In re H.B., 21-0135

Background

DHHR filed an abuse and neglect petition (Apr 2020) after an informal caregiver reported that then-8-year-old H.B. disclosed maternal uncle had touched her inappropriately and that the child was exposed to domestic violence and daily drug use in the home.
Forensic interview: child described witnessing frequent domestic violence between family members, seeing adults smoke a clear drug from a glass pipe, and an instance in which her uncle touched her groin; child said she did not feel safe and that mother sometimes disbelieved her.
Sept 2020 adjudicatory hearing: court found the child’s recorded forensic interview credible and adjudicated mother (J.J.) for abuse/neglect based on domestic violence and substance use in the child’s presence.
Court granted a post-adjudicatory improvement period with written terms (parenting services, visitation, substance-abuse assessment and random screens, domestic violence group, therapy, abstinence, etc.).
Mother never signed the terms, made contact with DHHR or providers, submitted drug screens, or participated in visitation; the improvement period was terminated for noncompliance and, at disposition (Jan 27, 2021), the court found no reasonable likelihood of correction and terminated mother’s parental rights.
Mother appealed arguing lack of factual support for adjudication, inability to participate due to homelessness/no phone, and failure to consider less-restrictive alternatives; the Supreme Court of Appeals of West Virginia affirmed.

Issues

Issue	Plaintiff's Argument (mother J.J.)	Defendant's Argument (DHHR / Court)	Held
1. Was adjudication for abuse/neglect supported by evidence?	Adjudication lacks factual support; no evidence mother abused the child	Child's forensic interview and other testimony credibly showed domestic violence, drug use in child's presence, and caregiver failures	Affirmed: adjudication supported; court credited the child’s interview
2. Was termination of parental rights proper given mother’s nonparticipation?	Termination was too drastic; court should have considered less-restrictive alternatives	Mother had opportunities and responsibilities to complete improvement period but made no effort (did not sign terms, contact providers, drug screen, or visit)	Affirmed: termination proper because no reasonable likelihood mother could substantially correct conditions
3. Did mother’s homelessness and lack of phone deprive her of ability to participate (due process)?	Lack of phone and homelessness prevented receipt of messages and participation	WV law places responsibility on respondent to initiate and complete improvement-period terms; mother did not seek assistance or otherwise remedy access issues	Affirmed: lack of a phone did not excuse total noncompliance or relieve responsibility to participate
4. Must court use less-restrictive alternatives before terminating rights?	Court failed to consider less-restrictive dispositional alternatives	Termination is permissible without intervening alternatives where there is no reasonable likelihood of correction under statutory standard	Affirmed: less-restrictive alternatives not required when statutory findings justify termination

Key Cases Cited

In Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996) (standard of review and deference to circuit court findings in bench-tried abuse/neglect cases)
In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (restating standard of review for findings of fact in abuse and neglect cases)
Michael D.C. v. Wanda L.C., 201 W. Va. 381, 497 S.E.2d 531 (1997) (reviewing court will not second-guess factfinder credibility determinations)
In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980) (termination may be used without intervening less-restrictive alternatives when no reasonable likelihood of correction exists)
In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (discussing termination standard and use of statutory provisions)
State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998) (priority to secure adoptive or permanent placement when terminating parental rights)
James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991) (guardian ad litem duties continue until child is placed in a permanent home)