                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS


In re A.E.                                                                               FILED
                                                                                      April 28, 2020
No. 19-0812 (Morgan County 18-JA-17)                                                EDYTHE NASH GAISER, CLERK
                                                                                    SUPREME COURT OF APPEALS
                                                                                        OF WEST VIRGINIA




                               MEMORANDUM DECISION


        Petitioner Father P.E., by counsel Charles S. Trump IV, appeals the Circuit Court of
Morgan County’s August 9, 2019, order terminating his parental rights to A.E. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel John M. Masslon II, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Debbie
Flowers Payne, filed a response on behalf of the child also in support of the circuit court’s order.
Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in (1) adjudicating
him as an abusing parent, (2) having ex parte communications with other counsel in the case, (3)
ordering petitioner to submit to a drug screen when he was a nonabusing parent at that time and
was not represented by counsel, (4) denying his motion to dismiss the petitions against him, (5)
allowing the DHHR to file an amended petition after the DHHR rested its case, and (6) considering
the recorded interview of the child. 2

       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.

        Prior to the initiation of the instant proceedings, the DHHR filed a child abuse and neglect
petition against petitioner in 2013. At the conclusion of the proceedings, the circuit court

       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).
       2
        Although petitioner lists the termination of his parental rights as an assignment of error,
he completely fails to mention termination in the argument section of his brief. As such, we will
not address the termination of his parental rights on appeal.
                                                  1
terminated petitioner’s custodial rights to the child. In December of 2018, Deputy Tony Link of
the Morgan Country Sheriff’s Department filed a child abuse and neglect petition against the
mother due to her severe drug abuse. Specifically, the mother was arrested and charged with
driving under the influence with a minor in the car. The mother was ordered to serve sixty days of
incarceration on the weekends, but was refused admittance on one occasion due to her intoxicated
state, resulting in the revocation of her weekend incarceration. 3 Petitioner was listed as a
nonabusing parent in the petition.

        The circuit court held a preliminary hearing in the abuse and neglect case on January 3,
2019. Due to certain conflicts, petitioner’s counsel withdrew from the case. Several attorneys met
with the circuit court prior to the hearing to address the conflicts, but also advised the circuit court
that petitioner appeared to be under the influence when they observed him in the hallway. The
circuit court contacted local counsel to represent petitioner and ordered petitioner to submit to a
preliminary drug screen while counsel was en route to the courthouse. Petitioner objected and
stated that he did not want to give a urine sample without his counsel present. The circuit court
stated that petitioner could submit to the drug screen or be taken into custody for contempt.
Petitioner acquiesced and submitted a urine sample, which tested positive for opiates,
benzodiazepine, cocaine, and marijuana. 4 The circuit court then placed the child in the DHHR’s
custody.

        Upon the DHHR’s motion, the circuit court added it as a co-petitioner to the proceedings.
On January 9, 2019, the DHHR filed an amended petition, alleging that petitioner tested positive
for benzodiazepine, opiates, marijuana, and cocaine at the January 3, 2019, hearing. The DHHR
further alleged that petitioner had been involved in a traffic accident in Maryland wherein the child
sustained a minor injury. According to the DHHR, petitioner had been driving on a suspended
license. In February of 2019, the circuit court held the first of several adjudicatory hearings.
Petitioner attempted to relinquish his parental rights, but he tested positive for opiates, morphine,
benzodiazepine, cocaine, and marijuana at the hearing. As such, the circuit court did not allow
petitioner to relinquish his parental rights and continued the adjudicatory hearing.

         On April 5, 2019, the adjudicatory hearing resumed, and petitioner testified that he was
intoxicated at the January 3, 2019, hearing. Petitioner also conceded that he used drugs prior to the
initiation of the proceedings, but claimed that he did not abuse or neglect the child because she
was not in his immediate care when he abused drugs. Petitioner also claimed that he “didn’t really
relapse” until after the January 3, 2019, hearing. Petitioner “plead the fifth” in response to
numerous questions and claimed that he was the victim in this case. At the end of the hearing,
petitioner moved the circuit court to dismiss the petitions against him, but the circuit court denied
the motion and continued the hearing.



