          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 



                                   January 2018 Term
                                                                            FILED
                                                                       February 15, 2018
                                       No. 17-0777                          released at 3:00 p.m.
                                                                        EDYTHE NASH GAISER, CLERK
                                                                        SUPREME COURT OF APPEALS
                                                                             OF WEST VIRGINIA



                                      In re J. G., II



                  Appeal from the Circuit Court of McDowell County 

                     The Honorable Booker T. Stephens, Judge

                                 Case No. 14-JA-081 


                REVERSED AND REMANDED WITH DIRECTIONS 



                              Submitted: January 23, 2018 

                               Filed: February 15, 2018 



William O. Huffman, Esq. 
                          Patrick Morrisey, Esq.
Princeton, West Virginia 
                          Attorney General
Attorney for Petitioners S. L. and S. L. 
          Melinda C. Dugas, Esq.
                                                    Assistant Attorney General
Ronald D. Hassan, Esq.
                             Charleston, West Virginia
Welch, West Virginia 
                              Attorney for West Virginia
Attorney for Respondent J. G. 
                     Department of Health and
                                                    Human Resources
R. Keith Flinchum, Esq.
Princeton, West Virginia
Attorney for Respondent T. S.
 Philip A. LaCaria, Esq. 

 Welch, West Virginia 

 Guardian ad Litem for J. G., II 



JUSTICE WORKMAN delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT 


              1.     “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 re Tiffany Marie S., 196 W. Va. 223, 470

S.E.2d 177 (1996).



              2.     “Pursuant to West Virginia Code § 49-6-12(g) (1998), before a circuit

court can grant an extension of a post-adjudicatory improvement period, the court must

first find that the respondent has substantially complied with the terms of the improvement

period; that the continuation of the improvement period would not substantially impair the

ability of the Department of Health and Human Resources to permanently place the child;

and that such extension is otherwise consistent with the best interest of the child.” Syl. Pt.

2, In re Jamie Nicole H., 205 W. Va. 176, 517 S.E.2d 41 (1999).



                                              i
              3.      “At 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

re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).



              4.      “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.” Syl. Pt. 1, in part, In re Carlita B., 185 W.

Va. 613, 408 S.E.2d 365 (1991).



              5.      “In the law concerning custody of minor children, no rule is more

firmly established than that the right of a natural parent to the custody of his or her infant

child is paramount to that of any other person; it is a fundamental personal liberty protected

and guaranteed by the Due Process Clauses of the West Virginia and United States

Constitutions.” Syl. Pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).



              6.      “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).


                                               ii
              7.      “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.” Syl. Pt. 2, State ex rel.

Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d 221 (1948).



              8.       “‘[C]ourts are not required to exhaust every speculative possibility of

parental improvement before terminating parental rights where it appears that the welfare

of the child will be seriously threatened. . . .’” Syl. Pt. 7, in part, In re Carlita B., 185 W.

Va. 613, 408 S.E.2d 365 (1991).



              9.      “When parental rights are terminated due to neglect or abuse, the

circuit court may nevertheless in appropriate cases consider whether continued visitation

or other contact with the abusing parent is in the best interest of the child. Among other

things, the circuit court should consider whether a close emotional bond has been

established between parent and child and the child’s wishes, if he or she is of appropriate

maturity to make such request. The evidence must indicate that such visitation or continued

contact would not be detrimental to the child’s well being and would be in the child’s best

interest.” Syl. Pt. 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).



              10.     “A permanency plan for abused and neglected children designating

their permanent placement should generally be established prior to a determination of

whether post-termination visitation is appropriate.” Syl. Pt. 6, In re Billy Joe M., 206 W.

Va. 1, 521 S.E.2d 173 (1999).


                                               iii
WORKMAN, J.: 



              Petitioners/foster parents S. L. and S. L.1 (hereinafter “petitioners”), appeal

the Circuit Court of McDowell County’s August 25, 2017, disposition order in this abuse

and neglect proceeding, which required the gradual transition of infant J. G., II back to the

physical custody of his biological parents, respondents J. G. and T. S. Petitioners assert

that the circuit court erred in failing to comply with the statutory time frames required for

abuse and neglect proceedings and further abused its discretion in returning the infant to

his biological parents. The Department of Health and Human Resources (hereinafter

“DHHR”) and the guardian ad litem concur that the circuit court abused its discretion in

returning the infant to his parents.



              Upon careful review of the briefs, the appendix record, the arguments of the

parties, and the applicable legal authority, we find that the circuit court erred in failing to

comply with the statutory requirements of West Virginia Code § 49-4-610 (2015) and the

West Virginia Rules of Procedure for Child Abuse and Neglect. We further find that the

circuit court abused its discretion in failing to terminate respondents’ parental rights and

ordering return of the infant to their care and physical custody. Therefore, we reverse the

circuit court’s disposition in this matter and remand this case with directions to the circuit




       1
         Consistent with our practice in cases involving sensitive facts, we identify the
parties by initials only. See In re Jeffrey R.L., 190 W.Va. 24, 26 n.1, 435 S.E.2d 162, 164
n.1 (1993).
                                               1

court to terminate respondents’ parental rights, attain permanency for the infant, and

conduct any and all further proceedings, as necessary and appropriate.



