Brian D., Matter of

• Decision Date: 19 July 1995
• Docket Number: No. 22558,22558
• Citation: 461 S.E.2d 129,194 W.Va. 623
• Court: West Virginia Supreme Court
• Parties: In the Matter of BRIAN D., Jeffrey D., Sherrie D. and Allen D., Abused and Neglected Children, Infants. Barbara JOHNSON, Respondent Below, Appellant, v. John NANNY, Director of Attendance, Ohio County Schools, and West Virginia Department of Health and Human Resources, Petitioners Below, Appellees.

Page 129

461 S.E.2d 129

194 W.Va. 623

In the Matter of BRIAN D., Jeffrey D., Sherrie D. and Allen

D., Abused and Neglected Children, Infants.

Barbara JOHNSON, Respondent Below, Appellant, v. John NANNY, Director of Attendance, Ohio County Schools, and West Virginia Department of Health and Human

Resources, Petitioners Below, Appellees.

No. 22558.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 10, 1995.

Decided July 19, 1995.

Syllabus by the Court

1. "In a child abuse and neglect hearing, before a court can begin to make any of the dispositional alternatives under W.Va.Code, 49-6-5, it must hold a hearing under W.Va.Code 49-6-2, and determine 'whether such child is abused or neglected.' Such a finding is a prerequisite to further continuation of the case." Syl.Pt. 1, State v. T.C., 172 W.Va. 47, 303 S.E.2d 685 (1983).

2. "Under W.Va.Code, 49-6D-3 (1984), the Department of Human Services is required to prepare a family case plan with participation by the parties and their counsel and to submit it to the court for approval within thirty days." Syl.Pt. 4, State ex rel. W.Va. Dep't of Human Servs. v. Cheryl M., 177 W.Va. 688, 356 S.E.2d 181 (1987).

3. "The purpose of the family case plan as set out in W.Va.Code, 49-6D-3(a) (1984), is to clearly set forth an organized, realistic method of identifying family problems and the logical steps to be used in resolving or lessening these problems." Syl.Pt. 5, State ex rel. W.Va. Dep't of Human Servs. v. Cheryl M., 177 W.Va. 688, 356 S.E.2d 181 (1987).

4. "In formulating the improvement period and family case plans, courts and social service workers should cooperate to provide a workable approach for the resolution of family problems which have prevented the child or children from receiving appropriate care from their parents. The formulation of the improvement period and family case plans should therefore be a consolidated, multi-disciplinary effort among the court system the parents, attorneys, social service agencies, and any other helping personnel involved in assisting the family." Syl.Pt. 4, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

5. "Child abuse and neglect cases must be recognized as being among the highest priority for the courts' attention. Unjustified procedural delays wreak havoc on a child's development, stability and security." Syl.Pt. 1, in part, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

6. "The guardian ad litem's role in abuse and neglect proceedings does not actually cease until such time as the child is placed in a permanent home." Syl.Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991).

7. 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).

8. "When the West Virginia Department of Health and Human Resources seeks to terminate parental rights where an absent parent has abandoned the child, allegations of such abandonment should be included in the petition and every effort made to comply with the notice requirements of W.Va.Code, 49-6-1 (1992)." Syl.Pt. 6, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).

9. "In cases where there is a termination of parental rights, the circuit court should consider whether continued association with siblings in other placements is in the child's best interests, and if such continued association is in such child's best interests, the court should enter an appropriate order to preserve the rights of siblings to continued contact." Syl.Pt. 4, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991).

10. "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." Syl.Pt. 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).

Randy Dean Gossett, Guardian Ad Litem, Wheeling, for Jeffrey D.

Gregory A. Gellner, Artimez & Gellner, Wheeling, for Barbara J.

George P. Surmaitis, Asst. Atty. Gen., Charleston, for West Virginia Dept. of Health and Human Resources.

