                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                      FILED
In re C.W. and B.W.
                                                                                 February 23, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 17-0614 (Barbour County 16-JA-6 and 16-JA-7)                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Mother K.W., by counsel Jason T. Gain, appeals the Circuit Court of Barbour
County’s June 13, 2017, order terminating her parental rights to B.W. and her custodial rights to
C.W.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Lee Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Mary S. Nelson, filed a response on behalf of the children in support of the circuit
court’s order. Petitioner filed a reply. On appeal, petitioner argues that she received ineffective
assistance of counsel and that the circuit court’s failure to timely enter its dispositional order
unfairly prejudiced her.

        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 finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In February of 2016, petitioner and the father were involved in a domestic altercation.
Petitioner later indicated that she could not recall the details of the event, but it resulted in
petitioner receiving a gunshot wound to her face. The father committed suicide by shooting
himself in the head. This incident took place in the children’s presence. Thereafter, the DHHR
filed an abuse and neglect petition against petitioner. In addition to allegations regarding the
domestic incident, the petition also alleged that petitioner tested positive for amphetamines,
benzodiazepines, buprenorphine, opiates, and oxycodone upon her admission to the hospital
following the incident. According to the DHHR, petitioner’s substance abuse resulted in her
                                                            
              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). Additionally, the Court notes that petitioner is not the
biological mother of C.W. Although she was married to C.W.’s father, petitioner did not adopt
the child. Moreover, C.W.’s biological mother’s parental rights to the child were terminated in an
earlier abuse and neglect proceeding. Accordingly, as the sole custodian of C.W., the circuit
court ultimately terminated petitioner’s custodial rights to the child.


                                                                   1

 
inability to properly care for the children and caused the children’s emotional abuse and neglect.
The DHHR also alleged that the home was unsanitary and in disarray and that the children
lacked a place to sleep. Finally, the petition alleged a history of domestic violence in the home
and past abuse and neglect proceedings based on petitioner’s substance abuse. Specifically, the
petition alleged that an abuse and neglect proceeding in 2011 was based, in part, upon allegations
that then-three-year-old B.W. was found wandering outside alone while petitioner was
unconscious due to her intoxication from bath salts. Petitioner later waived her preliminary
hearing.

       In March of 2016, the circuit court held an adjudicatory hearing. Petitioner moved for a
post-adjudicatory improvement period and also submitted a stipulated answer wherein, among
other admissions, she confirmed that the children were in the home at the time of the domestic
incident upon which the petition was based. Petitioner also admitted that she was under the
influence of drugs at the time of the incident and that she subsequently tested positive for
amphetamines, benzodiazepines, buprenorphine, opiates, and oxycodone.2 The circuit court
ultimately granted petitioner an improvement period based, in part, upon its finding that she
deserved an opportunity to demonstrate her ability to improve free from the toxic relationship
she had with the father. As part of her improvement period, petitioner was required to undergo
various evaluations, substance abuse treatment, counseling, adult life skills training, continued
medical treatment, and medical assistance to wean her from opiate addiction.3

                                                            
              2
         On appeal, petitioner raises issues concerning her positive drug tests upon admission to
the hospital and the DHHR’s allegations of drug use in its petition. First, petitioner argues that,
although the DHHR’s petition asserted that she was under the influence of drugs, this allegation
was unconfirmed because the “petition notes than toxicology reports had not been performed[.]”
While it is true that the petition indicated that, at the time of filing, the DHHR was “awaiting
toxicology reports[,]” the petition goes on to state that “[t]oxicology reports taken during
[petitioner’s] admittance at Ruby Memorial Hospital . . . report that [she] was positive for
amphetamines, benzodiazepines, buprenorphine, opiates, and oxycodone.” As such, petitioner’s
allegations about the unconfirmed nature of her drug screens is unfounded. Second, petitioner
asserts that she had a valid prescription for each of the drugs for which she screened positive.
However, petitioner’s citation to the record in support of this assertion illustrates only that
petitioner alleged that one of her prescribed medications caused a false positive for
amphetamines. According to the record, the parties were “waiting for confirmation from the lab”
on that issue. Despite this assertion, petitioner does not include any additional citation that
confirmed her positive drug screen for amphetamines was caused by any valid prescription. It is
also unclear whether, at this point in the transcript, the parties are discussing the results of the
toxicology reports from petitioner’s admission to the hospital or the results of failed drug screens
taken after the proceedings began. Accordingly, we find no support for the assertion that any or
all of petitioner’s various positive drug screens related to this proceeding were the result of false
positive responses caused by valid prescription medication.
              3
         Although petitioner states that the terms of this improvement period were never properly
memorialized in a family case plan, she does not allege this as error on appeal and further admits
that the guardian ad litem memorialized the terms in a report to the circuit court following a
multidisciplinary team meeting.
                                                               2

