In Re M.M., B.M., C.Z., and C.S , 236 W. Va. 108 ( 2015 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2015 Term
FILED
_______________ November 4, 2015
released at 3:00 p.m.
No. 14-1206 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
IN RE: M.M., B.M., C.Z., AND C.S.
____________________________________________________________
Appeal from the Circuit Court of Roane County
The Honorable Thomas C. Evans, III, Judge
Case No. 14-JA-8-11
AFFIRMED
____________________________________________________________
Submitted: September 22, 2015
Filed: November 4, 2015
Teresa C. Monk, Esq. Patrick Morrisey, Esq.
Walton, West Virginia Attorney General
Counsel for Leslie S., Petitioner Katherine M. Bond, Esq.
Assistance Attorney General
Robert Goldberg, Esq. Charleston, West Virginia
Spencer, West Virginia Counsel for the West Virginia Department
Counsel for Samuel S., Petitioner of Health and Human Resources,
Respondent
Kevin B. Postalwait, Esq.
Ripley, West Virginia Anita Harold Ashley, Esq.
Counsel for Samuel S., Petitioner Spencer, West Virginia
Guardian ad litem
JUSTICE BENJAMIN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “In reviewing challenges to the findings and conclusions of the
circuit court, a two-prong deferential standard of review applies. The final order and
ultimate disposition are reviewed under an abuse of discretion standard, and the circuit
court’s underlying factual findings are reviewed under a clearly erroneous standard.
Questions of law are subject to a de novo review.” Syl. Pt. 2, Walker v. WV Ethics
Comm’n, 201 W. Va. 108, 492 S.E.2d 167 (1997).
2. “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 a 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 the Interest of Tiffany Marie S., 196 W. Va.
223, 470 S.E.2d 177 (1996).
i
3. “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.” In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001).
4. “As a general rule the least restrictive alternative regarding parental
rights to custody of a child under W. Va. Code, 49-6-5 (1977) will be employed;
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. 1, in part, In re: R.J.M., 164 W. Va. 496,
266 S.E.2d 114 (1980).
5. “‘“Termination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, W. Va. Code, 49–6–5
[1977] may be employed without the use of intervening less restrictive alternatives when
it is found that there is no reasonable likelihood under W. Va. Code, 49–6–5(b) [1977]
that conditions of neglect or abuse can be substantially corrected.” Syllabus Point 2, In re
R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).’ Syllabus point 4, In re Jonathan P., 182
W.Va. 302, 387 S.E.2d 537 (1989).” Syl. Pt. 1, In re Jeffrey R.L., 190 W.Va. 24, 435
S.E.2d 162 (1993).
ii
Benjamin, Justice:
The instant action is before the Court upon the appeal of Petitioners Leslie
S. and Samuel S. from a disposition order entered October 27, 2014, denying the
Petitioners’ motions for improvement periods and terminating their parental and custodial
rights.1 The circuit court found that the Petitioners could not correct the conditions of
abuse and neglect in the near future and termination was necessary for the children’s
welfare. Upon review of the parties’ arguments, the record before us on appeal, and
applicable legal precedent, we affirm the circuit court’s order.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Department of Health and Human Resources (“the DHHR”) filed an
abuse and neglect petition alleging that the Petitioners were arrested on February 1, 2014,
for committing domestic battery and domestic assault against their son, C.S., at a youth
basketball league game in the presence of numerous witnesses.2 According to the
petition, the Petitioners cursed at C.S., calling him a “son of a bitch” and “mother fucker”
1
Because this case involves minors, initials are used to identify individuals in
accordance with Rule of Appellate Procedure 40(e).
2
Petitioner Leslie S. is the biological mother of all four children involved in this
case. Samuel S. is the biological father of C.S., age 11, and the step-father of the other
children, all teenage boys. The children have lived in the family home located in
Spencer, West Virginia, since moving from the state of Florida approximately six years
ago. The two older boys, M.M., age 18, and B.M., age 17, have had no contact with their
biological father, M.M., Sr., for many years. C.Z., age 15, has had only limited personal
contact with his biological father, Max Z., since the family moved from Florida.