        3
         It appears that, despite the termination of petitioner’s custodial rights in a prior proceeding,
the child was placed in his custody upon the mother’s incarceration.
        4
         The sample was sent to a laboratory for confirmation, but could not be tested due to the
insufficient amount produced.

                                                   2
        The next adjudicatory hearing was held on April 12, 2019. A Child Protective Services
(“CPS”) worker testified that the DHHR did not initially file a petition against petitioner because
it had not substantiated abuse or neglect of the child. However, the DHHR later joined the initial
petition filed by Deputy Link after the January 3, 2019, hearing due to emerging concerns of
petitioner’s drug abuse. The circuit court continued the hearing following the CPS worker’s
testimony. On April 22, 2019, the DHHR filed a second amended petition against petitioner.
Specifically, the second amended petition purported that an interview of the child had been
performed at a Child Advocacy Center (“CAC”) and that the child disclosed drug use by petitioner
and the mother. The child also described a situation in which petitioner attempted to kill the mother
with a sword when he accused her of stealing his pills. At a hearing held on April 26, 2019, the
CPS worker continued her testimony, stating that although the DHHR did not initially substantiate
mental or emotional injury to the child, the case had evolved, and she opined that her assessment
of the situation had changed. Following the worker’s testimony, the circuit court continued the
hearing to allow the parties time to review the CAC interview and recorded phone calls made
between the mother and petitioner while he was in jail. 5 The circuit court admitted the child’s
recorded interview, as well as the recordings of those phone calls.

        On May 16, 2019, petitioner filed a motion for an improvement period wherein he admitted
that he had a history of controlled substance abuse and addiction and that his use of controlled
substances for which he did not have a prescription negatively affected his ability to parent the
child. Despite these admissions, petitioner continued to claim during subsequent hearings that he
did not abuse or neglect the child. After another continued hearing, the circuit court held the final
adjudicatory hearing on June 21, 2019. The forensic interviewer who performed the CAC
interview with the child testified that there were elements of credibility in the child’s disclosures
and opined that the child’s statements were not coached. Ultimately, the circuit court adjudicated
petitioner as an abusing parent based on his failure to protect the child from his drug addiction.
The circuit court specifically noted that it was not relying on the preliminary drug screen from the
January 3, 2019, hearing as it was unable to be confirmed by a laboratory. However, the circuit
court noted it was relying on its own observations that petitioner was grossly impaired at the
hearing, regardless of whether the impairment was the result of excessive use of prescribed
medication or nonprescribed or illicit drugs. The circuit court further noted that petitioner
subsequently admitted to being under the influence at that hearing. The circuit court also relied on
the child’s disclosures during the CAC interview as a basis for adjudicating petitioner based upon
his drug use.

       The circuit court held a dispositional hearing in July of 2019. Ultimately, the circuit court
terminated petitioner’s parental rights upon finding that there was no reasonable likelihood that he



       5
        Petitioner was arrested and indicted for domestic battery and the felony offense of
strangulation. According to the record, around January 24, 2019, petitioner engaged in domestic
violence with the mother, and her adult son from another relationship stabbed petitioner in her
defense. Petitioner was transported to the hospital, where he tested positive for cannabinoids,
cocaine, opiates, and benzodiazepines. However, this information was not added to either the first
or second amended petitions, and petitioner was not adjudicated based upon domestic violence.

                                                 3
could correct the conditions of abuse or neglect in the near future and that termination was
necessary for the child’s welfare. Petitioner appeals the August 9, 2019, dispositional order. 6

        The Court has previously established the following standard of review in cases such as this:

                “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
        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).

