In re B.W.

• Court: West Virginia Supreme Court
• Decided: February 22, 2021
• Docket: 19-0715
• Status: Published

Opinion

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2021 Term _______________ FILED No. 19-0715 February 22, 2021 _______________ released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

IN RE B.W.

____________________________________________________________

Appeal from the Circuit Court of Marshall County The Honorable David W. Hummel, Jr. Case No. 16-JA-26

VACATED AND REMANDED WITH INSTRUCTIONS ____________________________________________________________

Submitted: January 13, 2021 Filed: February 22, 2021

David C. White, Esq. Patrick Morrisey, Esq. Law Office of Neiswonger and White Attorney General Moundsville, West Virginia Jessica A. Lee, Esq. Counsel for Petitioner M.M. Assistant Solicitor General Lee Niezgoda, Esq. Thomas E. White, Esq. Assistant Attorney General White and Clyburn Law Offices Fairmont, West Virginia Moundsville, West Virginia Counsel for Respondent DHHR Counsel for Petitioner P.W. Patricia A. Kurelac, Esq. Kurelac Law Offices, PLLC Moundsville, West Virginia Guardian ad Litem

JUSTICE WALKER delivered the Opinion of the Court.

JUSTICE ARMSTEAD, deeming himself disqualified, did not participate in the decision of this case.

JUDGE J.D. BEANE, sitting by temporary assignment. SYLLABUS BY THE COURT

“Although conclusions of law reached by a circuit court are subject to de

novo review, when an action, such as an abuse and neglect case, is tried upon the facts

without a jury, the circuit court shall make a determination based upon the evidence and

shall make findings of fact and conclusions of law as to whether such child is abused or

neglected. These findings shall not be set aside by a reviewing court unless clearly

erroneous. A finding is clearly erroneous when, although there is evidence to support the

finding, the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed. However, a reviewing court may not

overturn a finding simply because it would have decided the case differently, and it must

affirm a finding if the circuit court’s account of the evidence is plausible in light of the

record viewed in its entirety.” Syllabus Point 1, In the Interest of Tiffany Marie S., 196 W.

Va. 223, 470 S.E.2d 177 (1996).

i WALKER, Justice:

B.W. is a young child who has been in the care of foster parents since the

filing of an abuse and neglect petition against her biological parents, Petitioners M.M. and

P.W., which concluded in November 2017. 1 At that time, the circuit court ordered what is

commonly called a “section 5” disposition under West Virginia Code § 49-4-604(c)(5) 2

having concluded that Petitioners were presently unwilling or unable to provide for the

child’s needs. In examining West Virginia Code § 49-4-604(c)(5)(C) 3 as part of that

disposition decision, the court determined that in spite of the best efforts of the Department

of Health and Human Resources (DHHR), there were no parenting services available in

West Virginia specifically tailored to Petitioners’ need for reasonable accommodation

1 Consistent with our long-standing practice in cases with sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015). 2 The circuit court’s determination was made in 2017 under West Virginia Code § 49-4-604(b)(5), prior to the amendment of West Virginia Code § 49-4-604. A subsection was added that precedes the disposition decisions section. The dispositions decisions section, previously subsection (b), thus became subsection (c) but there is no substantive difference for our purposes. We use the subsection (c) for ease of reference given the gap of time between the original disposition decision and the current appeal. 3 West Virginia Code § 49-4-604(c)(5)(C) provides that the circuit court shall state in its order, should it find that the parents are presently unwilling or unable to provide adequately for the child’s needs, “[w]hether the department has made reasonable accommodations in accordance with the Americans with Disabilities Act of 1990, 42 U. S. C. § 12101 et seq., to parents with disabilities in order to allow them meaningful access to reunification and family preservation services[.]”

1 under the Americans with Disabilities Act (ADA). 4 For that reason, the court did not

terminate Petitioners’ parental rights under West Virginia Code § 49-4-604(c)(6), but the

case was dismissed from the court’s docket and Petitioners did not appeal.

More than a year and a half later, after receiving a handwritten letter from

Petitioner M.M. asking when they could have their child back, the circuit court held a status

hearing. Even though there was no motion pending to modify the disposition based on

changed circumstances under § 49-4-606, the circuit court on its own modified the

disposition of the case to terminate Petitioners’ parental rights under § 49-4-604(c)(6) and

expressed a hope that Petitioners would appeal its decision in order to draw attention to a

perceived lack of ADA-compliant services in West Virginia. Because Petitioners did not

appeal the circuit court’s prior dispositional order, we conclude that they waived any

challenge to the services they received prior to 2017. But a circuit court may not modify a

disposition on its own, absent a motion under § 49-4-606. For that reason, and because the

parties were deprived of due process when they were not notified that the circuit court

intended to take up a motion to modify disposition, we vacate and remand this case to the

circuit court with instructions to reinstate its November 10, 2017 order.

