In re M.M.
| Decision Date | 04 November 2015 |
| Docket Number | No. 14–1206.,14–1206. |
| Citation | 778 S.E.2d 338,236 W.Va. 108 |
| Court | West Virginia Supreme Court |
| Parties | In re M.M., B.M., C.Z., and C.S. |
Teresa C. Monk, Esq., Walton, WV, for Leslie S., Petitioner.
Robert Goldberg, Esq., Spencer, WV, Kevin B., Esq., Ripley, WV, for Samuel S., Petitioner.
Patrick Morrisey, Esq., Attorney General, Katherine M. Bond, Esq., Assistant Attorney General, Charleston, WV, for the West Virginia Department of Health and Human Resources, Respondent.
Anita Harold Ashley, Esq., Spencer, WV, Guardian ad litem.
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.1The 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.
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.2According to the petition, the Petitioners cursed at C.S., calling him a “son of a bitch” and “mother fucker” 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, 2014.3However, 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 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.4The 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 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.5The 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.6The 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 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 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 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 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.
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...
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