                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS

                                                                                     FILED
In re E.T. and C.T.
                                                                                  April 13, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 17-1085 (Mingo County 16-JA-51 and 52)                                       SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 

                                                          MEMORANDUM DECISION
        Petitioner Mother T.T., by counsel Kathryn Cisco-Sturgell, appeals the Circuit Court of
Mingo County’s November 9, 2017, order terminating her parental rights to E.T. and C.T.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M.
Parsley, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Susan J. Van Zant, filed a response on behalf of the children in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court abused its discretion in
finding that termination of her parental rights was supported by clear and convincing evidence
and that the circuit court terminated petitioner’s parental rights without a fair opportunity to
participate in an improvement period.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court vacates the circuit court’s November 9, 2017, dispositional order due to the
circuit court’s failure to properly adjudicate petitioner. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure,
and a memorandum decision is appropriate to resolve the issues presented.

        Before the proceedings that gave rise to this appeal, the DHHR filed a petition which
named petitioner, then age 16, and her child E.T., as abused infants. This petition alleged that
M.A., the father of E.T., was sexually abusing petitioner with her parents’ knowledge. At the
time of filing, petitioner was pregnant with C.T., who was also M.A.’s child. As a result of that
petition, petitioner and E.T. were placed in a foster home together. Later, M.A. relinquished his
parental rights to the children and pled guilty to multiple criminal charges related to his abuse of
petitioner. Additionally, petitioner’s parents were adjudicated as abusing parents and they
stipulated to a disposition that terminated their custodial rights to petitioner and required they
have no contact with petitioner without the approval of the circuit court.

                                                            
              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); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).




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        In July of 2016, while petitioner was still a minor, the DHHR filed the instant petition
alleging that petitioner provided inappropriate care for E.T. and C.T (“the children”) and that
E.T. suffered bruising that petitioner could not explain. Additionally, the petition alleged that
petitioner considered voluntary relinquishment of her parental rights to the children because she
did not feel she could deal with the stress of parenting. Because petitioner was a minor at the
time this petition was filed, she was appointed counsel and a guardian ad litem.

         Petitioner waived her preliminary hearing on July 20, 2016. The DHHR located a foster
home that would care for petitioner and the children and provide assistance in teaching petitioner
how to care for the children. The circuit court ordered that petitioner and her children be placed
in that foster home.

        In August of 2016, the circuit court granted petitioner a pre-adjudicatory improvement
period. According to the certified docket sheet provided in the record, the circuit court,
thereafter, held three review hearings. The docket sheet does not reflect the holding of an
adjudicatory hearing, and no adjudication order was included in the appendix on appeal.

        In October of 2017, the circuit court held a dispositional hearing. Petitioner did not
appear for this hearing but was represented by counsel at that hearing. The circuit court
“proceeded to take testimony and evidence in this matter as to the history of the case and the
present condition of the children.” Ultimately, the circuit court terminated petitioner’s parental
rights. Prior to termination, the circuit court made no findings as to whether petitioner abused or
neglected the children, nor did it adjudicate petitioner as an abusing parent. Petitioner appeals the
circuit court’s November 9, 2017, order.2

              The Court has previously established the following standard of review:

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

                                                            
              2
        The father’s parental rights were terminated in an earlier proceeding. According to
respondents, the children are currently placed in a foster home with a permanency plan of
adoption in that home.



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Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Further, we have held that

                      “[w]here it appears from the record that the process established by the
              Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes
              for the disposition of cases involving children [alleged] to be abused or neglected
              has been substantially disregarded or frustrated, the resulting order . . . will be
              vacated and the case remanded for compliance with that process and entry of an
              appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
              558 S.E.2d 620 (2001).

Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009).