1
and physically abused him by pulling him, slinging him into a wall, grabbing his face,
and knocking his head into a door multiple times. During the incident, C.S. was crying
profusely and trying to escape from the Petitioners. Witnesses called law enforcement,
and the Petitioners were arrested for domestic battery and assault.
The DHHR was notified of the incident and it began an investigation. A
protection plan was put into place during the investigation, which allowed all four of the
children to stay with a family who had been present during the incident and were
affiliated with the church and the basketball league. The children were removed from the
Petitioners’ home by emergency ratification and a petition alleging abuse and neglect was
filed on February 13, 2014.3 However, the petition failed to allege facts constituting
imminent danger. A Multidisciplinary Treatment Team (“MDT”) immediately convened
and the parents originally agreed to allow the children to remain with the placement
family until after the initial court appearance. The Petitioners subsequently changed their
minds and all of the children, except C.S., were required to return home. C.S. stayed
with the placement family because a condition of the Petitioners’ bonds did not allow
3
The petition also contained allegations against the biological fathers of M.M.,
B.M. and C.Z. as well; however, as their rights are not at issue in this appeal, the facts
herein pertain only to the Petitioners. The circuit court’s October 27, 2014, order
terminated the parental rights of M.M. and B.M.’s biological father for abandonment.
C.Z.’s biological father remains involved in the abuse and neglect case.
2
contact with him. The Petitioners were subsequently convicted of misdemeanor criminal
charges relating to the case.
The circuit court held an adjudicatory hearing on the DHHR’s petition on
March 10, 2014. Both M.M. and B.M. testified in camera regarding the abuse and
neglect they suffered at the hands of the Petitioners and the circuit court concluded that
the children were in imminent danger of further emotional abuse and ordered that the
remaining three children be removed from the home.4 The circuit court granted the
DHHR custody of the children and they were placed in foster care. The Petitioners
waived their right to a preliminary hearing on the removal and the circuit court granted
the Petitioners supervised visitation with C.S. and C.Z.
At a subsequent hearing on April 22, 2014, Petitioner Samuel S. admitted
to the allegations of abuse and neglect contained in the DHHR’s petition. Specifically, he
admitted that he verbally abused C.S. at the basketball game, that he has disciplined the
4
Both M.M. and B.M. originally testified at an in camera hearing that neither
wanted to return home because of the abuse they endured. They testified that if they
were required to return home, both would leave the home as soon as they turned eighteen.
B.M. has been steadfast in his desire to have nothing to do with the Petitioners, refusing
visitation opportunities with them during the pendency of this case. He has expressed
multiple times that he would be fine with termination of parental rights. In her testimony,
Leslie S. admitted that she would be willing to give up her custodial rights to B.M., and
that he should not be forced to return home. She expressed that she hoped he would one
day change his mind, and did not want to “close the door” on that possibility.
3
children by requiring them to stand in the corner for hours at a time, that he curses at the
children, and that he and Petitioner Leslie S. yell and curse at each other in the children’s
presence.
Following that hearing, the children have been moved to multiple foster
homes located in different counties.5 The guardian ad litem reports that M.M., who has
turned eighteen and is no longer subject to the jurisdiction of the circuit court, has
recently moved back in with the Petitioners.6 The three younger boys remain in foster
care in two different counties. B.M. and C.Z., who have been in a total of four foster
homes since the case commenced in March 2014, were placed in a foster home together
in January 2015 and they have been adjusting well. B.M. is a straight A student and
athlete, and C.Z., who previously struggled in school, is now an A/B student in high
school.
