard to a parent’s ability to remedy the condition of abu se and neglect in the ne ar futu r e , the circui t court shall evaluate whether the best i nterests o f a chil d are served by terminating the rights of the biological parent in light of the evidence before it. This would necessarily include but not be limited to consideration of the na ture of

the offense f or which the parent is incarcerated, the terms of t he confi nement, and the length of the incarceration in light of the abused or neglected child ’ s best interests and paramount need for permanency, security, stab ility and continuity.

C

ecil T.

, 228 W. Va. a t 91, 717 S.E .2d at 875, Syl. Pt. 3 (emph asis add ed ). Becau se the court

failed to perform the required analysis and, in fact, admitted that it did not have the information necessary to undertake the same

, we find that termination of pe titione r ’s par ental right s was in

error

.

On appeal, the gua rdian ur ge s this Court to interpret the circuit court ’ s findings regarding

the chil d ’ s stated desire no t to return to petitioner ’ s ca re to constitute a basis for finding that

there is no reasona ble lik e li hood that the conditions of abuse and neglect can be substan ti a lly corrected. According to the guardian, this is in keeping with West Virginia Code § 49

- 4

- 604(d)(5), which provides that there is no reasonable like li h ood th at the conditions of abu se and

n eglect can be substantially corrected when

[t] he abus ing pare nt . . . [has] repeatedly or seriously injured the child physically

or em otionally, or ha [s] sexually abused or sexually exploited the child, and the degree of family stress and the pot e ntial f or furt her abuse and neglect are so great as to preclud e the us e of resources to mitigate or resolve family problems, or

assist the abusi ng parent or parents in fulfilling their responsibilities to the child

.

We reject this argument because the ev i dence d oes not support it. Whil e the court found that

there wa s no r ea so nable li kelihood that petitioner could correct the conditions of abuse and neglect “ given the level of trauma the child [] ha [ s] displayed and expressed, ” there is nothing in

t he recor d to su p port a f inding that petitioner repeatedly or seriously injured th e child or sexually

physical abuse by petitioner

— t wo issues for which he was not adjudicated

— h a s no bearing on whether petitioner would be able to corr ect the conditions of a bu se a n d neglect for which he was adjudicated. Upon remand , if the DHHR wishes to base its argument t hat termination is proper

becaus e of these disclosures, it must first ame nd the petition and obtain an adjudication of petitioner up on clear and convincing e vide n c e , as re q uired by West Virginia Code § 49

- 4

- 601.5 abused the child . Again, we s tress that the vast majority of the evidence the DHHR admitted at

di sposition that formed the basis for the court ’ s finding of trauma w as rel a ted to i ssues for which petitioner was not adjudicated. As such

, this evidence cannot appropriat ely form the basis of a finding that petitioner cannot correct the conditions for which he was properly adjudicated.

For the foregoing reasons, the Ap r il 5

, 2 02 2 , dis positional order terminating petitioner’s

paren tal righ ts is vacated 9 and the matter is remanded with direction for the circuit court to hold

a new dispositional hearing, during which the DHHR is required to present evidence in support

of i t s burd e n of pro ving that there is no reasonable likelihood t ha t petiti on er c an substantially correct the conditions of abuse and neglect for which petitioner was adjudicated

, and for fu rther proceedings consistent with the applicable statutes and rules

. T h e C ler k is here by directed to issue the mandate contemporaneou sly here wi th.

Vacated and remanded

.

ISSUED : February 7, 2023

CONCURRED IN BY :

Chief Justice Elizabeth D. Walker

Justice John A. Hutchison

Justice William R. Wooton

DISSENTING:

Justice Tim Armstead Justice C. Haley B unn

BUNN, Justice, dissenting :

I dis sent to the majori ty’s resolution of this matter because I would have set this case for oral argument on the Rule 19 docket to thoroughly address the error alleged in this appeal. Having reviewed the appendix record and Petitioner’s brief, as well as the i ssue raised therei n, I

9 See Syl. Pt. 5, In re Edward B. , 210 W. V a. 621, 558 S.E.2d 620 (2001) (r equiring vacation of dispositional orders when “ the process established by the Rules of Procedure for

Child A buse and Neglec t Proc e e d ings an d related statutes

. . . has been substant ially disregarded

or frustrated ”).6 believe a formal opinion of this Court was warranted

— not a memorandum decision. Accordingly, I respectfully dissent. I am authorized to state that Justice Armstead joins me in this

dissent.