                     I. FACTS AND PROCEDURAL HISTORY

              J. G., II was born to respondents T. S. and J. G. at thirty-four weeks’ gestation

with opiates, marijuana, and benzodiazepines in his system. Based on T. S.’s prior

involuntary termination of parental rights to a child due to substance abuse and domestic

violence and the presence of drugs in J. G., II’s system, an abuse and neglect petition was

filed by DHHR on December 29, 2014.2 J. G., II was placed into a variety of foster homes

in his early weeks and was ultimately placed with petitioners on February 11, 2015, when

he was six weeks old. He remains in their care to date.3 Due to his prematurity and the

drugs in his system, J. G., II has special needs requiring medical monitoring and treatment

including ear, nose and throat difficulties, feeding/weight gain, and hypertonicity.



              Respondents waived a preliminary hearing and while awaiting a March 10,

2015, adjudicatory hearing, they cancelled multiple visits, frequently fell asleep during the

visits they did attend, failed to return calls from DHHR, and had multiple positive drug



       2
        A DNA test confirming J. G. as the infant’s father would soon follow, whereupon
he was added as an adult respondent.
       3
        This Court stayed the circuit court’s disposition order returning J. G., II to
respondents pending the outcome of this appeal.


                                              2

screens. Nevertheless, at the March 10, 2015, hearing, the circuit court granted a six-month

pre-adjudicatory improvement period. The DHHR apparently provided a report to the

circuit court prior to the subsequent ninety-day hearing indicating the respondents were not

cooperating with services; 4 accordingly, the circuit court ordered that respondents

cooperate with services and set an adjudicatory hearing for July 30, 2015.5 The July 30,

hearing was continued to August 20 and the circuit court again entered an order requiring

respondents to cooperate with drug screens.          The day before the August 20, 2015,

adjudicatory hearing, the DHHR advised the circuit court that respondents were

cooperating “only minimally” with services and were difficult to contact; DHHR requested

adjudication since the improvement period “appear[ed] to have been a failure.”



                For reasons that do not appear in the record or in its order, the court continued

the August 20 adjudicatory hearing until September 16, 2015. Further, the appendix record

contains no transcript of the September 16, 2015, hearing; however, in an order arising


       4
           This letter is not contained in the appendix record.
       5
          In the interim, respondents underwent psychological evaluations. T. S.’s
evaluation found that her prognosis for “reliable attainment of minimally adequate
parenting is considered highly guarded to poor due to likelihood of substance abuse relapse
and recalcitrance of personality issues to change.” She reported a history of schizophrenia,
bipolar disorder, anxiety, and depression. Her evaluation further revealed that she denied
using drugs during her pregnancy, but the record reveals that she later stated to a case
worker that her marijuana use during pregnancy likely saved the infant’s life due to her
morning sickness. J. G.’s evaluation found that his potential for adequate parenting was
“fair in his own right” but likely to be negatively affected by T. S. if they stayed together.



                                                3

from the hearing, the circuit court stated that respondents “have demonstrated the

likelihood to fully participate in [an] improvement period” and therefore granted another

six-month improvement period, apparently upon oral motion. 6



              Thereafter, respondents continued to have positive drug screens. A DHHR

summary stated that respondents “will over medicate either night before or morning of

visits, which will result in one being unable to attend due to an ‘illness’” and noted they

were being evicted. A visit just before a November 19, 2015, status hearing was cancelled

due to a physical altercation between respondents, which resulted in J. G. being arrested.

Days before the hearing, respondents again tested positive for a combination of opiates,

benzodiazepiness, and suboxone. A letter from DHHR the day before the hearing stated

that there had been domestic violence incidents each month since the last hearing, resulting

in charges to each respondent. At the November 19, 2015, hearing, the circuit court set

adjudication for December 10, 2015, noting the respondents’ continued positive drug

screens.



              Respondents appeared at the December 10, 2015, hearing in an impaired

state. The DHHR advised that respondents continued to test positive in the drug screens

in which they actually participated, but that T. S. noted that there was no reason to attend

them because “her rights were going to be terminated.” The DHHR noted respondents


       6
         The DHHR’s status letter is not contained in the appendix record. The docket
sheet reveals no written motion for an additional improvement period.
                                             4

were living in hotels and about to be evicted from their most recent home. The circuit court

continued the adjudicatory hearing to December 16, 2015, at which time both respondents

stipulated to substance abuse resulting in abuse and neglect. The DHHR noted that the

drug screens were “just as bad if not worse” than at the outset of the case and that the case

had been “dragging.” The guardian ad litem concurred that there was no improvement.