C.S., the youngest child, is currently in a new foster home in a different
county, his eighth placement in the last nineteen months. C.S. has had a number of
inpatient hospitalizations for emotional issues. According to the guardian ad litem, C.S.’s
5
The DHHR represents that it was difficult to find foster home placements for the
children within their home county. The DHHR also states that it was unable to find a
suitable foster placement that could accommodate all four children together.
6
The guardian ad litem represented that M.M. has recently moved back into the
family home with his pregnant girlfriend. She reports that although M.M. is a bright
young man, he has chosen not to further his education or seek employment at this time.
4
new specialized foster home appears to be a good fit for him, as his foster parents seem to
have a good understanding of C.S.’s emotional problems. The boys’ foster families have
agreed to facilitate monthly visitation between them.
Pursuant to the request of the guardian ad litem, the Petitioners underwent
psychological evaluations at Saar Psychological Services in August 2014 in order to
determine parental fitness and what terms and conditions would be required to remedy
any concerns raised in the evaluation if an improvement period were to be granted. The
evaluations took an inordinate amount of time to complete, taking several hours over the
course of two days. In the evaluations, Leslie S.’s prognosis was “guarded” and Sam S.’s
prognosis was “very guarded.”
On September 5, 2014, the circuit court conducted the first of two
evidentiary hearings regarding the Petitioners’ motions for improvement periods. The
guardian ad item filed her report in which she indicated that she had “very mixed feelings
about whether an improvement period should be granted to [the Petitioners]. However,
[she was] leaning against it.” The DHHR filed its case plan recommending that the
circuit court grant the Petitioners an improvement period. At the beginning of the
hearing, the circuit court clarified whether there was an objection to the Petitioners
receiving an improvement period, to which the guardian ad litem responded “yes.”
Counsel for the Petitioner Leslie S. indicated that she was aware that the guardian ad
5
litem might oppose an improvement period and that they were prepared to proceed with
an evidentiary hearing. The circuit court then heard testimony regarding whether the
Petitioners should be granted an improvement period or if their parental rights should be
terminated.
According to the evidence presented during the evidentiary hearing, Leslie
S. admitted that she mentally and emotionally abused her children and that she had begun
services with therapist Susan Greathouse and parent educator Lora Davis to correct the
abuse. She testified that she would be willing to give up her custodial rights to B.M. and
that she would do anything asked of her to rectify the conditions of abuse and neglect.
She testified that she would like C.S. to come home, but that he still needs a lot of help
and that he is not ready to come home.
The circuit court heard testimony that Leslie S. was involved in a previous
incident at the Spencer City Pool in 2012, where she was accused of physically assaulting
M.M. Instead of filing a petition, the DHHR arranged for in-home services through
Children’s First, which occurred once weekly from August 2012 through February 2013.
These services were designed to remedy that situation, which is substantially similar to
the circumstances of the instant case. The records admitted into evidence show that
significant effort on the part of the service provider was undertaken to deal with many
major family problems, but that, by the end of the services, little if any progress had been
6
made by the Petitioners. The record reflects that the services ended, not because the
problems were solved, but because the provider had used up all of the allotted time.
When asked what she learned from her months of services in 2012, Leslie S. responded,
“I didn’t really learn nothing.”
The circuit court also heard testimony that the children were previously
removed from Leslie S.’s custody while living in Florida after she was found to have
failed to protect them from her ex-husband, Max Z.’s abuse. The children resided with
Leslie S.’s mother for a period of approximately five years. Leslie S. received parenting
classes during that court process as well. After her mother died, Leslie S. returned to
court in Florida and was awarded custody of her children. Evidence was also presented
that Leslie S. receives disability benefits and does not work outside the home. She is
prescribed multiple medications and spends a significant amount of time in bed, virtually
unable to function.
There was also evidence presented that Samuel S., also a recipient of
disability benefits, is likewise prescribed multiple medications. His treating family
physician, Dr. Carroll Christiansen, testified that Samuel S. has a psychiatric diagnosis of
Bipolar I and an adjustment disorder with depressed mood, in addition to several other
medical issues related to back pain, hypertension, diabetes, and heart disease. He has a
prior felony record involving witness tampering.
