In re Emily

• Citation: 208 W. Va. 325,540 S.E.2d 542
• Decision Date: 16 June 2000
• Docket Number: No. 26915.,26915.
• Court: Supreme Court of West Virginia
• Parties: In re EMILY and Amos B.

540 S.E.2d 542

208 W. Va. 325

In re EMILY and Amos B.

No. 26915.

Supreme Court of Appeals of West Virginia.

Submitted April 12, 2000.

Decided June 16, 2000.

Concurring Opinion of Justice Starcher July 20, 2000.

Darrell V. McGraw, Jr., Attorney General, Charleston, West Virginia, Katherine M. Mason, Assistant Attorney General, Beckley, West Virginia, and Thomas L. Berry, Assistant Prosecuting Attorney for Mercer County, Princeton, West Virginia, Attorneys for the Appellant, West Virginia Department of Health and Human Resources.

Gerald R. Linkous, Randal W. Roahrig & Associates, Princeton, West Virginia, Attorney for the Appellee, Tracy B. and Angela Ash, Public Defender Corporation, Princeton, West Virginia, Attorney for the Appellee, Amos B. (father).

Thomas L. Fuda, Henderson & Fuda, Bluefield, West Virginia, Guardian ad Litem for the minor children, Emily B. and Amos B. (son).

DAVIS, Justice:

The appellant herein and petitioner below, the West Virginia Department of Health and Human Resources [hereinafter "DHHR"], appeals the September 15, 1999, dispositional order entered by the Circuit Court of Mercer County regarding the minor children Emily B.¹ [hereinafter "Emily"] and her brother Amos B. (son) [hereinafter "A.J."]. In that order, the circuit court denied the DHHR's motion to terminate the parental rights of the children's parents, the appellees herein and respondents below, Tracy B. [hereinafter "Tracy"] and Amos B. (father) [hereinafter "Amos"],² and granted each of the parents a one-year improvement period to commence upon Tracy's successful completion of an inpatient substance abuse treatment program and Amos' release from federal incarceration. On appeal to this Court, the DHHR contends that the circuit court erroneously granted a delayed improvement period and improperly denied its motion to terminate Tracy's and Amos' parental rights. Upon a review of the parties' arguments, the appellate record, and the pertinent authorities, we reverse the decision of the Circuit Court of Mercer County granting the parents a delayed improvement period. We order reversal in this instance because such an improvement period is not permitted by the relevant statutes governing abuse and neglect matters. See W.Va.Code § 49-6-1, et seq. Furthermore, as a result of this ruling, we vacate the circuit court's order denying the DHHR's motion to terminate the respondent parents' parental rights, and remand this case to permit the lower court to reconsider the matter and to conduct further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

On November 5, 1998, the DHHR filed in the Circuit Court of Mercer County a petition for the emergency custody of then five-year-old Emily³ and then three-year-old A.J.⁴ based upon Tracy's, their mother's, failure to retrieve the children from their day care provider,⁵ and Amos', their father's, present inability to care for them as a result of his incarceration.⁶ The events underlying this petition are as follows. On or about October 30, 1998, Tracy arranged for the children to spend the night with their day care provider, Patsy H. [hereinafter "Patsy"], presumably with the understanding that Tracy would retrieve the children the following day. However, Tracy did not return to Patsy's house the next day to pick up Emily and A.J. Additionally, she neither called nor checked on the children. Neither did she provide them with changes of clothing, food, medication, or a consent form giving Patsy permission to obtain medical care for them.⁷ After the youngsters had stayed with their day care provider for three days, Tracy called to inquire about them and requested Patsy to bring the children to her. When Patsy refused to do so, Tracy indicated that she could not pick up the children herself. Ultimately, on the fifth day of the children's stay with Patsy, on November 3, 1998, their grandmother and Tracy's mother, Aletha M., picked up Emily and A.J.

