In re A. P.

Citation858 S.E.2d 873
Decision Date02 June 2021
Docket NumberNo. 20-0201,20-0201
CourtSupreme Court of West Virginia
Parties IN RE: A. P.

Allison S. McClure, Esq., McClure Law PLLC, Clarksburg, West Virginia, Attorney for Petitioner J. K.

Julie N. Garvin, Esq., Garvin Law, PLLC, Nutter Fort, West Virginia, Guardian ad Litem for A. P.

Patrick Morrisey, Esq., Attorney General, Lee Niezgoda, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for West Virginia Department of Health and Human Resources.

WOOTON, J.:

This is an appeal from the Circuit Court of Harrison County's January 27, 2020 order terminating petitioner-mother J. K.’s (hereinafter "petitioner") parental rights to infant A. P., who died during the pendency of these abuse and neglect proceedings.1 Petitioner was adjudicated a neglectful parent after stipulating to subjecting A. P. to drug abuse and/or a drug-endangered environment and abusing drugs and alcohol during her pregnancy. A. P. failed to recover from the incident which precipitated the abuse and neglect petition and died prior to disposition. The circuit court refused to dismiss the abuse and neglect proceedings, terminating petitioner's parental rights as a result of her failure to comply with the terms of her post-adjudicatory improvement period. More specifically, the circuit court found that, notwithstanding A. P.’s death, termination of petitioner's parental rights under the statutory dispositional alternatives was implicitly permitted by this Court's holding in In re I.M.K. , 240 W. Va. 679, 815 S.E.2d 490 (2018) and the overall purposes of the abuse and neglect statutory scheme.

Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we conclude that West Virginia Code § 49-4-604(c)(6) (2020)2 does not permit termination of parental rights following the death of the child who is the subject of the underlying abuse and neglect petition. Accordingly, we reverse the circuit court's termination of petitioner's parental rights and remand for entry of an order dismissing the proceedings.

I. FACTS AND PROCEDURAL HISTORY

A. P. was born in early October 2017, positive for buprenorphine

for which petitioner had a valid prescription. One day after his birth, petitioner was found co-sleeping with A. P. in her hospital room; the nurses advised of the dangers of co-sleeping and petitioner signed a written agreement not to do so. Early the next morning, petitioner emerged from her room screaming that A. P. was not breathing after being found on his father, M. P.’s, chest while he slept. A. P. was life-flighted to Ruby Memorial Hospital in Morgantown, West Virginia. A cleaning of petitioner's room and subsequent police investigation uncovered drug paraphernalia in petitioner's room, which tested positive for heroin, morphine, and buprenorphine; petitioner and M. P., A. P.’s father, claimed that it belonged to friends who visited the hospital room.

On October 11, 2017, an abuse and neglect petition was filed against petitioner and M. P. and they waived their preliminary hearing. On November 17, 2017, petitioner entered a voluntary stipulation of adjudication admitting that "she neglected [A. P.] by[ ] subjecting the child to drug abuse and/or a drug-endangered environment; and, [ ] using and abusing alcohol and drugs, including prescription drugs, during her pregnancy."3 Accordingly, the circuit court adjudicated her neglectful, leaving legal and physical custody of A. P. with the West Virginia Department of Health and Human Resources (hereinafter "DHHR"). Shortly thereafter, upon information from A. P.’s healthcare providers that his condition was worsening, and he was suffering, the court entered an emergency "do not resuscitate" order. On November 22, 2017, petitioner moved for a post-adjudicatory improvement period; A. P. died the next day. An autopsy report listed his cause of death as "unknown."

On January 15, 2018, petitioner moved to dismiss the petition against her, arguing that since A. P. was deceased and there were no other children "in the home," none of the dispositional alternatives contained in West Virginia Code § 49-4-604(c) were applicable, warranting dismissal. Petitioner conceded that although she retained parental rights to an older child, A. V.4 , her custodial rights to A. V. were terminated in 2012 and A. V. was placed under a legal guardianship with petitioner's mother.5 Alternatively, petitioner moved to certify a question to this Court to determine whether dismissal was required where "the only child named in the Petition dies during the pendency of the case."