7
Testimony continued at a second hearing conducted on September 17,
2014. During this hearing, Petitioner Samuel S. testified that he was working on anger
control problems with therapist Susan Greathouse. Although Samuel S. testified that he
has learned to use “I-messages” to improve his communication thanks to his therapist,
Susan Greathouse was not called to testify at the hearing. He also testified that Lora
Davis, parent educator, provided services to help him communicate better. He testified
that he needed to correct his attitude, anger management, and that he needed to
communicate better.
Lora Davis, who worked with this family on a weekly basis for five
months, testified that in her eight years of working with Family Advantage, this family is
one of the most challenging. She reports that after months of working with them, the
Petitioners have made only minimal progress. She explained that her efforts to explain
the basic course material have been continuously met with resistance from the
Petitioners, particularly Samuel S. She opined that Samuel S. needs anger management,
and that both parties need a psychiatric consultation to determine whether their
medications are effectively treating their mental conditions. She stated that if the
children were to return home at this point, the situation would be “absolutely the same.”
8
Jennifer Bogar, the therapist for M.M., B.M., and C.Z. also testified. She
testified that M.M. wanted to return to the Petitioners’ home and to his school of origin,
but she opined that this desire was probably influenced more by wanting to return to his
school. She testified that she had reservations about M.M. returning to the Petitioners’
home and that he may become emotionally unstable if he returned. In regards to B.M.,
Ms. Bogar testified that he does not want to return to the Petitioners’ home, that he
declined every opportunity for visitation with the Petitioners, and that he believes the
cycle of behavior will continue if he returns to the Petitioners’ home. With respect to
C.Z., Ms. Bogar testified that he wants to return to the Petitioners’ home but has concerns
that the situation may not be as good as the Petitioners promised him it would be. Ms.
Bogar testified that she was concerned that the Petitioners’ home would continue to be
detrimental for C.Z. without additional services, despite Samuel S.’s testimony that he
has changed.
Finally, Child Protective Services worker Jerry Burge testified regarding
the DHHR’s recommendations for the Petitioners. Mr. Burge testified that the DHHR
recommended an improvement period for the Petitioners and had developed a case plan
with terms and conditions that had been reviewed by all the parties. However, Mr. Burge
also testified that the Petitioners did not benefit from the six months of services they
received in 2012 to address the same issues as presented in this case. He further testified
9
that he has worked with the family off and on for the past two years and that he has not
seen many changes in the Petitioners’ behaviors.
Following these two evidentiary hearings, the circuit court entered a
dispositional order on October 27, 2014. The circuit court found that from August 2012
through February 2013, the Petitioners received services designed to remedy the same
abusive and neglectful behaviors that they exhibited in this case. The circuit court found
that by the end of those services, “little, if any, progress had been made by [the
Petitioners].” The circuit court explained that the goal of the previously offered services
was to prevent further abuse and neglect, but the mechanisms taught, “simply did not
work and another one of the children was injured.” The circuit court also stated that the
Petitioners had been provided services in this case for approximately the length of an
improvement period with little progress.
In determining to deny the Petitioners an improvement period and to
terminate the parental and custodial rights, the circuit court explained,
[t]he fact is that [the Petitioners] have been involved with the
service providers for two stints, without progress, and despite
education in appropriate parenting skills, [C.S.], their
youngest son, was physically assaulted in front of a myriad of
witnesses. Simply put, these adult respondents have not
responded to or followed through with rehabilitative efforts of
social and other rehabilitative agencies designed to reduce or
prevent the abuse or neglect of the children, as evidenced by
the continuation of conditions which threatened the health,
welfare or life of their children.
