No. 14-0533 - In Re: C.M and C.M.
                                                                            FILED
                                                                          March 2, 2015
                                                                       RORY L. PERRY II, CLERK
                                                                     SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA
LOUGHRY, Justice, dissenting:


              In this tragic case, the Court reverses the fully-warranted termination of the

mother’s parental rights and orders that she be reunified with her two-young children despite

the fact that they have been in the DHHR’s custody twenty-nine of the last thirty-two

months.    Given that the mother has never successfully completed the terms of her

improvement period, the majority’s decision to order reunification contravenes this Court’s

longstanding recognition that the children’s best interest is the compass by which these

decisions are to be governed. See Syl. Pt. 1, State ex rel. Cash v. Lively, 155 W.Va. 801, 187

S.E.2d 601 (1972) (“‘In a contest involving the custody of an infant the welfare of the child

is the polar star by which the discretion of the court will be guided.’”). Had the majority felt

compelled to give the mother additional time to demonstrate her fitness as a parent, the most

generous procedural relief warranted under the circumstances of this case would have been

to remand the case to the circuit court for the purpose of extending the previous improvement

period.1 Instead, the majority literally ignores the sound judgment of the circuit court, the

DHHR, the members of the Multi-Disciplinary team, the guardian ad litem, the entire record



       1
      The DHHR takes the position that the mother was not entitled to any further
improvement periods under West Virginia Code §§ 49-6-5, 49-6-12(c) (2014).

                                               1
below, and then unwisely chooses the interests of an abusive and neglectful mother over the

best interests of two innocent victims. As grounds for its decision that reunification is

justified, the majority imprudently relies upon the mother’s self-serving assertions. For these

reasons, I dissent from the majority’s decision in this case.



              The record below fully demonstrates why these young children have yet to

achieve any permanency in their lives. When the subject abuse and neglect proceedings

began in August of 2012, the mother admitted both to illegally ingesting a daily dose of

Oxycontin for the last eight years and drinking in the presence of her children.2 After

stipulating to the abuse and neglect of her two children, who were then two years old and less

than two months old, respectively, the mother signed a case plan whereby she agreed to

attend an in-patient rehabilitation facility. Deciding against the inpatient, long-term

intensive rehabilitation program in Raleigh County where her children live, as was

recommended by the DHHR, the mother entered an outpatient, short term twenty-eight-day

program at an addiction recovery center located two hours away in Cabell County. Four days

shy of the completion date, she left the program.



              As the basis for its termination ruling, the trial court found that the mother:


       2
        Assuming that the mother was telling the truth when she admitted to ingesting
Oxycontin on a daily basis, an obvious conclusion can be drawn that she was doing so during
her pregnancies with both children.

                                              2
              •       showed that she was unwilling to make the reunification
                      of her family her first priority;

              •       deliberately ignored the DHHR’s reasonable directives
                      and recommendations as contained in the treatment plan
                      that she signed and agreed to follow;

              •       refused to enter a long-term rehabilitation program;

              •        refused to move to a facility in Beckley which would
                      allow her to spend more time with her children; and

              •       failed to make any substantial progress towards
                      reunification with her children in a timely manner.

The trial court’s ruling that the mother failed to establish that reunification with her family

was her first priority is demonstrated by her repeated choices in treatment and living options

that were several hours from where her children were residing with their paternal aunt. As

indicated above, she chose to participate in a program outside the Beckley area where her

young children were living. The DHHR continually voiced its frustration with the logistical

difficulties presented by the distance between where the children were living and where the

mother was residing. The mother acknowledged that although she is allowed to see her

children on a weekly basis, she only sees them “at least once per month.” From the record

submitted in this case, it is clear that the mother’s paramount concern was not the pursuit of

treatment and living options in close proximity to her children. If visiting and maintaining

frequent contact with her children was her first priority, it seems logical to conclude that the

mother would have sought treatment as near to them as possible. Instead, she bypassed the


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inpatient treatment plan she had originally agreed to complete, moved to Huntington, West

Virginia, and later to Vienna, West Virginia.



