In Re: S.H. - Case Law

FILED
June 16, 2016
No. 15-0708 - In re: S.H. released at 3:00 p.m.
RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
LOUGHRY, Justice, concurring in part, dissenting in part: OF WEST VIRGINIA

I concur with the majority’s conclusion that the circuit court correctly

adjudicated S.H. as an abused child at the hands of her grandmother, the petitioner M.H.

However, by reversing the termination of guardianship and reinstating the petitioner’s post

adjudicatory improvement period, the majority has cavalierly disregarded the petitioner’s

abusive conduct and criminal conviction. This Court on appeal “may not overturn a finding

simply because it would have decided the case differently[.]” Syl. Pt. 1, in part, In Interest

of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996). Because the appendix record

includes more than sufficient evidence to support all of the circuit court’s rulings, and those

rulings are clearly in the child’s best interests, I dissent to the majority’s discussion and

resolution of the improvement period and termination issues.

S.H. has been the subject of abuse and neglect proceedings since 2011, when

she was born addicted to drugs and had to spend the first two months of her life in a neonatal

intensive care unit. In November of 2012, the biological parents agreed to voluntarily

relinquish their custodial rights to S.H. As a result, the circuit court awarded legal

guardianship of the child to the petitioner.1 Unfortunately, the abuse and neglect of S.H. did

1
Although the appendix record does not contain all of the materials from the 2012
petition, it is presumed that the circuit court permitted the parents to retain their parental
rights, while relinquishing their custodial rights, pursuant to the court’s authority in West

not end. The petitioner allowed the child’s mother, N.H., to live in their home and, although

N.H. was serving a period of home incarceration, she continued to use drugs.2 It was also

discovered that the petitioner was in possession of, and using, illegal drugs in the home.

When N.H.’s home incarceration officer made an unannounced visit to the home on August

21, 2014, four bags of marijuana totaling 1.7 pounds were found, unconcealed, on the floor

of the petitioner’s bedroom closet. The marijuana was in a location easily accessible to the

child. Drug paraphernalia was also found in the home: a pipe and wrapping papers were

under the petitioner’s bed, and two syringes were in N.H.’s purse.

When interviewed later that day, the petitioner lied and denied ownership of

the marijuana in her closet. However, she admitted that she had smoked marijuana in the

prior two weeks, that she would test positive if tested for drugs, and that she used marijuana

“every week or so” as a social activity. Because of the marijuana in her closet, the petitioner

was charged with felonious possession with intent to deliver a controlled substance.

Subsequently, she conceded that the marijuana did, in fact, belong to her. On February 20,

2015, pursuant to a negotiated plea agreement, the petitioner pled guilty to misdemeanor

Virginia § 49-6-5(a)(5) (2012): “Upon a finding that the abusing parent . . . or parents are
presently unwilling or unable to provide adequately for the child’s needs, [the court may]
commit the child temporarily to the custody of . . . a suitable person who may be appointed
guardian by the court.” The circuit court subsequently, in 2015, terminated all of the
biological parents’ rights.
2
Upon being taken into custody on August 21, 2014, N.H. tested positive for
marijuana and Suboxone.

possession of marijuana in a quantity greater than fifteen grams. Without mentioning her

previously-disclosed social usage of illegal drugs, she told the court in her criminal case that

she prepared and consumed baked goods containing marijuana in order to self-medicate pain.

The court sentenced the petitioner to ninety days in jail, but then suspended the jail sentence

and placed her on probation for two years. The petitioner has refused to reveal the source

for her large stash of marijuana, even when questioned under oath after her criminal case was

resolved.

The majority of the Court has concluded that the circuit court improperly

revoked the petitioner’s post-adjudicatory improvement period because she passed drug tests

and performed tasks the DHHR asked of her. However, revocation is permissible even when

there has been compliance with specific tasks:

[I]t is possible for an individual to show “compliance with
specific aspects of the case plan” while failing “to improve . . .
[the] overall attitude and approach to parenting.” Thus, a
judgment regarding the success of an improvement period is
within the [circuit] court’s discretion regardless of whether or
not the individual has completed all suggestions or goals set
forth in family case plans.