10
The circuit court found that the degree of family stress and the potential for
further abuse and neglect are so great as to preclude the use of resources to mitigate or
resolve family problems or assist the abusing parent or parents in fulfilling their
responsibilities to the children. The circuit court concluded that continuation in the
Petitioners’ home was not in the best interests of the children. In addressing Petitioner
Leslie S.’s rights to M.M., B.M., and C.Z., who are all children fourteen years or older,
the circuit court considered their wishes and ruled accordingly. Petitioner Leslie S.’s
custodial rights were terminated only to M.M. and C.Z., because they did not desire that
her full parental rights be permanently terminated. Upon B.M.’s request, Petitioner
Leslie S.’s full parental rights to him were terminated. C.S., ten years old at the time,
was too young to have his wishes considered, but the court ordered termination of all
parental rights as to C.S. as well. It is from this order that the Petitioners now appeal.
II. STANDARD OF REVIEW
This Court has held that
[i]n reviewing challenges to the findings and
conclusions of the circuit court, a two-prong deferential
standard of review applies. The final order and ultimate
disposition are reviewed under an abuse of discretion
standard, and the circuit court’s underlying factual findings
are reviewed under a clearly erroneous standard. Questions
of law are subject to a de novo review.
Syl. Pt. 2, Walker v. W.Va. Ethics Comm’n, 201 W. Va. 108, 492 S.E.2d 167 (1997).
11
As it pertains specifically to abuse and neglect cases, this Court has held,
[a]lthough 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 a 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 now turn to the issues before us.
III. ANALYSIS
The first issue before us is whether the circuit court erred in its
consideration of the Petitioners’ performance in pre-disposition services when it denied
the requested improvement periods. We also consider a second issue of whether the
circuit court erred in denying the Petitioners’ post-adjudication improvement periods
where, to the contrary, the DHHR’s initial case plan recommended that improvement
periods be granted.
12
With respect to the first issue before us, the Petitioners argue because of
their positive performance in pre-disposition services, the circuit court erred by denying
them improvement periods. The Petitioners contend that they admitted their problems,
which they claim are “easily correctable,” and that they testified to their willingness to
work towards that improvement of those problems. Therefore, the Petitioners claim that
they met their burden to prove by clear and convincing evidence that they are “likely to
fully participate in the improvement period[s],” as required by this Court’s extensive case
law and the improvement-period statute, West Virginia Code § 49-6-12 (1996). They
claim that their therapist, Susan Greathouse, believes there has been a recent
breakthrough and that she recommended that the improvement period go forward.7 The
Petitioners claim that although there was a petition detailing their problems, they had no
means of relating the services to the correction of the problems because they had no case
plan or “road map” to guide them.
The DHHR responds that although it originally recommended that the
Petitioners be granted an improvement period at the dispositional hearing, it cannot now
say that the circuit court abused its discretion because the Petitioners have not
demonstrated any change in their abusive behaviors after participating in services. The
DHHR argues that despite the Petitioners’ argument that they are willing to participate in
7
We observe, however, that the therapist, Ms. Greathouse, was not called to
corroborate this information at the hearing.
13
services, the Petitioners’ attitudes toward parenting have not changed during their
participation in services to this point. The DHHR asserts that although the Petitioners did
not get a formal improvement period, they did receive services for a substantial period of
time prior to the plan being filed, and they did have a service provider who testified to
their “minimal progress.” The DHHR also notes that the Petitioners previously had
services in 2012 due to a similar incident of domestic violence toward the oldest son,
M.M. The DHHR maintains that the circuit court did not err in denying the motions for
improvement periods, as they are not automatically entitled to such, given the facts of this
case.
