In re C.M.

• Decision Date: 02 March 2015
• Docket Number: No. 14–0533.,14–0533.
• Parties: In re C.M. and C.M.
• Court: West Virginia Supreme Court

235 W.Va. 16

770 S.E.2d 516

In re C.M. and C.M.

No. 14–0533.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 13, 2015.

Decided March 2, 2015.

Jacquelyn S. Biddle, Esq., Huntington, West Virginia, for Petitioner, S.L.H.

Leigh Boggs Lefler, Esq., Beckley, West Virginia, Guardian ad litem for C.M. & C.M.

Patrick Morrisey, Esq., Attorney General, S.L. Evans, Esq., Assistant Attorney General, for the West Virginia Department of Health and Human Resources.

Opinion

WORKMAN, Chief Justice:

This case is before the Court upon the appeal of the Mother, S.L.H.,¹ (hereinafter referred to as “the Mother”) from the April 30, 2014, order of the Circuit Court of Raleigh County, West Virginia, terminating her parental rights. The Mother argues that the circuit court erred when it: 1) terminated her parental rights to her two children² BECAUSE IT WAS NOT The least restrictive alternative available; 2) abused its discretion by not granting her a dispositional period; 3) failed to place the children with their maternal grandmother;³ and 4) allowed the children to remain in their paternal aunt's care. Based upon our review of the appendix record,⁴ the parties' briefs and arguments, and all other matters before the Court, we reverse the circuit court's decision to terminate the Mother's parental rights and remand the case for the implementation of a gradual transition plan to return the children to the custody of their Mother.⁵

I. Procedural and Factual History

On August 28, 2012, an abuse and neglect petition was filed against both C.R.M., who is the children's father,⁶ and the Mother. The allegations in the petition concerned severe domestic violence, as well as alcohol and drug abuse in the presence of the infant children. The allegations included a referral to Child Protective Services (“CPS”) on August 14, 2012, concerning both parents abusing alcohol and drugs, namely Oxycontin, and not providing a safe environment for the children. The petition also contained a referral to CPS on August 27, 2012, wherein the Mother, who was intoxicated, allegedly hid in the woods near the home with her two children, having fled due to a domestic altercation with the father. A preliminary hearing was held on October 18, 2012. By order entered October 26, 2012, the circuit court determined that probable cause existed warranting the removal of the children from the parents' home.

On December 6, 2012, the circuit court conducted an adjudicatory hearing. During the hearing, both parents stipulated to allegations of abuse and neglect. Specifically, the Mother stipulated “that she neglected her children through her drug abuse affecting her ability to parent her children.” Both parents separately moved for post-adjudicatory improvement periods. The circuit court subsequently granted a six-month post-adjudicatory improvement period for each parent. The circuit court ordered that the Multi–Disciplinary Team (“MDT”) was to meet by December 14, 2012,⁷ and that a family case plan was to be developed and filed with the court by January 7, 2013. No case plan was placed in the record below or in the appendix record submitted before this Court.⁸

The appendix record also contained two monthly summaries for December 2012 and January 2013 prepared by Kelly Cook–Stevens, ASO Service Provider, regarding the Mother's visits with her children. In December 2012, Ms. Stevens supervised three visits between the Mother and her children. Ms. Stevens reported:

[Mother] ... is very interactive and affectionate with her children. She gets in the floor and plays with them and she made a tent with ... [one child] and also played the Nintendo Wii. She balances the time equally between both boys and they interact very well with her. She changes their diapers throughout the visit and is very nurturing with both children. [One of the boys] cries at the end of the visits and she comforts him well and tries not to show any emotion.

In the January 2013 summary, Ms. Stevens reported:

Provider supervised three visits during the month of January. [Mother] ... is very interactive and affectionate with her children. [Mother] ... was very loving with both boys and focuses on them the entirety of the visits. She balances the time equally between both boys and they interact very well with her. She changes [the younger boy's] ... diaper throughout the visit and is very nurturing with both children. [The older boy] ... cries at the end of the visits and she comforts him well and tries not to show any emotion. She graduated from Turning Point on January 31st and seems to be doing well in her recovery.

