STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
June 16, 2017
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
In re: M.S., B.E., K.S.-1, and A.S. OF WEST VIRGINIA
No. 17-0223 (Randolph County 16-JA-031, 16-JA-032, 16-JA-033, & 16-JA-034)
MEMORANDUM DECISION
Petitioner Mother K.S.-2, by counsel David C. Fuellhart, III, appeals the Circuit Court of
Randolph County’s February 8, 2017, order terminating her parental rights to M.S., B.E., K.S.-1,
and A.S.1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel Lee Niezgoda, filed its response in support of the circuit court’s order. The guardian ad
litem (“guardian”), Heather M. Weese, filed a response on behalf of the children also in support
of the circuit court’s order and a supplemental appendix. On appeal, petitioner argues that she
should have been entitled to an additional improvement period at disposition because of the
DHHR’s failure to timely file a family case plan.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In March of 2016, the DHHR filed an abuse and neglect petition against petitioner and
the father that alleged petitioner abused drugs during her pregnancy with M.S. The petition
further alleged that petitioner’s drug use resulted in abuse and neglect of the other children in the
home. The petition also alleged that the father engaged in domestic violence in the home.
That same month, the circuit court held an adjudicatory hearing, at which petitioner
stipulated to neglecting the children due to drug abuse and the domestic violence present in the
home. The circuit court thereafter granted petitioner a post-adjudicatory improvement period and
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). Additionally, because one of the children and petitioner
share the same initials, we will refer to them as K.S.-1 and K.S.-2, respectively, throughout this
memorandum decision.
1
directed the multidisciplinary team (“MDT”) to meet in order to set the terms and conditions of
the post-adjudicatory improvement period. According to the guardian, the MDT met the
following day to comply with the circuit court’s direction. During the meeting, the parties set the
terms and conditions of petitioner’s improvement period and memorialized the same in a
document that was provided to petitioner. The terms and conditions included, but were not
limited to, the following: (1) complete recommended evaluations; (2) submit to random drug
screens; (3) participate in any services deemed appropriate, including parenting and adult life
skills services; and (4) participate in visitation with the children.
Thereafter, the MDT met again in May of 2016. According to the guardian, at the
meeting, petitioner acknowledged a continued relationship with the father, in spite of his past
instances of domestic violence. Petitioner also reportedly stopped taking her prescribed
Suboxone that same month. Also in May of 2016, the circuit court granted petitioner an
extension of her improvement period.
In June of 2016, petitioner was arrested for delivery of a controlled substance for
allegedly selling her prescription medication. In July of 2016, the circuit court held another
review hearing, at which the DHHR presented evidence that petitioner failed to comply with her
improvement period, as evidenced by her recent arrest. Although the circuit court noted concern
over petitioner’s arrest, it nonetheless granted her an extension of her post-adjudicatory
improvement period. However, the circuit court cautioned that petitioner would “need to
demonstrate much better compliance during the extended improvement period.”
In August of 2016, the circuit court held another review hearing. During the hearing, both
the DHHR and the guardian argued that petitioner was noncompliant with the terms and
conditions of her improvement period, as she tested positive for illicit substances at her drug
screens and failed to consistently attend visitation. Based on the evidence, the circuit court found
that petitioner failed to consistently participate in her improvement period. The circuit court
suspended petitioner’s visitation with the children and directed that she could resume visitation
after submitting three clean drug screens. Shortly after the hearing, the DHHR filed a motion to
terminate petitioner’s parental rights.
In December of 2016, the circuit court held a dispositional hearing, at which the parents
moved for post-dispositional improvement periods on the grounds that the DHHR failed to
timely file a family case plan after they were granted post-adjudicatory improvement periods.
The circuit court continued the hearing and ordered the DHHR to file a family case plan. In
January of 2017, the circuit court held another dispositional hearing subsequent to the DHHR’s
filing of a case plan.2 Petitioner initially failed to appear in person and arrived for the hearing
2
The record in this matter is clear that the DHHR’s case plan specifically indicated that it
was a child case plan submitted at least five days prior to the dispositional hearing as required by
West Virginia Code § 49-4-604. In support of her motion for a post-dispositional improvement
period in the circuit court, petitioner argued that she was entitled to the same because of the
DHHR’s failure to file a family case plan within thirty days of the granting of her post-
(continued . . . )
2
several hours late. She was, however, represented by counsel. During the hearing, the circuit
court denied petitioner’s motion for a post-dispositional improvement period based upon her
failure to comply with “the large majority of the terms and conditions of her improvement
period[,]” such as her failure to consistently visit the children; continued drug use; failure to
follow through with the recommendations of her psychological evaluation; and failure to
complete parenting services, among other issues. As such, the circuit court terminated
petitioner’s parental rights to the children.3 It is from the dispositional order that petitioner
appeals.
