IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2021 Term FILED
November 1, 2021
_____________________ released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 20-0823
_____________________
In re L.W.
___________________________________________________________
Appeal from the Circuit Court of Ohio County
Honorable David J. Sims, Judge
Civil Action No. 19-CJA-100
AFFIRMED
_________________________________________________________
Submitted: September 28, 2021
Filed: November 1, 2021
Michael B. Baum, Esq. Patrick Morrisey, Esq.
Edmond & Baum, PLLC Attorney General
Wheeling, West Virginia Charleston, West Virginia
Attorney for Petitioner, J.W. Lee Niezgoda, Esq.
Assistant Attorney General
Fairmont, West Virginia
Attorneys for Respondent, DHHR
Joseph J. Moses, Esq.
Wheeling, West Virginia
Guardian ad Litem
JUSTICE HUTCHISON delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “‘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 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 the 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).
2. “The use of medication-assisted treatment is authorized by the
Medication-Assisted Treatment Program Licensing Act, West Virginia Code §§ 16-5Y-1
to 16-5Y-13 (2016), and the Act’s supporting regulations. Medication-assisted treatment
will not be appropriate or beneficial for all persons suffering from opioid use disorder.
However, when medication-assisted treatment is appropriate and potentially beneficial,
i
any bias against its use is contrary to the public policy of this State as announced by the
Legislature.” Syl. Pt. 5, In re M.M., 244 W. Va. 316, 853 S.E.2d 556 (2020).
3. “Although parents have substantial 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).
4. “‘Termination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [West Virginia Code §
49-4-604,] . . . may be employed without the use of intervening less restrictive alternatives
when it is found that there is no reasonable likelihood under [West Virginia Code § 49-4-
604(d)] . . . that conditions of neglect or abuse can be substantially corrected.’ Syllabus
point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syl. Pt. 5, In re Kristin Y.,
227 W. Va. 558, 712 S.E.2d 55 (2011).
ii
HUTCHISON, Justice:
The petitioner father, J.W., 1 appeals the September 11, 2020, order of the
Circuit Court of Ohio County that terminated his parental rights to his child, L.W. In this
appeal, the petitioner argues that the circuit court erred by terminating his parental rights
instead of imposing the less restrictive disposition alternative provided in West Virginia
Code § 49-4-604(c)(5) (2020). 2 Having considered the parties’ briefs and oral arguments,
the submitted appendix record, and pertinent authorities, we find no error and, therefore,
affirm the circuit court’s decision.
I. Facts and Procedural Background
The West Virginia Department of Health and Human Resources (“DHHR”)
filed a petition on June 27, 2019, alleging that the petitioner had abused and neglected his
son, L.W. Specifically, the DHHR alleged that the petitioner was currently incarcerated;
had a lengthy criminal history; had failed to develop a relationship with L.W.; and had
failed to provide for L.W. emotionally, physically, and financially. 3 At the time the petition
1
In cases involving sensitive facts, we use initials to identify the parties. See W.Va.
R. App. Proc. 40(e); see also State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398
S.E.2d 123, 127 n.1 (1990).
2
See note 10, infra.
3
The petitioner was incarcerated on charges of petty theft, criminal trespass, and a
probation violation. According to the abuse and neglect petition, his criminal history
includes criminal damaging or endangering (two separate cases); various thefts; criminal
trespass; domestic violence; underage consumption/possession; operating a vehicle while
impaired; reckless operation; and drug possession.
1
was filed, L.W. was in the custody of his mother, S.H., and stepfather, M.H., who were
homeless and allowing L.W. to roam the streets of Wheeling alone. Accordingly, DHHR
also alleged that S.H. and M.H. had failed to provide for L.W. emotionally, physically, and
financially. In addition, DHHR alleged that S.H. had outstanding arrest warrants which
had led to her recent incarceration; also had a significant criminal history; and had exposed
L.W. to violent men who had assaulted her. With respect to M.H., DHHR alleged that he,
too, had a criminal history. 4
The adjudicatory hearing was held on October 15, 2019. The petitioner
stipulated that his incarceration affected his ability to parent L.W. Accordingly, the circuit
court adjudged him as an abusive and/or neglectful parent. Thereafter, the petitioner filed
a motion for a post-adjudicatory improvement period. 5
At a status hearing held on November 21, 2019, the circuit court was
informed that the petitioner had attended a multi-disciplinary team (“MDT”) 6 meeting, but
“[h]e had not been drug screening, reportedly due to him not having the code. [He] had
4
Subsequently, the abuse and neglect petition was amended to allege that M.H. was
also abusing methamphetamines.