 
         Petitioner initially complied with the terms and conditions of her improvement period,
but the DHHR later obtained evidence that she was involved in an inappropriate relationship
with an incarcerated individual whom she intended to marry. Recorded phone calls and letters
between them indicated that petitioner discussed her ongoing substance abuse with her
boyfriend, including an admission on one occasion to having taken several Xanax. He also
provided her with instructions as to how to smuggle drugs to him inside his facility and directed
her with regard to money she received from unknown sources. Records also established that
petitioner deposited approximately $1,500 into inmate accounts for her boyfriend and other
inmates. Moreover, petitioner’s physician provided a list of medications necessary to treat her
history of substance abuse and her gunshot injury. Despite the fact that opiates were not on this
list, petitioner continued to test positive for them. Petitioner also repeatedly failed to provide
valid prescriptions that would explain these results. Additionally, petitioner tested positive for
methamphetamine and Suboxone. Moreover, petitioner’s visits with the children were often
interrupted so she could take phone calls and make frequent trips outside. She was also late for
multiple visits, failed to bring snacks for the children, and fell asleep during one visit, which
prompted B.W. to cry and try to wake her. Petitioner also began missing parenting education
classes and was recorded telling her boyfriend that she did not need counseling.

        Based upon petitioner’s failure to fully participate, the guardian filed a motion to
terminate her improvement period in July of 2016. The following month, the circuit court held a
hearing on the motion during which the parties informed the circuit court about the recorded
phone calls and letters between petitioner and her boyfriend. The circuit court also considered
evidence of petitioner’s drug screen results and records from service providers and visitations.
Petitioner’s counsel proffered that petitioner ended her relationship with her boyfriend and that
the money she provided him was from selling a car. Based on this evidence, the circuit court
terminated petitioner’s improvement period.

        In November of 2016, the circuit court held a dispositional hearing, during which
petitioner argued that she continued to comply with services and improve even after the
termination of her improvement period. She also moved for a post-dispositional improvement
period. The circuit court, however, terminated petitioner’s parental rights to B.W. and her
custodial rights to C.W. upon her continued drug abuse, failure to fully comply with services,
and inability to correct the conditions that necessitated the petition’s filing.4 It is from the
dispositional order that petitioner appeals.5

              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

                                                            
              4
        According to the record, all parents to the children have either had their parental rights
terminated or are deceased.
              5
        On appeal, petitioner does not raise an assignment of error challenging the circuit court’s
termination of her parental rights.
                                                               3

 
              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).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, the Court finds
no error in the proceedings below.

        We find that petitioner is not entitled to relief upon her claim of ineffective assistance of
counsel.6 It is important to note that this Court has never recognized a claim of ineffective
assistance of counsel in an abuse and neglect proceeding, and we decline to do so here,
especially in light of the fact that, under the limited circumstances of this case, petitioner’s
counsel provided her with effective representation below. In support of this assignment of error,
petitioner cites several instances of alleged ineffective assistance by counsel. According to
petitioner, counsel (1) failed to properly advise her of the availability of a battered spouse
defense; (2) improperly advised her to stipulate to matters that were not her fault; (3) failed to
object to the DHHR’s failure to file a family case plan; (4) permitted petitioner to participate in
an improvement period that did not provide treatment for her battered spouse syndrome; (5)
failed to advocate for petitioner when, as a result of inadequate treatment, she abused
prescription medication; (6) failed to advocate for an additional improvement period; and (7)
presented no evidence to mitigate against termination of parental rights at disposition. The Court,
however, finds no merit to these arguments.