                 Critically, since August of 2012, this mother has not built any meaningful

relationship or bond with her two children and, according to the most recent report to the

DHHR by the administrative service provider dated January 4, 2015, the mother currently has

myriad unresolved parenting deficiencies including:

                 Lack of knowledge and competence in providing safety for
                 children, lack of appropriate supervision, hygiene, budgeting,
                 obtaining and maintaining housing, obtaining and maintaining
                 gainful employment, use of appropriate coping and problem
                 solving skills, communication skills, basic home management
                 skills, social and/or emotional support networks developed.

Nonetheless, in spite of the fact that there is nothing in the record to show that the mother is

even remotely capable of caring for her young children, the majority blindly orders their

reunification with her.



                  “[A] circuit court’s substantive determinations in abuse and neglect cases on

adjudicative and dispositional matters–such as whether neglect or abuse is proven, or whether

termination is necessary–is entitled to substantial deference in the appellate context.” In re

Rebecca K.C., 213 W.Va. 230, 235, 579 S.E.2d 718, 723 (2003) (internal citations omitted).3


       3
           This Court has explained that:


                                                4
As this Court stressed in In re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996), “a

judgment regarding the success of an improvement period is within the court’s discretion .

. . .” Further, “‘courts are not required to exhaust every speculative possibility of parental

improvement . . . where it appears that the welfare of the child will be seriously threatened

. . . .’ Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syl. Pt. 4,

in part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).4 This Court has also


                “[a]lthough parents have substantial rights that must be
                protected, the primary goal in cases involving abuse and neglect,
                as in all family law matters, must be the health and welfare of
                the children.” Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479
                S.E.2d 589 (1996).

In re Timber M., 231 W.Va. 44, 53, 743 S.E.2d 352, 361 (2013).
       4
           This Court has always remained mindful that

                whenever a child appears in court, he is a ward of that court.
                W.Va. Code § 49-5-4 (1996); Mary D. v. Watt, 190 W.Va. 341,
                438 S.E.2d 521 (1992). Courts are thus statutorily reposed with
                a strong obligation to oversee and protect each child who comes
                before them. As Justices Cleckley and Albright stated in West
                Virginia Department of Health and Human Resources ex. rel.
                Wright v. Brenda C., 197 W.Va. 468, 475 S.E.2d 560 (1996),
                “[a]bove all else, child abuse and neglect proceedings relate to
                the rights of an infant.” Id. at 477, 475 S.E.2d at 569.

State v. Julie G., 201 W.Va. 764, 776, 500 S.E.2d 877, 889 (1997) (J. Workman, dissenting).
Moreover, as we stated in Timber M., 231 W.Va. 44, 743 S.E.2d 352,

                [I]t is clear from our [child abuse and neglect] procedural rules,
                as well as our prior case law, that “[t]here cannot be too much
                advocacy for children.” State ex rel. Diva P. v. Kaufman, 200
                W.Va. 555, 570, 490 S.E.2d 642, 657 (1997) (Workman, C.J.,
                concurring). Indeed, if one thing is firmly fixed in our

                                                5
recognized that “‘it is possible for an individual to show “compliance with specific aspects

of the case plan” while failing “to improve . . . [the] overall attitude and approach to

parenting.’ W.Va. Dept. of Human Serv. v. Peggy F., 184 W.Va. 60, 64, 399 S.E.2d 460, 464

(1990).” In re Jonathan Michael D., 194 W.Va. 20, 27, 459 S.E.2d 131, 138 (1995). Thus,

“‘[t]he assessment of the overall success of the improvement period lies within the discretion

of the circuit court . . . . “regardless of whether . . . the individual has completed all

suggestions or goals set forth in family case plans.”’ In Interest of Carlita B., 185 W.Va.

