1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia ex rel. J.E.H.G.,

Petitioner

Vs.) No. 16-0931

Honorable Tod Kaufman, Judge of the Circuit Court of Kanawha County; West Virginia Department of Health and Human Resources; T.H.; and unknown father, Respondents



### MEMORANDUM DECISION

Petitioner J.E.H.G., 1 an infant child, by his guardi an ad litem, Jennifer N. Taylor, petitions this Court to invoke it s original jurisdiction in prohi bition in this child abuse and neglect civil proceeding. Petitioner seeks a writ of prohibition to prevent Respondent herein, the Honorable Tod Kaufman, Judge of the Circuit Court of Kanawha County, from enforcing the September 26, 2016, order which granted Res pondent Mother, T.H., a six-month postadjudicatory improvement period. Respondent Mo ther, by her attorney, Rebecca Stollar Johnson, and the Department of Health and Human Resources (“DHHR”), by its attorney, Michael Jackson, Assistant Attorney Genera l, have filed responses opposi ng the issuance of the requested writ. At oral argument in this matter, however , counsel for DHHR stated that it is no longer recommending that J.E.H.G. be reunited with Respondent Mother. Respondent Judge filed a

summary response.

Upon our review of the parties’ arguments , the appendix record, and the pertinent authorities, we conclude the circ uit court erred as a ma tter of law when it failed to follow West Virginia Code § 49-4-610(2)(B) (2015) and failed to consider the best inte rests of J.E.H.G. We therefore grant the requested writ of prohibition and remand this ma tter to the circuit court with directions to: (1) enter an order terminating the improvement period, and (2) schedule the matter for a dispositional hearing. Because this case presen ts no new or significant issues of law, we find this matter to be proper for disposition in a memorandum decision in accordance with Rule 21 of the West Virginia Rules of Appellate Procedure.

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
February 8, 2017

released at 3:00 p.m.
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 Respondent Mother has had her parental rights to ten of he r children terminated (or she relinquished those rights) in pr ior abuse and neglect proceedings. Respondent Mother has had multiple children, with multiple fathers; many of these children had unknown fathers. The prior abuse and neglect proceedings involved Res pondent Mother’s substance abuse, abusive relationships, and her inability to cope with the normal demands of parenting. Respondent Mother has a long history of severe ment al health and substance abuse problems.

Respondent Mother gave birth to J.E.H.G. in March of 2016. Within days, the DHHR filed an emergency abuse and neglect petitio n against Respondent Mother and removed the infant from her custody consideri ng the prior terminations and becau se of evidence that she used illegal drugs (methamphetamines) during her pre gnancy. Respondent Mother waived her right to a preliminary hearing. She has had continui ng supervised visitation with the child.

The guardian ad litem appointed for J.E.H.G. wa s also the guardian ad litem for the last two children (A.B. and N.B.) re moved from Respondent Mother’s care; she relinquished her rights to A.B. and N.B. in light of imminent termination. 2

The circuit court held an adjudicatory hearing and Re spondent Mother voluntarily stipulated to the allegations in the petition. The circuit court accepted her stipulation. 3 The circuit court entered an adjudicatory order on May 31, 2016, finding clear and c onvincing evidence that J.E.H.G. was abused and neglected as define d in West Virginia C ode § 49-1-201 (2015).

Respondent Mother filed a written motion fo r a post-adjudicatory improvement period in July of 2016, citing her compliance with servi ces, visitation and negative drug screens. The DHHR did not oppose an improvement period; the guardian ad l item objected to the

2 Although not in the record in this case, the guardian ad li tem reports that Respondent Mother periodically abandoned A.B. and N.B. (either at hospitals or on the steps of the DHHR), but then “tried her hand at parenting” through services provided by the DHHR. The guardian ad litem states that when the circuit court granted Respondent Mother unsupervised visits with A.B. and N.B., the visits went well until the night Respondent Mother placed the ch ildren (ages two and four years) on the steps of her porch, at night, with all of their belo ngings in a grocery bag; she allegedly called Child Protective Services to come get the children and stated she was going to commit suicide. The guardian ad litem asserts that A.B. and N.B. suffered devastating psychological damage as a result of Respondent Mother abandoning them.

