In re R.J.M. , 164 W. Va. 496 ( 1980 )

Neely, Chief Justice:

This is an appeal from an order of the Circuit Court of Wood County terminating parental rights. The appellant parents make general assignments about the insufficiency of the evidence and argue that the circuit court should have granted them an improvement period pursuant to W. Va. Code, 49-6-5(a)(4) [1977] and 49-6-5(c) [1977]. Since their court appointed attorney did not move for an improvement period pursuant to W. Va. Code, 49-6-2(b) [1977] the appellants allege ineffective assistance of counsel. We disagree and affirm.

R.J.M., the child involved in this proceeding, was born on 8 January 1978. Her mother was 16 years old at the time of R.J.M.’s birth and had left the tenth grade about a year earlier when she was pregnant with her first child Shawn. Shawn was also the subject of a neglect petition at the time of the proceedings under consideration here regarding R.J.M., and while the record does not develop the facts surrounding Shawn’s removal from the home, it is apparent that he had been placed under the supervision of the Department of Welfare. RJ.M.’s father is an unskilled laborer suffering from a nervous condition.

In early March 1978, Gladys Foster, a mother of three and a grandmother, acquainted with the parents in this case because one of her daughters was living with them, noticed that R.J.M. looked ill and hungry. On her next visit, Mrs. Foster brought a jar of baby food and a jar of milk, which she fed to R.J.M. Mrs. Foster noticed no feeding problems or vomiting and in response to Mrs. Foster’s suggestion that R.J.M. looked ill the mother promised to take her daughter to a doctor.

At about the same time, Isodene Alkire, a Department of Welfare homemaker who was working in the subject home, became concerned about R.J.M.’s health. She noticed that the child looked pale and unhealthy and observed that the mother had stopped giving her baby the prescribed formula and was substituting a mixture of Karo syrup, water and milk. When Mrs. Alkire asked the mother if she had discussed this change with her pediatrician she replied that she had not, but had made the change because the baby was spitting up the formula. Mrs. Alkire reported her concern to Larry Lowe of the Department of Welfare Child Protective Services Office who had been working with the parents since December 1977 concerning problems with their older child Shawn. On 3 March 1978 both Mrs. Alkire and Mr. Lowe visited the subject home and discussed with the mother the necessity for proper feeding of her child.

On 15 March 1978, Mrs. Alkire came to the subject home and took the mother and R.J.M. to Camden Clark Hospital in Parkersburg where R.J.M. was seen by Dr. Robert Crooks, a pediatrician, who found the baby to be suffering from gastroenteritis, dehydration and “failure to thrive” (malnutrition). R.J.M.’s skin showed the wrinkling and dryness common to undernourished children, a remarkable condition since R.J.M. had been a healthy and normal seven pound eleven ounce baby at birth. R.J.M. had gained only one ounce in the two months since birth. The history given by the mother to Dr. Crooks was that her baby had been healthy until three days earlier when she developed diarrhea, began vomiting, and refused to eat. This was the first time the infant had been seen by a doctor since her birth.

R.J.M. was discharged from the hospital two weeks later, by which time her weight had increased by almost half to ten pounds ten ounces. Mr. Lowe, alerted by hospital staff members to the mother’s apparent unwillingness to participate in a feeding program planned by Dr. Crooks, tried to discuss the matter with the mother before she took R.J.M. home, but found her uncooperative. He explained that the mother appeared not to understand the need for consistent feeding.

Mr. Lowe sought to maintain contact with the family following R.J.M.’s discharge from the hospital and during the next several weeks he made numerous attempts to visit the mother and R.J.M. which were to no avail. Remembering that the mother was to bring R.J.M. for an appointment with Dr. Crooks on 4 April, he went to the doctor’s office to await her arrival. The appointment was never kept and when asked about it the mother explained that she had forgotten. Mr. Lowe waited for the mother again at Dr. Crook’s office on 7 April but again she did not come. On 10 April Mr. Lowe discovered that the parents had moved from their previous address. Three days later he located the mother at the home of a relative, in Belpre, Ohio.

Despite his many attempts to remain in touch with the family, Mr. Lowe was unable to locate them again until 24 April 1978 when he received a telephone call from Mr. and Mrs. Harry Love of Parkersburg, West Virginia. They informed Mr. Lowe that R.J.M. had been left in their care and was ill and in need of medical attention. R.J.M.’s parents could not be located and Mr. Lowe responded by arranging for the Department of Welfare to be given emergency temporary custody.

Later that same day, Mr. Lowe received a telephone call from the mother. She declined to divulge her whereabouts, but explained that the purpose of her call was to inform Mr. Lowe and the Department of Welfare that R.J.M. was in Ohio. She expressed dismay when Mr. Lowe informed her that her daughter was in the custody of the Department of Welfare and in a foster home. That same day R.J.M. was seen by Dr. Crooks who discovered that she was not ill but weighed only ten pounds five ounces, a lose of five ounces since her discharge from the hospital less than one month earlier.