613, 626, 408 S.E.2d 365, 378 (1991).” In re Jonathan Michael D., 194 W.Va. at 27, 459

S.E.2d at 138.5



               In this same regard, this Court has previously observed that “[t]he question at

the dispositional phase of a child abuse and neglect proceeding is not simply whether the


               jurisprudence involving abused and neglected children, it is that
               the “polar star test [is] looking to the best interests of our
               children and their right to healthy, happy productive lives[.]” In
               re Edward B., 210 W.Va. 621, 632, 558 S.E.2d 620, 631 (2001).
               This Court has repeatedly stated that a child’s welfare acts as
               “the polar star by which the discretion of the court will be
               guided.” In Re: Clifford K., 217 W.Va. 625, 634, 619 S.E.2d
               138, 147 (2005) (internal citation omitted).

231 W.Va. at 59-60, 743 S.E.2d at 367-68.
       5
        See also Matter of Brian D., 194 W.Va. 623, 636, 461 S.E.2d 129, 142 (1995)
(“Cases involving children must be decided not just in the context of competing sets of
adults’ rights, but also with a regard for the rights of the child(ren). . . . and [the children’s]
own feelings and emotional attachments should be taken into consideration by the lower
court.”).

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parent has successfully completed his or her assigned tasks during the improvement period.

Rather, the pivotal question is what disposition is consistent with the best interests of the

child.”        In re Frances J.A.S., 213 W.Va. 636, 646, 584 S.E.2d 492, 502 (2003).6

Nonetheless, with little analysis, the majority simply concludes that the trial court was wrong

with its first-hand observations and determinations relative to the mother’s compliance with

her treatment plans and her unwillingness to abide by the DHHR’s directives and

recommendations. In this case, the trial court, after years of involvement in this matter,

determined that the mother was not moving towards a successful reunification with her

children. Usurping the trial court’s function, the majority wholly discarded the lower court’s

findings and rulings and, instead, declared that “the Mother was making steady progress

during the post-adjudicatory improvement period.” I strongly disagree.7

          6
              This Court has also said:

                            [a]t 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.

Syl. Pt. 6, In Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991) (emphasis added).
          7
        The majority also states that the mother “obtained housing and employment, enrolled
in college, and participated in successful visitations with her children.” The evidence in the
record regarding the mother’s gainful employment comes from the mother’s brief wherein
her counsel maintains that she has worked at Red Lobster since October 20, 2014. The
guardian ad litem, however, provides the mother’s employment forms demonstrating that as
of December 28, 2014, her year-to-date earnings were $68.42. With regard to the majority’s

                                                   7
              As indicated from the most recent reports submitted by the guardian ad litem

to this Court, it appears that the mother has been seeing the biological father of the children

and has spent several nights with him. This is alarming for innumerable reasons. The

father’s parental rights to these children were previously terminated due to his failure to

complete a psychological evaluation, his positive test results on multiple drug screens, and

later his failure to report for any further drug screens. He failed to complete the BIPPS

program, failed to complete a substance abuse program, and did not participate in any of the

parenting skills classes with the service providers. The DHHR’s initial petition for

termination of the father’s rights was stayed due to his March 19, 2013, incarceration (which

lasted for approximately one year) as a result of selling illicit drugs out of his home. This

is the same man from whom the mother previously hid in the woods with one of the infant

children because she feared for their safety. She was found with substantial injuries to her

body, including bruises, bloody lacerations, and an inability to move her left arm. Because

the father’s rights were terminated and because the mother initially viewed herself as the




statement that she “enrolled in college” the only “proof” is the assertion by her counsel that
she intended to take classes to be a surgical technician in Parkersburg, West Virginia. There
is no actual evidence that she started such a program. Furthermore, as far as the fact that the
mother has apparently signed a lease for an apartment in Vienna, the DHHR points out that
it is unknown whether such housing is suitable for these children. The DHHR maintains that
the mother has not been available for home visits, which is further frustrated by the fact that
she refuses to have direct contact with the DHHR and only communicates through her legal
counsel. The DHHR contends that all of the mother’s goals, including work and college
classes, could have been achieved in Raleigh County where her children are currently living.


