Betty J.W., In Interest of

• Decision Date: 01 July 1988
• Docket Number: No. 17482,17482
• Citation: 179 W.Va. 605,371 S.E.2d 326
• Parties: In the Interest of BETTY J.W., Dorothy N.W., James E.W., Sandra K.W., and Cassie A.W.
• Court: West Virginia Supreme Court

Page 326

371 S.E.2d 326

179 W.Va. 605

In the Interest of BETTY J.W., Dorothy N.W., James E.W.,

Sandra K.W., and Cassie A.W.

No. 17482.

Supreme Court of Appeals of West Virginia.

July 1, 1988.

Syllabus by the Court

1. "In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody or his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions." Syllabus Point 1, In Re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).

2. W.Va.Code, 49-6-2(b) (1984), allows a parental improvement period, while the child is temporarily physically removed from the alleged abusive situation, as the court may require temporary custody in the state department or other agency during the improvement period.

3. 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.

Teresa McCune, Williamson, for the mother, Mary Wright.

Timothy Koontz, Susan B. Perry, Williamson, for the children.

MILLER, Justice:

Mary W. ¹ appeals from a final order of the Circuit Court of Mingo County which terminated her parental rights to her five minor children. She first assigns as error the legal insufficiency of the child abuse petition. She also contends the trial court erred in denying a statutory improvement period, in failing to adopt the least restrictive alternative appropriate to the circumstances, and in relying on her status as a victim of domestic violence as a basis for the termination of parental rights.

I.

Mary W. and her husband, J.B.W., ² are the natural parents of five minor children, ³ the youngest of whom is now ten years old. On June 3, 1985, the West Virginia Department of Human Services (DHS) took emergency custody of the children. ⁴ In a petition to terminate parental rights filed on June 4, 1985, the DHS alleged that on April 30, 1985, the husband, J.B.W. sexually abused and assaulted his then seventeen-year-old daughter, B.J. The petition alleged that since the sexual assault, J.B.W. had been out of the marital home until June 1, 1985, when he again stayed overnight. The DHS also alleged that J.B.W. habitually physically abused his children and that Mary W. failed to protect the children from her husband's abuse. ⁵

A hearing on the petition was held on June 10, 1985, at which all parties appeared except J.B.W., who was then a patient in St. Mary's Hospital. The court appointed a guardian ad litem for J.B.W. and a guardian ad litem for the five children. Testimony was taken, but no record was made of the proceedings. In an order entered August 1, 1985, the court denied motions for an improvement period, found no less drastic alternative than the removal of the children, ordered physical and legal custody to be placed with DHS, and scheduled a final hearing.

On September 17, 1985, at the final hearing, all parties appeared and were represented by counsel. J.B.W. and Mary W. individually requested improvement periods which the court denied. At the conclusion of the hearing, the court recited facts to be part of the final written order, which was entered on November 22, 1985. The trial court found that J.B.W. had abused his children, that Mary W. had failed to protect them, that no reasonable likelihood existed that the conditions of neglect and abuse could be substantially corrected, and that Mary W. and J.B.W. had refused and were unwilling to cooperate in the development of a plan to effectuate necessary changes. On that basis, the court concluded that there was no less drastic alternative than to terminate the parental rights of J.B.W. and Mary W. ⁶

II.

Mary W. first argues that the abuse petition filed by DHS did not contain specific factual allegations as required by W.Va.Code, 49-6-1(a) (1977). ⁷ In State v. Scritchfield, 167 W.Va. 683, 280 S.E.2d 315 (1981), we held in Syllabus Point 1:

"If the allegations of fact in a child neglect petition are sufficiently specific to inform the custodian of the infant of the basis upon which the petition is brought, and thus afford a reasonable opportunity to prepare a rebuttal, the child neglect petition is legally sufficient."

See also State ex rel. Moore v. Munchmeyer, 156 W.Va. 820, 197 S.E.2d 648 (1973).

The DHS filed a form petition in this case which recited the pertinent statutory language and contained only blank spaces for the specifics of the case. The DHS attached to the petition a summary which contained identifying information, the specific abusive conduct, and supportive services provided to the family. Mary W. does not argue that the summary fails to comply with statutory notice requirements. Consequently, we find that the petition and the attached written summary with its recitation of facts satisfies the statute.

III.

Mary W. next contends that she was unlawfully denied a statutory improvement period under W.Va.Code, 49-6-2(b) (1984), before her parental rights were terminated. ⁸ It is useful to review the constitutional underpinnings upon which this statutory improvement period rests. In Syllabus Point 1 of In Re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973), this Court, relying on Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), recognized that a natural parent has a constitutional right to the custody of his or her infant children:

"In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody or his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions."

See also State v. T.C., 172 W.Va. 47, 303 S.E.2d 685 (1983); State ex rel. Miller v. Locke, 162 W.Va. 946, 253 S.E.2d 540 (1979).

The United States Supreme Court's continued adherence to this basic constitutional principle is reflected in Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599, 606 (1982):

"The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life."

In Santosky, the Supreme Court held that the due process clause of the Fourteenth Amendment prohibited the termination of parental rights upon less than clear and convincing evidence. Accord In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981); W.Va.Code, 49-6-2(c) (1984).

While parents enjoy an inherent right to the care and custody of their own children, the State in its recognized role of parens patriae is the ultimate protector of the rights of minors. The State has a substantial interest in providing for their health, safety, and welfare, and may properly step in to do so when necessary. Stanley v. Illinois, supra. This parens patriae interest in promoting the welfare of the child favors preservation, not severance, of natural family bonds, a proposition that is echoed in our child welfare statute. W.Va.Code, 49-2B-1 (1981). ⁹ The countervailing State interest in curtailing child abuse is also great. In cases of suspected abuse or neglect, the State has a clear interest in protecting the child and may, if necessary, separate abusive or neglectful parents from their children.

The dual nature of the State's interest is evidenced by the statute which permits a parent to move the court for an improvement period when abuse or neglect is alleged. ¹⁰ The court must allow the improvement period unless "compelling circumstances" justify a denial, as we explained in State v. Scritchfield, 167 W.Va. at 692-93, 280 S.E.2d at 321:

"Clearly, the statute presumes the entitlement of a parent to an opportunity to ameliorate the conditions or circumstances upon which a child neglect or abuse proceeding is based pending final adjudication, no doubt in recognition of the fundamental right of a parent to the custody of minor children until the unfitness of the parent is proven. See, e.g., In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973). The statute permits the court to deny such a request only upon a finding of 'compelling circumstances.' "

See also In Re Thaxton, 172 W.Va. 429, 307 S.E.2d 465 (1983).

It is important to observe that W.Va.Code, 49-6-2(b) (1984), allows a parental improvement period, while the child is temporarily physically removed from the alleged abusive situation, as the court "may require temporary custody in the state department or other agency during the improvement period."

This is the thrust of Mary W.'s claim. She moved for an improvement period at the June 10, 1985 preliminary hearing. The trial court found the alleged history of abuse by her husband, J.B.W., to be a compelling circumstance justifying the denial of an improvement period. At the final hearing, Mary W. renewed her motion. The trial court again denied the improvement period, stating that to return the children to the mother, who had continued contact with the father, "would put these children at great risk again."

It appears that the trial court believed that its only option in granting an initial improvement period was to return the children to Mary W. Nothing in the record indicates the trial court gave any consideration to the possibility of granting Mary W. an improvement period without custody of the children. As previously observed, W.Va.Code, 49-6-2(b) (1984),...