In re Frances JAS

• Decision Date: 18 June 2003
• Docket Number: No. 30910., No. 30909
• Citation: 584 S.E.2d 492,213 W.Va. 636
• Court: West Virginia Supreme Court
• Parties: IN RE FRANCES J.A.S., Daryl Jean S., Crystal Nicole S., and David Allen R., Jr.

584 S.E.2d 492

213 W.Va. 636

IN RE FRANCES J.A.S., Daryl Jean S., Crystal Nicole S., and David Allen R., Jr.

Nos. 30909, 30910.

Supreme Court of Appeals of West Virginia.

Submitted March 11, 2003.

Decided June 18, 2003.

William L. Pennington, Morgantown, for Appellant, Darrell S.

Melinda Russell, Guardian ad Litem, Morgantown, for Appellees, Frances J.A.S., Daryl Jean S., Crystal Nicole S., and David Allen R., Jr.

Gail Voorhees, Public Defender Corporation, Kingwood, for Appellee, Melissa S.R.

Thorn H. Thorn, Morgantown, for Appellee, David A. R., Jr.

Darrell V. McGraw, Jr., Attorney General, Charleston, C. Carter Williams, Assistant Attorney General, Petersburg, for the Appellee, West Virginia Department of Health & Human Services.

PER CURIAM.

This is an appeal by Darrell S., biological father of Frances S. and Daryl Jean S., from a July 26, 2002, order of the Circuit Court of Preston County placing Frances and Daryl Jean in the custody of their mother and step-father, Melissa S.R. and David R., during a dispositional improvement period.¹ Melinda Russell, guardian ad litem for Frances and Daryl Jean, is also an Appellant in this action, maintaining that Frances and Daryl Jean should not have been returned to their mother's custody during the dispositional improvement period. Upon thorough review of this matter, we reverse and remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

Subsequent to a divorce between the Appellant Darrell S. and Melissa S., Melissa S. was granted custody of the parties' two daughters, Frances and Daryl Jean.² On January 1, 1998, Melissa S. gave birth to Crystal S. whose putative father is not a party to this matter. On September 29, 1999, Melissa S.R. gave birth to David R., Jr., whose father is David R., a party to this action.³ The Appellant, a resident of Colorado, maintained contact with his two daughters, Frances and Daryl Jean, while they resided with their mother and step-father in Preston County, West Virginia.

On January 17, 2001, the Department of Health and Human Resources (hereinafter "DHHR") filed a child abuse and neglect petition against Melissa S.R. and David R. based upon allegations of domestic violence and alcohol abuse which affected their parenting abilities.⁴ In addition to the allegations contained in the petition, further investigation revealed that David R. had pled no contest in 1991 to the charge of sexual abuse of his biological fifteen-year-old daughter, not a party to this action.⁵ Information gathered during investigation of this petition in West Virginia also revealed that Melissa S.R. had relinquished her parental rights to her first three children in Ohio after she had left those children in the care of her mother and they had been sexually abused by relatives.

Subsequent to a stipulated adjudication in this matter, all four children of Melissa S.R. were placed in foster homes, and Melissa and David R. were granted a six-month post-adjudicatory improvement period. During that post-adjudicatory improvement period, Frances and Daryl Jean were placed in the temporary physical custody of their father, Appellant Darrell S., in Colorado.⁶ The girls were transported to Colorado on July 12, 2001. A Colorado child protective services evaluation found that the home of Darrell S. and his wife, Ivy S., was an alcohol-free, safe environment for Frances and Daryl Jean.

During a multi-disciplinary team meeting in August 2001, marital difficulties between David and Melissa R. were revealed, and Melissa thereafter lived in a local Rape and Domestic Violence Shelter from August 22, 2001, to October 3, 2001. In October 2001, the DHHR requested that the lower court find that there was no reasonable likelihood that the conditions of neglect or abuse could be substantially corrected in the near future and recommended that the parental rights of Melissa and David R. be terminated with respect to all four children.⁷

At the conclusion of the post-adjudicatory improvement period, the lower court conducted a dispositional hearing over the course of seventeen days from November 13, 2001, to April 18, 2002. The lower court essentially conducted this extended hearing for the dual purpose of determining the extent to which Melissa and David R. had complied with the requirements of the post-adjudicatory improvement period and deciding the permanent placements for the four children during the dispositional improvement period. Counsel for Appellant Darrell S. was present at the hearings, but was not permitted to participate.⁸