3 The appendix record before this Court is rema rkably thin; there is no sworn testimony at any hearing. Following Respondent Mother’s stipulation, the circu it court spent the majority of the time at the brief adjudicatory hearin g focusing on obtaining a DNA sample from the purported father who happened to be in the court house that day on a criminal matter; he turned

out to not be the child’s father. Because the DHHR did not object to th e improvement period, it did not submit evidence at the adjudicatory hear ing on the issue of whether Respondent Mother was likely to fully participate in the improvement period and correct her past patterns of abuse and neglect. Similarly, Respondent Mother did not put forth evidence on that issue even though she had the burden of doing so. See W.Va. Code § 49-4-610(2)(B).3 improvement period but stated she was agreeable to continued services and supervised visitation. Following a hearing on the matter, the circuit court granted a six-m onth post-adjudicatory improvement period and entered its order on September 26, 2016. 4

On October 4, 2016, the petition for a writ of pr ohibition was filed with this Court and we

issued a rule to show cause. 5

In a status update filed with this Court on January 13, 2017, the DHHR reported that

J.E.H.G. continues to reside in the same foster home where his siblings [A.B. and N.B.] were adopted. The fost er home reports his placement is going well. J.E.H.G. no longer has unsupervised vis its with the respondent mother. The respondent mother last had an unsupervis ed visit with the child in November [2016] that was ended early at her reque st because she reported she could not handle caring for the child and wanted someone to come get him. Although the respondent mother continues to participate in supervised visita tion with J.E.H.G., because of the failed unsupervised visita tion in November, the [DHHR] does not believe the respondent mother is making subs tantial progress in her ability to care

for J.E.H.G. and is not recommendi ng that he return to her care.

Prohibition is an appropriate remedy in cases in which the lower court has no jurisdiction over the subject matter in controversy, or, ha ving such jurisdiction, exceeds its legitimate powers. W.Va. Code § 53-1-1 (201 6). Here, the circuit court has jurisdiction, so we look to the standard set out in sy llabus point four of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996):

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five

4 The circuit court set forth the following terms and conditions:

1) Mother shall participate in parenting education; 2) Mother shall submit to random drug screens; 3) Mother shall participate in a psychological evaluation and follow all resulting recommendations; 4) Mother shall participate in counseling; and 5) Mother shall receive supervised visitation with her child.

As the improvement period proceeded, however, the circuit court authorized unsupervised visitation between Respondent Mother and J.E.H.G.

5 On December 1, 2016, this Court entered an Order Granting Emergency Stay and ruled that in accordance with the visitation schedule that was in place at the time of the filing of the petition for writ of prohibition, supervised visitation would take place pending the resolution of

this matter.4 factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired re lief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the

lower tribunal’s order is clearly erroneous as a matte r of law; (4) whether the

lower tribunal’s order is an oft repeated error or manife sts persistent disregard for either procedural or substantive law; a nd (5) whether the lower tribunal’s order raises new and important problems or issu es of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibiti on should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existe nce of clear error as a matter of law, should be given substantial weight.

In State ex rel. Amy M. v. Kaufman , 196 W.Va. 251, 470 S.E.2d 205 (1996), this Court granted a writ of prohibition in a child abuse an d neglect proceeding and recognized that “‘[o]ur modern practice is to allow the use of prohibition, based on the particular facts of the case, where a remedy by appeal is unavailable or inadequate , or where irremediable prejudice may result from lack of an adequate interlocutory review.’” Id . at 257, 470 S.E .2d at 211 (quoting McFoy v. Amerigas, Inc., 170 W.Va. 526, 532, 295 S.E.2d 16, 22 (1982)).