5
S.H. was also adjudicated as an abusing and/or neglectful parent and was granted
a post-adjudicatory improvement period.
6
See W. Va. Code § 49-4-405 (2015) (establishing multidisciplinary treatment
teams for abuse and neglect cases).
2
just gotten out of incarceration . . . [and] stated at the MDT that he wants to get back on
subutex to help with cravings.” 7 DHHR recommended, however, that the petitioner get a
Vivitrol shot to treat his drug addiction rather than use subutex because he had detoxed
from that drug during his incarceration. The circuit court was also informed that the
petitioner had not yet visited his child. Another status hearing was scheduled for December
19, 2019.
At the December 2019 status hearing, the circuit court was informed that the
terms of the petitioner’s improvement period had yet to be approved, but he had appeared
at an MDT and “reported that, even though he had stopped taking buprenorphine while in
jail, he wanted to get back on it to avoid a relapse.” The petitioner was told by DHHR to
“look into” a Vivitrol shot instead. The circuit court was also informed that supervised
visits between the petitioner and L.W. had still not occurred.
On January 6, 2020, the circuit court ordered the petitioner to undergo a
forensic psychological examination of parental fitness. By order entered January 23, 2020,
the circuit court officially granted the petitioner a six-month improvement period with a
7
While it is obvious the petitioner had previously abused illegal substances and
sought treatment for his drug addiction, neither the briefs nor the record in this case
provides any detail in that regard.
3
commencement date of October 30, 2019. The terms of his improvement plan 8 included
the petitioner maintaining sobriety from alcohol, narcotic drugs, and illegal drugs.
Specifically, the petitioner agreed to “consider the Vivitrol shot to aid in relapse
prevention” and “not get placed back on buprenorphine.” He also agreed to refrain from
criminal activity, engage in therapy and/or domestic violence classes, maintain housing,
maintain employment, and visit his son.
The petitioner failed to appear at the next status hearing, which was held on
February 20, 2020. His attorney informed the circuit court that the petitioner was not
present because he was working. DHHR reported that the petitioner had not been
cooperative; had not seen his child; and had obtained buprenorphine despite his agreement
to seek a Vivitrol shot instead. In response, the petitioner’s attorney maintained that
buprenorphine was necessary to treat the petitioner’s drug cravings and that the petitioner
had not seen his son because he was working out of town.
Subsequently, DHHR filed a motion to terminate the petitioner’s
improvement period due to his failure to maintain contact and participate in services. By
order entered June 2, 2020, the circuit court denied the motion as moot because the
8
The record contains a two-page document on DHHR letterhead entitled “Terms of
Post-Adjudicatory Improvement Plan.” While the document clearly pertains to the
petitioner’s improvement period, the entire document was not included in the appendix
record as it contains no signature page or date indicating when it was executed.
4
petitioner’s six-month improvement period had expired on April 30, 2020. A disposition
hearing was scheduled for June 27, 2020.
The petitioner did not appear at the disposition hearing but was represented
by counsel, who indicated that he had not had any contact with his client for several months.
DHHR recommended termination of the petitioner’s parental rights and presented
testimony from Dave Wellman, a child protective service worker for Ohio County. Mr.
Wellman testified that the petitioner never participated in any drug screening throughout
the case; never appeared for his court-ordered psychological examination; and never
participated in any supervised visitation with his child. Mr. Wellman also testified that
even though DHHR had strongly advised against the petitioner obtaining buprenorphine to
address his drug cravings because he had not taken the drug while incarcerated, the
petitioner nonetheless obtained the drug and never followed up on the suggestion that he
obtain a Vivitrol shot instead.