        On appeal, petitioner raises several assignments of error regarding his adjudication.
Specifically, petitioner argues that the circuit court erred in refusing to dismiss the petitions against
him when they did not contain allegations that he abused and neglected the child. Petitioner notes
that he was considered a nonabusing parent in the first petition and, thus, there were no allegations
against him. Petitioner claims the first amended petition was deficient because it failed to allege
that he ever used drugs while the child was in his care, custody, and control. Moreover, the petition
contained allegations that he was in a car accident while the child was a passenger, but does not
include allegations that the traffic incident was his fault or the result of any improper or negligent
driving. Petitioner likewise claims that the second amended petition was deficient because it did
not add any allegations against petitioner, but merely contained excerpts from the child’s CAC
interview. Petitioner contends that these “allegations” are insufficient to allege abuse and neglect
pursuant to West Virginia Code § 49-4-601(b) and Rule 18 of the West Virginia Rules of Procedure
for Child Abuse and Neglect Proceedings. We disagree.

        West Virginia Code § 49-4-601(b), in part, provides that “[t]he petition shall allege specific
conduct including time and place, how the conduct comes within the statutory definition of neglect
or abuse with references to the statute, any supportive services provided by the department to
remedy the alleged circumstances, and the relief sought.” Similarly, Rule 18(a) sets forth that the
petition shall contain “[c]itations to statutes relied upon in requesting the intervention of the court
and how the alleged misconduct or incapacity comes within the statutory definition of neglect
and/or abuse.” Pursuant to West Virginia Code § 49-1-201, a neglected child is one “[w]hose
physical or mental health is harmed or threatened by a present refusal, failure or inability of the


        6
         The mother’s parental rights were also terminated below. The permanency plan for the
child is adoption in her current foster placement.


                                                   4
child’s parent, guardian or custodian to supply the child with necessary food, clothing, shelter,
supervision, medical care or education.” Contrary to petitioner’s assertions, the first and second
amended petitions contained sufficient allegations of abuse and neglect perpetrated by petitioner.
The first amended petition contained allegations of petitioner’s intoxication at the January 3, 2019,
hearing. The record is clear that, although the child was not in petitioner’s immediate presence at
that time, she was in his custody. The second amended petition added allegations from the child’s
CAC interviews wherein she disclosed that petitioner attempted to kill the mother and engaged in
substance abuse. To the extent petitioner argues that the DHHR erred in failing to allege that the
child’s disclosures “are true,” we note that the certification of the petition signed by the
investigating CPS worker clearly notes that based “upon information and belief,” the “facts
contained in the said [p]etition are true and correct” and that “she believes them to be true.” Based
on the foregoing, the DHHR stated that it believed the child to be abused and/or neglected.
Accordingly, we find that the petitions contained allegations that, if proven at the adjudicatory
hearing, were sufficient to make a finding of abuse and neglect.

        Petitioner also argues that the circuit court erred in permitting the DHHR to file the second
amended petition after the adjudicatory hearing had commenced in violation of Rule 19(a) of the
West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, which provides that
“[t]he court may allow the petition to be amended at any time until the final adjudicatory hearing
begins, provided that an adverse party is granted sufficient time to respond to the amendment.”
Moreover, this Court has previously held that

               [u]nder Rule 19 of the West Virginia Rules of Procedure for Child Abuse
       and Neglect Proceedings, amendments to an abuse/neglect petition may be allowed
       at any time before the final adjudicatory hearing begins. When modification of an
       abuse/neglect petition is sought, the circuit court should grant such petition absent
       a showing that the adverse party will not be permitted sufficient time to respond to
       the amendment, consistent with the intent underlying Rule 19 to permit liberal
       amendment of abuse/neglect petitions.

Syl. Pt. 4, State v. Julie G., 201 W. Va. 764, 500 S.E.2d 877 (1997). Petitioner avers that Rule 19
and Julie G. “make it clear that the commencement of the adjudicatory hearing is the chronological
point after which amendments to the petition cannot be made.” Petitioner concludes that the circuit
court erred in permitting the filing of the second amended petition as it was filed after the DHHR
rested its case during the adjudicatory hearings. We find no merit in petitioner’s argument.

