In Re: K.B. and K.H.
16-0615
| W. Va. | Nov 21, 2016Background
- DHHR filed an abuse-and-neglect petition (Mar 2015) alleging mother K.W. was addicted to heroin, left newborn K.B. with an incapacitated maternal grandmother, and failed to provide food, clothing, supervision, and housing.
- At the preliminary hearing the DHHR worker testified the grandmother appeared very ill and possibly under the influence and that petitioner was initially unreachable; court placed K.B. in DHHR custody and K.H. with her father.
- At adjudication petitioner admitted heroin addiction and that K.B. was born drug-addicted, but denied current drug use and some allegations; court found substance abuse negatively affected her parenting and ordered random drug screens.
- DHHR presented evidence petitioner missed services and visitation, tested positive on multiple drug screens (codeine, morphine, marijuana metabolite, amphetamine, methamphetamine), and largely failed to engage with the agency or the children.
- At disposition the court denied petitioner an improvement period and post-termination visitation, found no reasonable likelihood conditions could be corrected, and terminated her parental rights (May 24, 2016).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether clear-and-convincing evidence supported adjudication of abuse/neglect | Petitioner: evidence was "woefully inadequate" to prove abuse/neglect | DHHR/Circuit Ct: admissions, positive drug tests, abandonment, and leaving child with unfit caregiver show abuse/neglect | Affirmed: record supports finding of abuse/neglect by clear and convincing evidence |
| Whether K.H. (in father's custody) qualified as abused/at-risk | Petitioner: K.H. was not in her custody and not a direct victim | DHHR: sibling was at risk due to petitioner’s conduct and the household circumstances | Affirmed: exposure/risk doctrine applies; K.H. was an abused child at risk |
| Whether court erred in credibility findings about petitioner’s drug use | Petitioner: she testified she was clean and attending AA | Circuit Ct: credited DHHR evidence and drug tests over petitioner’s testimony | Affirmed: trial court credibility determinations not reversible on appeal |
| Whether to grant post-adjudicatory improvement period or visitation | Petitioner: requested improvement period and post-termination visitation | DHHR/Court: petitioner failed to engage timely or correct circumstances; ongoing substance issues | Affirmed: court properly denied improvement period and visitation; termination in children’s best interests |
Key Cases Cited
- In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (W. Va. 1996) (review standard for bench factfinder’s findings of fact)
- In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (W. Va. 2011) (standard of review for abuse-and-neglect proceedings)
- In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (W. Va. 1981) (DHHR burden: prove conditions existing at filing by clear and convincing evidence)
- In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (W. Va. 1997) (clarifying DHHR’s burden-of-proof requirements)
- In re K.P., 235 W.Va. 221, 772 S.E.2d 914 (W. Va. 2015) (exposure/risk doctrine: non-direct victims in home can be abused children)
- Michael D.C. v. Wanda L.C., 201 W.Va. 381, 497 S.E.2d 531 (W. Va. 1997) (deference to trial court credibility determinations)