In Re: E.K. and I.K.
17-0388
| W. Va. | Oct 23, 2017Background
- DHHR filed abuse-and-neglect proceedings after police responded to a June 2016 domestic-violence incident; children were removed when DHHR learned the mother (whose parental rights had been previously terminated) was living in the home and caring for the children.
- Father (J.K.) previously completed a preadjudicatory improvement period and briefly regained custody; an amended petition alleged he allowed the mother to return and that domestic violence occurred in the children’s presence.
- Father stipulated at adjudication that he allowed the mother to return and that domestic violence occurred in the children’s presence; the court granted a post-adjudicatory improvement period and ordered services.
- While on the improvement period, father missed or refused services (Batterer’s Intervention Program, substance-abuse counseling and drug screens), tested positive for Suboxone and marijuana, and maintained contact with the mother; evidence included photographs and online posts.
- The circuit court revoked the improvement period, suspended visitation, found DHHR made reasonable efforts and that there was no reasonable likelihood the conditions could be corrected, and terminated father’s parental rights; father appealed.
Issues
| Issue | Plaintiff's Argument (J.K.) | Defendant's Argument (DHHR / Circuit Court) | Held |
|---|---|---|---|
| Termination of post-adjudicatory improvement period | Court failed to implement/approve family case plan; termination improper | Father failed to participate in or progress through services and continued substance use and contact with the mother | Affirmed: termination proper under WV Code §49-4-610; father failed to fully participate |
| Suspension of visitation after termination of improvement period | MDT recommended continued visitation; suspension was erroneous | Visitation would not serve children’s best interests: child refusal, father’s noncompliance and relationship with mother | Affirmed: court acted within discretion under Rule 15 to suspend visitation |
| Reasonable efforts / emergency removal / imminent danger | Removal was not an emergency and delay in filing shows no imminent danger | DHHR was unaware until July; investigation showed mother living there, children instructed to lie, domestic violence present — imminent danger justified removal | Affirmed: removal and finding that reasonable efforts were not required due to imminent danger under WV law |
| Termination of parental rights and denial of post-termination visitation; due process claim | Termination improper due to alleged procedural defects (family case plan); denied post-termination visitation and procedural fairness | Family case plan was filed and addressed both children; father failed to follow plan, continued substances and relationship with mother; father stipulated to allegations; no procedural prejudice | Affirmed: termination appropriate under WV Code §49-4-604(b)(6); denial of post-termination visitation and due-process challenge lack merit (invited error/waiver) |
Key Cases Cited
- In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996) (standard of review for circuit-court findings in bench trials)
- In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011) (restating appellate review standard in abuse/neglect cases)
- In re Lacey P., 189 W.Va. 580, 433 S.E.2d 518 (1993) (circuit court discretion to terminate improvement periods for lack of progress)
- In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001) (procedural errors must substantially frustrate proceedings to warrant reversal)
- In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995) (factors for post-termination visitation analysis)
- In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002) (visitation post-termination may be considered but must be in child's best interest)
- State v. Crabtree, 198 W.Va. 620, 482 S.E.2d 605 (1996) (invited error/waiver doctrine)