The guardian ad litem likewise argues that no error occurred. The guardian
ad litem contends that the Petitioners are not entitled to improvement periods, and their
history of services without change demonstrates that the circuit court was correct to
conclude that the Petitioners were not likely to participate in services now that would
amount to parental improvement. In addition to their current “minimal progress” and
2012 domestic violence incident toward the oldest son, M.M., the circuit court also heard
evidence that Petitioner Leslie S. lost custody of her children in Florida for five years due
to a domestic incident there in the early 2000s. The guardian ad litem also asserts that
Lora Davis, parent educator, provided testimony about her interactions with the
Petitioners, including incidents where she believed that Leslie S. was either intoxicated or
over-medicated and incidents demonstrative of Samuel S.’s anger issues. Her conclusion
14
was that despite many months of service, minimal progress, if any, was made in
addressing the problems as she had to “explain things over and over again.” She also
indicated that there did not appear to be a genuine willingness to charge on the part of
Samuel S.
West Virginia law allows the circuit court discretion in deciding whether to
grant a parent an improvement period. This Court has emphatically stated that “[b]oth
statutory and case law emphasize that a parent charged with abuse and/or neglect is not
unconditionally entitled to an improvement period. Where an improvement period would
jeopardize the best interests of the child, for instance, an improvement period will not be
granted.” In re Charity H., 215 W. Va. 208, 216, 599 S.E.2d 631, 639 (2004). The
parents bear the burden at the disposition stage to show that they should be granted the
opportunity to remedy the circumstances that led to the filing of the abuse and neglect
petition. West Virginia Code § 49-6-12(b) states, in pertinent part, that the circuit court
may grant a respondent parent an improvement period if “[t]he respondent demonstrates,
by clear and convincing evidence, that the respondent is likely to fully participate in the
improvement period[.]” This Court has also held that in order to receive an improvement
period, the parent must acknowledge that the children have been abused and neglected. In
re Kaitlyn P., 225 W. Va. 123, 126, 690 S.E.2d 131, 134 (2010).
15
As this Court has explained, it is possible for an individual to show
“compliance with specific aspects of the case plan” while failing “to improve . . . [t]he
overall attitude and approach to parenting.” W. Va. Dept. of Human Serv. v. Peggy F.,
184 W. Va. 60, 64, 399 S.E.2d 460, 464 (1990). Fully participating in an improvement
period necessarily requires implementing the parenting skills that are being taught
through services. There is “no reasonable likelihood that conditions of abuse and neglect
can be corrected” if
the abusing parent or parents have not responded to or
followed through with a reasonable family case plan or other
rehabilitative efforts of social, medical, mental health or
other rehabilitative agencies designed to reduce or prevent
the abuse or neglect of the child, as evidenced by the
continuation of insubstantial diminution of conditions which
threatened the health, welfare or life of the child.
W. Va. Code § 49-6-5(b)(3) (2002) (Emphasis added).
We conclude that the circuit court did not err in denying the Petitioners’
motions for improvement periods. The circuit court’s order lists its consideration of
several very relevant factors for its conclusion that the abusive situation was not easily
correctable: 1) the history of past abuse of the children; 2) the testimony of both older
boys detailing the major dysfunctional relationships and chaotic life at home; 3) the
parent educator’s testimony; 4) the psychological evaluations of the parents showed that
the mother had a “guarded” prognosis and the step-father had a “very guarded”
prognosis; and 5) the testimony of both the Petitioners, which allowed the Court to
16
evaluate their credibility. The records from the 2012 services that the Petitioners
received were admitted as evidence. They show that the services were provided to help
the Petitioners develop “appropriate parenting and disciplinary techniques due to
inappropriate disciplinary techniques and possible mental health issues in the home.” A
review of the records in their totality demonstrates that the services were addressing the
Petitioners’ verbal and emotional abuse of the children, verbal altercations between the
Petitioners, the Petitioners’ favoritism of C.S., and Leslie S.’s inability to properly parent
her children or function. These are the same issues of abuse and neglect to which the
Petitioners admitted in this case.