Nevertheless, the circuit court granted yet another six-month post-adjudicatory

improvement period upon oral motion7 over the objection of the guardian ad litem and

DHHR. The order states that respondents “have demonstrated the likelihood to fully

participate in the improvement period” and that although “[a]n earlier improvement period

was granted[,] . . . there has been a substantial change in circumstances supporting the

likelihood of full participation in a further improvement period.” The order does not note

what those changes in circumstances were.8



              Shortly before the next status hearing, the DHHR noted that both parents

were admitted to rehabilitation facilities, but continued to have positive drug screens until

admission. At a July 14, 2016, status hearing, the parties appeared and orally moved for a



       7
        It appears at least one of the respondents filed a written motion for an improvement
period nearly two months later on February 22, 2016, based on the docket sheet. That
motion is not included in the appendix record.
       8
          The circuit court stated that “this is your last opportunity, as far as I’m concerned.
I’m giving you this chance, over the objection of the—of the—of this—of the Petitioner
and the Department and the guardian ad litem. . . . Now, if you go there and you don’t get
it right, you’re going to come right back here and I will not hesitate to terminate your
parental rights.”
                                                 5

six-month extension of their post-adjudicatory improvement period. The circuit court

granted another improvement period, congratulating them on completing rehab and noting

they “looked better” than he had previously seen them, and making the improvement period

conditional upon respondents obtaining a home.



              Shortly after this hearing, petitioner S. L. apparently communicated with the

guardian ad litem objecting to overnight visits, noting that J. G., II would be in danger with

his parents. And in fact, on October 1, 2016, an incident occurred at the end of an overnight

visit. Apparently, a CPS worker arrived at respondents’ home to pick up J. G., II and

received no answer at the door; she then heard J. G., II screaming and entered the home.

She went upstairs and observed large amounts of blood, finding the infant on the bed beside

J. G., who was completely unresponsive; T. S. emerged from the bathroom with a large

gash over her eye, indicating she had fallen. The infant was in a saturated diaper, screaming

and reaching for the CPS worker. The CPS worker reported that T. S. was stumbling and

had difficulty speaking; she stated her “eyes were dilated and her pupils were the size of

pins. . . . [S]he was high as a kite.” It was later discovered that both had stopped attending

their AA and NA meetings and neighbors suspected a relapse. The DHHR once again

advised the circuit court by written report that the “improvement period has been a

failure[.]” The guardian ad litem shortly thereafter requested termination by letter to the

circuit court and the DHHR filed a written motion for termination on November 7, 2016.




                                              6

              At the termination hearing of December 15, 2016, respondents contended

that they had not relapsed and that the incident of October 1 was the result of J. G.’s

appropriate use of prescription medication and T. S.’s vertigo. T. S. admitted, however, to

having smoked three joints due to her brother’s death in early October.            Without

explanation, the circuit court stated: “I’m going to give them 90 days to see what happens.”

The court further gave respondents thirty days to settle into a fourth home which was

reportedly located in a “known drug area.”



              Petitioners thereafter moved to intervene, which motion was granted. At the

next status hearing on March 23, 2017, DHHR reported that the family moved into a trailer

partially damaged by fire and that supervised visits had been reinitiated. Respondents’

preceding three drug screens were positive; however, respondents claimed to have

prescriptions to explain the most recent screens and the circuit court decided to wait for

confirmation of the preceding day’s drug screen, resetting the hearing for April 4, 2017.

At the April 4 hearing, respondents continued to maintain that their positive screens were

for prescribed medications, with the exception of the “small amount of marijuana.” 9

Ultimately, the circuit court stated that “[n]otwithstanding it’s been 26, 27 months, I’m

going to hold in abeyance the motion to terminate, and you have—I’m going to give you

until July. If there are no positive screenings between now and July, I’m inclined then to


       9
         The parties went several rounds trying to get T. S. to explain how she tested
positive for what she claimed was a “minute” amount of marijuana on March 15 when she
denied smoking marijuana since November. She provided no explanation but stated merely
“I do my thing, Your Honor.”
                                           7

lift the supervised visitations and let you have this child . . . .” The court noted that its

ruling was based “on the fact that, actually, we’re supposed to work to try and reunite the

families, if we can.”



              The parties returned upon petitioners’ motion for permanent placement,

which motion contained the recommendation of the Children’s Home Society. CHS

observed that the infant was bonded with petitioners and called their daughter “sissy.” CHS

stated that returning J. G., II to respondents “could be traumatizing and risky to [his]

stability and safety[.]” Both parents tested positive on three occasions for any combination

of hydrocodone, morphine, “extended opiates”; in early July, T. S. tested positive for

amphetamines.      Respondents continued to attribute these results to prescription

medications.10 Counsel and the circuit court argued at length about the significance of the

positive findings, but no evidence of the prescriptions was apparently made part of the

record. Respondents further failed to offer any expert testimony regarding the current

necessity of the prescriptions or whether the results were within therapeutic limits. For

reasons which do not appear on the record, the circuit court ordered the parties to return on

August 7, 2017 for its “ruling.”




       10
          T. S. allegedly produced a prescription for Tylenol with codeine filled on April
20, 2017; J. G. allegedly produced a December 2015 prescription for hydrocodone which
he filled in November, 2016. T. S.’s counsel argued that her positive amphetamine result
was the result of taking non-prescription Claritin-D, which contains pseudoephedrine.

