Kevin C. Sponaugle
Franklin, West Virginia
Attorney for the Appellant
Wanda S.
Marla Zelene Harman
Franklin, West Virginia
Guardian Ad Litem for the children,
Charity H., Courtney H. and Victoria H.
Darrell V. McGraw, Jr.
Attorney General
Charleston, West Virginia
C. Carter Williams
Assistant Attorney General
Petersburg, West Virginia
Attorneys for the Appellee,
State of West Virginia
Department of Health and Human Resources
Marvin L. Downing
See & Downing
Moorefield, West Virginia
Attorney for the Appellee,
Henry H.
The Opinion of the Court was delivered PER CURIAM.
JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
1. “'“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 re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d
177 (1996).' Syllabus Point 1, In re George Glen B., 205 W. Va. 435, 518 S.E.2d 863
(1999).” Syl. Pt. 1, In re Travis W., 206 W. Va. 478, 525 S.E.2d 669 (1999).
2. “'[C]ourts 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 re Carlita B., 185 W. Va. 613, 408
S.E.2d 365 (1991).
3. “'“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 (1996).
4. “Termination of parental rights of a parent of an abused child is authorized under W.Va.Code, 49-6-1 to 49-6-10, as amended, where such parent contends nonparticipation in the acts giving rise to the termination petition but there is clear and convincing evidence that such nonparticipating parent knowingly took no action to prevent or stop such acts to protect the child. Furthermore, termination of parental rights of a parent of an abused child is authorized under W.Va.Code, 49-6-1 to 49-6-10, as amended, where such nonparticipating parent supports the other parent's version as to how a child's injuries occurred, but there is clear and convincing evidence that such version is inconsistent with the medical evidence.” Syl. Pt. 2, In re Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991).
5. “W.Va.Code, 49-1-3(a) (1984), in part, defines an abused child to include
one whose parent knowingly allows another person to commit the abuse. Under this
standard, termination of parental rights is usually upheld only where the parent takes no
action in the face of knowledge of the abuse or actually aids or protects the abusing parent.”
Syl. Pt. 3, In re Betty J.W., 179 W. Va. 605, 371 S.E.2d 326 (1988).
6. “'Cases involving children must be decided not just in the context of
competing sets of adults' rights, but also with a regard for the rights of the child(ren).'
Syllabus point 7, In re Brian D., 194 W. Va. 623, 461 S.E.2d 129 (1995).” Syl. Pt. 3, In re
Michael Ray T., 206 W. Va. 434, 525 S.E.2d 315 (1999).
7. “Although 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).
8. “'When parental rights are terminated due to neglect or abuse, the circuit
court may nevertheless in appropriate cases consider whether continued visitation or other
contact with the abusing parent is in the best interest of the child. Among other things, the
circuit court should consider whether a close emotional bond has been established between
parent and child and the child's wishes, if he or she is of appropriate maturity to make such
request. The evidence must indicate that such visitation or continued contact would not be
detrimental to the child's well being and would be in the child's best interest.' Syllabus
Point 5, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995).” Syl. Pt. 8, In re Katie
S., 198 W. Va. 79, 479 S.E.2d 589 (1996).
9. “A child has a right to continued association with individuals with whom
he has formed a close emotional bond, including foster parents, provided that a
determination is made that such continued contact is in the best interests of the child.” Syl.
Pt. 11, In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996).
Per Curiam:
This is an appeal by Wanda S.
(See footnote 1)
(hereinafter “Appellant”) from a denial of
motions for an improvement period and a decision to terminate parental rights to three
children, Courtney H., Victoria H., and Charity H. The Appellant alleges that the lower
court erred by denying her motions for a post-adjudicatory improvement period and a
dispositional improvement period. Based upon this Court's review of the record, briefs,
arguments of counsel, and pertinent authorities, we affirm the decision of the lower court
and remand with directions to determine whether post-termination visitation between the
Appellant and the children should be ordered.
On May 6, 2002, the Department of Health and Human Resources (hereinafter
“DHHR”), through its Child Protective Services worker Cary Waybright, filed an abuse and
neglect petition against the Appellant, Henry H., and John S., the Appellant's husband at that
time. The petition alleged sexual abuse by Henry H. and further alleged that the Appellant
was aware of the abuse but continued to permit the children to visit Henry H. The petition
also alleged that the Appellant allowed the children to maintain contact with another known
sexual offender, Jackie W., the Appellant's own father. Further, physical abuse, parental
abuse of alcohol, and domestic violence were included in the petition.