By order entered November 5, 1998, the circuit court determined Emily and A.J. to be in imminent danger,⁸ with no alternative but to temporarily remove them from their mother's care. See W.Va.Code § 49-6-3(a) (1998) (Repl.Vol.1999). In so ruling, the court also awarded legal and physical custody of the children to the DHHR. The DHHR, in turn, placed the children with their maternal grandmother, Aletha M., with whom they had been residing since November 3rd. Thereafter, a preliminary hearing was held on November 16, 1998. At that time, the circuit court found Emily and A.J. continued to be in imminent danger so as to preclude their return to Tracy's care, and continued their legal and physical custody with the DHHR. The court further ordered supervised visitation between Tracy and the children, and allowed the DHHR discretion as to whether to permit visitation with Amos.

Following these proceedings, the parties developed a family case plan whereby Tracy would complete extensive detoxification and substance abuse treatment programs, submit to random drug screens by the DHHR, and create a safe and stable home environment for Emily and A.J., including securing employment and maintaining a drug-free atmosphere. No family case plan was devised for Amos, however, presumably because the parties believed his incarceration would preclude his achievement of such goals.

The adjudicatory hearing scheduled for January 13, 1999,⁹ was continued to March 31, 1999, at the request of Tracy's counsel, as a result of Tracy's enrollment in an inpatient substance abuse treatment program pursuant to the terms of her family case plan. On March 31, 1999, the court determined that Tracy had abandoned Emily and A.J. and that Amos had, by virtue of his incarceration, "technically abandoned" the children. Accordingly, the court adjudicated the children to be abused and/or neglected.

On April 28, 1999, the DHHR moved to terminate both parents' parental rights based upon the circuit court's findings of abandonment and its statutory obligation to seek termination of parental rights in cases involving abandonment.¹⁰ See W.Va.Code § 49-6-5b(a)(2) (1998) (Repl.Vol.1999) (directing that the DHHR "shall file or join in a petition or otherwise seek a ruling in any pending proceeding to terminate parental rights ... [i]f a court has determined the child is abandoned"). Finally, on September 15, 1999, the circuit court conducted a dispositional hearing in this case.¹¹ Upon the evidence presented for its consideration, the court rendered the following findings and conclusions:

The Court FINDS that these infant children have a close and continuing relationship and strong bond with the respondent father,¹² that it appears the respondent mother was probably the primary caretaker prior to the initiation of this action, and the Court suspects there is a strong bond between the respondent mother and the infants. The Court FINDS that when a reunification plan is adopted as to one parent, termination of the other parent's parental rights normally serves no purpose. This Court has difficulty terminating the respondent mother's rights, because this Court FINDS it very difficult to terminate the rights of the respondent father under the facts before the Court. The Court FINDS that the respondent father has recently resided in a structured environment as a result of his conviction for bank robbery, that he is participating and complying with all services provided by the Federal Correction Facility, such as visitation, drug and alcohol counseling, and parenting programs. On the other hand, the respondent mother is in an unstructured environment, and has failed to comply with any services provided her, and suffers from an apparent drug addiction. The Court FINDS that this case is one of those rare exceptions to delay the implementation of a permanency plan; as the respondent father is due to be released from incarceration between October 2000 and March 2001; specifically that this is not a case where a limited six month improvement period will be appropriate. The Court FINDS that an extended improvement period, or delay in implementing the same, will not unduly prejudice the infants because the infants are doing well in their current foster placement with the visitation available, that it is in the best interest of the infants to currently maintain the existing bond with their parents, and although the Department of Health and Human Resources has identified adoption as the permanency plan for these infants, the Department has not secured a permanent placement as of this date.

This Court will defer further disposition in this matter, and it is the ORDER and DECREE of this Court that the State's Motion to Terminate Parental Rights be denied as to both respondent parents. It is the ORDER and DECREE of this Court that both respondent parents be granted a one (1) year post-adjudicatory improvement period,¹³ that the formal implementation of the respondent father's six (6) month statutory improvement period be delayed until his release from incarceration, and that the formal implementation of the respondent mother's six (6) month statutory improvement period be delayed until she has successfully completed a long-term inpatient substance abuse treatment....¹⁴

(Footnotes added). From this order of the circuit court, the DHHR appeals.

II. STANDARD OF REVIEW

For appeals resulting from abuse and neglect proceedings, such as the case sub judice, we employ a compound standard of review: conclusions of law are subject to a de novo review, while findings of fact are weighed against a clearly erroneous standard.

"`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...