        Petitioner correctly cites to Rule 19 and Julie G., which speak to amended petitions.
However, petitioner fails to acknowledge a key factor—that amendments can be made “at any time
before the final adjudicatory hearing begins.” Julie G., 201 W. Va. at 765-66, 500 S.E.2d at 878-
79, syl. pt. 4. Here, the DHHR filed a second amended petition on April 22, 2019. The final
adjudicatory hearing was not held until June 21, 2019. As such, the second amended petition was
filed before the final adjudicatory hearing began. Moreover, petitioner fails to demonstrate that he
was not permitted sufficient time to respond to the allegations in the second amended petition.
Indeed, the record reveals that the hearings were continued to allow petitioner time to review the
CAC interview and hire an expert witness to address issues with the child’s credibility if he so
chose. Accordingly, we find that petitioner is entitled to no relief in this regard as it is clear that

                                                  5
the second amended petition was filed prior to the start of the final adjudicatory hearing, and
because petitioner failed to show that he did not have sufficient time to address the allegations.

         Petitioner next argues that the circuit court erred in considering the CAC interview of the
child. 7 According to petitioner, there were numerous errors in considering this evidence. First,
petitioner claims that the recorded interview was not sworn testimony and, as such, was not given
under oath and did not comply with the West Virginia Rules of Evidence or the West Virginia
Rules of Procedure for Child Abuse and Neglect Proceedings. Second, petitioner contends that the
interview was inadmissible because the child was not subject to cross-examination. Third,
petitioner claims the interview should not have been considered because the child was obviously
coached. Petitioner cites to portions of the transcript in which the child asked “[w]hen are we going
to get to the stuff about talking about the things that [my parents] were doing that were bad?”
Petitioner also cites to portion wherein the child responded “I forget” to numerous questions about
petitioner’s alleged drug abuse. According to petitioner, these instances demonstrate that the child
was coached. Fourth, petitioner argues that the interview should not have been considered because
it was hearsay. Petitioner avers that the child’s recorded interview is a classic example of hearsay
because they were out-of-court statements offered by the DHHR to prove the truth of the matters
asserted in the child’s statements. Petitioner also contends that the statements fit no recognized
exceptions to the hearsay rule. Fifth, petitioner claims the interview should not have been
considered because many of the child’s responses were not based upon her personal knowledge.
As noted above, petitioner states that the child was unable to describe what the drugs looked like
and, despite stating that petitioner acted “weird” after using drugs, could not describe what kinds
of things petitioner did that were weird. Further, the child reported that she knew petitioner was
doing drugs because he would lock his bedroom door. However, petitioner argues that unless the
child had “X-ray vision,” she could not confirm what petitioner was doing behind a locked door.
Lastly, petitioner contends that the interview should not have been considered because it violated
the confrontation clause of the West Virginia Constitution and the United States Constitution, in
addition to due process of law. Upon our review, we find no error.

       We have set forth the following standard of review regarding questions of admissibility:

               “The West Virginia Rules of Evidence and the West Virginia Rules of Civil
       Procedure allocate significant discretion to the trial court in making evidentiary and
       procedural rulings. Thus, rulings on the admissibility of evidence . . . are committed
       to the discretion of the trial court. Absent a few exceptions, this Court will review
       evidentiary and procedural rulings of the circuit court under an abuse of discretion
       standard.” Syl. Pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d
       788 (1995).



       7
         To the extent petitioner argues that the CAC interview was improperly conducted to
bolster the DHHR’s claims of abuse after it realized it had produced insufficient evidence upon
which to adjudicate petitioner, we find no error. Petitioner fails to cite any authority limiting the
situations in which a CAC interview may be requested. Moreover, the record is clear that the
guardian initiated the CAC interview as part of her investigation into the health and welfare of the
child.
                                                 6
Syl. Pt. 3, In re J.S., 233 W. Va. 394, 758 S.E.2d 747 (2014). We have also held that “[t]he
fundamental requirement of procedural due process in a civil proceeding is ‘the opportunity to be
heard at a meaningful time and in a meaningful manner.’ Mathews v. Eldridge, 424 U.S. 319, 333,
96 S.Ct. 893, 47 L.Ed.2d 18 (1976).” Id. at 402, 758 S.E.2d at 755.