                                              8
victim of his drug-related habits and life-style, there is obvious renewed concern that the

mother may be sliding into an old pattern of behavior that is not indicative of someone

seeking to stay away from environments where drug usage may be occurring. While no

negative drug or alcohol screens have yet surfaced, the guardian ad litem notes several

instances where required drug screens did not take place.8 All of this adds further support

to the trial court’s conclusion that there was “no reasonable likelihood that the conditions of

neglect or abuse can be substantially corrected in the near future.”



              This Court strives to attain permanent custodial arrangements for children

determined to be abused and/or neglected with as much alacrity as possible. See In Re Beth

Ann B., 204 W.Va. 424, 429, 513 S.E.2d 472, 477 (1998) (recognizing need for circuit court

to “act with great dispatch to bring safety, stability, security, and permanency” to lives of

abused and or neglected children”). As previously discussed, the underlying abuse and



       8
        The guardian ad litem states that during the month of October 2014, the mother did
not have drug screens for three weeks and, on January 6, 2015, the same day as her visit with
her children, she missed her drug screen in Parkersburg. She informed her provider that she
would test either in Parkersburg or Beckley that same day; however, she did not make
arrangements to test until several days later. The guardian ad litem maintains: “As the
history with [the mother] in the record before the Circuit Court was that [the mother] abused
both prescription drugs and alcohol which remain in an individual’s system for just a period
of a few days and a missed drug screen as late as last week, the Guardian is left to speculate
as to whether she is abusing drugs or alcohol again. The mere fact that [the mother] failed
to make arrangements at either of the drug screening locations on the day of her visit and
after telling her provider that she would [take the] test suggests a failure to act as a
responsible and stable adult.”

                                              9
neglect proceeding has been pending for nearly three years and the permanency plan for the

children will once again be in a state of turmoil. See W.Va. R.P. Child Abuse & Neglect

Proceed. 43 (“Permanent placement of each child shall be achieved within twelve (12)

months of the final disposition order, unless the court specifically finds on the record

extraordinary reasons sufficient to justify the delay.”). With regard to the time frame in

which final disposition of abuse and neglect cases should be made, this Court has recognized

that “[a]lthough it is sometimes a difficult task, the trial court must accept the fact that the

statutory limits on improvement periods (as well as our case law limiting the right to

improvement periods) dictate that there comes a time for decision, because a child deserves

resolution and permanency in his or her life. . . .” Amy M., 196 W.Va. at 260, 470 S.E.2d at

214.   Indeed, improvement periods are “regulated, both in their allowance and in their

duration, by the West Virginia Legislature, which has assumed the responsibility of

implementing guidelines for child abuse and neglect proceedings generally.” In re Emily,

208 W.Va. at 334-35, 540 S.E.2d at 551-52. The circuit court understood this and acted in

a manner that allowed these children to remain in the stable environment in which they had

lived with their paternal aunt for the past two-and-one-half years. It is unfortunate that the

majority of this Court has now destroyed that stability.



              This is not a case where the mother has not had time to demonstrate her fitness

as a parent. She simply has not stepped up to the plate with regard to the reunification aspect


                                              10
of her improvement plan. She may have had early success with her drug-related issues, but

as previously stated, she ignored the long-term drug and alcohol treatment program and,

according to the DHHR, she still denies having any such dependency issues.



               These children deserve a safe and stable environment and that environment has

been continually provided by the paternal aunt in whose home the children have been

residing since the inception of this matter. For the majority now to decide it knows better

than the trial court what these children need–especially in light of the trial court’s finding that

it would not be in the best interests of the children to be returned to their mother–is both

misguided and violative of the trial court’s discretion in this matter. See Syl. Pt. 1, in part,

In re Tiffany Marie S., 196 W.Va. at 239, 470 S.E.2d at 193 (“[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.”).



               For the foregoing reasons, I respectfully dissent.




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