       First, counsel’s alleged failure to explore a battered spouse defense is irrelevant, given
the overwhelming evidence of petitioner’s abuse and neglect of the children at issue. West
Virginia Code § 49-1-201 defines a “battered parent” as

              a respondent parent . . . who has been adjudicated by the court to have not
              condoned the abuse or neglect and has not been able to stop the abuse or neglect
              of the child or children due to being the victim of domestic violence . . . which
              was perpetrated by the same person or persons determined to have abused or
              neglected the child or children.


                                                            
              6
        Two of petitioner’s assignments of error on appeal concern requests for this Court to
determine the justiciability of ineffective assistance of counsel claims in abuse and neglect
proceedings and to establish a collateral proceeding to assert the same. However, because we
find that petitioner is entitled to no relief in regard to her claim of ineffective assistance of
counsel, it is unnecessary to address these additional grounds for relief.
                                                               4

 
Petitioner simply does not meet this definition. While it is true that she was the victim of
domestic violence, the record shows that petitioner also engaged in domestic violence against the
father. Moreover, the facts of this case do not establish that petitioner was unable to stop the
father’s abuse or neglect because of the domestic violence at issue. On the contrary, the record
shows ample evidence of petitioner’s own abuse and neglect of the children, including her
substance abuse, the fact that guns she owned were accessible to the children, and the home’s
general deplorable condition, among other evidence. Thus, the circuit court was presented with
ample evidence of petitioner’s own abuse and neglect of the children such that any possible
defense predicated on petitioner’s status as a battered spouse would not have been successful.
Accordingly, all of petitioner’s other allegations of ineffective assistance of counsel that are
predicated on such a defense are similarly without merit.

        Further, petitioner’s allegation that counsel permitted her to stipulate to issues for which
she was not responsible is also without merit, given the overwhelming evidence of her abuse and
neglect of the children. Finally, we find no merit to petitioner’s remaining allegations of
ineffective assistance of counsel regarding various alleged deficiencies concerning the family
case plan, the terms of her improvement period, and counsel’s alleged failures to properly
advocate on her behalf. Simply put, petitioner was aware of the terms and conditions of her
improvement period and that she needed to comply with services in order to correct the
conditions of abuse and neglect in the home. Despite this, petitioner continued to abuse drugs,
was non-compliant with drug screens, and became romantically involved with an incarcerated
felon with whom she “planned illegal drug transactions[.]” Based on this evidence, the circuit
court found that petitioner failed to comply with the case plan and failed to change any behaviors
that led to the petition’s filing. Accordingly, petitioner is not entitled to any relief in regard to
alleged ineffective assistance of counsel because of her own failure to attempt to correct the
conditions of abuse and neglect.

        Finally, we find that petitioner is entitled to no relief upon her assignment of error
concerning the circuit court’s untimely entry of its dispositional order. Petitioner argues that the
circuit court waited approximately seven months after the dispositional hearing to enter the
resulting order. This is in direct contradiction to Rule 36(a) of the Rules of Procedure for Child
Abuse and Neglect Proceedings, which requires that the resulting dispositional order be entered
“within ten (10) days of the conclusion of the hearing.” According to petitioner, this diminished
her likelihood of success on appeal. We do not agree.

       Simply put, petitioner was in no way prejudiced by the circuit court’s late entry of the
order in question. She has established no error upon which this Court would grant relief or
otherwise order the children be returned to her care. Thus, petitioner cannot establish that the
children’s extended placement in foster care has in any way affected a possible return to her
custody. We have previously 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

                                                 5

 
       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). We find, upon the limited
circumstances of this particular case, that the circuit court’s failure to timely enter the order in
question does not constitute such a disregard or frustration of the applicable rules and statutes
that vacation of the dispositional order is warranted. As such, petitioner is entitled to no relief.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 13, 2017, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: February 23, 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
 




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