Davis, J., dissenting:
In this case the majority has affirmed a decision of
the circuit court terminating a mother's parental rights without first giving
her the benefit of either a post-adjudicatory or pre-disposition improvement
period. (See
footnote 1) Given the particular facts presented in this case,
the result reached by the majority is simply wrong. I strongly believe that the
appellant, Wanda S., was entitled to the benefit of an improvement period before
the decision to terminate her parental rights was made. For this reason, I dissent.
While the evidence in this case makes clear that past efforts to provide services to Wanda S. had not been successful, the record is equally clear that the services in no way addressed Wanda S.'s fundamental problem, her post-traumatic stress condition. As the majority opinion recognizes, a psychological report filed by Dr. Thomas Stein opined that Wanda S.'s “inability to protect her children originated in her underlying personality which developed from the sexual abuse she suffered as a child.” Maj. op. at 4. Dr. Stein concluded that the “likelihood of [Wanda S.] fully and completely discharging her parenting responsibilities in an appropriate manner would be dramatically enhanced” following effective treatment.
I believe that Dr. Stein' conclusions, when considered
along with the steps this woman did take to protect her children, i.e. reporting
their sexual abuse when she became aware of it, divorcing her abusive husband,
and the positive reports generated from her visits with her children following
their removal from her home, constitute clear and convincing evidence that
Wanda S. was “likely to fully participate in the improvement period . . . .” W. Va.
Code § 49-6-12(b)(2) (1996) (Repl. Vol. 2001). Consequently, Wanda S.
should have been granted an improvement period before any decision of whether
or not to terminate her parental rights was made. (See
footnote 2)
In view of the foregoing, I respectfully dissent.