        We find that petitioner was afforded procedural due process. He was provided with
fundamentally fair procedures including proper notice of the petition, amended petitions, and
proceedings pursuant to West Virginia Code § 49-4-601. The circuit court appointed petitioner
counsel, and he had a full and fair opportunity to review and present evidence at the adjudicatory
and dispositional hearings. Petitioner viewed the videotaped interview of the child prior to the
adjudicatory hearing and was given the opportunity to rebut this evidence. Notably, petitioner did
not present expert testimony to rebut the allegedly incorrect techniques employed by the
interviewer or the alleged coaching of the child. Finally, petitioner was provided a record of the
proceedings below along with the right of appellate review.

        Moreover, we find no merit in petitioner’s claim that consideration of the recorded
interview violated his rights under the Confrontation Clause or his right to cross-examine
witnesses. We have previously held that

                [i]n a child abuse and neglect civil proceeding held pursuant to West
       Virginia Code § [49-4-601], a party does not have a procedural due process right to
       confront and cross-examine a child. Under Rule 8(a) of the West Virginia Rules of
       Procedure for Child Abuse and Neglect Proceedings, there is a rebuttable
       presumption that the potential psychological harm to the child outweighs the
       necessity of the child’s testimony. The circuit court shall exclude this testimony if
       it finds the potential psychological harm to the child outweighs the necessity of the
       child’s testimony.

In re J.S., 233 W. Va. at 398, 758 S.E.2d at 750, syl. pt. 7. Accordingly, these arguments are
without merit.

        We next turn to the admissibility of the interview as an out-of-court statement. In reviewing
the circuit court’s admission of this evidence, we begin with the well-established rule that

               [g]enerally, out-of-court statements made by someone other than the
       declarant while testifying are not admissible unless: 1) the statement is not being
       offered for the truth of the matter asserted, but for some other purpose such as
       motive, intent, state-of-mind, identification or reasonableness of the party’s action;
       2) the statement is not hearsay under the rules; or 3) the statement is hearsay but
       falls within an exception provided for in the rules.

Syl. Pt. 1, State v. Maynard, 183 W. Va. 1, 393 S.E.2d 221 (1990). Clearly, the recorded interview
in the instant matter was hearsay as it was offered to prove the truth of the matter asserted.
However, we find that the CAC interview was properly admitted as falling under the residual




                                                 7
exceptions to the hearsay rules embodied in West Virginia Rules of Evidence Rule 807. 8 This
Court has held that

       [t]he language of Rule 804(b)(5) of the West Virginia Rules of Evidence and its
       counterpart in Rule 803(24) [now 807] requires that five general factors must be
       met in order for hearsay evidence to be admissible under the rules. First and most
       important is the trustworthiness of the statement, which must be equivalent to the
       trustworthiness underlying the specific exceptions to the hearsay rule. Second, the
       statement must be offered to prove a material fact. Third, the statement must be
       shown to be more probative on the issue for which it is offered than any other
       evidence the proponent can reasonably procure. Fourth, admission of the statement
       must comport with the general purpose of the rules of evidence and the interest of
       justice. Fifth, adequate notice of the statement must be afforded the other party to
       provide that party a fair opportunity to meet the evidence. Syl. Pt. 5, State v. Smith,
       178 W.Va. 104, 358 S.E.2d 188 (1987).

In re J.S., 233 W. Va. at 407, 758 S.E.2d at 760.