Petitioner seeks a writ to prohibit the circui t court from enforcing its order granting an improvement period to Respondent Mother

who had a 20-year history of abuse and ne glect proceedings that resulted in ten (10) prior terminations or relinquishment s in light of termination; where the Respondent Mother continued a consta nt pattern of drug abuse, abusive relationships and failure to treat her mental illness; and where there was no evidence that the Respondent Mother ha d substantially improved the conditions that led to the filing of any the petitions.

The crux of Petitioner’s argument is that the circu it court’s ruling is clearly erroneous as a matter of law and a writ of prohibition is appropriate in order to protect the best interests of J.E.H.G. We find these arguments to be compelling and grant the writ.

Pursuant to West Virgin ia Code § 49-4-610(2),

[a]fter finding that a child is an abused or neglected child pursuant to section six hundred one of this article, a court may grant a respondent a [ ] [postadjudicatory] improvement period of a peri od not to exceed six months when: . . .

(B) The respondent [parent] dem onstrates, by clear and convincing evidence, that the respondent is likely to fully participate in the improvement period and the court further makes a findi ng, on the record, of the terms of the improvement period.

This Court previously has recognized that5 [t]he goal [of an improvement period] should be the development of a program designed to assist the parent (s) in dealing with any pr oblems which interfere with his ability to be an effect ive parent and to foster an improved relationship between parent and child with an eventual restor ation of full parental rights a hoped-for result. The improvement period and family case plans must establish specific measures for the achievement of these goa ls, as an improvement period must be more than a mere passage of time. It is a period in which the [DHHR] and the court should attempt to facilitate the parent ’s success, but wherein the parent must understand that he bears a responsibility to demonstrate sufficient progress and improvement to justify return to him of the child.

In re Carlita B. , 185 W.Va. 613, 624-25, 408 S.E.2d 365, 377 (1991).

In response to the petition, Respondents argue generally that the ci rcuit court was acting within its discretion to grant Respondent Moth er a post-adjudicatory improvement period. This Court disagrees with Respondents’ characterization of this case as one which simply involves “judicial discretion.” We find the circuit court erred as a matter of law when it failed to follow the statutory mandates for granting a parent an improvement period when it issued its order without requiring Respondent Mother to go on th e record and meet her threshold burden; the standard for granting an improvement period re quires that Respondent Mother demonstrate, by clear and convincing evidence, that she will comply with its terms. See W.Va. Code § 49-4- 610(2)(B). As this Court has held, fulfillment of some of an improvement period’s terms without actual improvement of the conditions that led to the filing of the abuse and neglect petition simply is not enough; rather, the parent must actively remedy the conditions of abuse and neglect to demonstrate such improvement. See Carlita B. , 185 W.Va. at 626, 408 S.E.2d at 378. Because the lower court violated this clear statutory ma ndate, and irremediable prejudice may result from the delays inherent in waiting until the conclusion of the improvement period and for the matter to be set for disposition, we find that prohibition is an appr opriate remedy in this case.

