In Re: C.B.
16-0731
| W. Va. | Feb 21, 2017Background
- In Dec 2014 the child’s grandmother filed a domestic violence petition alleging mother A.J. was on drugs and sought custody; a magistrate issued an emergency protective order and the grandmother later filed for guardianship.
- Family court determined the guardianship petition alleged abuse/neglect and, under Rule 48A, the matter was removed to circuit court.
- DHHR investigated in Feb 2015 and filed an abuse-and-neglect petition alleging A.J. used illegal drugs and the child had lived with the grandmother continuously since Dec 4, 2014.
- A hair follicle test of A.J. at the time of filing was positive for heroin, opiates, and morphine; testimony indicated A.J. failed to comply with services or remedy her addiction.
- The circuit court adjudicated the child abused/neglected and, in a July 11, 2016 dispositional order, terminated A.J.’s parental rights. A.J. appealed challenging the adjudication.
- The West Virginia Supreme Court affirmed, finding the evidence sufficient to support adjudication and termination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the child was properly adjudicated abused/neglected when the petition was filed | A.J.: prior allegations were unsubstantiated and no evidence of abuse/neglect existed at filing | DHHR: A.J.’s positive hair test and history (child left with grandmother) show present conditions supporting neglect | Court: Adjudication affirmed; evidence at filing supported neglect under applicable statute |
| Whether DHHR met burden to prove conditions at time of filing by clear and convincing evidence | A.J.: DHHR failed to meet clear-and-convincing standard | DHHR: statutes allow various kinds of evidence; hair test and circumstances satisfy burden | Court: Evidence (hair test, supervision/shelter concerns) was sufficient under In re Joseph A. standard |
| Whether procedural removal from family court to circuit court was proper under Rule 48A | A.J.: (did not prevail on this issue on appeal) | DHHR: removal appropriate because family court found allegations of abuse/neglect | Court: Removal appropriate; proceedings reviewed under circuit-court record |
| Whether termination of parental rights was supported by findings of failure to remedy substance abuse | A.J.: contested sufficiency of evidence to terminate | DHHR/guardian: repeated noncompliance with services and positive drug test supported termination | Court: Termination affirmed given failure to remedy and threats to child’s welfare |
Key Cases Cited
- In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981) (DHHR must prove conditions at time of filing by clear and convincing evidence)
- In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (explaining proof-of-conditions standard and admissible modes of evidence)
- In re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996) (standard of review for circuit-court fact findings in abuse/neglect cases)
- In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011) (restating appellate standard for review of circuit court findings)