In re C.S.

• Decision Date: 15 June 2022
• Docket Number: 21-0694
• Citation: 875 S.E.2d 350
• Parties: IN RE C.S. and B.S.
• Court: West Virginia Supreme Court

875 S.E.2d 350

IN RE C.S. and B.S.

No. 21-0694

Supreme Court of Appeals of West Virginia.

Submitted: May 17, 2022

Filed: June 15, 2022

Carl W. Roop, Esq., Carl W. Roop Law Office, PLLC, Beckley, WV, Counsel for Petitioner Mother

Patrick Morrisey, Esq., Attorney General, Mary Beth Niday, Esq., Assistant Attorney General, Katherine A. Campbell, Esq., Assistant Attorney General, Charleston, WV, Counsel for Respondent DHHR

Timothy P. Lupardus, Esq., Lupardus Law Office, Pineville, WV, Guardian ad litem for children

HUTCHISON, Chief Justice:

The petitioner mother, J.S., appeals the June 9, 2021, and August 2, 2021, dispositional orders entered by the Circuit Court of Raleigh County terminating her parental rights to her children, C.S. and B.S.¹ The circuit court terminated the petitioner's rights upon the motion of the respondent Department of Health and Human Resources ("DHHR") alleging that termination was required by West Virginia Code § 49-4-605(a)(1) (2018) because the children had been in foster care for more than fifteen of the most recent twenty-two months.²

Having reviewed this matter, we observe that the circuit court's written dispositional orders fail to include findings of fact and conclusions of law necessary to support the termination of parental rights.³ While the DHHR is required to file a motion to terminate parental rights when the timeframe specified in West Virginia Code § 49-4-605(a)(1) is reached, the DHHR must still present, and the circuit court must still find, affirmative evidence to support termination. In addition, we conclude that the circuit court lacked subject matter jurisdiction to terminate the petitioner's parental rights to the child B.S. B.S. had been safely placed in a court-ordered legal guardianship with third parties for five years prior to the filing of this abuse and neglect petition, thus B.S. did not meet the statutory definition of an "abused child" or a "neglected child" in West Virginia Code § 49-1-201 (2018).

Accordingly, we vacate the dispositional orders and remand this case to the circuit court for further proceedings consistent with this opinion.

I. Facts and Procedural Background

On May 17, 2019, the DHHR filed an abuse and neglect petition in the Circuit Court of Raleigh County against the petitioner mother, J.S., and the children's father, R.S. The allegations against the petitioner included that she was addicted to drugs, which impacted her ability to care for her children; she used drugs in the presence of her four-year-old child C.S.; she lacked stable housing; she neglected C.S., including by leaving him unattended in the bathtub; and she acted aggressively toward C.S. by frequently yelling at him and calling him bad names.

The abuse and neglect petition listed two of the petitioner's children, C.S. and B.S., as the subjects of the proceedings. At the time, C.S. was living in the care of the petitioner in Raleigh County. However, B.S. was living in Cabell County with Mr. and Mrs. S. pursuant to a legal guardianship order entered by the Family Court of Kanawha County in 2014. It is undisputed that Mr. and Mrs. S. are non-abusing legal guardians. Upon the initiation of the abuse and neglect case, the circuit court ratified the emergency removal of C.S. from the petitioner's care. C.S. was placed in foster care. The circuit court left B.S. in the legal guardianship and care of Mr. and Mrs. S.

At the adjudicatory hearing held on August 7, 2019, the petitioner stipulated to abuse and neglect on the basis of her drug addiction.⁴ That same day, the petitioner tested positive for several controlled substances. The circuit court granted her a six-month post-adjudicatory improvement period and ordered her to attend in-patient drug rehabilitation. According to the DHHR, a case plan was prepared for the petitioner, but she never went to the DHHR's office to sign the plan.

At a review hearing on November 13, 2019, the DHHR informed the circuit court that the petitioner had failed to appear for any drug tests since the adjudicatory hearing. Also, despite the passage of three months, the petitioner had not entered drug rehabilitation. Although she was ordered to test that day, the petitioner was unable to produce a urine sample.

The petitioner was incarcerated on or about November 17, 2019, reportedly for a criminal drug offense(s). As part of her incarceration, the petitioner was sent to in-patient drug rehabilitation at Serenity Hills Life Center. At a review hearing on February 19, 2020, the circuit court extended the petitioner's post-adjudicatory improvement period by three months.⁵ However, the petitioner was discharged from Serenity Hills and returned to jail in June or July of 2020. She did not successfully complete the program at Serenity Hills.