In Interest of Carlita B., 185 W.Va. 613, 626, 408 S.E.2d 365, 378 (1991) (quoting W.Va.

Dept. of Human Serv. v. Peggy F., 184 W.Va. 60, 64, 399 S.E.2d 460, 464 (1990)). Here,

the circuit court revoked the petitioner’s improvement period immediately upon her

conviction for a drug crime.3 Until then, the criminal charges were simply allegations and,

due to the petitioner’s initial dishonesty, there had been misinformation about the ownership

of the marijuana.

Important to the circuit court’s decision, but overlooked by the majority, is that

the petitioner was the child’s guardian, not the child’s biological or adoptive parent. As such,

she was afforded the statutory right to be heard in an adjudicatory hearing,4 and she was

among the class of persons who could be adjudicated as abusive of this child.5 However, a

court-appointed guardian does not have the same rights as a biological or adoptive parent has.

See In re D.B.J., 286 P.3d 1201, 1207 (Mont. 2012) (concluding that removal of guardian is

distinct from termination of parent-child relationship; guardian does not possess due process

rights equivalent to those of parent). Moreover, even a parent “is not unconditionally entitled

3
The circuit court learned of the conviction during a status hearing that the court was
statutorily-required to hold for the purpose of reviewing the ongoing improvement period.
See, W.Va. Code § 49-6-12(b)(3) (2012).
4
“[T]he party or parties having custodial or other parental rights or responsibilities to
the child shall be afforded a meaningful opportunity to be heard[.]” W.Va. Code § 49-6-2(c)
(2012), now codified in W.Va. Code § 49-4-601(h) (2015). Accord In re A.H., Nos. 15-0828
& 15-0832, 2016 WL 1602944 (W.Va. Apr. 21, 2016) (memorandum decision) (concluding
that relatives holding legal guardianship of one child and custodianship of other child were
entitled to abuse and neglect adjudicatory hearing).
5
“Abused child” is defined to include a child harmed or threatened by “a parent,
guardian or custodian[,]” while “abusing parent” is “a parent, guardian or custodian . . .
whose conduct . . . has been adjudged . . . to constitute child abuse or neglect.” W.Va. Code
§ 49-1-3(1), (2) (2012), now codified, with minor changes, in W.Va. Code § 49-1-201
(2015), in part.

to an improvement period.’” In re M.M., 236 W.Va. 108, __, 778 S.E.2d 338, 345 (2015)

(quoting In re Charity H., 215 W.Va. 208, 216, 599 S.E.2d 631, 639 (2004)). In light of the

finding of child abuse, and upon the petitioner’s criminal conviction, the circuit court was

completely within its discretion to revoke the petitioner’s improvement period.

The majority of the Court is also wrong for not affirming the termination of the

petitioner’s guardianship. The petitioner’s appointment as the child’s legal guardian was the

court-ordered disposition for the initial abuse and neglect petition. As such, the circuit court

was free to modify that disposition upon finding “clear and convincing evidence [of] a

material change of circumstances and that the modification is in the child’s best interests[.]”

W.Va. Code § 49-4-606(a) (2015). The petitioner’s conduct, adjudication as abusive, and

criminal conviction most certainly constituted a material change of circumstances adverse

to the child’s best interests. Drug use triggered the abuse and neglect petition against the

child’s biological mother in 2011 and, obviously, the purpose of awarding legal guardianship

to the petitioner was to remove S.H. from a drug-fueled environment. Unfortunately, we

now know that the petitioner also used and possessed illegal drugs; maintained a substantial

quantity of marijuana within easy reach of the child; used the marijuana in baked goods,

which could be enticing to a child; permitted the child’s drug-using mother to reside in the

home with them; and was herself convicted of a drug crime. In light of these facts, any

reasonable person would conclude that S.H.’s “health or welfare [was] . . . threatened” by the

petitioner’s actions. See W.Va. Code § 49-1-201 (2015) (defining “abused child” to include

the threat of harm, not just infliction of harm). Children should be protected from drugs, not

placed in situations where they have easy access to illegal and dangerous substances that

could be ingested. See State v. Graham, 109 P.3d 285 (N.M. 2005) (affirming conviction for

child abuse where defendant left marijuana in close proximity to young children, even though

no evidence children touched drugs).