        In looking at the first of the five factors, we find that the statement is trustworthy. Although
petitioner claims that the interview should not have been considered because it was not under oath,
we note that the recorded interview of the child at issue in In re J.S. was not sworn either, but was
the product of an interview performed at a Just for Kids Center in Oak Hill, West Virginia, by an
employee with that child services agency. The Court in In re J.S. found that the recorded interview
of the child was admissible under the residual exceptions to the hearsay rules, despite the fact that
the child’s statements were not under oath. Here, the interview was also performed by a child


       8
         The residual exceptions to the hearsay rules permit the admission of hearsay statements
that do not fall within one of the traditional exceptions. Rule 807 provides as follows:

       (a) In General. Under the following circumstances, a hearsay statement is not
       excluded by the rule against hearsay even if the statement is not specifically covered
       by a hearsay exception in Rule 803 or 804:

       (1) the statement has equivalent circumstantial guarantees of trustworthiness;

       (2) it is offered as evidence of a material fact;

       (3) it is more probative on the point for which it is offered than any other evidence
       that the proponent can obtain through reasonable efforts; and

       (4) admitting it will best serve the purposes of these rules and the interests of justice.

       (b) Notice. The statement is admissible only if, before the trial or hearing, the
       proponent gives an adverse party reasonable notice of the intent to offer the
       statement and its particulars, including the declarant’s name and address, so that
       the party has a fair opportunity to meet it.
                                                   8
services agency and the forensic interviewer in the instant matter testified that there were elements
of credibility in the child’s statements, such as her ability to draw a picture of the sword used by
petitioner to assault the mother. Further, the forensic interviewer opined that the child had not been
coached. Second, this evidence is clearly probative on the material issue of whether the child was
abused and/or neglected. Third, the circuit court watched the CAC interview and was in the best
position to determine if it was more probative on the point for which it was offered than other
evidence and whether it was sufficiently trustworthy and reliable. Specifically, the circuit court
found that the child “seemed forthright in the interview” and that she was “forthcoming and
trustworthy in her statement.” Fourth, the interest of justice would be served by admission of these
statements considering that the circuit court noted that there was a rebuttable presumption of
psychological harm to the child and expressed concerns over “just drag[ging] a child that young
into the courtroom.” Finally, the DHHR provided notice that it intended to offer this evidence, and
petitioner was provided with a fair opportunity to prepare a defense to the evidence. Based on the
foregoing, we find no error in the circuit court’s decision to admit and consider the CAC interview
of the child.

        Petitioner also assigns as error the circuit court’s adjudication of him as an abusing parent.
According to petitioner, he never abused or neglected the child and the evidence adduced below
establishes his innocence of any abuse or neglect.

       We have previously noted as follows:

       At the conclusion of the adjudicatory hearing, the 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. . . . The findings must be based upon
       conditions existing at the time of the filing of the petition and proven by clear and
       convincing evidence.

In re F.S., 233 W. Va. 538, 544, 759 S.E.2d 769, 775 (2014). This Court has explained that “‘clear
and convincing’ is the measure or degree of proof that will produce in the mind of the factfinder a
firm belief or conviction as to the allegations sought to be established.” Id. at 546, 759 S.E.2d at
777 (citing Brown v. Gobble, 196 W. Va. 559, 564, 474 S.E.2d 489, 494 (1996)). However, “the
clear and convincing standard is ‘intermediate, being more than a mere preponderance, but not to
the extent of such certainty as is required beyond a reasonable doubt as in criminal cases.’” Id. at
546, 759 S.E.2d at 777 (quoting Cramer v. W. Va. Dep’t of Highways, 180 W. Va. 97, 99 n.1, 375
S.E.2d 568, 570 n.1 (1988)). Pursuant to West Virginia Code § 49-1-201, a “neglected child” is
one

       [w]hose physical or mental health is harmed or threatened by a present refusal,
       failure or inability of the child’s parent, guardian or custodian to supply the child
       with necessary food, clothing, shelter, supervision, medical care or education, when
       that refusal, failure or inability is not due primarily to a lack of financial means on
       the part of the parent, guardian or custodian.