The petitioner was released from incarceration on July 31, 2020. One week later, on August 6, 2020, she entered the Sound Mind Women's Facility for rehabilitation. Upon entry into this program, she tested positive for methamphetamines and Fentanyl.

The circuit court held another review hearing on August 17, 2020. The petitioner, by counsel, asked the court to grant her visitation with C.S. However, the guardian ad litem opposed visitation because he did not want to cause unnecessary distress for the child. At that point in time, the petitioner's extended post-adjudicatory improvement period had expired, and the guardian ad litem expressed doubts about the petitioner's level of improvement. The circuit court denied the request for visitation. On the same day, the petitioner submitted to a drug test at the Raleigh County Day Report Center. The results were positive for amphetamines

, methamphetamines, hydromorphone, Fentanyl, morphine, and codeine.

The petitioner's dispositional hearing began on October 7, 2020. The DHHR sought termination of her parental rights and presented testimony from a Child Protective Services ("CPS") worker about the petitioner's failure to sign or comply with the terms of her case plan; failure to undergo drug testing; receipt of positive drug test results on the few times that she submitted to testing; failure to attend meetings of the Multi-Disciplinary Treatment Team; and failure to enter rehabilitation until late in the proceeding. Presumably because the petitioner was in treatment at the Sound Mind Women's Facility, the circuit court granted her a three-month post-dispositional improvement period.

On October 15, 2020, the petitioner left the Sound Mind Women's Facility. During a subsequent hearing, the petitioner testified that she voluntarily left because program officials would not allow her to get a job. However, a "Dismissal Report" from the facility indicates that she was dismissed from the program for committing infractions. The Dismissal Report explains that the petitioner "was more focused on others and various men than she [was] on her recovery and her kids"; "was written up for multiple violations"; and had left the grounds without a chaperone or permission in violation of program rules.

From November 13, 2020, to December 22, 2020, the petitioner was hospitalized for cardiac problems. Upon her discharge from the hospital, she resided at the Brookside Inn Healing Center for a few weeks. The Brookside Inn Healing Center is affiliated with WVU Hospital and is a place for patients to "complete long-term antibiotics" and receive "substance abuse education." There is no information in the appendix record to indicate whether the Brookside Inn Healing Center qualifies as an in-patient drug rehabilitation center.⁶

On May 26, 2021, the DHHR filed a motion to terminate the petitioner's parental rights "on the grounds that the infant children, [C.S.] and [B.S.], have remained in foster care for more than fifteen (15) of the most recent twenty-two (22) months."⁷ The DHHR cited West Virginia Code § 49-4-605(a)(1), which requires the DHHR to "file or join in a petition or otherwise seek a ruling in any pending proceeding to terminate parental rights: (1) If a child has been in foster care for 15 of the most recent 22 months[.]" Another dispositional hearing was held on June 2, 2021, at which the circuit court granted the motion to terminate the petitioner's parental rights. The court's ruling is reflected in a written order entered on June 9, 2021:

Whereupon the Court took up the DHHR's Motion to Terminate due to the child being in DHHR custody for 15 out of the last 22 months. The Court, after hearing arguments of counsel, granted the motion and proceeded to terminate the parental rights of [petitioner J.S.]. Following the Court's ruling the Court granted [J.S.’s] request to verify the record.

The petitioner called a CPS worker to testify during the June 2, 2021, hearing, but because the CPS worker needed to retrieve his files, the hearing was continued.

The hearing resumed on June 9, 2021. The DHHR did not present any evidence at this hearing, but the petitioner testified and also presented testimony from the CPS worker in order to "verify the record." In her testimony, the petitioner explained, without contradiction by the DHHR, that she had passed all recent drug screens and was receiving out-patient drug counseling. The petitioner expected to continue out-patient counseling for at least six more months. She also reported that she was living in a private apartment with a roommate. Although there was no room for the children to live in the apartment with her, the petitioner represented that she was going to start looking for a new home soon.

During this hearing, the circuit court congratulated the petitioner for her recent sobriety, but the court nonetheless found that it was "a little too little, and a little too late" and the petitioner's parental rights had to be terminated. The circuit court indicated that it was obligated to follow the law regarding a child being in foster care fifteen of twenty-two months. The court also verbally acknowledged "great uncertainty as to what would happen even if I...