                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                 FILED
In re: H.W.
                                                                            September 6, 2016
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
No. 16-0317 (Webster County 15-JA-56)                                             OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Father R.W., by counsel Christopher G. Moffatt, appeals the Circuit Court of
Webster County’s February 29, 2016, order adjudicating him as an abusing parent1 in regard to
seven year old H.W.2 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel S.L. Evans, filed its response in support of the circuit court’s order. The
guardian ad litem (“guardian”), Mary Elizabeth Snead, filed a response on behalf of the child
also in support of the circuit court’s order. On appeal, petitioner alleges that the circuit court
erred in adjudicating him as an abusing parent.

        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 concludes that there was no clear and convincing evidence to support the
circuit court’s order adjudicating petitioner as an abusing parent. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.

        On November 20, 2015, H.W. was in the care of his mother, A.W., when the DHHR
received a referral that A.W. was living with a registered sex offender, using inappropriate
disciplinary methods towards H.W., and failed to properly bathe H.W. Upon receiving this
referral, a Child Protective Services (“CPS”) worker and the West Virginia State Police
conducted an investigation of A.W.’s residence. During the investigation A.W. admitted to a

       1
         The circuit court actually adjudicated petitioner as an “abusive and neglectful parent.”
However, the Court notes that pursuant to West Virginia Code § 49-1-201, an “abusing parent”
is defined as “a parent, guardian or other custodian . . . whose conduct has been adjudicated by
the court to constitute child abuse or neglect as alleged in the petition charging child abuse or
neglect.” Because this definition governs parents who commit both abuse and neglect against
children, and because the pertinent statute has purposefully omitted a definition of “neglecting
parent,” the Court will use the appropriate statutory term throughout this memorandum decision.
       2
         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).
                                                 1


CPS worker that she used methamphetamine, marijuana, and pain pills. Drug paraphernalia was
also found in A.W.’s home and she also admitted that she left H.W. in the care of a registered
sex offender.3 While it is unclear how petitioner was involved in this initial investigation,
petitioner tested positive for marijuana and admitted to the CPS worker that he usually smokes
marijuana on weekends. As a result of this investigation, the DHHR filed an abuse and neglect
petition alleging that petitioner was addicted to and/or abused controlled substances which
affected his ability to provide for the health, safety, and welfare of his child. Thereafter, the
circuit court found that the allegations constituted imminent danger and temporarily removed
H.W. from petitioner’s and A.W.’s care.

        Petitioner later waived his right to a preliminary hearing. The next month, the circuit
court held an adjudicatory hearing during which it heard testimony from several witnesses,
including petitioner. Generally, A.W. admitted to the allegations against her as set forth in the
petition. However, relevant to petitioner’s appeal, A.W. testified that H.W. was in her home
every day and that H.W. visits petitioner “a couple weekends a month.” Petitioner corroborated
A.W.’s testimony in that he visits H.W. every other weekend. Importantly, petitioner’s
unrebutted testimony established that while he smoked marijuana, he only smoked marijuana
when H.W. was at A.W.’s house and never smoked marijuana while H.W. was in his care.
Furthermore, petitioner provided a clean drug screen thirteen days after he initially tested
positive for marijuana on November 20, 2015. Importantly, the DHHR did not elicit any
evidence that petitioner was addicted to and/or abused controlled substances or that his
marijuana use affected his ability to provide for the health, safety, and welfare of his child as
alleged in the petition. After considering the evidence, the circuit court adjudicated petitioner as
an abusive parent finding that he “used marihuana regularly, which put the [child] at risk when
the child was in [his] custody.”4 Petitioner appeals from the adjudicatory order.

       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
       3
         It appears from the record on appeal that petitioner and A.W. did not live together, and
that petitioner had visitation with H.W. every other weekend.
       4
         During the adjudicatory hearing, the circuit court found that CPS worker E.B. executed a
verified petition that contained false information and that this was at least the second occasion
that E.B. has executed a falsified petition before the circuit court in the past month. The circuit
court also held the DHHR in contempt for failing to establish visitation as directed during the
preliminary hearing.
                                                 2


       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).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, the Court finds
that the circuit court erred in adjudicating petitioner as an abusing parent.

       To begin, the Court does not agree with the circuit court’s finding that petitioner was an
abusing parent based strictly upon his use of marijuana and that such use “put the [child] at risk
when the child was in [petitioner’s] custody.”

       This Court has previously held as follows:

       “W.Va.Code, 49–6–2(c) [1980], requires the State Department of Welfare [now
       the Department of Health and Human Resources], 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.’” Syllabus point 1, [in part], In the Interest of S.C., 168
       W.Va. 366, 284 S.E.2d 867 (1981).

Syl. Pt. 2, in part, In re Bryanna H., 225 W.Va. 659, 661, 695 S.E.2d 889, 891 (2010).

        Based upon a review of the adjudicatory hearing transcript, this Court determines that the
circuit court’s conclusion that petitioner put his child at risk strictly because he used marijuana is
contrary to the evidence presented. West Virginia Code § 49-1-201 defines an abused child and a
neglected child, respectively, as requiring harm or threat of harm to a child’s health or welfare.
While it is undisputed that petitioner admitted to smoking marijuana, the testimony is unrebutted
that petitioner did not smoke marijuana while H.W. was in his custody or that he smoked
marijuana on a “regular” basis. Furthermore, petitioner provided a clean drug screen shortly after
the petition was filed. Importantly, there was no evidence presented below that H.W. was ever
“at risk” when he was in petitioner’s custody. While illegal, the Court does not find that
petitioner’s occasional marijuana use, in and of itself, constitutes a harm or threat of harm to the
child, especially in light of the specific circumstances of this case. Furthermore, a reading of the
applicable statutes shows that the legislature has clearly enumerated certain crimes for which a
conviction constitutes per se abuse and/or neglect. According to West Virginia Code § 49-4-609,

       [i]n any case where a person is convicted of an offense against a child described
       in section twelve, article eight, chapter sixty-one of this code or articles eight-b or
       eight-d of that chapter and the person has custodial, visitation or other parental
       rights to the child who is the victim of the offense or to any child who resides in
       the same household as the victim, the court shall, at the time of sentencing, find
       that the person is an abusing parent within the meaning of this chapter as to the
       child victim, and may find that the person is an abusing parent as to any child who
       resides in the same household as the victim, and the court shall take further steps
       as are required by this article.




