In re K.V.(Justice Armstead, dissenting)

• Court: West Virginia Supreme Court
• Decided: March 26, 2025
• Docket: 23-339
• Status: Separate

Opinion

No. 23-339 – In re K.V. FILED March 26, 2025 released at 3:00 p.m. C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

ARMSTEAD, Justice, dissenting:

In its opinion, the majority begins its discussion of the facts by recognizing

that petitioner’s parental rights to her seven older children were involuntarily terminated

in 2014. The majority then relates that during a September 9, 2022 psychological

evaluation, petitioner “refused to answer questions about the children to whom she no

longer had parental rights” and exhibited a “‘poor’ prognosis for the reliable future

attainment of minimally adequate parenting.” Next, the majority notes that the child

protective services worker assigned to petitioner’s case testified that petitioner refused to

acknowledge the abuse and neglect that occurred not only in her previous case but in the

current proceeding as well. This Court has made clear that “in order to remedy the abuse

and/or neglect problem, the problem must first be acknowledged. Failure to acknowledge

the existence of the problem, i.e., the truth of the basic allegation pertaining to the alleged

abuse and neglect . . . results in making the problem untreatable[.]” W. Va. Dep’t of Health

& Hum. Res. ex rel. Wright v. Doris S., 197 W. Va. 489, 498, 475 S.E.2d 865, 874 (1996).

In these circumstances, there is no reasonable likelihood that the conditions of abuse and

neglect can be corrected in the near future and pursuant to West Virginia Code §49-4-

604(c)(6) (2020), termination of parental rights is required. Instead of applying our well-

established law and affirming the circuit court’s order, the majority hinged its decision

upon a finding that the circuit court impermissibly shifted the burden of proof to petitioner.

1 Notwithstanding the fact that petitioner did not assign error to the circuit court’s decision

on that basis,1 even if any burden-shifting actually occurred, it was harmless because DHS

presented overwhelming evidence at the disposition hearing showing petitioner’s failure to

acknowledge the abuse and neglect. Moreover, her refusal to treat her mental health issues

threatened the health and welfare of K.V. Therefore, I would have affirmed the circuit

court’s order terminating petitioner’s parental rights.

In reaching the conclusion that this case must be remanded for another

disposition hearing, the majority conflated the evidentiary burden of proof that applies to

DHS with the duty of compliance that is always upon a parent who has been granted an

improvement period. Certainly, even in cases that are initiated pursuant to West Virginia

Code § 49-4-605(a)(3) (2018), “the [DHS] continues to bear the burden of proving that the

subject child is abused and neglected pursuant to W.Va. Code, 49-6-2 [1996] [now West

Virginia Code 49-4-601 (2019)].” Syl. Pt. 5, in part, In re George B., Jr., 207 W. Va. 346,

532 S.E.2d 64 (2000). However, as this Court has made clear:

DHS is not obligated . . . to prove its case by showing that [the parent] failed to comply with the family case plan. In Syllabus Point 1 of In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981), we held:

“W.Va.Code, [49-4-601], requires the State Department of Welfare [now the Department of

1 Generally, assignments of error that are not asserted on appeal are deemed waived by this Court. Syl. Pt. 7, Birchfield v. Zen’s Development, LLC, 245 W. Va. 82, 857 S.E.2d 422 (2021). Because petitioner did not raise this issue, there was no basis for this Court to address it, but the majority decision proceeds to do so without providing one. 2 Human Services], in a child abuse or neglect case, to prove ‘conditions existing at the time of the filing of the petition . . . by clear and convincing proof.’ The statute, however, does not specify any particular manner or mode of testimony or evidence by which the State Department of Welfare is obligated to meet this burden.”

W.Va. Dep’t of Human Services v. Peggy F. 184 W. Va. 60, 63-64, 399 S.E.2d 460, 463-

64 (1990). While DHS maintains the burden of proof to establish that the parent has abused

and/or neglected the child, where as here, a parent is granted an improvement period, such

parent “shall be responsible for the initiation and completion of all terms of the

improvement period.” W. Va. Code § 49-4-610(4)(A) (2015). Holding petitioner to her

statutory obligation does not result in shifting the burden to her.

At the disposition stage, “West Virginia Code § 49-6-5(a)(6) (1988) [now

West Virginia Code § 49-4-604(c)(6) (2020)] governs the procedure for termination of

rights and unequivocally states that a parent’s rights may be terminated ‘[u]pon a finding

that there is no reasonable likelihood that the conditions of neglect or abuse can be

substantially corrected in the near future, and when necessary for the welfare of the child .

. . .’” In re Carlita B., 185 W. Va. 613, 624, 408 S.E.2d 365, 376 (1991). In determining

whether parental rights should be terminated, this Court has held:

At the conclusion of the improvement period, the court shall review the performance of the parents in attempting to attain the goals of the improvement period and shall, in the court’s discretion, determine whether the conditions of the improvement period have been satisfied and whether sufficient improvement has been made in the context of all the circumstances of the case to justify the return of the child.

3 Id., 185 W. Va. at 616, 408 S.E.2d at 368, syl. pt. 6. Critically, “[t]he assessment of the

overall success of the improvement period lies within the discretion of the circuit court

regardless of whether or not the individual has completed all suggestions or goals set forth

in family case plans.” In re Jonathan Michael D., 194 W. Va. 20, 27, 459 S.E.2d 131, 138

(1995) (additional citation and quotations omitted). Indeed,

[i]n making the final disposition in a child abuse and neglect proceeding, the level of a parent’s compliance with the terms and conditions of an improvement period is just one fact to be considered. The controlling standard that governs any dispositional decision remains the best interests of the child.

Syl. Pt. 4, In re B.H. and S.S., 233 W. Va. 57, 754 S.E.2d 743 (2014).

