Per Curiam:
The respondent below and appellant herein, Rosemary C. (hereinafter
“Rosemary”), appeals from an order entered July 3, 2008, by the Circuit Court of Mineral
County. By that order, the circuit court denied Rosemary's motion for a post-dispositional
improvement period and terminated any parental rights to Tiffany B. (See footnote 1) (hereinafter “Tiffany”),
Patricia B. (hereinafter “Patricia”), Joshua B. (hereinafter “Joshua”), Brandon B. (hereinafter
“Brandon”), and Tessa F. (hereinafter “Tessa”), all children to whom Rosemary had no
biological relation. (See footnote 2) The lower court's order further denied post-termination visitation. On
appeal to this Court, Rosemary argues that the circuit court erred in denying her post-
dispositional improvement period and in terminating her parental rights. Rosemary also
alleges some procedural improprieties that will be discussed in this opinion. (See footnote 3) Based on the
parties' arguments, the record designated for our consideration, and the pertinent authorities,
we affirm the rulings made by the circuit court.
As early as September 2004, the family was referred for various services including Family Preservation, Juvenile Probation, and Youth Services. Parenting plans were designed and counseling was ordered. It was found that Rosemary and Hiram initially were not compliant in taking advantage of these ordered programs. It was also found that Rosemary and Hiram were not compliant with the court-ordered sibling visitation with siblings who had been removed from the home on juvenile petitions. During the lower court proceedings, it was found that Rosemary had a habit of filing juvenile petitions on the children as they got older. The lower court specifically found that
[a]s soon as a child gets old enough to report abuse,
Rosemary would file a juvenile petition to get rid of and punish
the child. That child is then shunned by Rosemary and Hiram.
Once a child is on the “shunned list”, there is an effort to
exclude that child from her [or his] siblings.
As a result of the June 2007 abuse and neglect petition, the DHHR was granted
legal custody of the children, but physical custody remained with Rosemary. A status
hearing was held August 31, 2007, regarding a Motion for Contempt filed against Rosemary,
wherein the lower court ruled that Rosemary was in contempt for intentionally interfering
with sibling visitation that had been previously ordered to occur between the children
remaining in her care and their sibling sister who had been removed from the home on a
juvenile petition. Because Hiram's actions also contributed to the lack of compliance with
visitation, he was also subjected to the same continuing terms and conditions as Rosemary.
In September 2007, an amended abuse and neglect petition was filed by the
DHHR. This petition alleged that Rosemary had allowed the children's medical cards to
lapse. The DHHR was granted physical custody of the children due to this failure by
Rosemary, which resulted in the children being denied continued services from Family
Preservation Services and Mountain State Psychological. The children were removed from
the home and placed in various foster homes, with only Joshua and Patricia remaining
together in the same placement.
On October 3, 2007, an adjudicatory hearing was held and the parties informed
the lower court that they had reached an agreed adjudication for the trial court to approve.
The stipulations of the parties included Rosemary's concessions that the children had been
exposed to inappropriate discipline in her home, resulting in both physical and emotional
abuse. She further agreed that she had failed to participate with in-home services and social
services recommended by the DHHR; and that the living conditions in her home had been
less than adequate for the health, benefit, and welfare of the children. The lower court made
a finding that the minor children were abused and/or neglected children and that continued
physical custody by Rosemary was not in the children's best interests. The lower court
granted a six-month post-adjudicatory improvement period to Rosemary. In that time,
Rosemary was directed to participate in counseling recommended by her psychological
evaluation and to attend all counseling, medical, psychological, psychiatric, and parenting
appointments or sessions determined necessary by the MultiDisciplinary Team (hereinafter
“MDT”). The goals were to address the necessary parenting issues needed to protect the
children, to improve the living conditions in the home, and to maintain current medical cards
on the children.
The DHHR filed its Family Treatment Plan on February 14, 2008. The plan
included the following eight items that must be remedied during the improvement period:
1. Rosemary and Hiram have a history of not following
through with services which resulted in the removal of the
children from the family home.
2. Rosemary and Hiram file incorrigibility petitions on
the children when they reach a certain age, indicating that the
child is out of control. The child is then shunned by the other
children because Rosemary and Hiram tell them not to speak to
the child.
3. The family home is in disarray and through reports of
service providers there are cockroaches everywhere crawling on
the floors, walls and falling from the ceiling this creates an
unhealthy environment for the children to live in due to
cockroaches carrying disease.
4. The children report physical and emotional abuse as
evidenced by reports of being pushed down the stairs, pushed
against the walls, beat up by the other children while being held
down by Hiram. Patricia has indicated that she had to toilet in
a bucket in the home and was not allowed to use the family
bathroom. The bucket was moved to a trailer outside and she
was forced to use that. Patricia was also told regularly that she
would die by the time she is sixteen. The other children report
that Hiram would get angry with them and hang a sign on his
door that he is not their father and they have to call him by his
given name. Hiram and Rosemary do not permit the children to
associate with black children because they do not like them. If
caught the children are shunned.