4 42 U.S.C. §§ 12101 through 12213.

2 I. Facts and Procedural History

The Department of Health and Human Resources (DHHR) filed an abuse and

neglect petition against Petitioners M.M. and P.W. in June 2016 after their child B.W., then

just over a year old, suffered second degree burns on her back after hours of sun exposure

without appropriate clothing or sunscreen. The petition included several other allegations

of abuse by one or both parents: (1) in the preceding winter months witnesses alleged

Petitioners put the child in a stroller without a blanket, socks, or shoes, and walked to Wal-

Mart in the middle of the night; (2) Petitioner father shook and hit the child, had a history

of violent crimes, and chose not to take medication to treat his bipolar disorder; (3)

Petitioner mother demonstrated troubling behavior while the child was in the hospital being

treated for burns, specifically that she continuously yelled at the child for being fussy, and

the medical records conveyed concerns from providers as to her ability to safely and

effectively parent; and (4) mother had, on prior occasions, held the child upside down and

shaken her when angry. B.W. was removed from Petitioners’ custody and placed with a

foster family.

At the adjudicatory hearing in August 2016, Petitioners admitted to failing

to protect the child from sun exposure as alleged in the petition, and were adjudicated as

neglectful parents. The court withheld a decision on adjudication as to abuse. Petitioners

were identified as having intellectual disabilities that inhibited their ability to parent, and

3 the court ordered DHHR to provide services to Petitioners that conformed with the ADA

and West Virginia Code § 49-4-604(a)(1). 5

At subsequent hearings, DHHR reported to the circuit court that it had made

efforts, but had not been able to find a parenting services curriculum specifically tailored

to parents with intellectual disabilities available in West Virginia. So, it made

modifications to existing services to provide Petitioners meaningful access. Specifically,

DHHR provided parenting services to Petitioners from a provider who was aware of their

intellectual disabilities and who had received training in and had extensive experience with

accommodating parents with intellectual disabilities. Those services involved a slower

introduction to the materials, additional and/or alternate explanations of concepts, and

repetition of sessions. While the court extended Petitioners’ improvement periods, it also

stated that, because Petitioners had not made progress in their services and because

5 Under West Virginia Code § 49-4-604, the DHHR’s family case plan must include

[a] description of the type of home or institution in which the child is to be placed, including a discussion of the appropriateness of the placement and how the agency which is responsible for the child plans to assure that the child receives proper care and that services are provided to the parents, child, and foster or kinship parents in order to improve the conditions that made the child unsafe in the care of his or her parent(s), including any reasonable accommodations in accordance with the Americans with Disabilities Act of 1990, 42 U. S. C. § 12101 et seq. to parents with disabilities in order to allow them meaningful access to reunification and family preservation services[.]

4 Petitioners had other underlying issues, it would terminate parental rights if there was no

substantial change in their ability to care for the child from that point forward.

At the conclusion of their improvement periods, the circuit court held

dispositional hearings and concluded that neither parent was capable of providing for the

child’s day-to-day basic needs. It also concluded that DHHR had made “extraordinary

efforts” in its attempt to secure appropriate, ADA-compliant services, but that such services

were absent in West Virginia. Rather than terminate parental rights, the court made a

disposition in accordance with West Virginia Code § 49-4-604(c)(5) (Section 5

Disposition) by order issued November 10, 2017. That order was not appealed, B.W. was

placed in a legal guardianship with her foster parents, and the case was dismissed from the

docket.

In July 2018, Petitioners, through counsel, filed a joint motion seeking aid of

the court in facilitating transportation for their visits with the child as they did not have the

financial means to coordinate transportation. The circuit court held the motion to facilitate

visitation in abeyance, expressing hope that the parties could sort out the visitation issues

informally. Then, in March 2019, Petitioner M.M. wrote the presiding judge a handwritten

letter asking when Petitioners could have the child back and asking for an update. In

response, the circuit court set a status hearing, held on June 13, 2019.

5 During the purported status hearing, the court was advised by the parties that

Petitioners had secured an apartment, Petitioner P.W. was receiving Social Security

Disability benefits, and Petitioner M.M. had secured work at Dairy Queen. No witnesses

were presented by any party. The circuit court then concluded:

There’s no motion before the Court, but there is a case before the Court, and this child is entitled to permanency. [M.M. and P.W.] are entitled to permanency one way or the other. Are you ready? . . . . I’m going to try to make the State of West Virginia listen to us. . . . Based on the totality of the circumstances, . . . the Court reopens the matter for purposes of disposition . . . . At this time I do, in fact, terminate your parental rights as to [B.W.], and I hope you appeal me, and the reason I want you to appeal is so that the DHHR has to, in the future, provide persons, such as special persons such as yourselves, with appropriate services that may enable them to parent.

