In re Cecil T.

• Decision Date: 10 March 2011
• Docket Number: No. 35659.,35659.
• Citation: 717 S.E.2d 873,228 W.Va. 89
• Court: West Virginia Supreme Court
• Parties: In re CECIL T.

228 W.Va. 89

717 S.E.2d 873

In re CECIL T.

No. 35659.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 12, 2011.Decided March 10, 2011.

Syllabus by the Court

1. “Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

2. “A biological parent of an infant child does not forfeit his or her parental right to the custody of the child merely by reason of having been convicted of one or more charges of criminal offenses.” Syl. Pt. 2, State ex rel. Acton v. Flowers, 154 W.Va. 209, 174 S.E.2d 742 (1970).

3. When no factors and circumstances other than incarceration are raised at a disposition hearing in a child abuse and neglect proceeding with regard to a parent's ability to remedy the condition of abuse and neglect in the near future, the circuit court shall evaluate whether the best interests of a child are served by terminating the rights of the biological parent in light of the evidence before it. This would necessarily include but not be limited to consideration of the nature of the offense for which the parent is incarcerated, the terms of the confinement, and the length of the incarceration in light of the abused or neglected child's best interests and paramount need for permanency, security, stability and continuity.

4. “[C]ourts are not required to exhaust every speculative possibility of parental improvement ... 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 part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

5. “Although parents have substantial rights that must be protected, the primary goal in cases involving abuse and neglect, as in all family law matters, must be the health and welfare of the children.” Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

6. The eighteen-month period provided in Rule 43 of the West Virginia Rules of Procedures for Child Abuse and Neglect Proceedings for permanent placement of an abused and neglected child following the final dispositional order must be strictly followed except in the most extraordinary circumstances which are fully substantiated in the record.

Jane Moran, Jane Moran Law Office, Williamson, WV, for Appellants.

L. Donna Pratt, Logan, WV, Guardian Ad Litem.

David A. Wandling, Avis, Witten & Wandling, Logan, WV, for Appellee.Michael L. Jackson, Assistant Attorney General, Charleston, WV, for West Virginia, Department of Health & Human Resources.McHUGH, Justice:

This matter involves the petition for appeal of Brett and Susan B. ¹ [hereinafter “Appellants”] of the January 29, 2010, order of the Circuit Court of Logan County, as intervenors ² and foster parents in the underlying abuse and neglect proceeding regarding the infant Cecil T. II [hereinafter “Cecil T.”].³ In that order, the circuit court denied the motion to terminate the parental rights of Cecil T. I [hereinafter “father” or “Appellee”] made by the West Virginia Department of Health and Human Resources [hereinafter “DHHR”], in which Appellants and the guardian ad litem of Cecil T. had joined. Appellants maintain that the lower court erred by not promoting the best interests of Cecil T. when it failed to terminate the father's parental rights and thereby delayed the establishment of a permanent placement plan for the child.⁴ Having completed a thorough review of the arguments, including the response and report filed by the child's guardian ad litem, as well as the appellate record and relevant law, we reverse the decision of the lower court and remand the case for entry of an order terminating the father's parental rights and establishment of a permanent placement plan for Cecil T.

I. Factual and Procedural Background

Cecil T. was born on September 6, 2008. On September 9, 2008, DHHR filed the first abuse and neglect petition ⁵ with the circuit court seeking immediate legal and physical custody of the infant. It is uncontested that the original removal petition stated that the child was in imminent danger of abuse and neglect because: the parental rights of the biological mother had been involuntarily terminated with regard to two other children she had birthed; the baby was found presumptively positive for benzodiazepines, methadone and barbiturates; and the father had admitted to use of a drug while felony drug charges were pending against him in magistrate court.⁶ The petition related that no willing or physically able relatives were found to care for the child. The resulting emergency order placed legal custody of Cecil T. with DHHR and physical custody with Appellants.

At a hearing in November 2008, Appellee was awarded a pre-adjudicatory improvement period after he advised the court that he and the mother were no longer living together as a couple. The mother's parental rights were terminated ⁷ at an adjudication hearing held on December 9, 2008, but the custody of the child remained unchanged with DHHR continuing to have legal custody and Appellants retaining physical custody.

At a February 9, 2009, hearing, the lower court determined that Appellee had substantially complied with the terms of his improvement period and that the conditions which led to the filing of the first abuse and neglect petition had abated. As a result, the court returned legal and physical custody of the then 5–month–old Cecil T. to his father on that date. Appellants represent that this decision was reached despite Appellee's admission to the court at the December 2008 adjudication hearing that he violated the terms of the improvement period by co-habitating for a short time with the baby's mother. Appellants also said that the guardian ad litem expressed concern during the February 9, 2009, hearing not only about the continuing relationship between Cecil T.'s parents, but also about the father's abnormal drug screens which occurred on days when the baby was in the father's physical custody, and the lack of alternative care givers if Appellee were to be placed in jail as a result of the indictment pending against him.⁸

On March 6, 2009, Appellee was arrested in his home for selling firearms to undercover agents in violation of federal law barring possession of firearms by a convicted felon.⁹ The indictment contains a list of six firearms which Appellee had in his possession. Cecil T. was present in the home at the time of the sale and arrest. While it is not entirely clear how it occurred, the child apparently was taken to the home of Appellee's mother, Verna M. when Appellee was arrested, and the child remained there for three days.

According to DHHR's March 9, 2009, “Petition for Immediate Custody of Minor Children in Imminent Danger,” a DHHR child protective service worker [hereinafter “CPS”] responded on that date to a call from the grandmother's home where upon arrival at the home she found Cecil T. The conditions discovered in the home related by the CPS worker in this second abuse and neglect petition included that the grandmother had no appropriate bedding for the infant and the child was found lying in a playpen wearing a urine soaked diaper. It was further noted in the petition that the grandmother herself appeared to be in respiratory distress, but she refused the offer of the worker to call 911.¹⁰ The petition also related that the father had assumed physical and legal custody of the child following the successful completion of an improvement period in a prior abuse and neglect proceeding, but that the father was no longer available to care for the child due to the father's arrest and incarceration on March 6, 2009, for federal firearms charges.

By the court's March 9, 2009, “Emergency Order for Removal of Children in Imminent Danger,” the legal and physical custody of Cecil T. was returned to DHHR. On July 24, 2009, DHHR submitted an “Amended Petition,” in which the agency reasserted all of the points of the March 9, 2009, petition for immediate custody, and further stated that the father had been indicted in federal court for sale of firearms and had entered into a plea agreement regarding the federal charges.

An adjudication hearing was held on July 27, 2009. As a result, the lower court entered an order on August 11, 2009, in which it found that Appellee “knowingly participated in illegal activities while the child was present which led to his arrest and subsequent plea” to federal criminal charges and that his “actions placed the child at a substantial risk and in imminent danger. His choices placed the child in a very risky situation.” The order further states that “by his own actions, [the father] has been incarcerated and is unable to care for the child.” The order then reflects the lower court's ultimate determination that clear and convincing evidence was presented to establish that Cecil T. was a neglected child. The order...