In re L.W.

• Decision Date: 01 November 2021
• Docket Number: No. 20-0823,20-0823
• Citation: 865 S.E.2d 105,245 W.Va. 703
• Parties: IN RE L.W.
• Court: West Virginia Supreme Court

245 W.Va. 703

865 S.E.2d 105

IN RE L.W.

No. 20-0823

Supreme Court of Appeals of West Virginia.

Submitted: September 28, 2021

Filed: November 1, 2021

Michael B. Baum, Esq., Edmond & Baum, PLLC, Wheeling, West Virginia, Attorney for Petitioner, J.W.

Patrick Morrisey, Esq., Attorney General, Charleston, West Virginia, Lee Niezgoda, Esq., Assistant Attorney General, Fairmont, West Virginia, Attorneys for Respondent, DHHR

Joseph J. Moses, Esq., Wheeling, West Virginia, Guardian ad Litem

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 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 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 commencement date of October 30, 2019. The terms of his improvement plan⁸ 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 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.

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 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), 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

...