                                             8

                On August 7, 2017, testimony was taken at the disposition hearing.

Respondents maintained they were drug-free 11 and continued to attribute positive drug

screens to prescriptions; they insisted they had obtained adequate housing and were

prepared to care for J. G., II and attend to his various medical appointments by J. G. re-

obtaining his drivers’ license which had apparently expired.12 Petitioner/foster mother S.

L. testified about her desire to adopt J. G., II and explained his various medical issues. She

testified that he was set to begin preschool and explained his resistance to visits with his

biological parents, as well as sleep disturbances and behavioral disturbances after visits.

The CPS worker confirmed anxiety when she went to pick him up for parental visits and

again recounted the events of October 1.



                The circuit court made no ruling at the time of the disposition hearing, but

entered an order eighteen days later on August 25, 2017, noting that the respondents had

made “considerable improvements,” testing negative for months “except for prescribed




       11
          T. S. continued to downplay her drug addiction as having contributed to the
infant’s medical problems, stating that he was born “with a small amount of hydrocodone
in his system and a small amount of THC. His Apgar was good. Everything was fine. . . .
He was sent to Roanoke Memorial just for precautions. He never had to be in the incubator
. . . He was just small, you know, but all my babies are small.” She also testified that
alcohol was her “main problem.”
       12
            In a recent update, the DHHR advised J. G. has still not obtained his drivers’
license.
                                              9

medication,” and ordering gradual transition of J. G., II to their physical care and custody.

Petitioners then filed the instant appeal.



                              II. STANDARD OF REVIEW

              With regard to our review of abuse and neglect findings, this Court has held:

                      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 re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). With these

standards in mind, we turn to the petitioners’ assignments of error.



                                     III. DISCUSSION

              Petitioners make two assignments of error: 1) that the circuit court erred in

failing to comply with statutory and procedural time limitations for abuse and neglect

proceedings; and 2) that the circuit court abused its discretion in ordering J. G., II to be

returned to his biological parents. We will address each alleged error in turn.



                                              10 

   A. STATUTORY AND PROCEDURAL TIME LIMITATIONS 


              As to their first assignment of error, petitioners focus primarily on the length

and propriety of the pre- and post-adjudicatory improvement periods granted to

respondents below.13 Critically, this Court has observed that “[i]mprovement 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. 325, 334, 540 S.E.2d 542, 551

(2000). West Virginia Code § 49-4-610 contains comprehensive requirements pertaining

to both pre- and post-adjudicatory improvement periods.



              As pertains to pre-adjudicatory improvement periods, West Virginia Code §

49-4-610(1) provides, in part:

              (1)	   Preadjudicatory improvement period. — A court
                     may grant a respondent an improvement period of a
                     period not to exceed three months prior to making a
                     finding that child is abused or neglected . . . only when:

                     (A)	   The respondent files a written motion requesting
                            the improvement period;



       13
         Petitioners likewise assert that the circuit court’s unauthorized pre-adjudicatory
improvement periods necessarily resulted in a delay in adjudication. Rule 25 of the Rules
of Procedure for Child Abuse and Neglect provides that a final adjudicatory hearing must
occur “no later than thirty (30) days, after the conclusion of [a] pre-adjudicatory
improvement period.” This time standard, along with the limitation on pre-adjudicatory
improvement periods, therefore contemplates adjudication no later than four months
following the beginning of any pre-adjudicatory improvement period.

                                             11 

                      (B)	   The respondent demonstrates, by clear and
                             convincing evidence, that the respondent is
                             likely to fully participate in the improvement
                             period . . . .

(emphasis added). See also West Virginia Rule of Procedure for Child Abuse and Neglect

23(b) (“Pursuant to W. Va. Code § 49-4-610, a preadjudicatory improvement period shall

not exceed three months.”). In the instant case, the circuit court ordered two six-month

pre-adjudicatory improvement periods, both of which were obviously in violation of the

statute and Rule.



              Moreover, not only did the circuit court err in the length and number of pre-

adjudicatory improvement periods, it plainly gave little to no consideration to whether

respondents had demonstrated “by clear and convincing evidence” the likelihood of full

participation. The record reveals that before ordering the initial improvement period,

respondents cancelled multiple visits with J. G., II, fell asleep during visits, failed to return

calls from DHHR, and had multiple positive drug screens. Before the second pre-

adjudicatory improvement period, respondents continued the same minimal participation

and continued to test positive for illicit substances. DHHR repeatedly advised the circuit

court that the improvement period was a failure. Notwithstanding the clear and convincing

evidence to the contrary, the circuit court twice entered orders stating that respondents had

“demonstrated the likelihood to fully participate in the improvement period.”




