1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re K.B. and J.H.

No. 18-0255 (Webster County 17-JA-15 and 17-JA-16)



### MEMORANDUM DECISION

Petitioner Father T.B., by counsel Andrew B. Chattin, appeals th e Circuit Court of Webster County’s February 20, 2018, order termina ting his parental rights to K.B. and J.H. 1 The West Virginia Department of Health and Hu man Resources (“DHHR”), by counsel S.L. Evans, filed a response in support of the circuit cour t’s order and a supplemental appendix. The guardian ad litem, Mary Elizabeth Snead, filed a response on behalf of the children in support of the circuit court’s order. On appeal, petitioner argues that the circuit c ourt erred in finding that he did not substantially correct the i ssues of abuse and neglect and subsequently terminating his parental rights.

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 finds that the circuit court erred in terminating petit ioner’s parental rights upon a finding that there was no re asonable likelihood that the condi tions of abuse and neglect could be substantially corrected in the near future. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the West Virg inia Rules of Appellate Procedure, and a memorandum decision is appropriate to vacate and remand the matter.

In January of 2017, petitioner admitted to th e DHHR that he used marijuana while the children, K.B. and A.H., ages four and seven, we re in the home. The DHHR initiated a safety plan, which included a prohibition of certain individuals subjec t to past abuse and neglect petitions in petitioner’s home. In February of 2017, the DHHR filed a petition alleging that petitioner violated the safety plan by allowing thos e certain individuals around the children. The DHHR further alleged that piles of dirty dishes and laundry were observed inside the home and

that the conditions were worse than when th e safety plan began. According to the DHHR, petitioner admitted that he was an alcoholic, and that a prohibited individual was staying in the

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). 

### FILED

November 21, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 home and helping him care for the children. Additionally, the DHHR alleged that another individual in the home admitted to using controlle d substances and had a small amount of white powdery substance, a straw, and a pipe in hi s possession. The DHHR also alleged that petitioner previously successfully completed an improve ment period in an earlier abuse and neglect proceeding.

Petitioner admitted to the allegations of abuse and neglect in the petition in March of 2017. Based on his admissions, the circuit court adj udicated petitioner as an abusing parent. The circuit court granted petitioner supervised visitation subject to clean and consistent drug screening. The circuit court gr anted petitioner a post-adjudicat ory improvement period. In its order, the circuit court listed the following terms of the improve ment period: “[th at petitioner] remain drug and alcohol free, that he complete th e program at Mid Ohio Valley, and that [he] not be in the company of anyone using drugs or alcohol , except that he may be in the presence of users or addicts also seeking treatment at the Mid Ohio Valley Fellowship Home.” Additionally, the circuit court required petitioner to participate in all services and obey all previous orders. Further, the circuit court required that petitione r be drug screened before every visitation and

have no contact with the individu als previously named in his sa fety plan. Finally, the circuit court required petitioner to “seek employment while in his reha bilitation program and gain and maintain employment during his improvement pe riod.” Although these terms were provided by the circuit court, the DHHR never filed a case plan memorializing the goals for petitioner’s improvement. Petitioner was granted a three- month extension of his post-adjudicatory improvement period in October of 2017.

In December of 2017, the DHHR filed a moti on to revoke petitioner’s improvement period and terminate his parental rights. In the motion, the DHHR cited to the above-quoted language as the terms of petitioner’s improveme nt period. Additionally, the DHHR alleged that “[i]t was also a requirement of the Department and the Improvement Period that [petitioner] obtain suitable housing prior to the expiration of his improveme nt period.” The DHHR alleged that during a multidisciplinary team meeting (“ MDT”) in November of 2017 petitioner was still living in housing connected to th e rehabilitation program. The DHH R alleged that petitioner had not made any significant effort in seeking ho using, and was “encouraged to find suitable housing.” The DHHR did not mention a family case plan in its motion to terminate parental rights. 2

On January 10, 2018, the circui t court held a dispositio nal hearing and the DHHR presented evidence regarding its motion to term inate petitioner’s parent al rights. Petitioner testified that he signed a lease for an apartmen t two days prior to the hearing and was moving into that apartment in about five days. Petitioner testified that he worked two jobs, one in a

restaurant and another at a window factory. Further, petitioner tes tified that he did not use drugs or alcohol throughout the improvement period a nd completed the Mid Ohio Valley substance

2 According to the circuit court’s docketing sh eet provided on appeal, it does not appear that a case plan was ever filed below.3 abuse program. A DHHR case worker testified th at she felt as though petitioner was unmotivated throughout the case.

Ultimately, the circuit court found that petitioner participated in a prior abuse and neglect proceeding and, therefore, was familiar with what is required in such a proceeding. Further, the

circuit court found that “while [petitioner] has successfully a ddressed his drug abuse, he has failed in a timely fashion to address the issues of suitable housing and has not . . . provided support for his children.” The circuit court conc luded that petitioner failed to correct the conditions of abuse and neglect and that term ination was necessary for the welfare of the children. Petitioner was granted supervised post- termination visitation once per week provided that he refrain from using drugs and alcohol. Thereafter, the circuit court or dered termination of petitioner’s parental rights in its February 20, 2018, order. 3 Petitioner now appeals that order.

