### STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

FILED

In re T.C., D.C., and E.C. 

### June 15, 2018

EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS No. 18-0195 (Cabell County 16-JA-4, 5, and 7) OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Mother D.T., by counsel Eric B. A nderson, appeals the Circuit Court of Cabell County’s February 1, 2018, order terminating her parental rights to T.C., D.C., and E.C. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a response in support of the circuit court’s order. The guardian ad li tem for T.C. (“guardian for T.C.”), Michael S. Bailey, file d a response on behalf of that child in support of the circuit court’s order. The guardian ad litem for D.C. a nd E.C. (“guardian”), Cat hy L. Greiner, filed a response on behalf of those children in support of the circuit court’s order. Petitioner filed a reply brief. On appeal, petitioner argues that the circuit court erred in denying her an improvement period and terminating her parental rights without a petition that contained specific factual allegations against her.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court vacates the circuit court’ s February 1, 2018, dispositional order and the circuit court’s January 30, 2018, adjudicatory order, as they relate to petitioner, and remands the case to the circuit court for the filing of an amended petition naming petitioner as a respondent. 2 This case satisfies the “limited circumstances” requi rement of Rule 21(d) of the West Virginia Rules of Appellate Procedure, and a memorandum decision is appropriate to resolve the issues presented.

In January of 2016, the DHHR filed a petition ag ainst the father and step-mother of T.C., D.C., and E.C. alleging that D.C. was sexually a bused by her paternal gra ndfather and that both
D.C. and E.C. were sexually abused by T.C. Additionally, the DHHR a lleged that the step

1 Consistent with our long-standing practice in cases with sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H. , 235 W.Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II , 230 W.Va. 731, 742 S.E.2d 419 (2013); State v. Brandon B. , 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L. , 183 W.Va. 641, 398 S.E.2d 123 (1990).

2 As we find that the circuit court erred in te rminating petitioner’s pa rental rights without a petition that contained specific factual allegati ons against her, we find it unnecessary to address petitioner’s other assignme nts of error on appeal.

1mother locked the children in their rooms to keep them from “stealing food” in the middle of the night. The DHHR alleged that the father indicated that petitioner’s parental rights to the children were previously terminated and that he exerci sed sole custody over the children. However, the father’s statement proved to be untrue; petitione r retained her parental rights and the right to visitation with the children. The father and st ep-mother waived their preliminary hearings. 3

In March of 2016, petitioner appeared at the ad judicatory hearing in the father and step

mother’s case and was appointed counsel. The circuit court ordere d petitioner to participate in certain services. Further, the parties noted that an amended petition naming petitioner as a respondent and alleging abuse and/or neglect by her would be required. However, the DHHR admits on appeal that no such amended petition was filed.

The circuit court held an ad judicatory hearing in April of 2017 and found that petitioner was an abusing parent on the basis of her adm itted lack of support and lack of meaningful contact and visits with the chil dren. In November of 2017, the circ uit court held a dispositional hearing, wherein it denied petit ioner’s motion for an improvemen t period and concluded that it was in the best interest of the children to te rminate her parental righ ts. The circuit court’s decision was memorialized by its February 1, 20 18, order. Petitioner now appeals that order. 4

The Court has previously establishe d the following standard of review:

“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 sh all 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. Th ese findings shall not be set aside by a reviewing court unless cl early erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the revi ewing 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 diffe rently, 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).

3 When the children were removed from the father’s custody, T.C. was already placed at River Park Hospital as required by a concurrent juvenile delinquency petition. That petition alleged that T.C. inapprop riately touched a female classmate while at school.

4 The father relinquished his parental rights to the childr en during these proceedings. According to the parties, E.C. and D.C. are in se parate foster homes with a permanency plan of adoption in their respective homes . T.C is currently in a long-term treatment facility and transitioning to a lower-security facility. According to his guardian, T.C. will require further treatment before a permanent placement can be identified.

2On appeal, petitioner argues th at the circuit court erred in terminating her parental rights without a petition containing spec ific factual allegations of abuse and neglect against her. Petitioner argues that the initial petition named only the father and step-mother of the children and did not contain any allegations that she abused or neglected the children. Although the parties agreed below that an amended petition including petitioner as a respondent was required, no such petition was ever filed. Upon our review of the record, we agree with petitioner and find
that the circuit court erred.

West Virginia Code § 49-4- 601(b) provides “[t]he petition sh all allege specific conduct including time and place, [and] how the conduct come s within the statutory definition of neglect or abuse with references thereto. . . .” See also State v. Scritchfield , 167 W.Va. 683 691-92, 280 S.E.2d 315, 321 (1981)(holding that a “petition must set forth specific allegations of fact sufficient to inform the parent of the nature of the condition or conduct which constitutes or is likely to result in neglect”). Further, this Court ha s held that petitions that fail to allege specific conduct and do not meet the statutory guidelin es are deficient and must be amended. Id. 167 W.Va. at 691-92, 280 S.E.2d at 320-21.

It is clear from the record and the brie fs on appeal that an amended petition naming petitioner as a respondent and al leging specific conduct that consti tutes abuse and/or neglect of the children was never filed. 5 This lack of formal allegations deprived petitioner of due process and the opportunity to properly ta ilor her defense. Further, we have previously held that

“[w]here it appears from the record that the process established by the Rules of Procedure for Child Abuse and Ne glect Proceedings and related statutes for the disposition of cases involving children [alleged] to be abused or neglected has been substantially disregarded or frustrated, the resulting order . . . will be vacated and the case remanded for complian ce with that process and entry of an appropriate . . . order.” Syllabus point 5, in part, In re Edward B. , 210 W.Va. 621, 558 S.E.2d 620 (2001).

Syl. Pt. 3, In re Emily G. , 224 W.Va. 390, 686 S.E.2d 41 (2009). The circuit court’s failure to require a petition that contains specific factual allegations against petitioner is a substantial disregard of the Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes, requiring vacation of the circu it court’s orders as to petitioner.

For the foregoing reasons, we vacate the ci rcuit court’s February 1, 2018, dispositional order and the January 30, 2018, adjudicatory order, as they relate to pet itioner, and remand this matter to the circuit court for the filing of a pe tition naming petitioner as respondent in 16-JA-4, 5, and 7, and for further proceedings consistent w ith the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings and Chapter 49 of the West Virginia Code. 6 The circuit

5 Although it is unclear whether petitioner properly objected to the lack of an amended petition below, West Virginia C ode § 49-4-601(e)(6) provides that “[f]ailure to object to defects in the petition and notice may not be construed as a waiver.”

6 Based on respondents’ representations and the record on appeal, the Court finds that the children’s current temporary placement is appropriate and in their best interest at this time.

3court is hereby ordered to hold the appropriate hear ings and issue a final order in this case within sixty days. The Clerk is hereby directed to issue the mandate contemporaneously herewith.

Vacated and remanded. ISSUED : June 15, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

Justice Allen H. Loughry II, suspende d and therefore not participating

Accordingly, we instruct the circ uit court to maintain this tempor ary placement until such time as the circuit court is tasked with determining an appropriate permanent placement for the children pursuant to West Virginia Code § 49-4-604(b) and the applicable Rules of Procedure for Child Abuse and Neglect Proceedings.

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