The record also contained a March 6, 2013, report prepared by a CPS worker for DHHR. This report indicated that the Mother “has made progress towards completing the goals set forth in her Family Case Plan. She successfully completed Turning Point on January 31, 2013, and has successfully maintained sobriety.” Further, visits with her children were described as “positive.” The Mother “interacts with her children well and makes up games to play with them. She balances her time equally between both boys and is nurturing to both children.”

On March 7, 2013, the circuit court held an improvement period review hearing. By order entered March 22, 2013, the circuit court noted that it was “advised that respondent mother is progressing and when she obtains beds for the children, weekend overnights will be started for her and reunification is the permanency plan for her.”

A report of the guardian ad litem, dated June 7, 2013, indicates that a MDT meeting was conducted on May 21, 2013, wherein it was noted that visitation had been increased between the Mother and her children, but then decreased due to the Mother's housing situation. “The MDT concluded that as soon as the Respondent Mother established a new housing arrangement with her mother, visitation could resume to overnights and there would be no opposition by any party to a three (3) month extension.” Further, “there were no concerns with drug use on the part of the Respondent Mother.” The recommendation was to give the Mother a three-month extension on her improvement period.

The circuit court held another improvement period review hearing on June 13, 2013. By order entered July 29, 2013, the circuit court stated that “the MDT is proposing and moving for a three (3) month extension to transition the children back to respondent mother which motion the Court hereby GRANTS.”

On September 26, 2013, the circuit court conducted another improvement period review hearing. By order entered November 19, 2013, the circuit court noted that during the hearing on September 26, the circuit court “was advised that Respondent Mother was progressing but had suffered a relapse based upon alcohol intoxication and loss of a job[,] but[,] since September 3, 2013, she has been re[-]employed and tested negative for three (3) weeks.” According to this order, “[t]he Department was willing to agree to an extension of her improvement period on a dispositional basis but due to her denial of a problem, the Court, after argument, will take under advisement whether it will deny or grant an extension of her improvement period.”⁹ The circuit also directed the MDT to meet “within ten (10) days and create a treatment plan for ... [the Mother] and report to the Court.” No treatment plan or report is contained in the record.¹⁰

The appendix record reveals that the Mother entered an inpatient treatment facility on November 14, 2013. According to a letter dated January 3, 2014, from the Mother's attorney to DHHR, the Mother successfully completed Prestera's Addictions Recovery Center Program on December 7, 2013. Included with the letter was a treatment narrative indicating that she successfully completed the short-term residential program.

After completing Prestera's inpatient treatment program, the Mother enrolled in Prestera's Co–Occurring Intensive Outpatient Program on January 16, 2014. On January 10, 2014, the mother also was accepted into the West Virginia Oxford House, a residential sober living program, located in Huntington, West Virginia.

The circuit court conducted another hearing on January 10, 2014. By order entered March 5, 2014,¹¹ as a result of the January hearing, the circuit court indicated that it “was advised that Respondent Mother is enrolled in the Oxford House in Huntington, WV, but the Department and Guardian ad Litem do not believe this facility is appropriate for her and that there is a bed at Storm Haven in Beckley, WV.”¹² The case was continued status quo and another review hearing was scheduled for April 10, 2014. According to the April 30, 2014, order entered by the circuit court, “[a]nother identified problem with Oxford [H]ouse was that it was clearly not an appropriate place for children. This prevented the Department from beginning to reunite the children through overnight visitation and longer unsupervised visits.”¹³ The only reason given for this determination was found in the DHHR's brief wherein the following statement was made: “The facility was not considered to be an appropriate place for child visitation because it was apparently tended and staffed by recovering addicts.” Notwithstanding this representation, there is no evidence in the record before the Court regarding why the DHHR and the guardian ad litem “believed” that the Oxford House was not appropriate for the Mother. Similarly, there is no evidence regarding why the Oxford House “was clearly not an appropriate place for children.”

Also contained within the appendix record is a March 7, 2014, letter from Tara R. Henry, BA, a case manager with Prestera Center for Mental Health Services, Inc. Ms. Henry reports that the Mother is enrolled in Co–Occurring Intensive Outpatient Program that she started on January 16, 2014. Ms. Henry also indicates that the Mother is participating in “individual and group therapy, individual and group supportive intervention, as well as 12–step groups.” Ms. Henry states...