On August 21, 2018,6 the circuit court denied petitioner's motion to dismiss and motion to certify question. Citing the recent opinion of I.M.K ., the circuit court concluded that since the purpose of abuse and neglect proceedings as articulated therein was to "remedy[ ] conditions" of abuse and neglect, disposition must necessarily follow adjudication and "must address such conditions, regardless of the status of the subject child[ren]." The court further found that I.M.K. ’s holding that adjudication may proceed irrespective of a child's death "[i]mpli[es] that disposition must follow [the] adjudication[.]" Accordingly, on August 29, 2018,7 the court granted petitioner's motion for improvement period, specifically noting that petitioner was of "child bearing age and [ ] currently in an alternate disposition 5 as to a previously born female child[.]"

A dispositional/review hearing was set for February 25, 2019. Shortly before, DHHR filed its Family Case Plan requesting termination of petitioner's parental rights to A. P.; petitioner filed a proposed voluntary relinquishment of her parental rights. The court denied petitioner's proposed voluntary relinquishments on the basis of the "public policy issue with respect to any after-born children" as well as A. V. The court took testimony from the assigned Child Protective Services worker who testified that petitioner never returned her phone call, provided current contact information, employment information, or drug treatment information, and that petitioner did not drug screen at any time.

Accordingly, the circuit court found that there was no reasonable likelihood that the conditions of neglect, "namely [petitioner's] substance abuse issues[,]" could be corrected in the near future, citing her "lack of participation in this case thus far and her failure to successfully complete her post-adjudicatory improvement period." The circuit court terminated both M. P.’s8 and petitioner's parental rights to A. P., finding that termination "serves [A. P.’s] best interests and protects other children, whether children in existence or future children, giving [A. P.’s] life meaning and importance well beyond his tender months."9 This appeal followed.

II. STANDARD OF REVIEW

As is well-established,

"[w]hen 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).

Syl. Pt. 1, In re S. W. , 236 W. Va. 309, 779 S.E.2d 577 (2015). However, "[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R. M. v. Charlie A. L. , 194 W. Va. 138, 459 S.E.2d 415 (1995). With these standards in mind, we proceed to the parties’ arguments.

III. DISCUSSION

This case presents an issue of first impression requiring statutory interpretation: whether West Virginia Code § 49-4-604(c)(6) permits a court to terminate the parental rights10 of an abusive or neglectful parent as to a child who dies during the pendency of the abuse and neglect proceedings.11

Petitioner contends that most of the dispositional alternatives contained in West Virginia Code § 49-4-604(c) are phrased in such a manner as to effectively preclude their application where a child who is the subject of the petition is deceased. Further, petitioner asserts that the applicable statutory language includes a mandatory prerequisite to termination of parental rights: that termination must be necessary to the continued welfare of the child who is the subject of the petition. Petitioner asserts that a deceased child has no further "welfare" to be protected.

DHHR, on the other hand, relying almost exclusively on this Court's holding in I.M.K ., maintains that an abuse and neglect action may proceed to the dispositional phase and result in termination irrespective of the death of the child.12 DHHR argues that the Court's rationale and holding in I.M.K. constitute a tacit endorsement of termination of a parent's rights to a deceased child, where appropriate, for the protection of other or future children. In I.M.K ., this Court held that an adjudicatory hearing may be held irrespective of the death of the subject child:

When an infant child is born alive and becomes the subject of an abuse and neglect petition, but the child dies during the pendency of the abuse and neglect proceedings, the matter may proceed to an adjudicatory hearing, and the presiding circuit court may make findings of fact and conclusions of law as to whether the subject child is an abused and/or neglected child and whether the respondents are abusing and/or neglectful as contemplated by W. Va. Code § 49-4-601(i) (2015) (Repl. Vol. 2015).

240 W. Va. 679, 815 S.E.2d 490, syl. pt. 2, in part. DHHR highlights I.M.K. ’s overarching rationale that abuse and neglect proceedings are for the purpose of identifying and documenting abuse and/or neglect to prevent recurrence in the future and argues that disposition even more affirmatively accomplishes that...

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