The Court has previously established 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 shall make a determination based upon the
adjudicatory hearing, as required by West Virginia Code § 49-4-408(a). According to West
Virginia Code § 49-4-408(a),
[t]he [DHHR] shall develop a unified child and family case plan for every family
wherein a person has been referred to the department after being allowed an
improvement period or where the child is placed in foster care. The case plan
must be filed within sixty days of the child coming into foster care or within thirty
days of the inception of the improvement period, whichever occurs first.
However, West Virginia Code § 49-4-604(a) states, in pertinent part, that
[f]ollowing a determination pursuant to section six hundred two of this article
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, including the permanency plan for
the child. The term “case plan” means a written document that includes, where
applicable, the requirements of the family case plan as provided in section four
hundred eight of this article
Following the filing of the DHHR’s case plan in December of 2016, the circuit court found, in its
February 8, 2017, dispositional order, that the DHHR “has filed a Child or Family Case Plan
prior to the disposition in this matter.” As such, it is clear that the DHHR’s child case plan,
submitted in accordance with West Virginia Code § 49-4-604(a), contained the requirements of
the family case plan as set forth in West Virginia Code § 49-4-408.
3
Both parents’ parental rights to M.S. and B.E. were terminated below. According to the
guardian, the children are placed in the home of a maternal relative with a goal of adoption
therein. Petitioner’s parental rights to K.S.-1 and A.S. were also terminated below, while the
children’s non-abusing father was granted custody of the children with a permanency plan to
remain in his home.
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evidence and shall make findings of fact and conclusions of law as to whether
such child is abused or neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is clearly erroneous when,
although there is evidence to support the finding, the reviewing 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 differently, 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 that she should have been entitled to an additional
improvement period at disposition because of the DHHR’s failure to timely file a family case
plan.4 We do not agree. In support of her argument, petitioner relies heavily on our prior holding
in Desarae M. to argue that a list of the specific terms and conditions of an improvement period
are insufficient to satisfy the statutory requirement that the DHHR file a family case plan within
thirty days of the inception of an improvement period. According to petitioner, her case is
analogous to the facts in Desarae M. and, accordingly, she should have been entitled to an
improvement period at disposition so that the DHHR could timely file a family case plan upon
the initiation of this second improvement period. We do not find this argument compelling, as
the facts of petitioner’s case differ substantially from Desarae M. Most notably, the mother in
that case was complying with services during the improvement period at issue and was actively
prejudiced by the DHHR’s failure to timely file a family case plan. Specifically, the mother in
that case “allege[d] that personnel shortages within [the] DHHR limited her success during her
improvement period.” Desarae M., 214 W.Va. at 661, 591 S.E.2d at 219. These shortages
resulted in the DHHR’s failure to transport the children to the designated location for visitation
after DHHR caseworkers terminated their employment and the DHHR failed to make alternate
arrangements. Id. Moreover, the DHHR requested that the mother cease counseling by one
4
Petitioner also argues that the circuit court erroneously found that she waived her right to
have the DHHR timely file a family case plan by her failure to object to the lack of a case plan
until the dispositional hearing. Because the Court affirms the circuit court’s dispositional order
on other grounds, it is unnecessary to address petitioner’s argument concerning waiver. As we
have held,
“[t]his Court may, on appeal, affirm the judgment of the lower court when
it appears that such judgment is correct on any legal ground disclosed by the
record, regardless of the ground, reason or theory assigned by the lower court as
the basis for its judgment.” Syllabus point 3, Barnett v. Wolfolk, 149 W.Va. 246,
140 S.E.2d 466 (1965).
Syl. Pt. 3, Bowyer v. Wyckoff, 238 W.Va. 446, 769 S.E.2d 233 (2017).
4
provider in favor of counseling with a different provider who subsequently went on vacation for
several weeks, thereby causing the mother to miss services. Id.
In the present case, the record is clear that the DHHR’s failure to timely file a case plan
did not prejudice petitioner. In fact, the DHHR accommodated petitioner extensively, despite the
fact that her participation with services worsened throughout the proceedings. According to the
record, petitioner failed to complete several terms and conditions of her improvement period,
including visitation with her children and remedial services designed to remedy the conditions of
abuse and neglect, such as services recommended by her psychological evaluation. Most
importantly, given the nature of the allegations against her, petitioner stopped participating in
drug screens in October of 2016, with the exception of two screens provided directly after
hearings in the circuit court, which were both positive for methamphetamine.
