                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS


State of West Virginia ex rel. J.E.H.G.,                                          FILED
Petitioner
                                                                             February 8, 2017
                                                                                 released at 3:00 p.m.
Vs.) No. 16-0931
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
Honorable Tod Kaufman, Judge of the                                               OF WEST VIRGINIA

Circuit Court of Kanawha County;
West Virginia Department of Health
and Human Resources; T.H.; and
unknown father,
Respondents



                              MEMORANDUM DECISION
        Petitioner J.E.H.G.,1 an infant child, by his guardian ad litem, Jennifer N. Taylor,
petitions this Court to invoke its original jurisdiction in prohibition in this child abuse and
neglect civil proceeding. Petitioner seeks a writ of prohibition to prevent Respondent herein, the
Honorable Tod Kaufman, Judge of the Circuit Court of Kanawha County, from enforcing the
September 26, 2016, order which granted Respondent Mother, T.H., a six-month post-
adjudicatory improvement period. Respondent Mother, by her attorney, Rebecca Stollar Johnson,
and the Department of Health and Human Resources (“DHHR”), by its attorney, Michael
Jackson, Assistant Attorney General, have filed responses opposing the issuance of the requested
writ. At oral argument in this matter, however, counsel for DHHR stated that it is no longer
recommending that J.E.H.G. be reunited with Respondent Mother. Respondent Judge filed a
summary response.

        Upon our review of the parties’ arguments, the appendix record, and the pertinent
authorities, we conclude the circuit court erred as a matter of law when it failed to follow West
Virginia Code § 49-4-610(2)(B) (2015) and failed to consider the best interests of J.E.H.G. We
therefore grant the requested writ of prohibition and remand this matter to the circuit court with
directions to: (1) enter an order terminating the improvement period, and (2) schedule the matter
for a dispositional hearing. Because this case presents no new or significant issues of law, we
find this matter to be proper for disposition in a memorandum decision in accordance with Rule
21 of the West Virginia Rules of Appellate Procedure.

       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).
                                                1
        Respondent Mother has had her parental rights to ten of her children terminated (or she
relinquished those rights) in prior abuse and neglect proceedings. Respondent Mother has had
multiple children, with multiple fathers; many of these children had unknown fathers. The prior
abuse and neglect proceedings involved Respondent Mother’s substance abuse, abusive
relationships, and her inability to cope with the normal demands of parenting. Respondent
Mother has a long history of severe mental health and substance abuse problems.

        Respondent Mother gave birth to J.E.H.G. in March of 2016. Within days, the DHHR
filed an emergency abuse and neglect petition against Respondent Mother and removed the
infant from her custody considering the prior terminations and because of evidence that she used
illegal drugs (methamphetamines) during her pregnancy. Respondent Mother waived her right to
a preliminary hearing. She has had continuing supervised visitation with the child.

        The guardian ad litem appointed for J.E.H.G. was also the guardian ad litem for the last
two children (A.B. and N.B.) removed from Respondent Mother’s care; she relinquished her
rights to A.B. and N.B. in light of imminent termination.2

        The circuit court held an adjudicatory hearing and Respondent Mother voluntarily
stipulated to the allegations in the petition. The circuit court accepted her stipulation.3 The circuit
court entered an adjudicatory order on May 31, 2016, finding clear and convincing evidence that
J.E.H.G. was abused and neglected as defined in West Virginia Code § 49-1-201 (2015).

        Respondent Mother filed a written motion for a post-adjudicatory improvement period in
July of 2016, citing her compliance with services, visitation and negative drug screens. The
DHHR did not oppose an improvement period; the guardian ad litem objected to the


