In Re: M.S. and B.E.
17-0222
| W. Va. | Jun 16, 2017Background
- DHHR filed abuse-and-neglect petitions (Mar 2016) alleging mother’s prenatal drug use and both parents’ drug abuse and domestic violence; petitioner B.E. stipulated to neglect and received a post-adjudicatory improvement period.
- MDT met and petitioner signed a written "Improvement Period Terms" listing specific requirements: evaluations, random drug screens, parenting, anger-management/batterers intervention, and visitation.
- Petitioner repeatedly failed to comply: missed hearings and visits, largely refused or missed drug screens, and tested positive when screened; the court granted continuances but found participation declined.
- DHHR did not file a formal family case plan within 30 days of the improvement-period inception; it filed a child/case plan before disposition pursuant to WV Code § 49-4-604(a).
- At disposition (Jan 2017) the circuit court denied petitioner a post-dispositional improvement period and terminated his parental rights for failure to comply with the improvement-period terms; petitioner appealed arguing prejudice from DHHR’s late family case plan and entitlement to another improvement period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DHHR’s failure to file a family case plan within 30 days of the improvement period required reversal / another improvement period | DHHR missed statutory deadline under WV Code §49-4-408(a); like Desarae M., late plan prejudiced petitioner and warrants another improvement period | DHHR filed a child/case plan before disposition containing family-plan requirements; petitioner suffered no prejudice and had clear, signed improvement terms from MDT | Court affirmed: late filing was not reversible error under these facts; no additional improvement period warranted |
| Whether petitioner was entitled to a post-dispositional improvement period under WV Code §49-4-610(3)(D) | Petitioner sought additional improvement period due to lack of timely family case plan | DHHR and guardian argued petitioner showed no substantial change and was unlikely to comply given his nonparticipation and positive drug tests | Court held petitioner failed to show substantial change or likelihood of participation; denial was proper |
Key Cases Cited
- In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (court’s fact-findings reviewed for clear error)
- In re Desarae M., 214 W.Va. 657, 591 S.E.2d 215 (family case plan purpose and prejudice when DHHR failures impede a compliant parent)
- In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (vacation of orders required only when rules/statutes are substantially disregarded)
- Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (process compliance requirement for child-abuse dispositions)
- State ex rel. Dep’t of Human Servs. v. Cheryl M., 177 W.Va. 688, 356 S.E.2d 181 (purpose of family case plan)
- In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (standards for appropriate dispositional orders)
- In re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (standard of review for findings of fact in abuse/neglect cases)
- Bowyer v. Wyckoff, 238 W.Va. 446, 769 S.E.2d 233 (procedural compliance and vacation of orders)