At petitioner’s disposition hearing, DHS came forward with extensive

evidence and testimony showing that while petitioner complied with some aspects of her

case plan, not all of the conditions of her improvement period were satisfied. In particular,

DHS showed that the requirement that petitioner get treatment for her mental health was

not sufficiently addressed to justify the return of K.V. to petitioner’s custody. Specifically,

DHS submitted the psychological report that was prepared by licensed psychologist Megan

Green and called Dr. Green to testify regarding her findings. Dr. Green explained that she

had concerns about petitioner’s mental health:

I really thought [petitioner] has some indications of bipolar disorder. And when she came to the evaluation, she has some mental status irregularities that were concerning in terms of hypomania.

4 So, for example, in terms of thought processes they were tangential, circumstantial. Her speech was very loud. It was difficult to redirect her to remain focused on relevant topics. She sometimes responded to inquiries with irrelevant responses, elaborated on irrelevant details, but then wouldn’t respond to very relevant inquiries.

She presented as kind of an intense person and sometimes that is just an interpersonal style. There are other times where that can certainly be indicative of hypomania and I was concerned about that in terms of that possibly being a mental health concern that hasn’t been adequately or at least consistently addressed.

In addition to Dr. Green, DHS also presented testimony at the dispositional

hearing from Stevie Edwards, petitioner’s service provider at Liam’s Place, where

petitioner was referred for adult life skills classes, parenting classes, drug screening, and

supervised visitation with K.V. Caitlyn Henshey, the child protective services worker

assigned to petitioner’s case, also testified on behalf of DHS. Both Ms. Edwards and Ms.

Henshey gave extensive testimony about petitioner’s erratic behavior throughout the case

and her refusal to get treatment for her mental health issues.

Ms. Edwards testified that while petitioner had appeared for her scheduled

classes, it was difficult to provide services because of her paranoia. She explained that

from the beginning, petitioner was “very hesitant to give information . . . due to her thinking

that it was going to be used against her.” She further testified that petitioner’s paranoia

increased after she had a positive drug screen for codeine, and that petitioner became

convinced that someone at Liam’s Place had “slipped something in her drink.” Ms.

5 Edwards testified that petitioner made multiple calls to the lab about her positive test and

eventually refused to come to Liam’s Place for services.

As discussed above, Ms. Henshey testified that petitioner refused to

acknowledge the abuse and neglect that occurred in the current proceeding as well as in

her previous case. Ms. Henshey also testified about instances of petitioner’s erratic

behavior, indicating that petitioner “is more focused on things that are not happening.” In

that regard, she explained that petitioner became fixated on her child’s health and accused

the foster placement of exposing K.V. to HIV and tuberculosis despite there being no

medical basis for petitioner’s concern. Ms. Henshey further testified that petitioner had

violated visitation stipulations by visiting K.V. at her initial foster placement without

supervision and then, on another occasion, by removing the child from the foster parent at

a local festival because she found the child’s stroller to be dirty. In addition, Ms. Henshey

noted that petitioner had attempted to locate K.V.’s current foster family by calling the

child’s doctor and looking the family up on a social media website.

Regarding petitioner’s positive drug screen for codeine, Ms. Henshey

testified that petitioner “proceeded to call the drug screen [lab] and was harassing to the

point they had to ask me for assistance and voice their safety concerns.” Ms. Henshey

further testified that when she told petitioner that her visitation with K.V. had to be stopped

because of her positive drug screen and behavior, petitioner gave a nonsensical response

indicating that she was “not surprised” and stating “I have only eaten fast food. I have not

6 had their drinks.” Ms. Henshey also testified that petitioner had been offered psychiatric

services several times but had declined to participate. Notably, the record shows that from

the outset, petitioner’s case plan required her to seek mental health treatment and a mental

health evaluation from a psychiatrist. To facilitate the required mental health evaluation,

DHS referred petitioner to WVU Behavioral Health in March 2022 and again in April 2022,

but each time, petitioner failed to keep the appointment. Petitioner’s failure to keep these

appointments as well as her refusal to attend the counseling sessions to which she was

referred were documented in the reports DHS filed with the circuit court.

Given all the evidence submitted to the circuit court and the testimony

presented at the disposition hearing, even if the majority was correct and there was a

shifting of the burden of proof, which I maintain did not occur, such shifting was harmless.

While shifting the burden of proof in the context of severing the parent-child relationship

may be a violation of a parent’s due process rights,2 as this Court recognized in In re K.L.,

233 W. Va. 547, 553, 759 S.E.2d 778, 784 (2014), for that error to be reversible, it must

have clearly prejudiced the parent. Indeed, it has long been held that “[f]ailure to observe

a constitutional right constitutes reversible error unless it can be shown that the error was

harmless beyond a reasonable doubt.” Syl. Pt. 5, State ex rel. Grob v. Blair, 158 W. Va.

2 See Syl. Pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) (“In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions.”) 7 647, 214 S.E.2d 330 (1975) (emphasis added). In In re K.L., it was determined that the

burden-shifting that occurred prejudiced the parent because the circuit court “did not

require the DHHR to adduce evidence or provide testimony at the dispositional hearing.”

Id., 233 W. Va. at 553-54, 759 S.E.2d 784-85. However, that is not what happened in this

case as illustrated by the evidence and testimony discussed above, which DHS presented

at the dispositional hearing.

Indeed, DHS demonstrated by clear and convincing evidence that petitioner

had not satisfied the conditions of her improvement period and had not made sufficient

progress in the context of all of the circumstances to support a finding that reunification

was in the best interests of K.V. Consequently, to the extent that there was a shifting of

the burden of proof, petitioner was not prejudiced, and thus, no reversible error occurred.

Accordingly, I respectfully dissent.