The children were removed from their mother's custody and placed in foster
care in Randolph County, where they have remained during the pendency of this action.
(See footnote 4)
The DHHR amended the petition on July 24, 2002, to include allegations that John S.
physically abused the children, that the Appellant failed to protect the children from that
abuse; that the Appellant refused to pay for eye glasses for Courtney; that the Appellant
threatened to commit suicide in front of the children; that the Appellant refused to treat the
children's head lice; that there were fleas in the carpeting of the Appellant's place of
residence; that John S. forced the children to sit of their hands for several hours as
punishment for routine offenses;
(See footnote 5)
that Henry H. forced the children to watch pornographic
movies; that Henry H. engaged in sexual intercourse with the children; and that both Henry
H. and Jackie W. are registered sexual offenders with whom the children have regular
contact.
In a July 3, 2002, psychological report, Dr. Thomas Stein observed that his
examination revealed that the Appellant suffered from post-traumatic stress originating from
the sexual abuse she endured in her early adolescence. Although Dr. Stein noted that the
Appellant had received some treatment from a licensed professional counselor and earlier
treatment following the abuse in Braxton County, Dr. Stein concluded that “it is obvious to
this psychologist that those treatments were ineffective in adequately addressing her post-
traumatic stress condition.” Dr. Stein opined that the Appellant's inability to protect her
children originated in her underlying personality which developed from the sexual abuse she
suffered as a child. Dr. Stein further explained that the Appellant had sufficient intellectual
capacity to benefit from appropriate psychotherapeutic intervention and that the “in-home
services related to child management would do nothing to address the issues of [the
Appellant's] own previous sexual abuse and concomitant personality tendencies. . . .” Dr.
Stein concluded that the “likelihood of [the Appellant] fully and completely discharging her
parenting responsibilities in an appropriate manner would be dramatically enhanced” after
effective treatment. Unfortunately, Dr. Stein did not identify a time span in which
improvement could be expected for the Appellant.
An adjudicatory hearing was held on August 5, 2002,
(See footnote 6)
and the lower court
issued an adjudicatory order on October 8, 2002,
(See footnote 7)
finding that each of the children had been
neglected and abused by the Appellant, Henry H., and John S. Specifically, the lower court
found that Henry H. had sexually abused the children; that John S. had repeatedly physically
abused the children; that the Appellant had consistently failed to take protective safety
measures by exposing the children to sex offenders, by failing to timely submit the children
for medical examinations, and by failing to seek appropriate psychological treatment for the
children after the sexual abuse was revealed. The lower court further found that the
Appellant had failed to protect the children from the harsh discipline and physical and
emotional abuse inflicted by John S., their step-father. The court further emphasized that
the Appellant had failed to acknowledge the extent of the abuse or its impact on the children.
In an October 16, 2002, child case plan prepared by the DHHR, it was noted that the
Appellant had previously failed to cooperate with offered services and that she had
repeatedly denied that she or John S. abused the children.
(See footnote 8)
On October 24, 2002, the Appellant divorced John S., and he was thereafter
dismissed from these proceedings. On November 6, 2002, the lower court conducted a
hearing on the Appellant's motion for a post-adjudicatory improvement period. The DHHR
and the guardian ad litem opposed such motion. The Appellant testified with regard to her
ability to fully participate in such improvement period. The lower court also heard the
testimony of Ms. Toni Walters, the individual supervising the visits between the Appellant
and her children. It appears from the record that Ms. Walters was affiliated with Try Again
Homes and was not an employee of the DHHR. Ms. Walters supervised the visitations for
approximately five to six months, and her reports indicated that the visitations had been
successful and that the Appellant had behaved very appropriately. During the November 6,
2002, hearing, Ms. Walters testified that Cary Ours
(See footnote 9)
of the DHHR expressed disapproval of
the positive remarks made by Ms. Walters concerning the Appellant and indicated to Ms.
Walters that “your reports are killing us.” Ms. Walters was subsequently removed as the
visitation supervisor.
Upon conclusion of the evidence on November 6, 2002, the lower court denied
the motion for the post-adjudicatory improvement period, finding that the Appellant had
received services for several years to little avail. Specifically, the lower court found that the
Appellant failed to keep the children away from their grandfather, a registered sexual
offender; failed to keep the children away from their father, a registered sexual offender; and
failed to protect the children from the severe physical discipline imposed by John S., even
after a “safety agreement” was entered into with the DHHR in August 1999 as a result of
John S.'s unreasonable punishment of the children.