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).

On appeal, petitioner argues th at the circuit court clearly e rred and abused its discretion in finding that he failed to timel y correct the conditions which le d to the filing of the petition because he substantially complied with the terms of his improvem ent period. We agree, given the DHHR’s failure to file a formal case plan, as required, and its late addition of a requirement that petitioner obtain housing.

West Virginia Code § 49-4- 604(a) provides that “[f]ollowing a determination pursuant to

section six hundred two of this ar ticle wherein the court finds a child to be abused or neglected, the department shall file with the court a copy of the child’s case plan.” As set forth above, the

3 J.H.’s mother’s parental rights were termin ated in July of 2012. K.B.’s mother was a non-abusing parent and retains her parental ri ghts. According to the DHHR and the guardian, both children are placed with K.B.’s mother. K.B.’s permanency plan is to continue in his mother’s custody. J.H.’s permanency plan is adoption in K.B.’s mother’s home.4 DHHR’s motion to terminate petitioner’s parental rights relied on the circuit court’s April 19, 2017, order to set forth the terms of the improveme nt period, due to the lack of a formal case plan. As this Court has held, “[t] he purpose of the family case plan as set out in [W.Va. Code 49- 4-604], is to clearly set forth an organized, rea listic method of identifying family problems and the logical steps to be used in resolvi ng or lessening these problems.” Syl. Pt. 2, In re Desarae

M. , 214 W.Va. 657, 591 S.E.2d 215 (2003). Additionally,

[a] formal family case plan . . . is not only for the benefit a nd information of the parent seeking improvement; it is equa lly beneficial and necessary for the caseworkers and other assistive personne l. Without a family case plan, the individuals seeking to assist a parent are limited in their ability to formulate distinct goals, methods of achieving such goals, or means by which success will be judged.

Id , at 662-63, 591 S.E.2d at 220-21. Further, “without such a [case] plan, a court is then confronted with general testimony as to whet her the natural parent has shown the requisite ‘improvement.’” State ex rel. Dep’t of Human Serv. v. Cheryl M. , 177 W.Va. 688, 694, 356 S.E.2d 181, 187 (1987). It is clear that petitioner wa s prejudiced by the lack of a family case plan which should have clearly set forth the terms of his improvement period. By the final dispositional hearing, the eviden ce showed that petitioner remain ed free of drugs and alcohol, completed a substance abuse treatment program, and obtained employment. The circuit court, however, found that petitioner failed to obtain suitable housing in a timely manner and was, therefore, unsuccessful in correct ing the conditions of abuse and ne glect. We find this finding is clearly erroneous given that pe titioner successfully completed the terms as provided by the circuit court in its April 21, 2017 order. The requir ement for suitable housing is first mentioned in the DHHR’s motion to terminate petiti oner’s parental rights in December of 2017 approximately four weeks prior to the final disp ositional hearing. Rather than provide petitioner a clear set of goals that incl uded the requirement for suitable housing in April of 2017, the DHHR’s later addition of this term limited pe titioner’s opportunity to respond and improve.

“Where it appears from the record that the process es tablished by the Rules of Procedure for Child Abuse and Neglect Pr oceedings and related statutes for the disposition of cases involv ing children [alleged] to be abused or neglected has been substantially disregarded or frustrated, the resulting order . . . will be vacated and the case remanded for compliance w ith 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). Ac cordingly, we find that the circuit court’s failure to require the DHHR to file a family case plan constitutes a substantial disregard of the Rules of Proce dure for Child Abuse and Neglect Proceedings such that vacation is warranted. Despite the late notice to petitione r that he needed to obtain housing independent from his treatment program, the record shows pe titioner signed a lease for a two bedroom home that he was scheduled to move into five days af ter disposition. Therefore, this Court orders the circuit court to hold a disposi tional hearing, take additional ev idence regardi ng petitioner’s housing situation, and determine the most appropr iate disposition under West Virginia Code § 49-4-604 considering petitione r’s current circumstances.5 For the foregoing reasons, we vacate and remand the circuit court’s order terminating petitioner’s parental rights to K.B. and J.H. for further proceed ings consistent with the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings and Chapter 49 of the West Virginia Code. 4 The circuit court is hereby ordered to hold the appropria te hearings 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 : November 21, 2018

CONCURRED IN BY :

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Paul T. Farrell sit ting by temporary assignment

DISSENTING:

Chief Justice Margaret L. Workman

4 Based on respondents’ representations and th e record on appeal, th e Court finds that K.B. and J.H.’s current placement is appropriat e and in their best interest at this time. Accordingly, we instruct the circuit court to main tain this 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 appli cable Rules of Procedure for Child Abuse and Neglect Proceedings.