In Re: D.L.-1, D.L.-2, and G.L.
16-1153
| W. Va. | May 22, 2017Background
- DHHR filed abuse and neglect petition (Nov. 2015) alleging parental drug use, domestic violence, and petitioner’s prior and pending methamphetamine-related criminal charges, including exposing a child to methamphetamine; the action followed the death of an infant in the home.
- Petitioner (father L.W.) stipulated in Feb. 2016 to exposing the children to domestic violence and admitted prior drug convictions and pending methamphetamine-related charges.
- Circuit court granted a post-adjudicatory improvement period in May 2016 with a case plan requiring parenting, adult life skills, outpatient substance treatment, random drug screens, counseling including domestic violence programming, employment, and safe housing.
- During the improvement period petitioner largely failed to participate: he appeared for only 5 of 34 required drug screens, services were terminated for noncompliance, and a parental evaluator gave a poor prognosis.
- DHHR moved to revoke the improvement period and terminate parental rights; petitioner did not attend the July 2016 dispositional hearing but was represented by counsel.
- Circuit court terminated petitioner’s parental rights (Sept. 15, 2016); Supreme Court of Appeals affirmed, finding no reversible error.
Issues
| Issue | Plaintiff's Argument (Petitioner L.W.) | Defendant's Argument (DHHR/Circuit Court) | Held |
|---|---|---|---|
| Adjudication as abusing parent | Stipulated facts did not amount to abuse because he was not the primary aggressor in domestic violence and criminal involvement alone is insufficient | Petitioner stipulated to allegations including domestic violence and methamphetamine exposure; cannot challenge a stipulated adjudication | Affirmed — petitioner invited adjudication by stipulation and may not now challenge it |
| Adequacy of case plan / scope of improvement period | Case plan focused on substance abuse only and did not address domestic violence; petitioner may not have received a copy | Case plan terms (parenting, life skills, counseling including domestic violence programming, drug treatment/screens) addressed both substance and domestic violence issues; court had ordered and listed specific terms | Affirmed — plan sufficiently addressed conditions leading to petition |
| Conducting dispositional hearing in petitioner’s absence | Denied opportunity to be heard; hearing should have been continued | Petitioner had actual notice and was instructed to appear; counsel attended and represented him; no motion to continue was made | Affirmed — hearing properly conducted in his absence with counsel present |
| Termination of parental rights (no reasonable likelihood of correction) | Termination was premature; lesser alternatives not sufficiently considered | Petitioner largely failed to comply with services (multiple missed drug screens, terminated services, poor evaluator prognosis); statutory basis for finding no reasonable likelihood of correction and that termination served children’s welfare | Affirmed — termination supported by evidence and applicable statute |
Key Cases Cited
- In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011) (standard of review and statutory definitions for abuse/neglect adjudication)
- In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980) (termination may be ordered when no reasonable likelihood conditions can be corrected)
- Maples v. West Virginia Dep’t of Commerce, 197 W.Va. 318, 475 S.E.2d 410 (1996) (party may not invite error then seek reversal)
- State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966) (judgment not reversed for error introduced or invited by party)
- In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011) (discussing termination as a remedial measure under the statutory scheme)