A dispositional hearing was conducted on December 9, 2002, and the lower
court considered and denied the Appellant's motion for a dispositional improvement period
based upon the absence of evidence that she could comply with the requirements of an
improvement plan.
(See footnote 10)
On January 6, 2003, the lower court entered a dispositional order,
finding that the Appellant was unwilling or unable to provide for the children's needs and
that she had failed to protect the children from abuse. The court further found that
continuation in the home was contrary to the welfare of the children, that the DHHR had
made numerous reasonable efforts to preserve the family, and that there was no reasonable
likelihood that the conditions of neglect and abuse could be substantially corrected in the
near future. The lower court consequently terminated the parental rights of both the
Appellant and Henry H.
The Appellant appeals that determination to this Court, contending that the lower court committed reversible error by denying her motions for post-adjudicatory and dispositional improvement periods. The guardian ad litem and DHHR maintain that the lower court's decision was correct and in the best interests of the children since there is no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future. The guardian ad litem and DHHR further argue that the Appellant has remained in denial regarding the degree and nature of abuse that the children have endured, has failed to respond positively to rehabilitative services offered over many years, and has failed to demonstrate an ability to comply with terms which would be associated with an improvement period.
This Court further stated as follows in State ex rel. Diva P. v. Kaufman, 200 W. Va. 555, 490 S.E.2d 642 (1997): “The above standard of review requires deference by this Court to the findings of a circuit court in a civil abuse and neglect proceeding. The critical nature of unreviewable intangibles justify the deferential approach we accord findings by a circuit court.” 200 W. Va. at 562, 490 S.E.2d at 649. In In re Emily & Amos B., 208 W. Va. 325, 540 S.E.2d 542 (2000), this Court also acknowledged the deference owed to the lower court by stating that “the circuit court is the better-equipped tribunal” to make substantive determinations regarding termination of parental rights. 208 W. Va. at 340, 540 S.E.2d at 557 (rejecting allegation that incarceration should automatically result in termination).
Both 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. As the pertinent part of syllabus point seven of In re Carlita B., 185
W. Va. 613, 408 S.E.2d 365 (1991), succinctly emphasizes,
“[C]ourts 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).
See also In re Erica C., ___ W. Va. ___, 589 S.E.2d 517 (2003). Additionally, if a parent
is unable to demonstrate an ability to correct the underlying conditions of abuse and/or
neglect in the near future, termination of parental rights may proceed without the utilization
of an improvement period. See W. Va. Code 49-6-5(a)(6) (1998) (Repl. Vol. 2001).
Syllabus point seven of In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996), accentuates
this concept, 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).
Termination of parental rights is also authorized where a parent contends
nonparticipation in acts giving rise to the termination despite the existence of clear and
convincing evidence that such nonparticipating parent knowingly took no action to prevent
or stop such acts to protect the child. In syllabus point two of In re Scottie D., 185 W. Va.
191, 406 S.E.2d 214 (1991), this Court explained as follows:
Termination of parental rights of a parent of an abused
child is authorized under W.Va.Code, 49-6-1 to 49-6-10, as
amended, where such parent contends nonparticipation in the
acts giving rise to the termination petition but there is clear and
convincing evidence that such nonparticipating parent
knowingly took no action to prevent or stop such acts to protect
the child. Furthermore, termination of parental rights of a
parent of an abused child is authorized under W.Va.Code,
49-6-1 to 49-6-10, as amended, where such nonparticipating
parent supports the other parent's version as to how a child's
injuries occurred, but there is clear and convincing evidence
that such version is inconsistent with the medical evidence.
See also Syl. Pt. 3, In re Betty J.W., 179 W. Va. 605, 371 S.E.2d 326 (1988) (“W. Va. Code,
49-1-3(a) (1984), in part, defines an abused child to include one whose parent knowingly
allows another person to commit the abuse. Under this standard, termination of parental
rights is usually upheld only where the parent takes no action in the face of knowledge of
the abuse or actually aids or protects the abusing parent”).
A parent's right to an improvement period is carefully defined because the
pre-eminent concern in abuse and neglect proceedings is the best interest of the child subject
thereto. See Syl. Pt. 3, In re Michael Ray T., 206 W. Va. 434, 525 S.E.2d 315 (1999)
(“'Cases involving children must be decided not just in the context of competing sets of
adults' rights, but also with a regard for the rights of the child(ren).' Syllabus point 7, In re
Brian D., 194 W. Va. 623, 461 S.E.2d 129 (1995).”). As this Court emphasized in syllabus
point three of In re Katie S., “'[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.'”