                                               12 

             As to the post-adjudicatory improvement periods, the circuit court granted

two “formal” improvement periods of six months each, along with general continuances of

the “status quo” of the improvement periods such that the respondents continued in a

general improvement period for a total of twenty months from the time of the adjudication

until disposition. This is plainly in violation—in both duration and procedure—of West

Virginia Code § 49-4-610(2), which provides, in pertinent part:

             (2) Post-adjudicatory improvement period. — After 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
             an improvement period of a period not to exceed six months
             when:

                    (A)	   The respondent files a written motion requesting
                           the improvement period;

                    (B) 	 The respondent 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;

                           ***

                    (D) 	 Since the initiation of the proceeding, the
                          respondent has not previously been granted any
                          improvement period or the respondent
                          demonstrates that since the initial improvement
                          period, the respondent has experienced a
                          substantial change in circumstances. Further, the
                          respondent shall demonstrate that due to that
                          change in circumstances the respondent is likely
                          to fully participate in a further improvement
                          period . . . .

(emphasis added).

                                           13 

              As plainly stated therein, West Virginia Code § 49-4-610(2) permits a post-

adjudicatory improvement period not to exceed six months, upon written motion, and only

if there is a demonstration, by clear and convincing evidence, that the individual is likely

to fully participate and no prior improvement period has been granted. In this case, no

written motion was filed at the time the circuit court granted the improvement period and

respondents had demonstrated—repeatedly—their refusal to participate in the

improvement period. It was, in fact, this refusal that finally prompted the inexplicably

reluctant and recalcitrant circuit court to finally proceed to adjudication.



              Further, in view of the fact that a total of twelve months of pre-adjudicatory

improvement period had previously been granted, respondents herein were required to

additionally show a substantial change in circumstances warranting a post-adjudicatory

improvement period and that because of that substantial change, they were likely to

participate: “[R]espondent [must] demonstrate[] that since the initial improvement period,

the respondent has experienced a substantial change in circumstances[] . . . [and] due to

that change in circumstances the respondent is likely to fully participate in a further

improvement period[.]” W. Va. Code § 49-4-610(2)(D). The circuit court’s order granting

the improvement period does in fact state that respondents “demonstrated the likelihood to

fully participate” and that “there has been a substantial change in circumstances supporting

the likelihood of full participation[.]” However, both the transcript and order fail entirely

to identify what that change was and why it supported the likelihood of full participation.

                                              14 

In this case, the guardian ad litem reported no improvement in the respondents’ behavior

since the outset and the DHHR noted that the drug screens were “just as bad if not worse[.]”



              The second six-month post-adjudicatory improvement period ordered below

was likewise in violation of statutory and procedural requirements. West Virginia Code §

49-4-610(6) provides that an extension of a post-adjudicatory improvement period is

permitted “for a period not to exceed three months” and requires the court to find that such

continuation “will not substantially impair the ability of the department to permanently

place the child and that the extension is otherwise consistent with the best interest of the

child.” (emphasis added). To that end, this Court has held that findings in support of each

of these criteria are mandatory:

                     Pursuant to West Virginia Code § 49-6-12(g) (1998),
              before a circuit court can grant an extension of a post-
              adjudicatory improvement period, the court must first find that
              the respondent has substantially complied with the terms of the
              improvement period; that the continuation of the improvement
              period would not substantially impair the ability of the
              Department of Health and Human Resources to permanently
              place the child; and that such extension is otherwise consistent
              with the best interest of the child.

Syl. Pt. 2, In re Jamie Nicole H., 205 W. Va. 176, 517 S.E.2d 41 (1999).




                                            15 

                No such findings were made upon granting the second improvement period

or at any time thereafter when the improvement period continued generally.14 Respondents

continued to have positive drug screens three months into the first improvement period

until placed into rehab; such behavior is hardly demonstrative of “substantial compliance”

with the prior improvement period. Moreover, the circuit court failed at any time to

consider whether the general continuation of the post-adjudicatory improvement periods

were consistent with the best interests of the child. The record before us and paucity of

statutorily-compliant findings by the circuit court leave us with no other conclusion than

the circuit court sought to place the interests of respondents above the health and welfare

of J. G., II.    We are compelled to observe that it was within this second, wholly

unsubstantiated improvement period that the October 1 incident involving respondents’

incapacitation while caring for the infant occurred. Had the circuit court complied with the

statutory and procedural requirements plainly set forth in West Virginia Code § 49-4-610

and acknowledged that respondents’ incorrigible behavior failed to satisfy the criteria

required to entitle one to an improvement period, J. G., II would never have been subjected

to such a traumatizing event.




       14
         In fact this particular order states “[s]ince the initiation of these proceedings, an
improvement period has not previously been granted to the Respondents.” (emphasis
added). While undoubtedly the result of utilizing the wrong form, this error demonstrates
how little regard was given the statutory requirements regarding improvement periods.
Orders entered pursuant to the statutory requirements are not to be entered pro forma and
must accurately and substantively address the necessary findings.
                                              16 

              Finally, as pertains to extensions of post-adjudicatory improvement periods,

we note that the requirement that such improvement period not “impair the ability of the

department to permanently place the child” holds particular significance, as well-

demonstrated in the instant case. Here, the circuit court’s perpetual continuance of the

improvement periods resulted in J. G., II being in foster care for a total of thirty-two months

as of the time the disposition order was entered. 15 This occurrence alone squarely

implicates the ultimate time limitation for improvement periods contained in West Virginia

Code § 49-4-610(9):

                      Notwithstanding any other provision of this section, no
              combination of any improvement periods or extensions thereto
              may cause a child to be in foster care more than fifteen months
              of the most recent twenty-two months, unless the court finds
              compelling circumstances by clear and convincing evidence
              that it is in the child’s best interests to extend the time limits
              contained in this paragraph.