Although the petitioner may have complied with her improvement period until

her criminal conviction, that is not determinative of the final disposition. Even when parental

rights, not simply guardianship rights, are at issue, we have held that “[i]n making the final

disposition in a child abuse and neglect proceeding, the level of a parent’s compliance with

the terms and conditions of an improvement period is just one factor to be considered. The

controlling standard that governs any dispositional decision remains the best interests of the

child.” Syl. Pt. 4, In re B.H., 233 W.Va. 57, 754 S.E.2d 743 (2014); accord In re Frances

J.A.S., 213 W.Va. 636, 646, 584 S.E.2d 492, 502 (2003) (“The question at the dispositional

phase of a child abuse and neglect proceeding is not simply whether the parent [or guardian]

has successfully completed his or her assigned tasks during the improvement period. Rather,

the pivotal question is what disposition is consistent with the best interests of the child.”).

The circuit court considered all of the evidence and ruled that termination of

the guardianship was in S.H.’s best interests. S.H. will soon be five years old. As the circuit

court noted, she

has been in an unstable and unsafe home since birth. She is
entitled to, and needs, stability. She needs to live without fear
of being disrupted by repeated substance abuse episodes and
also [without] having the intervention of child protective service
workers in her home as many times as she [has] had in her short
life.

The circuit court’s knowledge of S.H., and of S.H.’s best interests, was garnered from years

of presiding over the child’s abuse and neglect matters. See In re C.M., 235 W.Va. 16, 30,

770 S.E.2d 516, 530 (2015) (Loughry, J., dissenting) (expressing concern that majority

ignored best interests of child; noting circuit court’s well-supported decision was based on

years of involvement in child’s abuse and neglect matter). The circuit court used that

knowledge to determine, correctly, that termination of the petitioner’s guardianship was in

S.H.’s best interests. Now that the parental rights of S.H.’s biological parents have been

terminated, this case should proceed to a suitable adoption for S.H., not to another post

adjudicatory improvement period for an abusive legal guardian.

Finally, I am very troubled by the majority’s dilatory handling of this appeal.

All of the appellate briefs were filed by early November, 2015, and oral argument was held

on January 12, 2016, the first argument docket of this Term of Court. At the conclusion of

oral argument, the case was submitted for decision. Nonetheless, it took the majority five

full months to issue its opinion. Such a delay can seem like a lifetime to a young child,

particularly when the child has been removed from her home.6 This delay is also contrary

to Rule 49 of the Rules of Procedure for Child Abuse and Neglect Proceedings: “The

Supreme Court of Appeals shall give priority to appeals of child abuse and/or neglect

proceedings . . . and shall establish and administer an accelerated schedule in each case, to

include the . . . decision.” This Court has repeatedly admonished circuit courts that abuse and

neglect cases “shall take precedence over almost every other matter” and “must be resolved

as expeditiously as possible.” Syl. Pt. 5, in part, In the Interest of Carlita B., 185 W.Va. 613,

408 S.E.2d 365 (1991); e.g., Tiffany Marie S., 196 W.Va. at 230, 470 S.E.2d at 184; State ex

rel. Tristen K. v. Janes, 227 W.Va. 62, 64-65, 705 S.E.2d 569, 571-72 (2010).

Unfortunately, the majority failed to follow its own cautionary tale when handling the instant

appeal.

While the majority correctly affirmed the circuit court’s adjudication of the

petitioner as abusive, it ignored the circuit court’s other well-supporting findings of fact and

conclusions of law. Moreover, by remanding for another post-adjudicatory improvement

period, and because of the lazy time frame used to decide this appeal, the majority has

delayed S.H.’s opportunity to receive the stability and permanency she deserves.

Accordingly, I concur, in part, and dissent, in part.

6
S.H. has been removed from the petitioner’s home and placed with the interveners
since the abuse and neglect petition was filed in September of 2014.