In re K. S., 20-1030

CourtSupreme Court of West Virginia
Writing for the CourtWOOTON, J.
Citation874 S.E.2d 319
Parties IN RE K. S., B. M., and O. S.
Docket Number20-1030
Decision Date26 April 2022

874 S.E.2d 319

IN RE K. S., B. M., and O. S.

No. 20-1030

Supreme Court of Appeals of West Virginia.

Submitted: February 16, 2022
Filed: April 26, 2022


Cheryl L. Warman, Esq., Morgantown, West Virginia, Attorney for Petitioner S. S.

Stephanie Nethken, Esq., Westover, West Virginia, Guardian ad Litem for K. S., B. M., and O. S.

P. Todd Phillips, Esq., Lyons Phillips Legal Group PLLC, Morgantown, West Virginia, Attorney for Interested Party G. H.

Patrick Morrisey, Esq., Attorney General, Katica Ribel, Esq., Assistant Attorney General, Fairmont, West Virginia, Attorneys for West Virginia, Department of Health and Human Resources

WOOTON, J.:

874 S.E.2d 323

This is an appeal from the Circuit Court of Monongalia County's December 3, 2020, order terminating petitioner-mother S. S.’s (hereinafter "petitioner") parental rights to minor children K. S., B. M., and O. S.1 Petitioner's three children were removed from her care and placed with their respective biological fathers upon evidence that petitioner was abusing methamphetamines. Petitioner stipulated to abuse and/or neglect and embarked upon post-adjudicatory and dispositional

874 S.E.2d 324

improvement periods, relapsing twice during the pendency of the proceedings despite extended periods of apparent sobriety. As a result of her second relapse at the beginning of her dispositional improvement period, the Department of Health and Human Resources (hereinafter "DHHR") sought termination of her parental rights; the guardian ad litem and prosecuting attorney, however, both recommended termination of only petitioner's custodial rights to allow her to complete her recovery. Despite the failure of the prosecutor to present any evidence on DHHR's behalf at the dispositional hearing, the circuit court found there was no reasonable likelihood the conditions of abuse and neglect could be remedied in the near future due, in part, to petitioner's "inconsistency" throughout the proceedings and terminated her parental rights.

Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we conclude that the circuit court erred in terminating petitioner's parental rights in absence of any evidence being presented by DHHR at the dispositional hearing. We therefore vacate the dispositional order terminating petitioner's parental rights and remand for further proceedings consistent herewith.

I. FACTS AND PROCEDURAL HISTORY

Petitioner is mother to three children: twelve-year-old K. S., eight-year-old B. M., and five-year-old O. S., each of whom have different biological fathers.2 While engaged in family court proceedings with S. M., B. M.’s biological father, which required drug testing,3 petitioner tested positive for methamphetamines. As a result, in February 2019, the children were removed from petitioner's home, placed with their respective biological fathers, and an abuse and neglect petition filed. Petitioner stipulated to abuse and/or neglect in March 2019 and was adjudicated as an abusive/neglectful parent. The circuit court granted a three-month4 post-adjudicatory improvement period in April 2019, which was extended for an additional three months in July 2019. From April 2019 through August 2019, petitioner had three positive drug screens: two in April and one in August.5 Her completed drug screens were otherwise negative in those months as well as the entirety of May, June, and July 2019. Accordingly, her improvement period was continued for an additional three months in September 2019.

In September 2019, petitioner relapsed and entered a 28-day program with the Center for Hope and Healing in Morgantown, West Virginia. She was discharged at the end of October and tested negative for substances for the remainder of 2019. Her negative drug screens were acknowledged at a review hearing in January 2020 and the mediation of parenting plans between petitioner and the respective fathers was ordered with the goal of reunification. Petitioner then had one positive drug screen in January but tested negative in February 2020.

In March 2020, a post-dispositional improvement period was ordered. See W. Va. Code § 49-4-610(3) (2015) (permitting improvement period as disposition). Her visitation with the children lapsed, however, in January because her "units" for visitation had been expended.6 Shortly thereafter, in early to mid-March 2020, petitioner again relapsed resulting in two positive drug screens, at which point drug testing was discontinued due to Covid-19 concerns; any efforts to reinitiate visitation appear to have also been abandoned as a result of the positive drug screens. Despite previously planning for reunification and a potential "disposition 5"—presumably referring to

874 S.E.2d 325

termination of only custodial rights7 —in May 2020, DHHR determined that it would recommend petitioner's parental rights be terminated and requested final disposition. A final dispositional hearing on July 21, 2020, was cancelled due to Covid-19 and rescheduled for October 30, 2020. Petitioner ostensibly had no drug screening, visitation, or services since early 2020.

At the dispositional hearing, the guardian ad litem recommended a "disposition 5," although each of the fathers opposed it and requested termination.8 The assistant prosecutor likewise advised the court that she believed a "disposition 5" to be the most appropriate and least restrictive disposition, but that DHHR disagreed and was requesting termination. The prosecutor explained:

The Department, through it's [sic] court summary, is recommending termination. I've advised the Department that a disposition five is the most appropriate solution .... [Petitioner], actually, was doing very well at the beginning of this case. It's been pending for more than a year. She relapsed recently right before COVID....