(emphasis added). Before the first post-adjudicatory improvement period ended, J. G., II

had been in foster care for fifteen months. Not only did the circuit court fail to make the

findings required for any individual improvement period or extension thereof, it similarly

failed to make any findings required to continue granting an aggregate of improvement

periods which extended past this fifteen-month benchmark. In fact, the circuit court



       15
          Moreover, our ultimate determination to leave J. G., II with his foster family in
no way mitigates the delay which occurred in this matter. Lack of permanency is without
a doubt psychologically harmful to children irrespective of their age and/or awareness of
the proceedings given the profound impact this uncertainty has on their caregivers, daily
surroundings, and routine. Unwarranted delay in obtaining permanency merely
compounds the circumstances which gave rise to the abuse and neglect petition in the first
instance.
                                           17 

continued generally the improvement period for nearly an additional year and a half after

the first post-adjudicatory improvement period.



              As the timeline of this case demonstrates, respondents continually engaged

in domestic violence, had positive drug screens, and unstable housing throughout the

virtual entirety of the improvement periods, not to mention the egregious failure of

supervision and care during the October 1 incident involving the infant. The circuit court

below disregarded in both letter and intent the statutory language and this Court’s clear

holdings regarding its obligation relative to improvement periods:

                      At 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, Carlita B., 185 W. Va. 613, 408 S.E.2d 365.



              For reasons that utterly confound this Court, the circuit court perpetually

allowed respondents opportunity after opportunity to modify their behavior, which they

repeatedly rejected.   Only in the approximate six months before the long-overdue

disposition did respondents begin to engage in slightly more stable behavior. However,

they continued to test positive for drugs for which there was limited to no evidence as being

related to appropriate prescription medication usage. Critically, “[a] parent’s rights are

necessarily limited . . . [as to improvement periods] because the pre-eminent concern in
                                             18 

abuse and neglect proceedings is the best interest of the child subject thereto.” Emily, 208

W. Va. at 336, 540 S.E.2d at 553.



              To whatever extent our expansive body of caselaw regarding the circuit

court’s paramount duties in cases of abuse and neglect is unclear, let us now lay the matter

squarely to rest. The procedural and substantive requirements of West Virginia Code § 49-

4-601 et seq., the Rules of Procedure for Child Abuse and Neglect, and our extensive body

of caselaw are not mere guidelines. The requirements contained therein are not simply

window dressing for orders which substantively fail to reach the issues and detail the

findings and conclusions necessary to substantiate a court’s actions. The time limitations

and standards contained therein are mandatory and may not be casually disregarded or

enlarged without detailed findings demonstrating exercise of clear-cut statutory authority.

Discretion granted to the circuit court within this framework is intended to allow the court

to fashion appropriate measures and remedies to highly complex familial and inter-personal

issues—it does not serve as a blanket of immunity for the circuit court to manage abuse

and neglect cases as its whim, personal desire, or docket may fancy. “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.” Syl. Pt. 1, in part, Carlita B., 185 W.Va. 613, 408 S.E.2d 365. The circuit

court’s inexplicable penchant for “kicking the can” down the proverbial road in this matter




                                            19 

flies directly in the face of every directive enacted by the Legislature and articulated by

this Court as pertains to the timely disposition of abuse and neglect matters.16



                This Court is not unsympathetic to the difficult task of procedurally

managing the unfortunate volume of abuse and neglect cases, while weighing the

significant interests and life-altering decisions necessary in these matters. We have noted

that “[b]oth the statute and our case law grant trial courts considerable flexibility in

developing meaningful improvement periods designed to address the myriad possible

problems causing abuse and neglect.” Amy M., 196 W. Va. at 258, 470 S.E.2d at 212.

Nevertheless,

                [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, and
                because part of that permanency must include at minimum a
                right to rely on his or her caretakers to be there to provide the
                basic nurturance of life.




       16
          In addition to the time standards argued by petitioners, it appears from the
appendix record that the circuit court (and DHHR) failed to timely adhere to several other
requirements, but those are largely subsumed by the excessive and unwarranted
improvement periods. For example, DHHR provided letter updates to the circuit court
typically only the day before the ninety-day hearing in violation of Rule 37. Additionally,
the circuit court appears to have failed to conduct designated permanency hearings as
required by Rule 36a and failed to issue its disposition order within ten days of the hearing
as required by Rule 36.