The guardian ad litem (“GAL”) reported that he had met with L.W. who said
that he had never had much contact with his father and that he wanted his father’s parental
rights terminated. L.W. also told the GAL that he was aware that his father had recently
contacted L.W.’s adult brother and attempted to sell or give him drugs. The GAL also
expressed his opinion that the petitioner’s parental rights should be terminated.
5
By order entered on September 11, 2020, the circuit court found that there
was no reasonable likelihood that the petitioner could substantially correct the conditions
of abuse and neglect in the near future and that the welfare of the child necessitated
termination of the petitioner’s parental rights. In so finding, the circuit court noted the
petitioner’s “lack of involvement in the case; failure to drug screen; lack of contact; and
failure to do what was required by his improvement plan[.]” Upon entry of the circuit
court’s order terminating his parental rights, the petitioner filed this appeal. 9
II. Standard of Review
Our standard of review for abuse and neglect cases is well established:
“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
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
9
Following the termination of the petitioner’s parental rights, L.W. was returned to
the custody of S.H., who successfully completed her post-adjudicatory improvement
period and divorced M.H. The petition against S.H. was dismissed with services
continuing to be provided to both her and L.W. According to the status updates filed in
this case pursuant to Rule 11(j) of the Rules of Appellate Procedure, another abuse and
neglect petition was filed against S.H. after she reconnected with M.H. and began leaving
L.W. alone again for weeks at time. At an August 16, 2021, hearing, S.H. voluntarily
relinquished her parental rights. L.W. is now in a kinship placement with a permanency
plan of adoption by that family.
6
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 the
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). With this standard in
mind, we consider the parties’ arguments.
III. Discussion
In this appeal, the petitioner contends that the circuit court erred by
terminating his parental rights instead of imposing a West Virginia Code § 49-4-604(c)(5) 10
disposition. He contends that he substantially complied with the terms of his improvement
period because he remained free from incarceration; obtained housing; and maintained
employment. He also argues that the circuit court improperly considered the fact that he
used medication-assisted treatment (“MAT”) for his drug addiction. Finally, the petitioner
asserts that because L.W. was reunified with his mother, the circuit court should have
imposed the less restrictive disposition alternative in West Virginia Code § 49-4-604(c)(5),
10
With respect to disposition, West Virginia Code § 49-4-604(c)(5) provides that
the circuit court may:
Upon a finding that the abusing parent or battered parent
or parents are presently unwilling or unable to provide
adequately for the child’s needs, commit the child temporarily
to the care, custody, and control of the department, a licensed
private child welfare agency, or a suitable person who may be
appointed guardian by the court.
7
as it would have given him more time to comply with the other terms of his improvement
period.
In response, DHHR and the GAL maintain that the petitioner’s parental
rights were not terminated as a result of his use of buprenorphine to treat his drug addiction.
They note that the circuit court made no findings with respect to the petitioner’s use of
MAT in its disposition order. Instead, the circuit court found that termination of the
petitioner’s parental rights was necessary because his failure to participate and substantially
comply with the terms of his improvement period demonstrated his inability to correct the
conditions of abuse and neglect.
Recently, in syllabus point five of In re M.M., 244 W. Va. 316, 853 S.E.2d
556 (2020), this Court held that
[t]he use of medication-assisted treatment is authorized
by the Medication-Assisted Treatment Program Licensing Act,
West Virginia Code §§ 16-5Y-1 to 16-5Y-13 (2016), and the
Act’s supporting regulations. Medication-assisted treatment
will not be appropriate or beneficial for all persons suffering
from opioid use disorder. However, when medication-assisted
treatment is appropriate and potentially beneficial, any bias
against its use is contrary to the public policy of this State as
announced by the Legislature.
Upon review of the record, we find no evidence of bias against the petitioner’s use of MAT.
Certainly, there was disagreement between the petitioner and DHHR regarding the
petitioner’s treatment for his drug addiction. However, the dispute concerned the
petitioner’s choice of drug to treat his addiction, not the fact that he was using MAT.
8
While throughout the case, DHHR urged the petitioner to use a Vivitrol shot
instead of buprenorphine to treat his drug addiction, it did so because the petitioner had not
used the latter drug for six months as a result of his incarceration. As DHHR
acknowledged, it does not have the authority to dictate which type of MAT a person may
use. However, given the petitioner’s particular circumstances, DHHR’s suggestion that
Vivitrol shots would be a better choice of MAT was an appropriate recommendation.