Based on my—I've been on this case for several, several—for the entirety, and before [the CPS Supervisor] left, she, actually, recommended a disposition five, but since [she] has left the Department, now I have a new supervisor. Unfortunately, I'm reading a black and white document, it is clear that termination for the Department after a dispositional staffing, termination was being recommended. I advised the Department that a disposition five would be the least restrictive as she was attempting to address the issue that led to the filing of the petition. Unfortunately, the addiction got the better of her and she relapsed.

....

... Your Honor, this case has been pending for so long that I can't keep it open anymore. So, I am asking the Court to either do two things, grant a dispo five, which is my recommendation as a prosecutor or to terminate her parental rights is what the Department wants.

I don't want to present any testimony , but I have a feeling that [G. H.’s attorney] might be calling [the CPS worker] .... I will leave the decision of [petitioner's] parental rights in the discretion of the Court. If you have any questions since you're new, Your Honor, but me and the GAL have been on this case since the beginning and we can offer insight into what's going on, but I do believe that a dispo five is the least restrictive alternative available to this Court today.

(emphasis added). After this statement, the prosecutor called no witnesses nor introduced any evidence on behalf of DHHR.

Petitioner then called her therapist as a witness and testified on her own behalf. Petitioner's therapist testified that, although petitioner had some difficulty early in the process, she had made tremendous progress and was faithfully attending therapy even though she had been warned that termination was likely imminent. Petitioner testified to a newfound awareness of her dependency issues and her intention to continue with therapy regardless of whether her children were returned to her care. Petitioner testified that she had obtained a car, housing with room for all three children, distanced herself from individuals contributing to her issues, and obtained a job at Ruby Memorial Hospital, although she was not working at the time due to impending carpal tunnel surgery. Both she and her therapist testified regarding her successful completion of services and various substance abuse programs but admitted to two episodes of relapse which her therapist indicated was not uncommon in long-term treatment of substance abuse. Petitioner's counsel asked that petitioner be granted additional time on her dispositional improvement period, which had expired approximately two months prior to the dispositional hearing.9

874 S.E.2d 326

The circuit court ordered termination of petitioner's parental rights and that each child be permanently placed with his or her biological father.10 In explanation of its ruling, the circuit court briefly referenced a letter allegedly written by K. S. apparently expressing frustration with petitioner's "inconsistency," but provided no further detail about the content of the letter.11 In further justifying its termination of petitioner's parental rights, the circuit court referenced 1) the "last 20 months of inconsistencies"; and 2) the "timelines." The court granted visitation to petitioner at the discretion of the fathers,...

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3 practice notes
  • Res. Ltd. v. New Trinity Coal, Inc., 21-0332
    • United States
    • Supreme Court of West Virginia
    • April 26, 2022
    ...for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this 874 S.E.2d 319 subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entert......
  • In re C.S., 21-0694
    • United States
    • Supreme Court of West Virginia
    • June 15, 2022
    ...may base its disposition. S.C. , 168 W. Va. 366, 284 S.E.2d 867, syl. pt. 1, in part. In re K.S. , No. 20-1030, ––– W. Va. ––––, ––––, 874 S.E.2d 319, 328 (W. Va. Apr. 26, 2022).10 Moreover, to terminate parental rights, a circuit court must make the findings specified by West Virginia Code......
  • In re E.H., 22-0067
    • United States
    • Supreme Court of West Virginia
    • November 17, 2022
    ...inadequate.' Syl. Pt. 4, in part, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001)." Syllabus Point 7, In re K. S., 246 W.Va. 517, 874 S.E.2d 319 (2022). 3. "'Where it appears from the record that the process established by the Rules of Procedure for Child Abuse and Neglect Proceedings......
3 cases
  • Res. Ltd. v. New Trinity Coal, Inc., 21-0332
    • United States
    • Supreme Court of West Virginia
    • April 26, 2022
    ...for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this 874 S.E.2d 319 subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entert......
  • In re C.S., 21-0694
    • United States
    • Supreme Court of West Virginia
    • June 15, 2022
    ...may base its disposition. S.C. , 168 W. Va. 366, 284 S.E.2d 867, syl. pt. 1, in part. In re K.S. , No. 20-1030, ––– W. Va. ––––, ––––, 874 S.E.2d 319, 328 (W. Va. Apr. 26, 2022).10 Moreover, to terminate parental rights, a circuit court must make the findings specified by West Virginia Code......
  • In re E.H., 22-0067
    • United States
    • Supreme Court of West Virginia
    • November 17, 2022
    ...inadequate.' Syl. Pt. 4, in part, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001)." Syllabus Point 7, In re K. S., 246 W.Va. 517, 874 S.E.2d 319 (2022). 3. "'Where it appears from the record that the process established by the Rules of Procedure for Child Abuse and Neglect Proceedings......

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