                                               20 

Id. at 260, 470 S.E.2d at 214. It is precisely because the court’s actions in these matters is

so starkly life-altering that it must comply with the carefully curated time requisites and

evidentiary requirements contained in our statutory scheme:

              [T]he 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. The legislature has recognized this by
              limiting the extent and duration of improvement periods a
              court may grant in an abuse and neglect case.

Id. at 257-58, 470 S.E.2d at 211-12 (emphasis added).



              Accordingly, we find little difficulty in concluding that the circuit court erred

in disregarding the procedural and substantive requirements pertaining to pre- and post-

adjudicatory improvement periods. This finding alone permits the Court to vacate the

dispositional order:

                     Where 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 adjudicated to be abused or neglected
              has been substantially disregarded or frustrated, the resulting
              order of disposition will be vacated and the case remanded for
              compliance with that process and entry of an appropriate
              dispositional order.




                                             21 

Syl. Pt. 5, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001).17 Frequently, however,

vacation of dispositions and remand for compliance serves only to compound any pre-

existing delay. In this instance, we find it unnecessary to remand this matter for compliance

with long-expired time frames or further development. The record presented amply

provides this Court with sufficient basis upon which to vacate the disposition order and

further direct that respondents’ rights be terminated, as discussed more fully below. See In

re Isaiah A., 228 W. Va. 176, 184, 718 S.E.2d 775, 783 (2010) (reversing court’s refusal

to terminate parental rights and remanding for termination where court “was far more

lenient in the granting of extensions than was warranted by the circumstances” and

continued to extend improvement periods despite “abundant opportunity” for mother to

correct conditions of abuse and neglect).



   B. DISPOSITION

              As noted above, petitioners further contend that, for reasons obvious from

the record, the circuit court compounded its procedural errors and plainly abused its

discretion by ordering that J. G., II be returned to respondents, thereby disregarding the




       17
          Relief may have more promptly been granted had any of the aggrieved parties
availed themselves of this Court’s original jurisdiction, as has been suggested: “Prohibition
is available to abused and/or neglected children to restrain courts from granting
improvement periods of a greater extent and duration than permitted under West Virginia
Code §§ 49-6-2(b) and 49-6-5(c) (1995).” Syl. Pt. 2, Amy M., 196 W. Va. 251, 470 S.E.2d
205. Certainly when the circuit court is in such egregious violation of the time standards
contained in West Virginia Code § 49-4-601 et seq., prudence and zealous advocacy would
suggest that the DHHR and/or guardian ad litem are burdened with seeking such relief.
                                              22 

recommendations of both the DHHR and guardian ad litem. Petitioners argue that the

record is clear that “[c]ontinued drug use, domestic violence, missed visits and sporadic

cooperation, at best, marred the landscape for more than two and one-half years.”

Respondents counter merely that they are currently “drug free” and have a significant and

undisputed bond with their child, asserting a parent’s natural right to custody of his or her

child. As is certainly obvious from the preceding discussion, we agree with petitioners’

characterization of respondents’ lack of progress throughout the pendency of the

underlying matter.     We address, nonetheless, respondents’ claims of more recent

improvements and whether such belated efforts inure to their benefit.



              As the timeline of this case demonstrates, the circuit court prolonged and

ignored the statutory time frames for so long that—well after this matter should have been

disposed of—respondents finally began to demonstrate ostensibly improved behaviors.

Unquestionably, this Court has held that

              [i]n the law concerning custody of minor children, no rule is
              more firmly established than that the right of a natural parent
              to the custody of his or her infant child is paramount to that of
              any other person; it is a fundamental personal liberty protected
              and guaranteed by the Due Process Clauses of the West
              Virginia and United States Constitutions.

Syl. Pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973). However, that right has

necessary and well-established limits: “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.

                                             23 

Va. 79, 479 S.E.2d 589 (1996); see also Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W.

Va. 302, 47 S.E.2d 221 (1948) (“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.”).



              We observe that respondents’ supposed improvement has only occurred

during the last approximate six months of the three-year pendency of this case and lacks

compelling support in the record evidence. At the last few hearings conducted in this

matter, the parties, counsel, and the circuit court engaged in abject speculation about the

significance of respondents’ continued positive drug screens. While respondents alleged

they had prescriptions to support these results, the record contains no evidence of these

prescriptions. More importantly, however, even assuming the drug screens resulted from

use of prescribed medications, there was no evidence offered to demonstrate that

respondents were using the prescription medications for active conditions and in non-

abusive dosages.



              In particular, the record demonstrates that J. G. tested positive in early 2017

for hydrocodone and hydromorphone purportedly due to a two-year old prescription which

he had gotten filled a year later and began using. T. S. insisted that her amphetamine-

positive result was due to over the counter allergy medication. She likewise insisted she

had a prescription for opioids due to a pulled tooth. However, respondents—both of whom

were admitted and well-documented substance abusers—presented no evidence 1) that the

results were occasioned by the prescriptions alleged; 2) that they should have still been
                                              24 

using those medications at the time of the positive screens, regardless of whether they

resulted from legitimate prescriptions at one time; or 3) that the results were within

therapeutic, and not abusive, limits.



