In re N.R., s. 18-0842

• Citation: 836 S.E.2d 799,242 W.Va. 581
• Decision Date: 07 November 2019
• Docket Number: 18-0850,18-0849,18-0854,Nos. 18-0842,s. 18-0842
• Court: Supreme Court of West Virginia
• Parties: IN RE: N.R., A.R., and A.W.

242 W.Va. 581

836 S.E.2d 799

IN RE: N.R., A.R., and A.W.

Nos. 18-0842

18-0849

18-0850

18-0854

Supreme Court of Appeals of West Virginia.

Submitted: October 1, 2019

Filed: November 7, 2019

Joseph J. Moses, Esq., Guardian Ad Litem, Wheeling, West Virginia, Patrick Morrisey, Esq., Attorney General, Lindsay S. See, Esq., Solicitor General, Charleston, West Virginia, Lee Niezgoda, Esq., Assistant Attorney General, Chaelyn W. Casteel, Esq., Assistant Attorney General, Fairmont, West Virginia, Attorneys for West Virginia DHHR

David C. Fuellhart, III, Esq., Isner Law Office, Elkins, West Virginia, Attorney for Father, A.R.

Jeremy B. Cooper, Esq., Blackwater Law PLLC, Kingwood, West Virginia, Attorney for Mother, A.R.

HUTCHISON, Justice:

In this abuse and neglect case, the Circuit Court of Ohio County entered a final dispositional order on August 31, 2018, pursuant to West Virginia Code § 49-4-604(b)(5) (2016), placing the children, N.R., A.R., and A.W.,¹ in the legal and physical custody of the West Virginia Department of Health and Human Resources ("DHHR") upon finding that the abusing parents were presently unable to adequately care for their children.² In these consolidated appeals, the guardian ad litem ("GAL") and DHHR argue that the circuit court erred by not terminating the mother’s and father’s parental rights. Conversely, the mother and father contend that the circuit court failed to comply with the Indian Child Welfare Act ("ICWA"), 25 U.S.C. §§ 1901 to - 1923 (1978), and seek dismissal of the case and the return of the children to their custody.³

The ICWA applies to child custody proceedings involving Indian⁴ children and establishes minimum federal standards and procedural safeguards that must be followed when an Indian child is subject to placement in a foster or adoptive home. 25 U.S.C. § 1902. It is undisputed that the ICWA applies in this case because N.R. and A.R. are Indian children as defined by 25 U.S.C. § 1903.⁵ Upon consideration of the parties’ oral arguments and briefs, the submitted record, and applicable authorities, this Court finds no violation of the ICWA. We further find that the circuit court erred by not terminating the mother’s and father’s parental rights. Accordingly, we reverse, in part, and affirm, in part, the dispositional order and remand this case to the circuit court for entry of a dispositional order terminating the mother’s and father’s parental rights in accordance with this opinion.

I. Facts and Procedural Background

The mother is the biological parent of N.R., A.R., and A.W. The father is the biological parent of N.R. and A.R. and the stepfather of A.W.⁶ The father is a member of the Manchester–Point Arenas Band of Pomo Indians; he lived on the Pomo Indian reservation in California until he was eighteen years old. Both the mother and father are former members of the United States military.

This abuse and neglect case began in 2013 when DHHR was notified that N.R. was taken to a hospital with two fractures, a classic metaphysical fracture of the left distal tibia (also referred to as a bucket handle fracture) and a healing left clavicle fracture

. At that time, the child was three months old. The nature of the injuries was indicative of child abuse, and the father gave inconsistent statements regarding how N.R. was hurt. The DHHR filed the initial abuse and neglect petition against the mother and father on April 30, 2013. In addition to the allegations regarding the child’s injuries, the DHHR also alleged a history of domestic violence between the mother and father.⁷

On May 17, 2013, DHHR was contacted by Christine Dukatz, who indicated she was the ICWA representative for the Pomo Indian tribe (hereinafter "tribe"). Ms. Dukatz stated that the father had made the tribe aware of the proceeding. DHHR provided Ms. Dukatz with all the information regarding the abuse and neglect proceeding, including the children’s placement with their maternal grandparents.⁸ Ms. Dukatz stated that the tribe was in agreement with the case proceeding in West Virginia⁹ and the children’s placement with their maternal grandparents. Ms. Dukatz indicated though that there was an approved foster family on the tribe’s reservation that could take custody of the children if the placement with their maternal grandparents did not work. Ms. Dukatz said that the tribe was not seeking to intervene at that time and just wanted to be kept informed and involved in the decision-making.