In West Virginia Department of Health and Human Resources ex rel. Wright
v. Doris S., 197 W. Va. 489, 475 S.E.2d 865 (1996), this Court addressed a situation similar
to the one at bar, stating that:
[I]n order to remedy the abuse and/or neglect problem, the
problem must first be acknowledged. Failure to acknowledge
the existence of the problem, i.e., the truth of the basic
allegation pertaining to the alleged abuse and neglect or the
perpetrator of said abuse and neglect, results in making the
problem untreatable and in making an improvement period an
exercise in futility at the child's expense.
197 W. Va. at 498, 475 S.E.2d at 874. The lower court in the present case specifically stated
that “I don't believe that her submissiveness or failure to be assertive can be corrected in any
period of time that a[n] . . . improvement period might allow us.” That is precisely the type
of factual determination to which this Court must give deference on appellate review.
Based upon the above precedent, as well as our review of the entire record in this case, it is clear that the Appellant failed to present evidence to demonstrate that there was a reasonable likelihood that the conditions of abuse and neglect suffered by her children could be substantially corrected in the near future. Given the Appellant's refusal to acknowledge the seriousness of the continuous abuse her children have suffered, we uphold the lower court's conclusion that there is no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected in the near future. The Appellant has simply failed to demonstrate any ability to protect her children from further abuse.
We further conclude that the lower court did not abuse its discretion by denying the requested improvement periods. The lower court's termination of the Appellant's parental rights was supported by clear and convincing evidence and was not clearly erroneous. Finally, we find that the lower court acted in the best interest of the children throughout the underlying proceedings.
Equally troubling in this case is the allegation that a caseworker for the DHHR expressed disapproval of a visitation supervisor's report which cast the Appellant in a positive light. Such expression of displeasure insinuates an adversarial position or an antagonistic approach which is inconsistent with the intended goals and methodology of the DHHR as an entity. West Virginia Code § 49-6D-2 (1984) (Repl. Vol. 2001) specifies that the DHHR's services are intended to provide a mechanism through which “family ties” will be preserved and strengthened where possible, “while recognizing both the fundamental rights of parenthood and the State's responsibility to assist the family in providing the necessary training and education of all children. . . .” The legislature has provided for “the offering of opportunities by the department whereby parents, guardians or custodians and their children may avail themselves of public and private resources offering programs and services which are primarily preventive and nonpunitive and geared toward a rehabilitation of the home and a treatment of the underlying factors which cause or tend to cause abuse and neglect. . . .” W. Va. Code § 49-6D-2(b)(1) (emphasis supplied). The legislature also states that the DHHR's objectives shall be carried out in a manner which ensures that assistance will be provided “without fear by the citizens that the State's exercise of that responsibility will be unfairly used as a means of terminating family ties[.]” W. Va. Code § 49-6D-2(b)(6). The praise of failure and the deprecation of success are concepts completely incongruous with the stated legislative purpose of providing nonpunitive assistance and insulating the parent from fear that the State will use its power unfairly.
We further note that the Appellant was frequently encouraged by the DHHR
to separate herself and her children from her husband John, due to his abusive tendencies.
She accomplished this goal by divorcing John, possibly in the expectation that the divorce
would enhance the possibility of regaining custody of her children. The record also reflects,
however, that the Appellant and John may still maintain a relationship of some nature.
198 W. Va. at 82, 479 S.E.2d at 592; see also Syl. Pt. 11, In re Jonathan G., 198 W. Va.
716, 482 S.E.2d 893 (1996) ( “A child has a right to continued association with individuals
with whom he has formed a close emotional bond, including foster parents, provided that
a determination is made that such continued contact is in the best interests of the child”).
Thus, upon remand, the lower court is instructed to hear argument from all
parties on this issue of post-termination visitation and take additional evidence, if necessary,
to determine whether continued visitation or other contact with the Appellant is in the best
interests of the children.
Affirmed and remanded with directions.
Failure to protect has brought us here today and . . . to a large measure the Court believes that as far as the mother is concerned that boils down to failure to see. A failure to see her children being abused. A failure to see her children being neglected and that's the true essence . . . of why we're here today.