       2
         Although not in the record in this case, the guardian ad litem reports that Respondent
Mother periodically abandoned A.B. and N.B. (either at hospitals or on the steps of the DHHR),
but then “tried her hand at parenting” through services provided by the DHHR. The guardian ad
litem states that when the circuit court granted Respondent Mother unsupervised visits with A.B.
and N.B., the visits went well until the night Respondent Mother placed the children (ages two
and four years) on the steps of her porch, at night, with all of their belongings in a grocery bag;
she allegedly called Child Protective Services to come get the children and stated she was going
to commit suicide. The guardian ad litem asserts that A.B. and N.B. suffered devastating
psychological damage as a result of Respondent Mother abandoning them.
       3
        The appendix record before this Court is remarkably thin; there is no sworn testimony at
any hearing. Following Respondent Mother’s stipulation, the circuit court spent the majority of
the time at the brief adjudicatory hearing focusing on obtaining a DNA sample from the
purported father who happened to be in the courthouse that day on a criminal matter; he turned
out to not be the child’s father. Because the DHHR did not object to the improvement period, it
did not submit evidence at the adjudicatory hearing on the issue of whether Respondent Mother
was likely to fully participate in the improvement period and correct her past patterns of abuse
and neglect. Similarly, Respondent Mother did not put forth evidence on that issue even though
she had the burden of doing so. See W.Va. Code § 49-4-610(2)(B).
                                                  2
improvement period but stated she was agreeable to continued services and supervised visitation.
Following a hearing on the matter, the circuit court granted a six-month post-adjudicatory
improvement period and entered its order on September 26, 2016.4

        On October 4, 2016, the petition for a writ of prohibition was filed with this Court and we
issued a rule to show cause.5

        In a status update filed with this Court on January 13, 2017, the DHHR reported that

               J.E.H.G. continues to reside in the same foster home where his siblings
       [A.B. and N.B.] were adopted. The foster home reports his placement is going
       well. J.E.H.G. no longer has unsupervised visits with the respondent mother. The
       respondent mother last had an unsupervised visit with the child in November
       [2016] that was ended early at her request because she reported she could not
       handle caring for the child and wanted someone to come get him. Although the
       respondent mother continues to participate in supervised visitation with J.E.H.G.,
       because of the failed unsupervised visitation in November, the [DHHR] does not
       believe the respondent mother is making substantial progress in her ability to care
       for J.E.H.G. and is not recommending that he return to her care.

       Prohibition is an appropriate remedy in cases in which the lower court has no jurisdiction
over the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate
powers. W.Va. Code § 53-1-1 (2016). Here, the circuit court has jurisdiction, so we look to the
standard set out in syllabus point four of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483
S.E.2d 12 (1996):

              In determining whether to entertain and issue the writ of prohibition for
       cases not involving an absence of jurisdiction but only where it is claimed that the
       lower tribunal exceeded its legitimate powers, this Court will examine five


       4
           The circuit court set forth the following terms and conditions:

       1) Mother shall participate in parenting education;
       2) Mother shall submit to random drug screens;
       3) Mother shall participate in a psychological evaluation and follow all resulting
          recommendations;
       4) Mother shall participate in counseling; and
       5) Mother shall receive supervised visitation with her child.

As the improvement period proceeded, however, the circuit court authorized unsupervised
visitation between Respondent Mother and J.E.H.G.
       5
         On December 1, 2016, this Court entered an Order Granting Emergency Stay and ruled
that in accordance with the visitation schedule that was in place at the time of the filing of the
petition for writ of prohibition, supervised visitation would take place pending the resolution of
this matter.
                                                   3
       factors: (1) whether the party seeking the writ has no other adequate means, such
       as direct appeal, to obtain the desired relief; (2) whether the petitioner will be
       damaged or prejudiced in a way that is not correctable on appeal; (3) whether the
       lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the
       lower tribunal’s order is an oft repeated error or manifests persistent disregard for
       either procedural or substantive law; and (5) whether the lower tribunal’s order
       raises new and important problems or issues of law of first impression. These
       factors are general guidelines that serve as a useful starting point for determining
       whether a discretionary writ of prohibition should issue. Although all five factors
       need not be satisfied, it is clear that the third factor, the existence of clear error as
       a matter of law, should be given substantial weight.