Respondent Mother has gone through several rounds of DHHR services over the years – a period spanning two decades – and still demonstrat es her propensity to return to the conditions that led to the abuse and neglect findings in the previous cases. As we have long held, “when a parent cannot demonstrate that he/she will be able to correct the conditions of abuse and/or neglect with which he/she has b een charged, an improvement period need not be awarded before the circuit court may terminate the offending parent’s parental rights.” In re Emily , 208 W.Va. 325, 336, 540 S.E.2d 542, 553 (2000). Moreover, “[c] ases involving children must be decided not just in the context of competing sets of adults ’ rights, but also with a regard for the rights of the child(ren).” Syl. Pt. 7, In Matter of Brian D., 194 W.Va. 623, 461 S.E.2d 129 (1995). This is so because the overarching goal in abuse and ne glect proceedings is to protect the subject children. “Although parents have subs tantial 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) ; Syl. Pt. 8, in part, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973) (“Once a court exercising proper jurisdiction has made a determination upon sufficient proof that a child has been negl ected and his natural parents were so derelict in their duties as to be unfit, the welfare of the infant is the polar star by which the discretion of the court is to be gui ded in making its award of legal custody.”).6 Given Respondent Mother’s ex tensive history with the DHHR , and her drug use while pregnant with J.E.H.G., it is readily apparent that an impr ovement period likely would only prolong the inevitable – the eventual removal of J.E.H.G. from the home – and further delay in his permanency. See W.Va. R. P. Child Abuse & Neglect Proceedings 43 (addressing expedient resolution of abuse and neglect proceedings). We commend the guardian ad litem’s efforts to protect this child and petition this Court for ex traordinary relief consider ing the egregious facts

of this case.

Accordingly, we find the circuit court comm itted clear legal error in granting Respondent Mother a post-adjudicatory improvement period as sh e failed to put forth evidence to show she is

able to correct the conditions of abuse and/or neglect. Moreover, we find the circuit court failed to adequately consider J.E.H.G.’s best intere sts when deciding to gr ant Respondent Mother a post-adjudicatory improvement period.

As we said in In re Carlita B., 185 W.Va. 613, 623, 408 S.E.2d 365, 375 (1991), the early, most formative years of a child’s life ar e crucial to his or her development. There would be no adequate remedy at law for these children were they permitted to continue in this abyss of uncertainty. We have repeatedly emphasized that children have a right to resolution of their life situations, to a basic level of nurturance, protection, and security, and to a permanent placement.

State ex rel. Amy M., 196 W.Va. at 257-58, 470 S.E.2d at 211-12.

For ten months now, J.E.H.G.’s future has remained uncertain. To require him to wait while Respondent Mother attempts to develop parenting skills that, for nearly two decades were almost wholly absent, is certainly not in J.E.H.G.’s best interests. See Syl. Pt. 1, in part, Carlita
B., 185 W.Va. 613, 408 S.E.2d 365 (“Child abuse and negl ect cases must be recognized as being among the highest priority for th e courts’ attention. Unjustified procedural delays wreak havoc on a child’s development, stability and security.”). This is esp ecially so when the likelihood appears slim to none that Respondent Mother woul d ultimately be successful in meeting this extreme challenge. See Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980) (“[C]ourts are not required to exhaust every specul ative possibility of pare ntal improvement . . . where it appears that the welfare of the child will be seriously threatened, a nd this is particularly applicable to children under the age of three y ears who are more susceptible to illness, need consistent close interaction with fully committed adults, and are likely to have their emotional and physical development retarded by numerous placements.”).

For the reasons set forth above, this Court finds that the Circuit Court of Kanawha County erred as a matter of law when it failed to follow West Virginia Code § 49-4-610(2)(B)

and failed to consider the best interests of J. E.H.G. by granting a post-adjudicatory improvement period to Respondent Mother. Because the best in terests of J.E.H.G., a ch ild of extremely tender age, do not support a further delay in his reachi ng permanency, we grant the requested writ of prohibition. Additionally, because th e denial of an improvement period forecloses the possibility

of reunification between J.E.H.G. and Respondent Mother, we remand this case with instructions to schedule this matter for a dispositional hearing.7 On remand, the circuit court s hould be aware that the guardia n ad litem reported to this Court that Respondent Mother has made threats to harm or kill herself and/or the child should her parental rights be terminated in this proceeding. The DHHR is hereby directed to investigate this serious allegation without delay a nd file a report to the circuit court.

The Clerk of this Court is hereby dir ected to issue the mandate forthwith.

Writ granted.

ISSUED: February 8, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II

Justice Robin Jean Davis Justice Margaret L. Workman

Justice Menis E. Ketchum

Justice Elizabeth D. Walker