Darla B., In Interest of, 16669

• Decision Date: 12 June 1985
• Docket Number: No. 16669,16669
• Citation: 175 W.Va. 137,331 S.E.2d 868
• Court: West Virginia Supreme Court
• Parties: In the Interest of DARLA B., An Infant Under the Age of 18 Years.

Page 868

331 S.E.2d 868

175 W.Va. 137

In the Interest of DARLA B., An Infant Under the Age of 18 Years.

No. 16669.

Supreme Court of Appeals of West Virginia.

Submitted April 24, 1985.

Decided June 12, 1985.

Syllabus by the Court

1. "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, and this is particularly applicable to children under the age of three years who are more susceptible to illness, need consistent close interaction with fully committed adults, and are likely to have their emotional and physical development retarded by numerous placements." Syl. pt. 1, In Re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

2. The decision of a circuit court terminating the rights of parents to their child pursuant to W.Va.Code, 49-6-5 [1977], will not be reversed by this Court for failure to grant the parents an improvement period, where the evidence supports a finding that the child, 38 days old, suffered from life-threatening injuries in the form of broken bones and bruises, which could not have occurred in the manner testified to by the parents, and the circuit court found "compelling circumstances" for the termination of parental rights.

3. The granting of an improvement period, pursuant to W.Va.Code, 49-6-2(b) [1980] and W.Va.Code, 49-6-5(c) [1977], unless otherwise provided by the laws of this State, is not an alternative disposition where a finding is made pursuant to W.Va.Code, 49-6-5(a)(6) [1977] that there is "no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future," and, pursuant to W.Va.Code, 49-6-2(b) [1980], "compelling circumstances" justify a denial thereof.

S. Douglas Adkins, Williamson, for Mr. and Mrs. Brewer.

Pamela Lynn Dalton, Williamson, for Darla Brewer.

Robert G. Clarke, Asst. Atty. Gen., Charleston, for Dept. of Human Services.

Jane Moran, Williamson, for intervenor Custodial Caretakers.

McHUGH, Justice:

In this action, the appellants, Dwayne and Tuesday B., appeal from the final order of the Circuit Court of Mingo County, West Virginia, which held that the appellants' daughter, Darla B., was an abused child, and terminated the parental rights of the appellants. The infant was committed to the permanent guardianship of the West Virginia Department of Human Services. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. Counsel for the respondent and the intervenor, who represented the infant's present custodial caretaker and filed a brief in her behalf, appeared for argument, while counsel for appellants did not.

The appellants, Dwayne and Tuesday B., are the natural parents of Darla B. The infant child, while approximately five weeks old, was hospitalized, suffering from a skull fracture, a brain contusion, fractures of the leg, arm and collarbone, and swellings over the infant's mouth and eye. Medical testing showed that these injuries took place within 48 hours of hospitalization. Additional evidence of a separate, partially healed brain contusion was discovered, which was determined to have been inflicted approximately one week before Darla's other injuries.

As a result of a petition filed by the Department of Human Services, the circuit court entered an order finding Darla B. an abused child, terminating the parental rights of Tuesday and Dwayne B. This finding was based upon medical evidence that injuries of the type suffered by Darla could not have occurred in the fashion in which the appellants testified. Furthermore, the circuit court found that there was no reasonable likelihood that the conditions of abuse could be substantially corrected in the near future.

The issue before this Court thus concerns whether the court below correctly terminated the parental rights of the appellants, and correctly denied the application of the appellants for an improvement period.

The appellants assert several errors in the decision below. First, they suggest the circuit court erred in failing to grant them an improvement period as provided by statute. The appellants suggest that the rights of the infant's parents were not given adequate deference, and that at least one improvement period should be granted before termination.

The appellant parents also maintain that it was error for the trial court to deny the improvement period, inasmuch as statutory language requires granting a less restrictive alternative remedy where such a remedy is present. The appellants suggest that termination of parental rights was not the only remedy, but was the most severe. They assert that the court was required to grant the improvement period, since it would be less restrictive than termination of parental rights.

For reasons stated below, we hold that the action of the circuit court was proper.

West Virginia statutes and case law stress the protection of the parent and child relationship. This Court, in In Re Willis, 157 W.Va. 225, at 237, 207 S.E.2d 129, at 136 (1973), stated that "no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person." [citations omitted]. However, the discussion was followed with the following limiting language:

Nevertheless, this Court, early in the history of this State, recognized that the right of the natural parent to the custody of his child is not absolute; it is limited and qualified by the fitness of the parent to honor the trust of the guardianship and custody of the child.

157 W.Va. at 237, 238, 207 S.E.2d at 137.

In the case now before us, the injuries inflicted upon the child were of such magnitude that termination of the parental rights as a result of abuse was the only reasonable conclusion that the trial judge could reach. The testimony of the parents conflicts with all of the medical evidence as to the manner in which the life-threatening injuries occurred. ¹

As indicated above, the appellants contend that the trial court erred in denying an improvement period. W.Va.Code, 49-6-2(b) [1980] provides for the granting of an improvement period, during which the parents may attempt to rectify the conditions upon which the determination of abuse or neglect was based. However, the statute sets forth an occasion when an improvement period may not be granted.

(b) ... [T]he parents or custodians may, prior to final hearing, move to be allowed an improvement period of three to twelve months in order to remedy the circumstances or alleged circumstances upon which the proceeding is based. The court shall allow such an improvement period unless it finds compelling circumstances to justify a denial thereof.... (emphasis added)

The court below found that "compelling circumstances" existed which would merit the denial of the improvement period and described the circumstances as follows:

This is the most serious, substantial aggravated abuse on the most helpless kind of person that I have ever heard and I find those to be compelling circumstances. The very life of this child is in jeopardy and there exists substantial and real and immediate danger to the physical well being of the child and, in fact, there is a threat to the life of this child.

[Transcript of Mingo County Circuit Court hearing of November 29 and 30, 1983, page 68.]

In a recent case, In Re R.J.M., 164 W.Va. 496, 500-501, 266 S.E.2d 114, 117 (1980), the Court stated that an improvement period should be denied based on "compelling circumstances" where parents "routinely flogged their child to within an inch of her life."

The abuse in the case now before us is similar to that discussed in In Re R.J.M. in that Darla B., during the initial five weeks of her existence with her parents, was abused on two separate occasions and both times gravely injured. The trial court properly found "compelling circumstances" to deny an improvement period.

Secondly, the appellants argue that by refusing to grant an improvement period the court did not utilize the least restrictive available remedy, as is required by W.Va.Code, 49-6-5 [1977]. ² That statute specifies that, "[t]he court shall give precedence to dispositions in the following sequence ...," thereafter listing remedies which range from dismissing the abuse petition, to terminating parental rights.

The trial court...