In re E.H.

• Decision Date: 17 November 2022
• Docket Number: 22-0067
• Citation: 247 W.Va. 456,880 S.E.2d 922
• Parties: IN RE E.H., J.S., E.K., and C.K.
• Court: West Virginia Supreme Court

247 W.Va. 456

880 S.E.2d 922

IN RE E.H., J.S., E.K., and C.K.

No. 22-0067

Supreme Court of Appeals of West Virginia.

Submitted: November 1, 2022

Filed: November 17, 2022

Gerald R. Linkous, Esq., Mercer County Public Defender Corporation, Princeton, West Virginia, Counsel for Petitioner R.H.

Tiffany Kent, Esq., ChildLaw Services, Inc., Guardian ad Litem

Patrick Morrisey, Attorney General, Brittany Ryers-Hindbaugh, Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent, Department of Health and Human Resources

WALKER, Justice:

Petitioner-Father R.H. was adjudicated an abusing parent of minor children E.H. and J.S. in September 2021.¹ By order entered December 27, 2021, the circuit court terminated Petitioner's parental rights to the children under West Virginia Code § 49-4-604(c)(6), due to "aggravated circumstances." ²

Petitioner raises four assignments of error on appeal, but we address the substance of only one: that the dispositional order entered on December 27, 2021, lacks sufficient findings of fact and conclusions of law to permit this Court to conduct a meaningful review of the proceedings below. So, we vacate the dispositional order and remand this case for further proceedings consistent with this Opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Department of Health and Human Resources filed a petition in January 2021 alleging that Petitioner-Father R.H. and his wife, B.H., abused E.H., J.S., E.K., and C.K.³ Petitioner is the biological father of E.H. (mother, B.H.) and J.S. (mother, A.S.). E.K. and C.K. are B.H.’s children with P.K.⁴ The Department alleged that it received a referral on February 16, 2020, that police had been called to Petitioner and B.H.’s home after Petitioner hit B.H. B.H. claimed that Petitioner kicked her, and that Petitioner had sexually abused C.K. A social worker with Child Protect of Mercer County, Inc., conducted forensic interviews of E.K. and C.K. later that month. E.K. reported witnessing domestic violence between his mother, B.H., and Petitioner, his stepfather. And C.K. stated that Petitioner had sexually abused her and detailed Petitioner's conduct. In February 2021, Petitioner was indicted on charges stemming from that abuse. C.K. testified at Petitioner's trial in July 2021.

On September 21, 2021, the circuit court conducted an adjudicatory hearing for both B.H. and Petitioner. The court heard testimony from (1) Dr. David Ellis, psychologist; (2) Lindsay Pack, forensic interviewer; (3) Teresa Larew, an employee of the federal Department of Housing and Urban Development; (4) B.H.; (5) J.S.’s mother, A.S.; and (6) P.K., father to E.K. and C.K. Petitioner also testified, admitting that he had exposed the children to domestic violence but denying that he had sexually abused C.K. Also, during the hearing, Petitioner relinquished any rights he may have had to his stepchildren, E.K. and C.K.

The circuit court found by clear and convincing evidence that Petitioner had abused the children based on his admission to engaging in domestic violence with B.H. Likewise, the circuit court adjudicated B.H. as an abusing parent based on her admitted participation in domestic violence with Petitioner.⁵ The court stated that it had reviewed the transcript of C.K.’s testimony at Petitioner's trial but had not reviewed the transcript of C.K.’s forensic interview. The circuit court deferred ruling on the allegations of sexual abuse until it could review that transcript. On November 1, 2021, the circuit court entered an order finding by clear and convincing evidence that Petitioner had sexually abused C.K.

The circuit court conducted a dispositional hearing on December 13, 2021. Petitioner requested a post-adjudicatory improvement period, to which the Department and the guardian ad litem objected. Petitioner also requested disposition under West Virginia Code § 49-4-604(c)(5) (2020), so that only his custodial rights to E.H. and J.S. would be terminated. Finally, Petitioner requested post-termination visitation with E.H. and J.S., should the court terminate his parental rights under § 49-4-604(c)(6). The Department requested that the circuit court terminate Petitioner's parental rights to E.H. and J.S. under § 49-4-604(c)(6). The guardian ad litem concurred in that request.

