January 01, 2017

Court Affirms Termination of Parental Rights Despite Claims of Due Process Violations and

Emily Peeler

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re M.G., 2016 WL 4987280 (W. Va.).

The Supreme Court of Appeals of West Virginia decided, without oral arguments, to affirm a decision terminating parental rights. The mother appealed four issues: 1) the allowed improvement period was inappropriate; 2) insufficient evidence; 3) the lower court failed to impose a less-restrictive dispositional alternative; and 4) her due process rights were violated because she was forced to defend herself against allegations beyond those in the original petition. The appeals court disagreed with the mother’s claims and confirmed the termination of parental rights. 

Mother, T.G., had three children ages 12, eight and six. In April 2014, an abuse and neglect petition was filed against T.G., alleging severe truancy due to neglect. The petition also included allegations that T.G. exaggerated and/or falsified the children’s medical conditions to their detriment. At the time, the children had been treated by at least 21 different doctors, and medical reports revealed T.G. had reported unfounded medical conditions. 

Initially, the children were placed in child welfare agency custody but were not removed from the home. However, the children continued to be truant and concerns about unnecessary medical treatment of the children increased. They were ultimately removed from the home in June 2014 and placed in foster care. Medical testing determined that while two of the children did suffer from myotonic dystrophy, as the mother claimed, they did not exhibit any symptoms. It was also determined that most of the medications the third child was receiving were unnecessary and were reduced or discontinued. 

In August 2014 it was suggested at an adjudication hearing that T.G. may suffer from Munchausen Syndrome by Proxy, which T.G. denied. T.G. was granted an improvement period and a case plan was a created. The case plan had a goal of reunification and included services to correct the children’s truancy and medical conditions and required a psychiatric evaluation. Five status hearings were held; T.G. and her counsel only appeared at two. During those status hearings it was reported that T.G.’s participation in services was declining, service providers were discontinuing services due to lack of progress, and she missed several visits. Additionally, the children had required no treatment or medication since their removal from T.G. In January 2015, the children’s counsel filed for termination of parental rights. Despite that motion, T.G. worked with a new provider from May- June 2015, attending about 50% of her appointments and continuing the believe her children suffered from various medical issues. 

In September 2015, the oldest child, then 14 years old, wrote a letter to the court saying she did not want to return to T.G., did not believe her mother had changed, and worried about receiving proper care if returned to her custody. The court held a dispositional hearing and determined there was no reasonable likelihood T.G. could substantially correct the conditions of abuse and neglect in the near future. The court terminated T.G.’s parental rights in April 2016. 

T.G. appealed the lower court’s decision to terminate her parental rights. To overturn the lower court’s ruling the appeals court must find the lower court’s findings were clearly erroneous. Regarding the first issue, the appeals court found the improvement period was appropriate because the case plan clearly identified the problems and what T.G. needed to change. Additionally, the case plan, met all requirements and T.G. had not objected to it at any of the prior proceedings. 

The second claim regarding insufficient evidence was also supported. The standard of proof required to terminate parental rights is clear, cogent, and convincing proof. The lower court considered “voluminous additional evidence the overwhelmingly supported termination of [T.G.’s] parental rights.” The lower court heard evidence from service providers about her failure to remedy issues in the case plan, evidence of missed visits, and evidence that T.G. exhibited characteristics associated with Munchausen syndrome resulting in abuse, but T.G. refused aid. The appeals court held this evidence, along with the oldest child’s letter, supported terminating T.G.’s parental rights. 

The appeals court found no merit in T.G.’s third claim that the lower court failed to impose a less-restrictive dispositional alternative. The appeals court found there was no reasonable likelihood T.G. would substantially correct the conditions of abuse and neglect based on the lower’ court’s findings and the overwhelming evidence supporting termination. Termination was therefore necessary for the welfare of the children. 

The fourth issue was that T.G.’s rights were violated because she was required to defend against allegations beyond those involving abuse and neglect in the original petition. Specifically, T.G. argued she had to defend against an allegation not found in the petition that she failed to provide stability to her children because of her changing relationship status. However, the appeals court found the child welfare agency had concerns that this issue affected ability to receive services designed to remedy the underlying allegations. The appeals court found no violation of her due process rights. 

Emily Peeler

Staff Attorney, ABA Center on Children and the Law