The lower court received evidence from DHHR caseworker Jack Wood. Mr. Wood testified that Melissa and David R. had complied with every aspect of their improvement period and had shown significant progress. However, Mr. Wood further explained that the DHHR's recommendation of termination of parental rights had been based upon Dr. Hewitt's psychological assessments conducted in March 2001, before the improvement period began. Dr. Thomas Adamski, a forensic psychiatrist, disagreed with Dr. Hewitt's assessment and concluded that the current behavior of Melissa R. contradicted Dr. Hewitt's conclusions that she was incapable of improvement. Richard Chamberlain, a marriage counselor, testified that Melissa and David R. had participated fully in his counseling program and were genuine in their desire to improve their relationship and parenting skills. Representatives from Burlington United Methodist Family Services also testified that Melissa and David R. were appropriate in their visitation with the children in foster care.

Based upon evidence of improvement by David and Melissa R., the guardian ad litem recommended that Crystal and David, Jr., be returned to Melissa and David R. The guardian ad litem also recommended that Frances and Daryl Jean remain in their father's care in Colorado during the dispositional improvement period.

On May 6, 2002, the lower court issued an opinion letter containing its findings of fact and conclusions of law. The letter included no explicit findings regarding the best interests of the children. In accordance with the opinion letter, the lower court entered an order dated May 15, 2002, granting a six-month dispositional improvement period to Melissa and David R., pursuant to West Virginia Code § 49-6-12(c). Once again, the order failed to include explicit findings regarding the best interests of the children. The lower court noted that Melissa and David R. were receiving sexual offender education and that they appeared motivated to remain sober and free of domestic violence. By the time of the entry of the Mary 15, 2002, order, Frances and Daryl Jean had been living in their father's care in Colorado for an entire school year.

On May 17, 2002, Appellant Darrell S. filed a motion for stay of execution, objecting to the placement of his daughters with their mother and step-father. On May 20, 2002, guardian ad litem Melinda Russell filed a motion for a stay of execution, also objecting to the lower court's placement of Frances and Daryl Jean with Melissa and David. R. during the dispositional improvement period. On May 21, 2002, the DHHR filed a motion for stay of execution, arguing that the four children should not be placed with Melissa and David R.⁹

In response to the motions for stay, the lower court issued a May 28, 2002, order articulating its acknowledgment that the best interests of Frances and Daryl Jean should be considered in formulating the dispositional improvement period. Thus, the lower court conducted placement reconsideration hearings on June 25, 2002; July 3, 2002; and July 18, 2002. Appellant Darrell S. traveled from Colorado to participate in the hearings. Daryl Jean specifically testified that she wished to remain with her father in Colorado. Frances also testified, but did not wish to express a preference.¹⁰ Through telephone conferencing, the lower court heard the testimony of Valerie White of Boulder County Social Services in Colorado. Ms. White had conducted a home study of the residence of Darrell S. and his wife and had continued to monitor the girls while they lived in Colorado. Ms. White testified that the girls were well-adjusted with their father in Colorado and should remain there. The lower court also heard the testimony of Ms. Dianne Eraker, a counselor for the girls in Colorado. She recommended that the girls remain in Colorado with their father, recognizing the need for stability during this critical stage of adolescence. DHHR caseworker Jack Wood testified that the best interests of the girls would be served by allowing them to remain with their father during their mother's dispositional improvement period. David Walker, a parenting trainer, testified that he wanted to observe the interaction between the girls and Melissa and David R. during his parenting classes.

By order dated July 26, 2002, the lower court found that Frances and Daryl Jean¹¹ should be returned to the custody of Melissa and David R. during the dispositional improvement period. The court found that "[n]either the Petitioner [DHHR], the Guardian Ad Litem, nor Mr. [S.] offered sufficient evidence compelling enough to justify this Court changing its previous order returning the children to Melissa [R.]." The court did not include explicit findings regarding the best interests of the children and specifically stated that a successful completion of the dispositional improvement period would be required "before making any final decisions regarding placement of the children."

On August 13 and 16, 2002, petitions for appeal to this Court were filed by Darrell S. and guardian ad litem Melinda Russell. Frances and Daryl Jean were returned to West Virginia and have remained in the custody of Melissa and David R. since October 25, 2002. The dispositional improvement period concluded on December 5, 2002, and the lower court granted an additional three-month extension, ending on ...