In re A.L.C.M.

801 S.E.2d 260, 239 W. Va. 382, 2017 WL 2537029, 2017 W. Va. LEXIS 448
CourtWest Virginia Supreme Court
DecidedJune 9, 2017
DocketNo. 16-0786
StatusPublished
Cited by19 cases

This text of 801 S.E.2d 260 (In re A.L.C.M.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re A.L.C.M., 801 S.E.2d 260, 239 W. Va. 382, 2017 WL 2537029, 2017 W. Va. LEXIS 448 (W. Va. 2017).

Opinions

Davis, Justice:

The instant proceeding is before the Court upon a question certified by the Circuit Court of Ohio County regarding the parameters of an abuse and neglect proceeding. By order entered August 17, 2016, the circuit court certified the following question to this Court:

Is a Petition for Relief from Parental Abuse and Neglect alleging abuse and/or neglect of an unborn child who is subsequently born alive, actionable under West Virginia law?

The circuit court answered this question “YES.”

Under the power vested in this Court by the governing authorities, we deem it necessary to reformulate the circuit court’s certified question to more accurately address the facts involved in and issues raised by the case sub judice. See Syl. pt. 2, Martino v. Barnett, 215 W.Va. 123, 595 S.E.2d 65 (2004) (“ “When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under both the Uniform Certification of Questions of Law Act found in W. Va. Code, 51-1A-1, et seq. and W. Va. Code, 58-5-2 [1967], the statute relating to certified questions from a circuit court of this State to this Court.’ Syl. Pt. 3, Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993).”). Accordingly, we reformulate the subject query as follows:

When a child is born alive, is the presence of illegal drugs in the child’s system at birth sufficient evidence that the child is an abused and/or neglected child to support the filing of an abuse and neglect petition?

We answer this question in the affirmative: when a child is bom alive, the presence of illegal drags in the child’s system at birth constitutes sufficient evidence that the child [385]*385is an abused and/or neglected- child, as those terms are defined by W. Va. Code § 49-1-201 (2015) (Repl. Vol. 2015), to support the filing of an abuse and neglect petition puisuant to W. Va. Code § 49-4-601 (2015) (Repl. Vol. 2015).

I.

FACTUAL AND PROCEDURAL HISTORY

The child subject to the underlying abuse and neglect proceeding, A.L.C.M.,1 was born alive in February 2016 at 25 3/7 weeks gestation; upon birth, the child’s umbilical cord tested positive for cocaine, opiates, codeine, hydrocodone, and oxycodone, which is indica-, five of Mother’s undisputed prenatal drug use. The child’s twin was not born alive; it is believed that A.L.C.M.’s twin died as a result of twin-to-twin transfusion syndrome2 and conditions related to the twin’s premature birth.3 Following the child’s birth, A.L.C.M. was, transferred from Ohio Valley Medical Center in Wheeling, West Virginia, to Ruby Memorial Hospital in Morgantown, West Virginia, where the. child remained in the NICU until being discharged on October 26, 2016,

It appears from the record4 that Mother and Father had a casual relationship that began in spring 2016. During this time, Mother used illegal drugs and prescription medications that had not been prescribed for her, predominantly using heroin. Father, who has an extensive criminal record for dealing and distributing drugs, does not appear to have been dealing, distributing, or using any illegal drugs or ill-gotten prescription drugs during this time. The record also.indicates that Father was working various construction jobs, while Mother was not employed. Upon learning of Mother’s pregnancy in December 2015, around the 16th week of gestation, Mother and Father commenced a more committed dating relationship and began living together. Father testified that, while they cohabited, he discouraged Mother’s use of drugs and would ask her to leave the apartment whenever he found evidence of Mothers drug use. Mother.testified-that she was aware of Father’s, disapproval of her drug use and admitted that she would lie to Fa[386]*386ther about needing money to buy household supplies and personal hygiene items in order to fund her addiction.

From December 2015, when Mother’s pregnancy was discovered, until the child’s birth in February 2016, Father took Mother to two5 prenatal doctor’s appointments.6 The record also demonstrates that Father drove Mother to an out-of-state Subutex7 clinic for treatment and paid for her Subutex prescription when he could afford to do so.8 Additionally, Father stated that he contemplated having Mother involuntarily committed to a mental health facility so that she could receive treatment for her drug addiction, but Mother convinced him that she would agree to a voluntary commitment. Upon arrival at the facility, however, Mother changed her mind and refused to enter the facility’s rehabilitation program. Father testified that, during this time, he continued to live with Mother in order to provide her support and to make sure she received the proper nutrition she needed for her pregnancy; he also said that he believed if he could provide Mother with a stable home environment, he might be able to encourage her to stop using drugs, particularly for the sake of the babies.

As previously noted, the twins were born prematurely in February 2016. On the day of them birth, Father stayed at the Wheeling hospital with the deceased twin and Mother until Mother’s friend arrived to stay with her. Father then drove to Morgantown to visit A.L.C.M., who had been transferred there by helicopter following birth. Mother left the Wheeling hospital later that same day against medical advice. Father stated that, out of concern for Mother, her ongoing drug use, and her ability to parent A.L.C.M., he filed a mental hygiene petition that resulted in Mother’s involuntary commitment to Hillcrest Behavioral Health Services on February 27, 2016, during which time she went through withdrawal.

On March 4, 2016, the West Virginia Department of Health and Human Resources (“DHHR”) filed the instant abuse and neglect petition against both Mother and Father alleging that A.L.C.M. was an abused and/or neglected child.9 The allegations of Father’s misconduct vis-a-vis his child10 include his failure to protect A.L.C.M. from Mother’s drug use—both prenatal and ongoing after the twins’ births—and his continued association with Mother, who DHHR considers to be a danger to and an unsuitable guardian for the child in light of her ongoing drug use and history of prior abuse and neglect proceedings.11 In this regard, the petition specifically alleged that:

[387]*387The Respondent [Father] has been dating [Mother] for the last year and a half. [Father] knew or should have known of [Mother’s] drug abuse during her pregnancy and took no steps to try to stop the same.
[Father] has a history involving drug abuse and drug dealing and/or involvement with drugs himself, and this has led to criminal activity that has resulted in his incarceration.

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Cite This Page — Counsel Stack

Bluebook (online)
801 S.E.2d 260, 239 W. Va. 382, 2017 WL 2537029, 2017 W. Va. LEXIS 448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-alcm-wva-2017.