Critically, the fact that the petitioner chose to ignore DHHR’s suggestion and obtained
buprenorphine to treat his addiction was not the basis for the termination of his parental
rights. Indeed, the circuit court made no findings in its disposition order regarding the
petitioner’s use of MAT.
The basis for the circuit court’s termination of the petitioner’s parental rights
was his lack of communication and minimal participation in his improvement period.
While the petitioner obtained housing and employment, he never submitted to a drug screen
throughout the case, never appeared for his psychological evaluation, and never
participated in any of the other services offered to him by DHHR. He stopped
communicating with his attorney and did not attend the disposition hearing. Moreover, he
never exercised his right to visit his child. Notably, the record indicates that the petitioner
was minimally involved in L.W.’s life before these proceedings began. When given the
opportunity to visit his child during this case, the petitioner chose not to see L.W.
9
“Although parents have substantial 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 part, In re Katie S., 198 W.Va. 79, 479 S.E.2d
589 (1996); see also syl. pt. 2, In the Interest of Kaitlyn P., 225 W. Va. 123, 690 S.E.2d
131 (2010) (“‘“In a contest involving the custody of an infant the welfare of the child is
the polar star by which the discretion of the court will be guided.” Syl. pt. 1, State ex rel.
Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972).’ Syllabus Point 4, State ex rel.
David Allen B. v. Sommerville, 194 W.Va. 86, 459 S.E.2d 363 (1995).”). To that end,
“[t]ermination of parental rights, the most drastic
remedy under the statutory provision covering the disposition
of neglected children, [West Virginia Code § 49-4-604,] . . .
may be employed without the use of intervening less restrictive
alternatives when it is found that there is no reasonable
likelihood under [West Virginia Code § 49-4-604(d)] . . . that
conditions of neglect or abuse can be substantially corrected.”
Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114
(1980).
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). West Virginia Code §
49-4-604(d) (2020) defines “[n]o reasonable likelihood that conditions of neglect or abuse
can be substantially corrected” as, “based upon the evidence before the court, the abusing
adult or adults have demonstrated an inadequate capacity to solve the problems of abuse or
neglect on their own or with help.” Such conditions exist when “[t]he abusing parent or
parents have not responded to or followed through with a reasonable family case plan or
other rehabilitative efforts of social, medical, mental health, or other rehabilitative agencies
designed to reduce or prevent the abuse or neglect of the child[.]” W. Va. Code § 49-4-
604(d)(3). In addition, “[t]he level of interest demonstrated by a parent in visiting his or
10
her children while they are out of the parent’s custody is a significant factor in determining
the parent’s potential to improve sufficiently and achieve minimum standards to parent the
child.” Katie S., 198 W. Va. at 90 n.14, 479 S.E.2d at 600 n.14.
The petitioner’s failure to visit his child coupled with his failure to participate
in and substantially comply with other terms of his improvement period demonstrated that
there was no reasonable likelihood that he could substantially correct the conditions of
abuse and neglect in the near future. Contrary to the petitioner’s assertion, the reunification
of a child with one parent does not warrant a West Virginia Code § 49-4-604(c)(5)
disposition for the other parent. As this Court has explained, “simply because one parent
has been found to be a fit and proper caretaker for his/her child does not automatically
entitle the child’s other parent to retain his/her parental rights if his/her conduct has
endangered the child and such conditions of abuse and/or neglect are not expected to
improve.” In re Emily, 208 W. Va. 325, 344, 540 S.E.2d 542, 561 (2000). Thus, even if
S.H. had continued to be L.W.’s custodial parent,11 there was no basis for the petitioner to
retain his parental rights given the evidence showing that the conditions of abuse and
neglect that led to the filing of the petition against the petitioner were not expected to
improve in the near future. Accordingly, the circuit court did not err in terminating the
petitioner’s parental rights.
11
See note 9, supra.
11
IV. Conclusion
For the reasons set forth above, the September 11, 2020, order of the Circuit
Court of Ohio County terminating the petitioner’s parental rights is affirmed.
Affirmed.
12