Mr. Lowe tried eleven times during the following weeks to contact the parents in order to discuss R.J.M. with them, all to no avail. On 12 May 1978 he filed a neglect petition on behalf of R.J.M. and at the preliminary hearing the circuit court found probable cause to believe that the allegations in the petition were correct and ordered custody to continue in the Department of Welfare. At the close of the preliminary hearing counsel for the parents expressed his intention to move for an improvement period. The court scheduled a hearing on the motion, but at the hearing the motion was withdrawn without explanation and psychiatric examinations of both parents requested instead.

The adjudicatory hearing, held on 9 June 1978, resulted in a termination of the parental rights of the appellants. The court found by clear and convincing proof that RJ.M.’s illness, malnutrition and abandonment were the result of her parents’ refusal to care and provide for the child and that there was

... no reasonable liklihood [sic] that the conditions of neglect or abuse can be substantially corrected in the near future as are necessary for the welfare of the child in that the parents have refused and not responded to or followed through with a reasonable rehabilitative effort of social, medical and other rehabilitative agencies designed to reduce and prevent the neglect of the child evidenced by the continuation of substantial and repeated acts of neglect after efforts were made by the West Virginia Department of Welfare, by the nurses at the hospital and by various other such agencies to supply the needed assistance to the family to avoid the neglect.

... that the mother is of average to above average intelligence, the father is of average intelligence, both of whom are able to grasp the nature and character of their failure to properly care for the child and the consequences thereof, and are able to understand and respond to the assistance, support, and help offered to them by the various child welfare agencies, and that the parents have, as disclosed by the evidence, willfully failed and refused to accept such services to the substantial detriment of the health, welfare and wellbeing of the child, and the substantial endangerment of the child’s physical condition.

We conclude that the Court’s findings of fact are amply supported by the evidence and further conclude from the records that every possible opportunity was given to these parents to behave in a responsible way toward their child. While the record does not reveal trial counsel’s continued insistence upon an improvement period, the record does reveal that such an insistence, under the facts and circumstances of this case, would have been a vain act.

Starvation is a particularly insidious type of child abuse; if the parents in the case before us had routinely flogged their child to within an inch of her life the legitimacy of the trial court’s action would never have been questioned. An infant less than a year old is at the utter mercy of the adults around her and unless her needs are anticipated by the parents they will be unmet, since the child is incapable of articulating her demands. W. Va. Code, 49-6-2(b) [1977] provides:

In any proceeding under this article, the parents or custodians may, prior to final hearing, move to be allowed an improvement period of three to twelve months in order to remedy the circumstances or alleged circumstances upon which the proceeding is based. The court shall allow such an improvement period unless it finds compelling circumstances to justify a denial thereof, but may require temporary custody in the state department or another agency during the improvement period. [Emphasis supplied by Court.]

Certainly it must have been obvious to all concerned that when these parents: (1) had permitted the child to come very close to starvation which was only averted by the intervention of outside authorities; (2) had contumaciously declined to follow the advice of qualified physicians and the Department of Welfare after the child’s life had been jeopardized; and (3) had negligently or deliberately missed doctor appointments and concealed themselves from representatives of the Department of Welfare, a reasonable person would conclude that permitting this child to return to their custody would threaten the child’s life. In a case such as this where return of the child to the parents might result in their absconding the jurisdiction and removing the child from effective supervision, there are certainly compelling reasons to justify the denial of an improvement period.

In addition, where a child is under the age of three immediate termination without an intervening period employing a less drastic alternative is more reasonable than in other cases. A child of that age has a far greater susceptibility to illness; the child is not as irrevocably attached to his parents; and, numerous placements may severely retard the child’s ability to form lasting attachments. At the early stage of development a child needs close interaction with an adult fully committed to helping the child’s emotional as well as physical development¹ and, it is difficult for foster parents to fulfill this role because they often fear forming a deep emotional attachment to the child.²

Furthermore, this Court finds that the trial court did not abuse its discretion or deny the appellants due process when it selected the most drastic remedy provided by W. Va. Code, 49-6-5 [1977], namely termination of parental rights, because all of the requirements for finding that “no reasonable likelihood that conditions of neglect or abuse can be substantially corrected” as set forth in Code, 49-6-5(b) [1977] were met. That section provides that no reasonable likelihood that conditions of neglect or abuse can be substantially corrected shall mean that:

... (2) the parent or parents have willfully refused or are presently unwilling to cooperate in the development of a reasonable foster care plan designed to lead to the child’s return to the parent or parents; (3) the parent or parents have not responded to or followed through with reasonable rehabilitative efforts of social, medical, mental health or other rehabilitative agencies designed to reduce or prevent the neglect or abuse of the child, as evidenced by the continuation of substantial or repeated acts of neglect or abuse after the provision of such services;...

For the reasons set forth above the judgment of the Circuit Court of Wood County is affirmed.

Affirmed.

1 A. Clarke-Stewart, Family Variables Related to Children’s Development: Review and Recommendations, (Report for Carnegie Commission on Children 1974).

2 Standards Relating to Abuse and Neglect 8.3, Juvenile Justice Standards Project (1977); and Wald, State Intervention on Behalf of “Neglected Children: Standards for Removal of Children from Their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights, 21 Stan. L. Rev. 623, 695-96 (1976).