       Upon our review, the Court finds that the circuit court erred in proceeding to termination
of petitioner’s parental rights without adjudicating her as an abusing parent. In regard to
adjudication, we have set forth the following:

                     In a child abuse and neglect hearing, before a court can begin to make any
              of the dispositional alternatives under [West Virginia Code § 49-4-604] it must
              hold a hearing under [West Virginia Code § 49-4-601] and determine “whether
              such child is abused or neglected.” Such a finding is a prerequisite to further
              continuation of the case.

Syl. Pt. 1, State v. T.C., 172 W.Va. 47, 303 S.E.2d 685 (1983)(emphasis added).

        Although petitioner does not raise this issue on appeal, “the Court may consider a plain
error not among the assignments of error but evident from the record and otherwise within its
jurisdiction to decide” pursuant to Rule 10(c)(3) of the West Virginia Rules of Appellate
procedure. “To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that
is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or
public reputation of the judicial proceedings.” Syl. Pt. 3, In re K.L., 233 W.Va. 547, 759 S.E.2d
778, 780 (2014)(quoting Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995)). It
appears from the record provided that the circuit court made no findings regarding whether
petitioner was an abusing parent or if the children were abused or neglected children, as required
by West Virginia Code § 49-4-601. Rather, the circuit court granted petitioner a pre-adjudicatory
improvement period and, after more than a year of said improvement period, terminated
petitioner’s parental rights. In its dispositional order, the circuit court noted that it took “evidence
in this matter as to the history of the case and the present condition of the children.” However the
circuit court did not detail the scope of that evidence or use it as a basis for findings consistent
with West Virginia Code § 49-4-601(i).3
                                                            

              3
                  The relevant portion of West Virginia Code § 49-4-601(i) provides

                     [a]t the conclusion of the adjudicatory hearing, the court shall make a
              determination based upon the evidence and shall make findings of fact and
 
                                                                                         (continued . . . )
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         The circuit court’s failure to hold an adjudicatory hearing, a defect obvious in the record
provided, was contrary to clearly settled law. West Virginia Code § 49-4-601(k) provides that
“[t]he petition may not be taken as confessed.” By failing to hold an adjudicatory hearing, the
circuit court denied petitioner any opportunity to present evidence or challenges to the
allegations in the petition. This Court has previously held that termination of parental rights on
the basis of allegations never subject to adjudication is a substantial disregard for the applicable
rules and statutes and warrants vacation of the dispositional order. See In re Lilith H., 231 W.Va.
170, 744 S.E.2d 280 (2013). As a result of the circuit court’s failure to hold an adjudicatory
hearing, petitioner lost the fundamental right to parent her children. Accordingly, we find plain
error in the proceeding below. Moreover, this failure constitutes a substantial disregard for the
applicable rules and statutes such that vacation of the resulting dispositional order is warranted.

       For the foregoing reasons, we vacate the circuit court’s November 9, 2017, dispositional
order as it relates to petitioner and remand this matter to the circuit court for the holding of an
adjudicatory hearing in regard to petitioner, and for further proceedings consistent with the West
Virginia Rules of Procedure for Child Abuse and Neglect Proceedings and Chapter 49 of the
West Virginia Code.4 The circuit court is hereby ordered to hold the appropriate hearings and
issue a final order in this case within sixty days. The Clerk is hereby directed to issue the
mandate contemporaneously herewith.
                                                                          Vacated and Remanded.

ISSUED: April 13, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
                                                                                                                                                                                                
              conclusions of law as to whether the child is abused or neglected and whether the
              respondent is abusing, neglecting, or, if applicable, a battered parent, all of which
              shall be incorporated into the order of the court. The findings must be based upon
              conditions existing at the time of the filing of the petition and proven by clear and
              convincing evidence.
              4
         Further, based on the representations of respondents and the record on appeal, the Court
finds that the children’s current temporary placement is appropriate and in their best interest at
this time. Accordingly, we instruct the circuit court to maintain this temporary placement until
such time as the circuit court is tasked with determining an appropriate permanent placement for
the children pursuant to West Virginia Code § 49-4-604(b) and the applicable Rules of Procedure
for Child Abuse and Neglect Proceedings.



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