In its dispositional order, the circuit court noted that the Petitioners
received in-home services, including parenting and adult life
skills, for several months from Children’s First, beginning in
August, 2012. These services were arranged by DHHR, as a
reasonable effort to prevent removal, after a prior incident
involving [Leslie S.’s] physical abuse of [M.M.]
Notwithstanding that the services had a goal of preventing
this kind of abuse, not quite a year after the services ended
did the same sort of physically abusive conduct happen with
[C.S.] Moreover, a review of the Children’s First records
show that many of the problems identified by Lora Davis and
those also reported in the psychological evaluations were
present at the time Children’s First worked with [the
Petitioners], and the services were designed to address these
problems and offer solutions. The whole goal of the
Children’s First services was to reduce and prevent further
abuse of the children in the future by [the Petitioners], and
prevent removal of the children from the home.
Unfortunately, those mechanisms which should have been in
place to prevent further abuse simply did not work and
17
another one of the children was injured, and these petitions
were filed.
Taking all of this evidence into consideration, we conclude that the circuit
court made a proper determination that the abusive situation was not easily correctable
and was unlikely to improve. Accordingly, we affirm the circuit court’s ruling on this
basis.
Next, the Petitioners argue that the circuit court erred in failing to follow
Rule 34 of the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings and this Court’s opinions in In re Ashton M., 228 W.Va. 584, 723 S.E.2d
409 (2012) and In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001) by terminating
their parental rights when the DHHR’s case plan recommended improvement periods.8
The Petitioners argue that under Rule 34, the circuit court should have 1) objected to the
8
Rule 34 of the W. Va. Rules of Procedure for Abuse and Neglect Proceedings
addresses the circuit court’s options in ruling on objections to a child’s case plan that are
raised at the dispositional hearing. If an objection is raised at the disposition hearing, the
rule directs the circuit court to
[e]nter an order (a) Approving the plan; (b) Ordering
compliance with all or part of the plan; (c) Modifying the plan
in accordance with the evidence presented at the hearing; or
(d) Rejecting the plan and ordering the Department to submit
a revised plan within thirty (30) days. If the court rejects the
child’s case plan, the court shall schedule another disposition
hearing within forty-five (45) days.
Id.18
case plan, 2) ordered the DHHR and MDT to change the case plan, and 3) ordered
another dispositional hearing to allow the parties an opportunity to refuse the lower
court’s findings. The Petitioners argue that this case is very similar to Ashton M., in
which a circuit court failed to follow the DHHR’s recommendation in the case plan, and
this Court held that the circuit court implicitly rejected that case plan under Rule 34
thereby requiring the scheduling of another dispositional hearing. 228 W.Va. 584, 723
S.E.2d 409. The Petitioners argue that failure to follow Rule 34’s requirement to
schedule another dispositional hearing for the DHHR to revise its case plan was
reversible error.
Conversely, the DHHR argues that Ashton M. and Edward B. are entirely
distinguishable from the instant case because, in those cases, the parents did not know
that the case plan would be challenged prior to the dispositional hearing. In Ashton M.,
the DHHR filed a case plan recommending termination of only the mother’s custodial
rights and all parties were in agreement with that. 228 W.Va. 584, 723 S.E.2d 409. The
mother and her counsel did not know the agreed case plan would be challenged until the
circuit court, sua sponte during the dispositional hearing, suggested that termination of all
parental rights, rather than just custodial rights, would serve the child’s best interests. Id
at 587, 723 S.E.2d at 412. The mother’s counsel objected saying the mother was not
prepared to present witnesses to address the termination of all parental rights because she
had relied on the agreement reached between the parties. Id. at 588, 723 S.E.2d at 413.
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Thus, this Court determined that the circuit court committed reversible error in failing to
follow Rule 34(d) and set a new dispositional hearing. Id. at 591, 723 S.E.2d at 416. The
DHHR argues that similarly, in Edward B., this Court held that the circuit court erred in
failing to set a new dispositional hearing to allow the parties to present evidence of
termination when it rejected the agreed case plan recommending an improvement period
because there was no indication before the dispositional hearing that the case plan would
be contested. 210 W. Va. 621, 558 S.E.2d 620. To the contrary, the DHHR contends that
the Petitioners here knew that the guardian ad litem might object to improvement periods,
and the guardian ad litem did in fact object.