At disposition, the circuit court found that it had, over objections from the DHHR and the
guardian, granted petitioner multiple continuances of her post-adjudicatory improvement period
so that she could comply with the terms thereof. Despite these continuances, the circuit court
found that petitioner’s “participation ha[d] declined even further.” Ultimately, the circuit court
found that petitioner “failed to fully participate in her improvement period.” While petitioner
argues that the DHHR’s lack of a family case plan resulted in an inability of the circuit court to
properly measure her success and progress during the proceedings, the record is clear that
petitioner took no steps toward remedying the conditions of abuse and neglect in the home. As
such, the DHHR’s failure to timely file a family case plan had no impact on petitioner’s willful
refusal to cease compliance with the terms and conditions of her post-adjudicatory improvement
period.
With regard to family case plans, this Court has stated that
“[t]he purpose of the family case plan as set out in W.Va. Code [§] 49-6D-
3(a) [now W.Va. Code § 49-4-408(a)] . . . is to clearly set forth an organized,
realistic method of identifying family problems and the logical steps to be used in
resolving or lessening these problems.” Syl. Pt. 5, State ex rel. Dep’t of Human
Services v. Cheryl M., 177 W. Va. 688, 356 S.E.2d 181 (1987).
Syl. Pt. 2, In re Desarae M., 214 W.Va. 657, 591 S.E.2d 215 (2003). We have also stated that
“[w]here it appears from the record that the process established by the
Rules of Procedure for Child Abuse and Neglect 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 compliance 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). Inherent in this holding is the
idea that when the rules and statutes governing abuse and neglect cases have not been
substantially disregarded or frustrated, vacation of the resulting order is unnecessary.
5
While petitioner is correct that West Virginia Code § 49-4-408(a) requires that a family
case plan be filed within sixty days of the child coming into foster care or thirty days of an
improvement period’s inception, the Court does not find reversible error on that issue under the
specific limited circumstances of this case. The record on appeal in this case is clear that
petitioner participated in MDT meetings, during which she was provided a document entitled
“Improvement Period Terms.” This document included extensive requirements for petitioner
during her post-adjudicatory improvement period that were designed to remedy the conditions of
abuse and neglect in the home. These terms included petitioner’s participation in recommended
evaluations designed “to assist in determining treatment options” and to follow through with the
recommendations of such evaluations; remaining free of alcohol and illicit substances, as
verified by random drug screens; participation in visitation and compliance with the rules
thereof; demonstration of enhanced behavioral, emotional, and/or cognitive caregiver services
designed to assist in providing a safe environment for the children; and compliance with
parenting services, among other requirements. As such, the record shows that petitioner was
aware of the underlying conditions that needed correcting, namely her substance abuse and
ability to provide the children with a safe home, and the steps necessary to correct these issue.
Specifically, the multiple review hearings below routinely addressed the steps petitioner had
taken between hearings to correct the conditions of abuse and neglect and addressed her level of
participation, which the circuit court ultimately found to be almost entirely lacking. On appeal,
petitioner does not allege that she was confused about what efforts she needed to undertake to
achieve reunification with the children, and the record is clear that she was fully aware that she
needed to correct her substance abuse and issues with safety in the home in order to achieve that
goal. As such, we cannot find that the Rules of Procedure for Child Abuse and Neglect
Proceedings or the related statutes have been substantially disregarded or frustrated such that
vacation of the dispositional order is required. Therefore, we find no reversible error in this
regard.
Because, under the limited circumstances of this case, we find no error in the DHHR’s
failure to timely file the family case plan, we similarly find that petitioner was not entitled to an
additional improvement period at disposition. Pursuant to West Virginia Code § 49-4-610(3)(D),
a circuit court may grant a parent an improvement period at disposition if, “the [parent]
demonstrates that since the initial improvement period, the [parent] has experienced a substantial
change in circumstances. Further, the [parent] shall demonstrate that due to that change in
circumstances, the [parent] is likely to fully participate in the improvement period . . . .” Here,
petitioner was previously granted a post-adjudicatory improvement period. However, the record
is clear that petitioner could not establish a substantial change in circumstances since her initial
improvement period or that she was likely to fully participate in a new improvement period. In
fact, as the circuit court noted, petitioner’s participation in the proceedings actually worsened
over time, to the point that the circuit court found that she failed to participate in her
improvement period by the time she requested an improvement period at disposition.
Accordingly, the record is clear that petitioner could not satisfy the requisite burdens necessary
to obtain an additional improvement period at disposition. As such, we find no error in the circuit
court’s denial of her motion.
6
For the foregoing reasons, we find no error in the circuit court’s February 8, 2017, order,
and we hereby affirm the same.
Affirmed.
ISSUED: June 16, 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
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