Carlita B., In Interest of

• Decision Date: 31 July 1991
• Docket Number: No. 19899,19899
• Citation: 185 W.Va. 613,408 S.E.2d 365
• Court: West Virginia Supreme Court
• Parties: In the Interest of CARLITA B.

Page 365

408 S.E.2d 365

185 W.Va. 613

In the Interest of CARLITA B.

No. 19899.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 5, 1991.

Decided July 29, 1991.

Concurring Opinion of Chief Justice Miller

July 31, 1991.

Syllabus by the Court

1. 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. Consequently, in order to assure that all entities are actively pursuing the goals of the child abuse and neglect statutes, the Administrative Director of this Court is hereby directed to work with the clerks of the circuit court to develop systems to monitor the status and progress of child neglect and abuse cases in the courts.

2. " ' "A parent has the natural right to the custody of his or her infant child, and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment, or other dereliction of duty, or has waived such right, or by agreement or otherwise has permanently transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts." Syllabus, State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d (1969).' Syl. pt. 2, Hammack v. Wise, 158 W.Va. 343, 211 S.E.2d 118 (1975)." Syl. Pt. 1, Nancy Viola R. v. Randolph W., 177 W.Va. 710, 356 S.E.2d 464 (1987).

3. "Under W.Va.Code, 49-6-2(b) (1984), when an improvement period is authorized, then the court by order shall require the Department of Human Services to prepare a family case plan pursuant to W.Va.Code, 49-6D-3 (1984)." Syl. Pt. 3, State ex rel. West Virginia Dept. of Human Serv. 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.

5. The clear import of the statute [West Virginia Code § 49-6-2(d) ] is that matters involving the abuse and neglect of children shall take precedence over almost every other matter with which a court deals on a daily basis, and it clearly reflects the goal that such proceedings must be resolved as expeditiously as possible.

6. At the conclusion of the improvement period, the court shall review the performance of the parents in attempting to attain the goals of the improvement period and shall, in the court's discretion, determine whether the conditions of the improvement period have been satisfied and whether sufficient improvement has been made in the context of all the circumstances of the case to justify the return of the child.

7. "As a general rule the least restrictive alternative regarding parental rights to custody of a child under W.Va.Code, 49-6-5 [1977] will be employed; however, courts 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).

8. Prior acts of violence, physical abuse, or emotional abuse toward other children are relevant in a termination of parental rights proceeding, are not violative of W.Va.R.Evid. 404(b), and a decision regarding the admissibility thereof shall be within the sound discretion of the trial court.

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, In re James M., 185 W.Va. 648, 408 S.E.2d 400 (1991).

Barbara L. Baxter, West Virginia Legal Services, Wheeling, for appellant.

Mario J. Palumbo, Atty. Gen., Jeffrey K. Matherly, Asst. Atty. Gen., for State of W.Va.

WORKMAN, Justice:

Justina N. ¹ appeals from an order of the Circuit Court of Ohio County which terminated her parental rights to her daughter, Carlita B. The circuit court found that the appellant was guilty of abuse and neglect of Carlita and that there was no reasonable likelihood that the conditions of abuse and neglect could be corrected in the near future. The appellant contends that the circuit court erred in terminating her parental rights because 1) neither the Department of Human Services (hereinafter "D.H.S.") ² nor the specific D.H.S. caseworker assigned to the case made a reasonable effort to reunify the family as required by W.Va.Code § 49-6-5 (1988); 2) the assigned D.H.S. caseworker failed to develop a realistic case plan for the appellant as required by W.Va.Code § 49-6D-3 (1984); 3) the circuit court erred in finding that the appellant suffered from erratic behavior and outbursts of anger to the extent that such behavior made her incapable of exercising proper parenting skills; and 4) the circuit court erred in finding that the appellant abused her children other than Carlita because such evidence was (a) not relevant to this proceeding and should have been excluded, and (b) in the alternative, was not established by clear and convincing evidence. We disagree with the contentions of the appellant and affirm the order of the Circuit Court of Ohio County.

I. FACTS

The appellant is the mother of four children. Her parental rights to her oldest child, Justin, were terminated when the child was approximately three years of age, based upon the appellant's abusive actions toward the child. She apparently beat him on the legs and back, pulled out large areas of his hair, and threatened, in the presence of a D.H.S. caseworker, to drown both the oldest child and her second child, Christopher. ³

At the initiation of this action regarding Carlita, born on October 22, 1985, the appellant was living with Robert B., Carlita's father. On March 27, 1987, Dixie Laudermilt, a caseworker for the D.H.S., filed a petition to have Carlita removed from the home. The petition was based upon the following: (1) an alleged March 25, 1986, incident in which Robert B. reported that the appellant had thrown five-month-old Carlita onto a bed in a violent manner; (2) a November 14, 1986, incident in which the Wheeling Police were called to the appellant's residence to investigate a domestic dispute and discovered a red hand print on Carlita's back ⁴ (Robert B. and the appellant both admitted that the appellant had slapped the child, then thirteen months old, subsequent to an argument between Robert B. and the appellant); (3) allegations that the appellant had taken the child to bars in the late night and early morning hours; (4) allegations that the appellant would occasionally fail to feed Carlita until Robert B. returned from work in the evening due to the appellant's lack of patience in feeding the young child (Once Robert B. returned from work, he would allegedly feed the child for the first time of the day); (5) allegations by neighbors that they had heard the appellant screaming at the child and had heard the child fall out of its crib.

The appellant contends that Ms. Laudermilt's decision to petition for termination of the appellant's parental rights to Carlita was also premised upon the deteriorating relationship between the appellant and Ms. Laudermilt. Ms. Laudermilt had become acquainted with the appellant's family while Justin and Christopher were both residing in the household. Ms. Laudermilt had been instrumental in removing Justin from the home and had been given the responsibility of attempting to reintegrate Christopher into the home. While Ms. Laudermilt had visited the appellant's home with Christopher, complete reintegration had not been accomplished. During a visit in January 1987, the appellant became angry with Ms. Laudermilt when Ms. Laudermilt indicated that the visitation period had expired. As Ms. Laudermilt attempted to remove Christopher from the appellant's arms, the appellant kicked Ms. Laudermilt in the stomach. Ms. Laudermilt filed assault charges, and the appellant was jailed for two to three hours. When the appellant explained that she was pregnant, she was released from jail, and Ms. Laudermilt signed a mental hygiene petition to have her involuntarily committed to a behavioral health center.

A hearing on the petition for termination of the appellant's parental rights to Carlita was held on April 23, 1987. Testimony was elicited from Ms. Laudermilt; Bea Lahita, a homemaker services worker who had assisted the appellant with such household tasks as planning meals and preparing budgets; Gloria Johnston, a D.H.S. worker who had previously worked with the appellant; and Wheeling Police Officer Raymond LaRue, the officer who saw the red hand print on Carlita's back. At the conclusion of the presentation of evidence, the appellant was granted a six-month improvement period pursuant to W.Va.Code § 49-6-2(b) (1984). ⁵ Physical and legal custody of Carlita was given to the D.H.S. with supervised visitation permitted. The D.H.S. prepared and submitted a family case plan as required by W.Va.Code § 49-6D-3. ⁶ Two plans, dated November 20 1987, and August 25, 1988, were formulated. ⁷

II. RESULTS OF FIRST IMPROVEMENT PERIOD

A hearing on the success of the improvement period was held on November 10, 1987. Ms. Laudermilt testified for the D.H.S. and explained that she had been involved with Carlita and her family during the improvement...