We agree with the DHHR and find that the above noted cases are
distinguishable from the instant case. In the case sub judice, unlike Ashley M. and
Edward B., Petitioners knew before the dispositional hearings began that the guardian ad
litem herein might not agree with their motions for improvement periods. At the first
dispositional hearing on September 5, 2014, Petitioner Leslie S.’s counsel discussed the
purpose of the hearing with the circuit court and noted that “I know the Department’s
recommendation was, before at the MDT, that [it was] going to recommend an
improvement period. I think the only one still up in the air is the guardian. And I am
willing to put my client on to testify as to the services she’s already started.” The circuit
court then inquired as to whether there was an objection to the Petitioners’ motions for an
improvement period, to which the guardian ad litem responded, “yes.” Thus, in this case,
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the Petitioners were aware prior to the hearing that the guardian ad litem might not be in
agreement with their request for an improvement period, and the record is clear that
because of that knowledge, the Petitioners were prepared to present their evidence
regarding their motions.
Further, the circuit court permitted the Petitioners a full opportunity to
present evidence at not one, but two, different evidentiary hearings where the parties had
full notice of the issues to be considered by the circuit court and a full opportunity to
present witnesses and to be heard regarding whether improvement periods should be
granted or whether another disposition would be required. Furthermore, the record is
also devoid of any objection by the Petitioners to either proceeding with the hearings or
to the circuit court’s request for proposed findings of fact and conclusions of law.
Finally, the Petitioners do not now contend that they had additional witnesses or evidence
to present or that they were prohibited from doing so.
In syllabus point five of In re Edward B., this Court held that,
[w]here it appears from the record that the process established
by the Rules of Procedure for Child Abuse and Neglect
Proceedings and related statutes for the disposition of cases
involving children 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.
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210 W.Va. 621, 558 S.E.2d 620 (Emphasis added). Based upon the set of facts before us,
we conclude that in this particular case, the circuit court order did not substantially
disregard or frustrate the disposition process recommendation as required by our holding
in In re Edward B.
Our holding today comports with our long-standing jurisprudence that,
while “[a]s a general rule the least restrictive alternative regarding parental rights to
custody of a child under W. Va. Code, 49-6-5 (1977) will be employed; . . . 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. 1, in part, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980).
Indeed,
‘“[t]ermination of parental rights, the most drastic remedy
under the statutory provision covering the disposition of
neglected children, W. Va. Code, 49–6–5 [1977] may be
employed without the use of intervening less restrictive
alternatives when it is found that there is no reasonable
likelihood under W. Va. Code, 49–6–5(b) [1977] that
conditions of neglect or abuse can be substantially corrected.”
Syllabus Point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d
114 (1980).’ Syllabus point 4, In re Jonathan P., 182 W.Va.
302, 387 S.E.2d 537 (1989).
Syl. Pt. 1, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993).
The evidence presented at the evidentiary hearings clearly supports the
circuit court’s determination that there was no reasonable likelihood that the Petitioners
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could correct the conditions of abuse and neglect because they did not respond to
rehabilitative efforts to correct the conditions of abuse and neglect and because the
emotional abuse perpetrated on their children created a degree of family stress and
potential for further abuse which precluded the use of further resources to resolve the
family’s problems. Based upon the evidence presented, we conclude that the circuit court
did not err in terminating the Petitioners’ parental and custodial rights.
IV. CONCLUSION
For the foregoing reasons, we affirm the October 27, 2014, order of the
Circuit Court of Roane County. It is further ordered that the mandate of this Court be
issued forthwith.
Affirmed.
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