In re Edward B.
| Decision Date | 08 November 2001 |
| Docket Number | No. 28732.,28732. |
| Citation | 210 W.Va. 621,558 S.E.2d 620 |
| Court | West Virginia Supreme Court |
| Parties | In re EDWARD B., John David F., David Dewane F., George Franklin F., and Benny Jay J. |
Lisa Davis Clark, Gibson, Lefler & Associates, Princeton, for the Appellant, Patricia J.
Ronald Keith Flinchum, Guardian Ad Litem, Welch, for the Children, Edward B., John David F., David Dewane F., George Franklin F., and Benny Jay J.
Sidney H. Bell, Prosecuting Attorney, Welch, for the West Virginia Department of Health and Human Resources.
Gloria M. Stephens, Welch, for Edward B., Sr.
Ronald D. Hassan, Welch, for David D. F.
Kevin A. Wade, Welch, for Charles C.
This is an appeal by Patricia J.1 (hereinafter "Appellant" or "mother") from an order of the Circuit Court of McDowell County terminating the Appellant's parental rights to her son Benny J., transferring exclusive legal and physical custody of three other children to their father, and transferring legal and physical custody of a fifth child to the Department of Health and Human Resources (hereinafter "DHHR"). The Appellant contends, inter alia, that the lower court erred by failing to make specific findings of fact required by West Virginia Code §§ 49-6-5(a)(5) and 49-6-5(a)(6) (1998) (Repl.Vol.2001) when transferring custody or terminating parental rights as a result of a finding of abuse or neglect.2 Based upon our review of the record and the arguments of counsel, we reverse the decision of the lower court and remand this matter for further proceedings consistent with this opinion.
Although the record regarding DHHR action prior to the filing of the neglect petition is scant, it appears that DHHR began working with the Appellant in 1997, attempting to assist her with allegedly inadequate housing conditions at her mobile home near Panther, West Virginia.3 The DHHR represented to the court below that it had attempted to coordinate transportation to medical appointments for the Appellant and her children and arranged family counseling, individual counseling, and homemaking, infant care and parenting skills training through the Children's Home Society and Tug River Health. The record contains nothing beyond the bare representations of the child protective services worker regarding these third-party efforts and does not contain the testimony of representatives of these agencies. Consequently, this Court is unaware of the frequency and content of such services or the degree of success attained by these outside agencies.
On February 29, 2000, child protective services worker John Propst4 visited the home for approximately twenty minutes and concluded that the Appellant's eight-year-old son John required medical attention for a cut on his face, incurred in a fall on a railroad tie. The Appellant had treated the child's injury, but had not sought medical attention for the injury.5 Mr. Propst also noticed that the home was dirty and that furniture and bags of clothing cluttered the rooms of the mobile home. As had been the case during the time Mr. Propst had been working with the family, there was no running water coming into the home. There was, however, a water line to the front door of the mobile home where the mother obtained water for flushing the toilet and other purposes. A neighbor had assisted the Appellant in obtaining a water line to the front door of the home.
The day after that visit, March 1, 2000, Mr. Propst, acting for the DHHR, filed a petition against the Appellant, alleging that she had neglected her children. The petition alleged that the mobile home was dirty and had no running water. In the petition, Mr. Propst explained that the Appellant had cursed him and "the DHHR for not being there when needed and sticking our noses up her ass when we didn't need to." Mr. Propst further alleged in the petition that the Appellant had failed to keep medical appointments and that a truancy warrant was pending for her failure to send the children to school. No allegations of abuse were filed, and the petition stated that the DHHR did not believe that there existed any imminent danger to the children.
