In Re: M.S., B.E., K.S.-1, and A.S.
17-0223
| W. Va. | Jun 16, 2017Background
- DHHR filed abuse-and-neglect petition (Mar 2016) alleging mother (K.S.-2) used drugs during pregnancy and domestic-violence exposure in the home; mother stipulated to neglect.
- Circuit court granted a post-adjudicatory improvement period; MDT met and provided mother a written “Improvement Period Terms” listing required services (evaluations, random drug screens, parenting, visitation, etc.).
- Mother’s compliance declined: stopped Suboxone, acknowledged continued relationship with violent father, arrested for delivery of a controlled substance, tested positive for methamphetamine, and missed visits. Court repeatedly extended the improvement period but warned she must improve.
- DHHR did not file a formal family case plan within 30 days of the improvement period’s start; DHHR filed a child/case plan before disposition after a court order.
- At disposition (Feb 8, 2017) the court denied mother a post-dispositional improvement period, found she had not meaningfully complied with terms, and terminated her parental rights to all four children. Mother appealed solely arguing entitlement to an additional improvement period because DHHR failed to timely file a family case plan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DHHR’s failure to file a family case plan within 30 days required granting an improvement period at disposition | Mother: Desarae M. requires timely filing; lack of timely plan deprived her of measurable terms and prejudiced her, so she should get an additional improvement period | DHHR/guardian: MDT provided written improvement terms early; mother was aware of required steps and was not prejudiced by timing of formal case plan | Court: No reversible error. The late filing did not substantially prejudice mother because she had written terms, participated in MDT, and failed to comply with requirements; denial of additional improvement period was proper |
| Whether the court abused discretion in denying a post-dispositional improvement period under W.Va. Code §49-4-610(3)(D) | Mother: entitlement to another period due to procedural defect (late case plan) | DHHR/guardian: mother failed to show a substantial change in circumstances or likelihood of full participation; participation worsened | Court: Mother did not demonstrate a substantial change or likelihood of future compliance; denial affirmed |
| Whether the procedural rules/statutes were substantially disregarded or frustrated warranting vacatur | Mother: late case plan frustrated measurement of progress | DHHR/guardian: procedural protections satisfied by MDT terms and repeated reviews | Court: Rules/statutes not substantially disregarded; no vacation required |
| Whether any waiver issue bars the claim (failure to object earlier) | Mother: argued timeliness violation irrespective of objection timing | Respondents: raised waiver below; circuit court relied on other grounds | Court: Did not decide waiver because affirmance on other grounds rendered it unnecessary |
Key Cases Cited
- In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (W.Va. 2011) (standard of review and appellate treatment of bench-found facts)
- In re Desarae M., 214 W.Va. 657, 591 S.E.2d 215 (W.Va. 2003) (family case-plan timing and prejudice to parent can require relief)
- In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (W.Va. 2009) (vacatur required where procedures/statutes were substantially disregarded)
- In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (W.Va. 1996) (clearly erroneous standard for findings of fact in abuse-and-neglect cases)
- State ex rel. Dep’t of Human Services v. Cheryl M., 177 W. Va. 688, 356 S.E.2d 181 (W.Va. 1987) (purpose of family case plan as an organized method to identify problems and steps to resolve them)