WORKMAN, Justice:

Appellant Barbara Johnson appeals from the May 6, 1993, order of the Circuit Court of Ohio County terminating her parental rights to her son, Jeffrey D. ¹ Given the lengthy and convoluted procedural history of this case, we ordered on January 27, 1995, that an immediate home study be completed and returned to this Court by February 10, 1995. We further ordered that telephone communication between Jeffrey and Appellant be immediately restored and suggested that supervised visitation be arranged, provided that the home study did not indicate that visitation would be harmful to Jeffrey. ² After reviewing this matter in full, we reverse the termination order and remand this case to the court below to consider fashioning a meaningful improvement period and ultimately to determine whether it is in the best interests of Jeffrey to be returned to his mother's custody.

I. Seven Years of a Child's Life

In his concurring opinion in In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991), Justice Thomas B. Miller called the majority opinion "the bible not only for our circuit courts, but for all who are involved in this sensitive and difficult field." Id. at 633, 408 S.E.2d at 385 (Miller, J., concurring). The protracted procedural history of this case, as well as its substantive disregard of the rights of all the parties, could make the record below the bible for how not to handle an abuse and neglect case. Furthermore, the muddled state of the record in this matter has made this case difficult to sort out. It is especially troubling that although there are strong intimations of significant neglect and possible abuse, the only allegation of neglect or abuse ever formally alleged was truancy from kindergarten. Yet this matter has now lingered in the court system for almost seven years, without any permanent resolution for Jeffrey.

On December 8, 1988, John Nanny, the director of attendance for the Ohio County schools filed a petition against the Appellant ³ pursuant to West Virginia Code §§ 49-6-1 to -11 (1992 & Supp.1994), ⁴ alleging neglect on the grounds that Jeffrey had missed twenty-four days of kindergarten out of a possible thirty-two days as of mid-October. ⁵ On December 9, 1988, a hearing was held on the neglect petition which resulted in the entry of an order directing that psychological evaluations be performed on Appellant, as well as her four children. The circuit court held a status hearing on the petition on January 27, 1989, and concluded that because Jeffrey was not emotionally ready for kindergarten, his attendance was voluntary pursuant to state law. ⁶ Rather than dismissing the petition as to Jeffrey, however, the court delayed its ruling pending receipt of the previously-ordered psychological evaluation.

A status hearing was held on February 17, 1989, at which time the court ordered that a court summary prepared by a protective service worker for the West Virginia Department of Human Services (hereinafter referred to as "DHS") ⁷ be filed and scheduled a hearing on June 2, 1989, for the purpose of reviewing the written psychological evaluations. ⁸ At the June 2, 1989, hearing, the court heard the testimony of John Nanny and the DHS protective service worker. The DHS worker asked the court to extend the improvement period ⁹ through November 1989 on the grounds that he had seen no indication that Jeffrey was going to start attending kindergarten in the fall. ¹⁰ He further testified that parenting classes had not been offered to Appellant as the examining psychologist had not felt that she would benefit from such classes. ¹¹ The hearing was continued until June 30, 1989, to permit the State to call Corey Roman, the psychologist who performed the evaluations.

The prosecutor chose not to call Mr. Roman at the June 30, 1989, hearing, ¹² but Mr. Nanny informed the court that Jeffrey had successfully begun attending a summer school session. ¹³ The court opined that the improvement period "is probably bearing fruit" and continued the matter until September 28, 1989, with the comment that "if the children's attendance is reasonable during that month then we could just dismiss this action...."

The record reflects that the next action taken in connection with this case was the court's entry of an order on August 2, 1989, terminating the "paternal parental rights of Wilbur White and of any person claiming to be the father of any or all of said children...." ¹⁴ A review of the record suggests that the impetus for terminating Mr. White's parental rights was a motion seeking to be relieved ¹⁵ by counsel originally appointed to represent the rights of the unknown father. ¹⁶

The record is unclear as to whether the scheduled hearing for September 28, 1989, ever took place. Two documents in the file, however, were obviously prepared in anticipation of such a hearing. First, a court summary bearing the date of September 20, 1989, by the DHS worker was ordered filed by Judge Callie Tsapis on September 25, 1989. Interestingly, that summary contains the recommendation that "[t]he Court order that the educational neglect petition against Barbara Johnson be dismissed." Second, a letter which is dated September 28, 1989, from John Nanny to Judge Tsapis states that: "I am pleased to share with the Court the improved attendance pattern of the ... [D.] children as of this date. I would like to see an informal, unsupervised...