              However, even assuming that respondents’ proffered explanations for their

more recent drug screens are credible, we find that our caselaw requires us to treat such

belated improvement as insufficient to warrant removal of J. G., II from his foster family.

J. G., II has lived with his foster family for nearly three years—since he was six weeks

old—and is indisputably healthy, thriving, and bonded. West Virginia Code § 49-4-610(9)

prohibits perpetual improvement periods which “cause a child to be in foster more than

fifteen months of the most recent twenty-two months” absent compelling circumstances.

The extended duration of the proceedings below and scant evidence supportive of

respondents’ belated improvement effectively require this Court to ensure that J. G., II’s

current foster placement remain undisturbed and that he proceed to obtain permanency in

that placement.



              We find the situation presented in this case much like that in In re Hunter H.,

227 W. Va. 699, 715 S.E.2d 397 (2011). In Hunter H., this Court found that the circuit

court erred where it removed an infant from his foster family in favor of his grandmother

under highly similar circumstances. In justifying the infant’s return to the foster family,

the Court explained:



                                             25 

              The circuit court fails to mention the strong bond that Hunter
              developed with his foster family, fails to mention that Hunter
              referred to his foster parents as “mom” and “dad,” and fails to
              mention that Hunter lived with his foster family for three years.

              ***

              There is no dispute that the foster family created a stable,
              loving environment in which Hunter was growing and thriving.
              Hunter was placed with his foster family when he was 17
              months old and lived with them for three years. He was part of
              their family and both his guardian ad litem and the only expert
              witness who testified before the circuit court agreed that it was
              in his best interests to remain with this family. Even the
              DHHR, which recommended that he be placed with his
              grandmother, concluded that Hunter was “well adjusted,
              growing and thriving,” while he was living with his foster
              family.

Id. at 705-06, 715 S.E.2d at 403-04.



              Respondents urge this Court to regard their more recent “improvement” as

more indicative of future behaviors and parenting abilities than the behaviors demonstrated

during the first two-and-a-half years of this matter. However, “‘courts are not required to

exhaust every speculative possibility of parental improvement before terminating parental

rights where it appears that the welfare of the child will be seriously threatened. . . .’” Syl.

Pt. 7, in part, Carlita B., 185 W.Va. 613, 408 S.E.2d 365; see also In re Isaiah A., 228 W.

Va. 176, 185, 718 S.E.2d 775, 784 (2010) (finding “glimmer of hope” standard inconsistent

with the criteria expressly provided by statute). Critically, this Court has held that “[i]n

making the final disposition in a child abuse and neglect proceeding, the level of a parent’s

compliance with the terms and conditions of an improvement period is just one factor to

                                              26 

be considered. The controlling standard that governs any dispositional decision remains

the best interests of the child.” Syl. Pt. 4, In re B.H., 233 W. Va. 57, 754 S.E.2d 743 (2014).

We decline to speculate further about respondents’ purported late-arriving “improvement”

and conclude that the egregious delay in this case and best interests of J. G., II require the

Court to vacate the circuit court’s dispositional order and remand for termination of

respondents’ parental rights such that permanency for J. G., II may be attained.



               That said, we cannot discount the unrefuted evidence in the record

demonstrating that J. G., II— the foregoing notwithstanding—enjoys an emotional bond

and loving relationship with respondents. At oral argument, DHHR advised that it would

likely support post-termination visitation and certainly this Court has made clear that where

circumstances warrant and under suitable conditions, post-termination visitation may be

appropriate. This Court has held that

                       [w]hen parental rights are terminated due to neglect or
               abuse, the circuit court may nevertheless in appropriate cases
               consider whether continued visitation or other contact with the
               abusing parent is in the best interest of the child. Among other
               things, the circuit court should consider whether a close
               emotional bond has been established between parent and child
               and the child’s wishes, if he or she is of appropriate maturity
               to make such request. The evidence must indicate that such
               visitation or continued contact would not be detrimental to the
               child’s well being and would be in the child’s best interest.

Syl. Pt. 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995). Such continued

contact is “not [] a right of the parent, but rather [] a right of the child.” Id. at 455 n.9, 460

S.E.2d at 701 n.9.

                                               27 

              We caution, however, that such visitation may only be considered “if it is in

the child’s or children’s best interests, and would not unreasonably interfere with their

permanent placement.”       Amy M., 196 W. Va. at 260, 470 S.E.2d at 214 (1996).

Accordingly, “[a] permanency plan for abused and neglected children designating their

permanent placement should generally be established prior to a determination of whether

post-termination visitation is appropriate.” Syl. Pt. 6, In re Billy Joe M., 206 W. Va. 1, 521

S.E.2d 173 (1999).



                                   IV. CONCLUSION

              Based upon the foregoing, we reverse the August 25, 2017, order of the

Circuit Court of McDowell County and remand this matter with directions to proceed with

termination of respondents’ parental rights, attainment of permanency, and consideration

of post-termination visitation, if appropriate. The Clerk is directed to issue the mandate

contemporaneously herewith.




                                                                 Reversed and remanded
                                                                 with directions.




                                             28 