        Here, sufficient evidence existed to adjudicate petitioner as an abusing parent. The circuit
court found that petitioner abused and neglected the child based upon his drug abuse. The circuit

                                                  9
court relied upon its own observations of petitioner’s intoxication at the January 3, 2019, hearing,
as well as petitioner’s later concession that he was as “high as a kite” on that date and was slurring
his speech due to having taken Xanax prior to the hearing. Further, in petitioner’s motion for an
improvement period, he admitted that he had a history of drug addiction, that he relapsed, and that
his drug addiction negatively impacted his ability to properly parent the child. The circuit court
also found that there was clear and convincing evidence that petitioner abused drugs while the
child was in his care, contrary to his statements otherwise. The circuit court referenced portions of
the recorded phone calls between the mother and petitioner wherein the mother told petitioner that
she called him during her own incarceration in December of 2018, and that petitioner was “wacked
out.” The record is clear that petitioner had custody and control of the child during that time and
until she was removed from his care at the January 3, 2019, hearing. Moreover, the circuit court
found that the forensic interviewer’s testimony was reliable and that the child’s statements
regarding petitioner’s drug abuse were corroborated by petitioner’s own testimony. Ultimately, the
circuit court found that petitioner’s drug abuse threatened the health and welfare of the child and
that his threats to the child that she would be placed in foster care if she disclosed his drug abuse
was emotionally abusive and threatened the child’s welfare as it essentially encouraged her not to
seek help. While petitioner argues that the CPS worker testified that a thorough investigation was
conducted and that no substantiation of abuse had been made, he ignores the fact that she later
testified that the situation had evolved and that her assessment had changed. Based on the
foregoing, we find no error in the circuit court’s adjudication of petitioner as an abusing parent as
the evidence supports a finding that his drug abuse affected his ability to parent the child and that
he failed to provide adequate supervision of the child as a result.

        Petitioner lastly argues that the circuit court erred in having ex parte communications
without his attorney present. Petitioner contends that he was prejudiced by these communications
because, as a result of the disclosures made by other attorneys to the circuit court, he was ordered
to submit to a drug screen over his objection when he was a nonabusing parent and was not
represented by counsel. According to petitioner, the circuit court erroneously ordered him to
submit to a drug screen in violation of his Fourth Amendment rights. We find that petitioner is
entitled to no relief in this regard.

        Although the DHHR concedes that ex parte communications did occur, under the limited
circumstances of this case, we find that petitioner was not prejudiced by the January 3, 2019, drug
screen. In its order adjudicating petitioner as an abusing parent, the circuit court noted that it was
not relying on the drug screen results as there had been no confirmation by a laboratory. Therefore,
the result of the ex parte communication—the drug screen results—was not used to adjudicate
petitioner. Rather, the circuit court relied on its own observations that petitioner appeared
intoxicated and petitioner’s concessions during later hearings that he was as “high as a kite” and
was slurring his speech due to having taken Xanax prior to that hearing. Further, the circuit court
relied on other proper factors in adjudicating petitioner, such as the child’s disclosures during the
CAC interview. The child disclosed that she witnessed petitioner “chew pills” and that he acted
“weird” after doing so. The child also described that she knew where the drugs were located, when
petitioner consumed them, and that she was not allowed to touch the drugs. The child also disclosed
that petitioner threatened that she would be placed in foster care if she disclosed his drug use.
Accordingly, under the limited circumstances of this case, we find that petitioner was not
prejudiced by the circuit court’s ex parte communications with the other attorneys at the January

                                                 10
3, 2019, hearing while petitioner was not represented or by the resulting drug screen, as the circuit
court did not rely on those results and there was ample evidence apart from the drug screen results
upon which petitioner was properly adjudicated. 9

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 9, 2019, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: April 28, 2020


CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




       9
        Because we find that petitioner was not prejudiced by the drug screen, we decline to
address his argument regarding the applicability of the Fourth Amendment.
                                                 11