5. The children have reported that [various other adults]
would stay at the home and use drugs with Hiram. When this
would happen the children were exposed to people being passed
out and possibly overdosing on the drugs.[ (See footnote 12)]
6. Hiram and Rosemary have not recognized the
problems in the home. They have not realized the impact that
their actions and words have had on the children. They do not
feel the children have been abused emotionally or physically.
They view themselves as the victims in the case. They feel the
children are being allowed to run the court and MDT and that
the MDT should not be listening to the children's wishes
although all of the children at one time or another have
expressed that they do not want to return to the family home.
7. The children have many concerns about returning
home. They are concerned about the treatment they would
receive if they return to the family home.
8. Hiram does not have any means of support.
(Footnote added).
On April 16, 2008, a status hearing was held to review the improvement period
and the case plan. Rosemary's counsel's motion to meet with the children, in the presence
of their guardian ad litem, was granted for the purpose of ascertaining the children's wishes
on where they would like to reside. The same counsel also made a request for Hiram to
receive independent court-appointed counsel, which was denied. (See footnote 13) DHHR was requested to
file the Children's Case Plan by June 1, 2008. In an order entered June 13, 2008, the circuit
court acknowledged receipt of the DHHR's Children's Case Plan. In that plan, the DHHR
stated that
[w]hile participating in services the MDT has seen a significant
amount of improvement from both Hiram and Rosemary. They
have become more open to the children and dealing with them
at their present ages. They have acknowledged a lack of
information regarding Patricia's illness and apologized for their
treatment of her during a family session. Both Hiram and
Rosemary have listened to what the children have to say and
how the children are feeling and then address the issues at hand.
Both have learned to recognize the need to work together on the
disciplining of the children so that the children can not
triangulate the situation to achieve whatever goal they may have
at the time. The children have become increasingly comfortable
with Hiram and Rosemary. They have been able to express their
fears without concerns of being shunned by Hiram. The
children have had moments of wanting to return to the home and
other moments of wanting to remain in foster care. Due to the
family's successful completion of the treatment plan, the
Department has no alternative but to recommend reunification
of the children with Hiram and Rosemary[.]
Therein, the DHHR recommended a reunification plan with the goal to transition Tiffany,
Patricia, Joshua, and Brandon, upon completion of his residential treatment program, back
to Rosemary's home. In its June 13, 2008, order, the circuit court advised that it did not
agree with the DHHR's assessment of the case and that it had reservations about the
permanency plan for the children. Therefore, the lower court directed that the dispositional
hearing scheduled for June 19, 2008, be held pursuant to W. Va. Code § 49-5D-3a (2004)
(Repl. Vol. 2004) (See footnote 14) and that the MDT should present evidence as to its rationale for the
proposed service plan.
A dispositional hearing was held June 19, 2008. Testimony was heard from
the child protective services worker, a clinical therapist who provided individual and family
therapy, a case manager and counselor who provided parenting training, and two
psychologists who provided therapy to the children. All of the witnesses indicated their
recommendation that reunification be attempted between the children and Rosemary. At the
conclusion of the testimony, all counsel, including the children's guardian ad litem,
recommended that the children be returned to Rosemary's home with continued services and
oversight by the DHHR. The matter was taken under advisement by the lower court, which
set forth its findings of fact and conclusions of law in its Dispositional Hearing Order entered
July 3, 2008. In its order, the lower court stated that
in this case there is ample evidence already in the record to
show that the treatment goals have not been met, that the
Department [DHHR] chose to ignore significant facts, that
both respondents testified falsely, and that the best interest
of these children will not be served by returning them to this
strange home.
(Emphasis in original). The lower court's order emphasized its conclusions that Rosemary
and Hiram failed to follow through with services, that they filed incorrigibility petitions on
children when they reach a certain age and then shun that child, that the house is in disarray
with little or no food and a flea infestation problem, that Hiram and Rosemary have failed
to appreciate the extent of the physical and emotional abuse suffered by the children as a
result of their actions and inactions, that the children were exposed to illegal drug abuse by
adults in the home, and that Hiram and Rosemary view themselves as victims and fail to
understand the impact of their behavior on the children. Moreover, the children, during an
interview with the court on June 12, 2008, indicated their fear and concern about treatment
they would receive if they were returned to the home, as well as the treatment they would
receive if they did not want to return home, including Rosemary and Hiram's anticipated
refusal to let them visit any of their siblings who might have returned to the home. The lower
court's order further identified as a major concern that Hiram has no means of support, and
identifying that there is a question as to whether Hiram and Rosemary can afford to feed and
clothe the four children at issue. (See footnote 15) Significantly, in regards to the current placements of the
children outside of the home, the lower court order found that “[a]ll of these children
continued to improve until contact with Hiram and Rosemary was increased. Their behavior
then deteriorated.” (Empahsis in original).
The disposition in the lower court's order was stated as follows:
The Court has seriously considered whether to grant a
dispositional period of improvement. However, the Court
denies the request for the following reasons:
1. There is no reason to believe that [Rosemary and
Hiram] will change as has been set forth previously.
2. Any trial placement back in the home that didn't work
out would disrupt and possibly make return to current
placements for the children impossible.
3. The children have regressed when they are around
Rosemary and Hiram.