The circuit court terminated Petitioner's parental rights to E.H. and J.S. at the conclusion of the hearing,⁶ explaining on the record that:

Well, I'm going to terminate his parental rights to all the children. I'm going to amend my earlier finding, and here's why: I mean, I think there -- not only the sexual assault but just the entire gamut of these things. It's just not, you know, -- it's just bad. That's all I can say.

I believe the child.... I thought the child was very creditable.... I haven't seen any real attempt to improve on some of these things, so I'm terminating the parental rights.

Two weeks later, on December 27, 2021, the court entered an order stating as follows:

[Petitioner], by counsel, requests an improvement period regarding his two children, [E.H. and J.S.].

The Department requests that the Court terminate his parental rights and the guardian ad litem joins the motion.

Upon consideration of the matters presented and argument of counsel, this Court FINDS and concludes, in the best interests of the children that:

A [multi-disciplinary team] meeting is scheduled for January 3, 2021, at 10:00 a.m.

WHEREFORE, it is hereby ORDERED that:

The Court ORDERS that the parental, custodial, and guardianship rights of [Petitioner] be terminated as those rights relate to [E.H. and J.S.], due to aggravated circumstances.

Termination of Petitioner's parental rights mooted the issue of a post-adjudication improvement period. The circuit court did not address Petitioner's motion for post-termination visitation with E.H. and J.S.⁷

Petitioner now appeals the December 27, 2021 order terminating his parental rights to E.H. and J.S.

II. STANDARD OF REVIEW

This Court applies a two-prong standard of review in child abuse and neglect cases:

"When this Court reviews challenges to the findings and conclusions of the circuit court, a two-prong deferential standard of review is applied. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard." Syl., McCormick v. Allstate Ins. Co. , 197 W.Va. 415, 475 S.E.2d 507 (1996).^{[8 ]}

III. ANALYSIS

Petitioner assigns four errors to the proceedings before the circuit court. First, Petitioner contends that the circuit court should have granted him a post-adjudicatory improvement period.⁹ Second, he argues that the court erred when it terminated his parental rights to E.H. and J.S., rather than his custodial rights, only. Third, Petitioner asserts that the court erred by terminating his parental rights because neither the record nor the December 27, 2021 order contain the requisite findings of fact and conclusions of law and so should be vacated. Finally, Petitioner argues that the court erred by failing to address his request for post-termination contact and/or visitation with E.H. and J.S.

We need address Petitioner's third assignment of error, only.¹⁰ Rule 36(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings details the necessary contents of a dispositional order:

[a]t the conclusion of the disposition hearing, the court shall make findings of fact and conclusions of law, in writing or on the record, as to the appropriate disposition in accordance with the provisions of W. Va. Code § 49-4-604. The court shall enter a disposition order, including findings of fact and conclusions of law, within ten (10) days of the conclusion of the hearing.^{[11 ]}

In the context of termination of parental rights under § 49-4-604(c)(6), the requisite findings are two-fold: that "there is no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected in the near future," and termination of parental rights is "necessary for the welfare of the child."¹² Those are "distinct requirements" that must be "afforded their proper significance" under § 49-4-604(c)(6).¹³ Indeed, as we have explained,

[t]he prerequisite that there must first be "no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected" speaks to the parent's current situation, conduct, and/or abilities relative to his or her caretaking of the child. [ W. Va. Code § 49-4-604(c)(6) ]. In contrast, the "and[ ] when necessary for the welfare of the child" requirement concerns itself with the particular needs of the child as pertains to his or her physical and emotional well-being. Id. (emphasis added).

This latter requirement—through its pre-condition of abject necessity—duly recognizes the heightened burden which must be satisfied to terminate, with finality, a parent's fundamental right to custody of his or her child.^[14]

Finally, and as we recently emphasized, " ‘[t ]he State must produce clear and convincing evidence to support [disposition under § 49-4-604(c)(6) ] before the court may sever the custodial rights of the natural parents. ’ "¹⁵

In view of those authorities, we agree with Petitioner that the December 27, 2021 dispositional order does not contain the requisite findings of fact or conclusions of law to support termination of his parental rights under § 49-4-604(c)(6). The order cites no evidence offered by the State to support the conclusion that termination of Petitioner's parental rights is in either E.H. or J.S.’s best interests. Nor does the order cite evidence sufficient to arrive at the additional finding required to terminate parental rights under § 49-4-604(c)(6) —that there is no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected. Section 49-4-604(d) provides that the phrase " ‘[n]o reasonable likelihood that conditions of neglect or abuse can be substantially...