       In State ex rel. Amy M. v. Kaufman, 196 W.Va. 251, 470 S.E.2d 205 (1996), this Court
granted a writ of prohibition in a child abuse and neglect proceeding and recognized that “‘[o]ur
modern practice is to allow the use of prohibition, based on the particular facts of the case, where
a remedy by appeal is unavailable or inadequate, or where irremediable prejudice may result
from lack of an adequate interlocutory review.’” Id. at 257, 470 S.E.2d at 211 (quoting McFoy v.
Amerigas, Inc., 170 W.Va. 526, 532, 295 S.E.2d 16, 22 (1982)).

      Petitioner seeks a writ to prohibit the circuit court from enforcing its order granting an
improvement period to Respondent Mother

       who had a 20-year history of abuse and neglect proceedings that resulted in ten
       (10) prior terminations or relinquishments in light of termination; where the
       Respondent Mother continued a constant pattern of drug abuse, abusive
       relationships and failure to treat her mental illness; and where there was no
       evidence that the Respondent Mother had substantially improved the conditions
       that led to the filing of any the petitions.

The crux of Petitioner’s argument is that the circuit court’s ruling is clearly erroneous as a matter
of law and a writ of prohibition is appropriate in order to protect the best interests of J.E.H.G.
We find these arguments to be compelling and grant the writ.

       Pursuant to West Virginia Code § 49-4-610(2),

       [a]fter finding that a child is an abused or neglected child pursuant to section six
       hundred one of this article, a court may grant a respondent a [ ] [post-
       adjudicatory] improvement period of a period not to exceed six months when: . . .

              (B) The respondent [parent] demonstrates, by clear and convincing
       evidence, that the respondent is likely to fully participate in the improvement
       period and the court further makes a finding, on the record, of the terms of the
       improvement period.

This Court previously has recognized that



                                                  4
       [t]he goal [of an improvement period] should be the development of a program
       designed to assist the parent(s) in dealing with any problems which interfere with
       his ability to be an effective parent and to foster an improved relationship between
       parent and child with an eventual restoration of full parental rights a hoped-for
       result. The improvement period and family case plans must establish specific
       measures for the achievement of these goals, as an improvement period must be
       more than a mere passage of time. It is a period in which the [DHHR] and the
       court should attempt to facilitate the parent’s success, but wherein the parent must
       understand that he bears a responsibility to demonstrate sufficient progress and
       improvement to justify return to him of the child.

In re Carlita B., 185 W.Va. 613, 624-25, 408 S.E.2d 365, 377 (1991).

        In response to the petition, Respondents argue generally that the circuit court was acting
within its discretion to grant Respondent Mother a post-adjudicatory improvement period. This
Court disagrees with Respondents’ characterization of this case as one which simply involves
“judicial discretion.” We find the circuit court erred as a matter of law when it failed to follow
the statutory mandates for granting a parent an improvement period when it issued its order
without requiring Respondent Mother to go on the record and meet her threshold burden; the
standard for granting an improvement period requires that Respondent Mother demonstrate, by
clear and convincing evidence, that she will comply with its terms. See W.Va. Code § 49-4-
610(2)(B). As this Court has held, fulfillment of some of an improvement period’s terms without
actual improvement of the conditions that led to the filing of the abuse and neglect petition
simply is not enough; rather, the parent must actively remedy the conditions of abuse and neglect
to demonstrate such improvement. See Carlita B., 185 W.Va. at 626, 408 S.E.2d at 378. Because
the lower court violated this clear statutory mandate, and irremediable prejudice may result from
the delays inherent in waiting until the conclusion of the improvement period and for the matter
to be set for disposition, we find that prohibition is an appropriate remedy in this case.