4. Given what has happened in this case, this Court
simply cannot trust the members of this MDT to recognize and
report to the Court if something were to go wrong.
The order directed “[t]hat any parental rights, including visitation of Rosemary . . . and
Hiram . . . to Tiffany . . . Patricia . . . Joshua . . . Brandon . . . and Tessa . . . are hereby
TERMINATED.” The lower court further denied requests for post-termination visitation
stating that “further visitation is not in the children's best interests. It is clear from the
reports . . . that the children regress when they have contact with Hiram and
Rosemary. . . . The children need a clean break.” DHHR was ordered to provide for
significant visitation among the children. It is from this order that Rosemary appeals to this
Court.
Subsequent to the lower court's dispositional order, the DHHR has now filed
a response with this Court wherein it alters the earlier recommendation made to the lower
court. Because the children have improved so dramatically in their current placements, and
because they seem to regress when they have any contact with Rosemary, DHHR is now
advocating that the children remain in their current placements and that visitation with
Rosemary occur only at the discretion of the individual children. Additionally, two new
guardians ad litem subsequently were appointed because the original guardian ad litem took
a public office and could no longer be involved in the case. (See footnote 16) The two new guardians
performed their own independent assessment, including home visits and interviews. Their
opinions are that the children's best interests are to sever all contact with Rosemary and
Hiram. The two guardians opine that there is ample concern for continuing emotional
problems for the children and also conclude that the home is unsafe and uninhabitable for
children. They do not recommend visitation. The guardians ask this Court to remand the
case for the lower court to continue proceedings in accordance with its dispositional order
so that permanency can be achieved for the children.
[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 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 the Interest of: Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).
Mindful of the applicable standards, we proceed to consider the parties' arguments.
Further, she contends that the lower court improperly considered her modest income in
deciding whether to terminate rights. (See footnote 18) She also contends that the dispositional order was
improperly entered more then ten days from the hearing date in violation of Rule 36 of the
Rules of Procedure for Child Abuse and Neglect Proceedings. (See footnote 19) Finally, because her son,
Hiram, was also included in the improvement periods, Rosemary contends that he should
have been appointed counsel. (See footnote 20)
Initially, the DHHR and the original guardian ad litem advocated for the return
of the children to the care of Rosemary, and this was the position advanced during the
underlying proceedings. However, because these children have been in the same placement
since 2007 and are doing extremely well and only seem to regress with any contact with
Rosemary, the DHHR is now advocating that the children remain in their current placements
and that visitation with Rosemary occur only at the discretion of the individual children. The
current guardians ad litem concur with the position of the DHHR expressed on appeal to this
Court, with the exception that the guardians recommend that no visitation occur between the
children and Rosemary.
As previously explained by this Court, “[a]lthough parents have substantial
rights that must be protected, the primary goal in cases involving abuse and neglect, as in all
family law matters, must be the health and welfare of the children.” Syl. pt. 3, In re Katie
S., 198 W. Va. 79, 479 S.E.2d 589 (1996). Further guidance is provided as follows:
“'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).” Syllabus Point 1, In re Jeffrey R.L., 190 W. Va. 24,
435 S.E.2d 162 (1993).
Syl. pt. 7, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589. Further, “'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).” Syl. pt. 7, in part, In the
Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991). Thus, this Court elevates the
health and welfare of the children above any parental rights of Rosemary to these children.
Significantly, in this case, the lower court found “by clear and convincing
evidence that [Rosemary and Hiram] have failed to substantially comply with the treatment
plan and the terms of the post-adjudicatory period of improvement.” Therefore, the trial
court rejected the Children's Case Plan. In this regard, this Court has held that,
[a]t the conclusion of the improvement period, the court
shall review the performance of the parents in attempting to
attain the goals of the improvement period and shall, in the
court's discretion, determine whether the conditions of the
improvement period have been satisfied and whether sufficient
improvement has been made in the context of all the
circumstances of the case to justify the return of the child.
Syl. pt. 6, In the Interest of Carlita B., id. While all of the MDT personnel opined that
Rosemary had made great strides in her improvement period, the lower court found that she
had failed to comply with the period of improvement. The lower court acknowledged that
Rosemary had performed better toward the end of the treatment period; however, the court
found that a view of the overall treatment period showed that little progress had actually been
made. The lower court emphasized Rosemary and Hiram's history of failing to follow
through with services, the emotional abuse experienced by the children as a result of juvenile
petitions filed by Rosemary against the children when they reach a certain age, and the family
shunning that continued even in the midst of group therapy sessions. Further, while
Rosemary appears to have attempted to eradicate the cockroach problem from her house,
there was recent evidence of a problem with flea infestations, which resulted in multiple bites
to one of the children during a visit. Significantly, as found by the lower court, Rosemary
fails to appreciate the extent of the physical and emotional abuse suffered by the children as
a result of the actions and inactions by both Rosemary and Hiram.
The children have been in their current placements since 2007. By all accounts
from the DHHR and the two current guardians ad litem, these children are doing better in
their current placements than they ever have done, and they regress after any contact with
Rosemary and/or Hiram. Thus, the circuit court's determinations should be affirmed.