At the adjudicatory hearing held on June 14, 2013, the father admitted to breaking his daughter’s leg because he was frustrated, breaking her clavicle by squeezing it, and lying to DHHR about what happened. The mother admitted that she and the father had engaged in domestic violence in front of the children and that the father had injured both her and her son while they were living in Hawaii. Consequently, the mother and father were adjudicated as abusive and/or neglectful parents. Thereafter, all parties agreed to post-adjudicatory improvement periods for the mother and father.

The mother initially separated from the father after he admitted to injuring N.R. In December 2013, the children were placed back in their mother’s physical custody for a trial period because she appeared to be complying with the terms of her post-adjudicatory improvement period. During the trial period, the father was not permitted to have unsupervised visits with the children. Subsequently, the mother completed the terms of her improvement period; she indicated that she recognized the danger posed by the father and understood that she needed to protect the children. The petition against her was dismissed on March 28, 2014. The father’s improvement period continued as did his supervised visitation.

Although the father was participating in what is now known as the Batterer’s Intervention and Prevention Program ("BIPPS"), another incident of domestic violence occurred between the father and mother on April 27, 2014. According to the mother, the father was intoxicated and got into a car with her and the children where an argument ensued. The father exited the car, tore off the car door handle, entered the mother’s apartment, and damaged a television and other property. The day of the incident the mother refused to provide a statement to law enforcement and would not apply for a domestic violence protective order (DVPO). However, she did so the next day upon receiving advice from her attorney, and a DVPO was granted.

On May 1, 2014, the GAL filed a motion to terminate the father’s improvement period. A hearing on the motion was continued until June at the father’s request. In the meantime, the mother attended a multi-disciplinary team ("MDT") meeting and accused the investigating police officer of misstating what had happened during the April 27, 2014, incident. Consequently, DHHR filed a motion to modify the mother’s dispositional order and add her as a respondent again in the abuse and neglect case, which continued with respect to the father. Ms. Dukatz was notified by DHHR that additional problems had arisen and was asked if the tribe wished to intervene. Ms. Dukatz indicated that she was no longer with the tribe, nor was she acting as the ICWA representative for the tribe. The DHHR then sought to contact another tribe member.

Thereafter, the father’s improvement period expired, and he requested that a disposition hearing be scheduled. Instead of pursuing the motion to modify the mother’s disposition, the parties agreed to allow her to receive additional services. The father’s disposition hearing was scheduled but repeatedly continued because he failed to provide his medical records from a Veteran’s Administration ("VA") hospital in Baltimore where he received treatment in July and August of 2014. Eventually, the records were produced. Although the father’s medical records showed that he had received treatment for post-traumatic stress disorder

,¹⁰ there was no indication of a causal link to the violence he exhibited towards the mother and the children.

While awaiting receipt of the father’s medical records, DHHR filed a new abuse and neglect petition against the mother because her cell phone records revealed that she continued to contact the father and had an ongoing intimate relationship with him. There was also evidence that she had allowed the father to visit the children without supervision. At her second adjudicatory hearing in November 2014, the mother stipulated to most of the allegations set forth in the second petition, including the prior domestic violence.

In January 2015, yet another incident occurred when the father became involved in a fight at a bar/restaurant with another patron. He appeared to be intoxicated and became combative with a police officer who tried to place him under arrest. The mother was present and tried to intervene in the father’s arrest. She was also arrested and charged with obstruction.

During this same time period, DHHR successfully contacted the tribe and was informed that Lorraine Laiwa had assumed the duties of the ICWA director and had appointed her daughter, Liz DeRouen, as the tribe’s ICWA representative in this case.¹¹ Ms. DeRouen asserted that DHHR needed to do more to satisfy the "active efforts" requirement of the ICWA,¹² and at a hearing on June 4, 2015, Ms. DeRouen orally moved to intervene in the case on behalf of the tribe.

At that hearing, the mother and father indicated that they intended to file motions to dismiss the abuse and neglect case because of ICWA violations. Thereafter, the motions were filed and a hearing was held in September 2015. On November 11, 2015, the circuit court entered an order finding no violations of the ICWA and denying the mother’s and father’s motions to dismiss.

Also in late summer of 2015, DHHR filed motions to compel the mother and father to undergo additional psychological evaluations.¹³ The evaluations were conducted by Barbara Nelson, MA, and Dr. Timothy Saar of Saar Psychological...