        Respondent Mother has gone through several rounds of DHHR services over the years –
a period spanning two decades – and still demonstrates her propensity to return to the conditions
that led to the abuse and neglect findings in the previous cases. As we have long held, “when a
parent cannot demonstrate that he/she will be able to correct the conditions of abuse and/or
neglect with which he/she has been charged, an improvement period need not be awarded before
the circuit court may terminate the offending parent’s parental rights.” In re Emily, 208 W.Va.
325, 336, 540 S.E.2d 542, 553 (2000). Moreover, “[c]ases 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).” Syl. Pt. 7, In Matter of Brian D., 194 W.Va. 623, 461 S.E.2d 129 (1995). This is
so because the overarching goal in abuse and neglect proceedings is to protect the subject
children. “Although 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); Syl. Pt. 8, in part,
In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973) (“Once a court exercising proper jurisdiction
has made a determination upon sufficient proof that a child has been neglected and his natural
parents were so derelict in their duties as to be unfit, the welfare of the infant is the polar star by
which the discretion of the court is to be guided in making its award of legal custody.”).

                                                  5
        Given Respondent Mother’s extensive history with the DHHR, and her drug use while
pregnant with J.E.H.G., it is readily apparent that an improvement period likely would only
prolong the inevitable – the eventual removal of J.E.H.G. from the home – and further delay in
his permanency. See W.Va. R. P. Child Abuse & Neglect Proceedings 43 (addressing expedient
resolution of abuse and neglect proceedings). We commend the guardian ad litem’s efforts to
protect this child and petition this Court for extraordinary relief considering the egregious facts
of this case.

        Accordingly, we find the circuit court committed clear legal error in granting Respondent
Mother a post-adjudicatory improvement period as she failed to put forth evidence to show she is
able to correct the conditions of abuse and/or neglect. Moreover, we find the circuit court failed
to adequately consider J.E.H.G.’s best interests when deciding to grant Respondent Mother a
post-adjudicatory improvement period.

       As we said in In re Carlita B., 185 W.Va. 613, 623, 408 S.E.2d 365, 375 (1991),
       the early, most formative years of a child’s life are crucial to his or her
       development. There would be no adequate remedy at law for these children were
       they permitted to continue in this abyss of uncertainty. We have repeatedly
       emphasized that children have a right to resolution of their life situations, to a
       basic level of nurturance, protection, and security, and to a permanent placement.

State ex rel. Amy M., 196 W.Va. at 257-58, 470 S.E.2d at 211-12.

       For ten months now, J.E.H.G.’s future has remained uncertain. To require him to wait
while Respondent Mother attempts to develop parenting skills that, for nearly two decades were
almost wholly absent, is certainly not in J.E.H.G.’s best interests. See Syl. Pt. 1, in part, Carlita
B., 185 W.Va. 613, 408 S.E.2d 365 (“Child abuse and neglect cases must be recognized as being
among the highest priority for the courts’ attention. Unjustified procedural delays wreak havoc
on a child’s development, stability and security.”). This is especially so when the likelihood
appears slim to none that Respondent Mother would ultimately be successful in meeting this
extreme challenge. See Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980)
(“[C]ourts are not required to exhaust every speculative possibility of parental improvement . . .
where it appears that the welfare of the child will be seriously threatened, and this is particularly
applicable to children under the age of three years who are more susceptible to illness, need
consistent close interaction with fully committed adults, and are likely to have their emotional
and physical development retarded by numerous placements.”).

        For the reasons set forth above, this Court finds that the Circuit Court of Kanawha
County erred as a matter of law when it failed to follow West Virginia Code § 49-4-610(2)(B)
and failed to consider the best interests of J.E.H.G. by granting a post-adjudicatory improvement
period to Respondent Mother. Because the best interests of J.E.H.G., a child of extremely tender
age, do not support a further delay in his reaching permanency, we grant the requested writ of
prohibition. Additionally, because the denial of an improvement period forecloses the possibility
of reunification between J.E.H.G. and Respondent Mother, we remand this case with instructions
to schedule this matter for a dispositional hearing.

                                                 6
        On remand, the circuit court should be aware that the guardian ad litem reported to this
Court that Respondent Mother has made threats to harm or kill herself and/or the child should
her parental rights be terminated in this proceeding. The DHHR is hereby directed to investigate
this serious allegation without delay and file a report to the circuit court.

       The Clerk of this Court is hereby directed to issue the mandate forthwith.

       Writ granted.


ISSUED: February 8, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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