                                                  3


        The convictions addressed in West Virginia Code §§ 61-8-12 and 61-8b-12 do not extend
to smoking marijuana. Furthermore, petitioner was not convicted of any crimes. As such, we find
that the circuit court erred in adjudicating petitioner as an abusing parent for the sole act of
smoking marijuana without further evidence that his conduct harmed, or was a threat of harm, to
H.W.’s health or welfare.

        Furthermore, this Court is troubled that the DHHR failed to properly consider the
significant issue of whether petitioner abused or neglected his child for failing to protect him
from the alleged deplorable conditions while in A.W.’s home. We note that pursuant to Rule 19
of the Rules of Procedure for Child Abuse and Neglect Proceedings, the DHHR may file an
amended petition setting forth this allegation if it finds factual support to do so following further
investigation.

         For the foregoing reasons, we find that the circuit court erred in adjudicating petitioner as
an abusing parent and reverse the “Adjudication Hearing Order” entered on February 29, 2016,
as it pertains to petitioner only. As such, we remand the matter to the circuit court for the entry of
an order dismissing petitioner from the proceedings in light of the lack of evidence that he
abused or neglected the child at issue.


                                                                           Reversed and Remanded.

ISSUED: September 6, 2016


CONCURRED IN BY:

Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman

DISSENTING AND WRITING SEPARATELY:

Chief Justice Menis E. Ketchum
Justice Allen H. Loughry II

LOUGHRY, Justice, dissenting, joined by KETCHUM, Chief Justice:

        I am troubled by the DHHR’s inadequate handling of the abuse and neglect petition
against the father, R.W., who is the petitioner herein. A review of the appendix record reveals
that the DHHR did almost nothing to pursue the issue of whether the father’s admitted drug use
caused any harm or risk of harm5 to his child, even though drug use was the basis for the abuse
and neglect charge against the father. Instead, the DHHR relied upon R.W.’s uncorroborated

       5
        West Virginia Code § 49-1-201 (2015) defines “abused child” to include a child whose
health or welfare is actually harmed or “threatened” with harm.
                                                  4


testimony as to the frequency and impact of his drug use. Moreover, in the circuit court
proceedings, the DHHR overlooked the serious possibility that the petitioner was an abusing
parent for failing to protect his child from the harm and risk of harm suffered in the mother’s
home. See Syl. 3, 4 & 7, W.Va. DHHR v. Doris S., 197 W.Va. 489, 465 S.E.2d 865 (1996)
(explaining that child abuse includes knowingly allowing another person to commit abuse, and
“knowingly” means being presented with sufficient facts from which to recognize abuse). In its
response brief on appeal, the DHHR urged this Court to affirm R.W.’s adjudication because he
failed to protect the child from the mother—but this assertion was neither raised in the abuse and
neglect petition nor pursued during the adjudicatory hearing.

       In my opinion, this case should be remanded to the circuit court with directions for the
DHHR to file an amended abuse and neglect petition and for the holding of an adjudicatory
hearing to address all of the dangers faced by this seven-year-old child. Instead of merely
suggesting that an amended petition might be filed, this Court should compel the DHHR to do its
job. We have held that

               [i]n cases involving the abuse and neglect of children, when it appears
       from this Court’s review of the record on appeal that the health and welfare of a
       child may be at risk as a result of the child’s custodial placement, regardless of
       whether that placement is an issue raised in the appeal, this Court will take such
       action as it deems appropriate and necessary to protect that child.

Syl. Pt. 6, In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013). In a similar vein, we declared
that
                 “[t]o facilitate the prompt, fair and thorough resolution of abuse and
        neglect actions, if, in the course of a child abuse and/or neglect proceeding, a
        circuit court discerns from the evidence or allegations presented that reasonable
        cause exists to believe that additional abuse or neglect has occurred or is
        imminent which is not encompassed by the allegations contained in the
        Department of Health and Human Resource’s petition, then pursuant to Rule 19
        of the Rules of Procedure for Child Abuse and Neglect Proceedings [1997] the
        circuit court has the inherent authority to compel the Department to amend its
        petition to encompass the evidence or allegations.” Syl. Pt. 5, In re Randy H., 220
        W.Va. 122, 640 S.E.2d 185 (2006).

Syl. Pt. 10, In re T.W., 230 W.Va. 172, 737 S.E.2d 69 (2012). In T.W., this Court ordered that,
upon remand, the DHHR was to amend its petition to include allegations of abuse and neglect
that were not previously asserted. Id. at 181, 737 S.E.2d at 78.

       Because the majority of this Court chooses to reverse the petitioner father’s adjudication
without requiring an adequate investigation or adjudicatory hearing to ensure the child’s safety
and welfare, I respectfully dissent.6

       6
       The circuit court was also dissatisfied with the DHHR’s performance, finding that a
DHHR worker made a false representation in the verified abuse and neglect petition and holding
the DHHR in contempt for its failure to arrange court-ordered visitation.
                                                5