Incident to filing the petition, an order was entered granting emergency powers to the DHHR, and the children were taken to physicians for examinations under the authority of that order. All children were healthy, except two-month old Benny, who had low weight and was diagnosed with failure to thrive. He was admitted for hospitalization on March 1, 2000, and discharged to foster care on March 4, 2000.6
The lower court conducted a hearing for further temporary relief on March 9, 2000, and placed the children in the legal custody of the DHHR. Edward, John, David, and George were placed in the physical custody of Mr. David F., the biological father of John, David, and George. The infant, Benny, was placed with the State due to his special medical needs. The Appellant was granted visitation with the children.7 An amended petition was filed on April 7, 2000, alleging that Benny suffered from failure to thrive and further alleging that the infant suffered a rash where the Appellant had taped a diaper to his skin.
An adjudicatory hearing was held on May 24, 2000, and testimony was taken. Mr. Propst testified concerning the children's medical conditions, school attendance, and missed medical appointments. The lower court asked Mr. Propst why the petition had been filed at this time "[i]f this has been going on in some way, shape or form involving this whole family for about a year or so...." In response, Mr. Propst raised the issue of lice and nits, an issue which does not appear in the petition or amended petition, and explained as follows: "Mainly, the absences of the children from school and the fact that they were coming to school every day with lice, the teachers were sending them home."8 The lower court then suggested as follows:
Well, you've been in and out of the home, as well as the others, for, you know, at least twenty times and so forth for a year, did anyone give her any direction or supervision or any help in, you know, getting rid of the mites.... [D]id the Department or anyone else involved do something to find her a better place or a cleaner place or to bring someone in if she was unable to do it....
Mr. Propst responded:
During that adjudicatory hearing, the Appellant testified that she had extended running water from the outside into the home. She explained that when Mr. Propst told her to get the water fixed, she was able to obtain running water in the home by paying a neighbor $146.00 to repair the mobile home's broken water pipes after the landlord, residing in Virginia, failed to respond to the Appellant's request for running water and some type of heat other than the coal furnace in the home.
She also testified about her bond with the children, as follows:
Just that I love my children. They are my life. Nobody can live without air, and I can't live without them. They're the reason I go on. They're the reason I struggle. Sure, I had to pack that water, and it was hard on me, but I didn't make it harder for them. I still kept them clean and stuff. I tried.
When the lower court asked why she had not demanded further assistance with running water from the DHHR, the Appellant responded: "It would be kind of hard to demand that the Department ... do something for me when— I mean, they say I— I miss appointments and things...."
When questioned regarding the family income, the Appellant explained that she received $460.00 per month on behalf of David, based upon his seizure disability, and that she received $312.00 per month in benefits and $148.00 per month in food stamps. Mr. F. also allegedly paid the Appellant $50.00 in support monthly. The record does not disclose how much, if any, of that income ended upon the entry of the temporary relief order on March 9, 2000, transferring custody to persons other than the Appellant.
Having conducted this adjudicatory hearing on May 24, 2000, the lower court entered the resulting order on June 26, 2000,9 finding that the Appellant had neglected the children. Specifically, the lower court found as follows:
[The Appellant] failed to provide a safe home for the children, who lived with her in two rooms of a mobile home with dangerous electrical wiring and without hot or cold running water inside the home. She further failed to send the children to school on a regular basis, resulting in her prosecution for truancy, and she failed to seek readily available medical treatment for one of the children even though he had suffered a serious injury to his face that should have received immediate, emergency medical care.
With specific regard to the infant Benny, the court found as follows:
The Court additionally finds that ... [the Appellant] seriously neglected the basic needs of infant respondent Benny ... [J.] by failing to provide adequate nourishment and emotional support, resulting in the infant being diagnosed by a pediatrician with "failure to thrive" and anemia. Said child had gained only a few ounces in the two months since his birth on December 27, 1999....
The lower court ordered "that the parents continue to have reasonable visitation, contact and communication with the infants under the Department's supervision, but there shall be no forced visitation." The record is silent regarding the degree to which the visitation privileges granted by the lower court were exercised by the Appellant after the adjudicatory hearing.
On June 9, 2000, the Appellant filed a written motion for a post-adjudicatory improvement period....
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