Parental rights were terminated by order dated June 17, 2019. Petitioners now appeal that

order on the grounds that they were not provided ADA-compliant parenting services.

II. Standard of Review

Our review of dispositions in abuse and neglect cases is well-settled:

Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a

6 finding if the circuit court’s account of the evidence is plausible in light of the record viewed in its entirety.[6]

With this standard in mind, we turn to the parties’ arguments.

III. Analysis

Petitioners argue that termination of their parental rights was improper

because the parenting services they received were not compliant with the ADA. The

DHHR and the Guardian argue in response that the parenting services Petitioners received,

while not ADA-specific programming, were tailored to accommodate the learning deficits

exhibited by Petitioners and that Petitioners had meaningful access to services under West

Virginia Code § 49-4-606(c)(5)(C). 7

Problematically, Petitioners, the DHHR, and the Guardian all make

arguments as to services rendered prior to the 2017 dispositional order. In fact, nothing in

the appendix record submitted by Petitioners in support of their arguments occurred after

2017. So, before we may reach the merits of Petitioners’ arguments, they must overcome

the apparent finality of the 2017 dispositional order. Petitioners argue that the Section 5

6 Syl. Pt. 1, In the Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).

7 The DHHR argues both that Petitioners received meaningful access to services under subsection (5) and that no such finding is required to terminate parental rights under subsection (6). Because we conclude that Petitioners have waived arguments as to their meaningful access to services under the ADA by failing to appeal the 2017 dispositional order, we need not discuss the DHHR’s alternative arguments.

7 Disposition imposed in the 2017 order definitionally concludes that Petitioners had a

present unwillingness or inability to parent effectively, and that it was not final because it

temporarily commits the care, custody, and control of the child to the DHHR, or, in this

case, B.W.’s foster parents. But, we note that a Section 5 Disposition, while a less-

restrictive disposition than termination of parental rights, is still a disposition. The case

was dismissed from the court’s docket upon entry of the 2017 dispositional order, which

was a final, appealable order. Petitioners could have raised what they perceived as

deficiencies in the parenting services provided during the pendency of their case by

appealing the 2017 dispositional order and did not. As a result, we find that Petitioners

have waived arguments as to ADA-compliant services by failing to appeal the 2017

dispositional order and turn instead to the procedure by which Petitioners’ parental rights

were terminated.

Employing the modification statute (West Virginia Code § 49-4-606), the

circuit court modified disposition from a Section 5 Disposition under § 49-4-604(c) to

termination of parental rights under subsection (6) of that code provision. But West

Virginia Code § 49-4-606 states, in relevant part, that modification may be made “[u]pon

motion of a child, a child’s parent or custodian or the department alleging a change of

circumstances requiring a different disposition[.]” The record is clear that the circuit court

set the matter for a status hearing after receiving a handwritten letter from Petitioners. The

circuit court noted several times on the record that there was no motion before the court,

8 and the plain language of the statute does not authorize the circuit court to modify

disposition on its own, in the absence of any motion.

And, the circuit court provided no notice to the parties that it intended to take

up a motion to modify disposition, sua sponte or otherwise. Under West Virginia Code §

49-4-606(a), “[a]dequate and timely notice of any motion for modification shall be given

to the child’s counsel, counsel for the child’s parent or custodian, the department and any

person entitled to notice and the right to be heard.” Lack of notice that the circuit court

intended to modify disposition, in addition to being procedurally flawed, deprived the

Petitioners of any opportunity to prepare a defense to the termination of parental rights.

The circuit court simply received a brief update from counsel and summarily proceeded to

modify the disposition to terminate parental rights. And, factually, the circuit court

imposed a harsher disposition, despite the apparent improvement in Petitioners’

circumstances from those at the conclusion of the previous dispositional hearing in 2017.

We conclude that the termination of Petitioners’ parental rights violated the

procedure required by West Virginia Code § 49-4-606 to modify disposition and denied

Petitioners due process. If DHHR believes termination of parental rights is appropriate, it

may file its own motion to modify the disposition under that code provision and give

appropriate notice to Petitioners that it seeks the termination of their parental rights and the

grounds for that motion.

9 IV. Conclusion

For the reasons set forth above, we vacate the June 17, 2019 order of the

Circuit Court of Marshall County terminating Petitioners’ parental rights and remand with

instructions that the November 10, 2017 dispositional order implementing a Section 5

Disposition be reinstated.

Vacated and remanded with instructions.