In re George Glen B.

• Decision Date: 12 July 1999
• Docket Number: No. 26202.,26202.
• Citation: 205 W.Va. 435,518 S.E.2d 863
• Parties: In the Matter of GEORGE GLEN B., Jr.
• Court: West Virginia Supreme Court

518 S.E.2d 863

205 W.Va. 435

In the Matter of GEORGE GLEN B., Jr.

No. 26202.

Supreme Court of Appeals of West Virginia.

Submitted June 29, 1999.

Decided July 12, 1999.

Darrell V. McGraw, Jr., Esq., Attorney General, Katherine M. Mason, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for West Virginia Department of Health and Human Resources.

William H. Judy, III, Esq., Judy & Judy, Moorefield, West Virginia, Attorney for George Glen B., Jr.

Marvin L. Downing, Esq., See & Downing, Moorefield, West Virginia, Attorney for George Glen B., Sr.

James Paul Geary, II, Esq., Patricia L. Kotchek, Esq., Geary and Geary, L.C., Petersburg, West Virginia, Attorneys for Waneta J.H.

WORKMAN, Justice:

This case is before the Court upon the appeal of the West Virginia Department of Health and Human Resources ("DHHR"), as well as the appeal¹ of the Guardian ad Litem on behalf of the infant, George Glen B., Jr.,² from the March 12, 1999, order entered by the Circuit Court of Grant County, West Virginia, returning physical and legal custody of the infant child to the Appellee mother, Waneta J.H. The Appellants argue that the lower court erred: 1) in ordering the return of physical and legal custody of the infant child to the Appellee mother, because statutory law mandates that the DHHR pursue termination of parental rights where the Appellee mother previously had parental rights terminated to a sibling of the infant child;³ 2) in failing to set a preliminary hearing within the mandatory time frame of ten days as set forth in West Virginia Code § 49-6-3(a) (1998); 3) in making various factual findings;⁴ and 4) in granting visitation to the Appellee mother,⁵ because the DHHR is not required to make reasonable efforts to preserve the family unit in this case.⁶ Based upon a review of the record, the parties' respective briefs and all other matters submitted before this Court, we reverse the lower court's decision and remand this case for further proceedings consistent with this opinion.

I. FACTS

George Glen B., Jr., was born on January 20, 1999, at Grant Memorial Hospital in Petersburg, West Virginia. George is the second child born to Waneta J.H. and George Glen B.,⁷ both of whom reside in Dorcas, Grant County, West Virginia. George Glen B., Jr., is the Appellee mother's third child.

On January 20, 1999, the DHHR filed a petition requesting emergency and extended custody of the infant child, as well as seeking termination of the parental rights of the Appellee mother and the Appellee father. The petition was based upon two prior cases of abuse and neglect against the Appellee mother⁸ which had been brought in Hardy County and which resulted in an involuntary termination of parental rights in one case⁹ and a voluntary relinquishment of both of the Appellees' parental rights in the other case.¹⁰ The DHHR removed the child from the Appellee mother's custody on January 22, 1999. The infant child was placed in a foster home with the other children of the Appellee mother, who are George Glen B., Jr.'s full and half siblings.

On January 25, 1999, the circuit court conducted a hearing to consider the merit of the DHHR's taking emergency custody of the infant child. By order dated January 28, 1999, the circuit court stated that custody of the infant child was to remain with the DHHR, "[p]ending the Court's decision," and "[t]hat the Court ... [would] render a decision... within the next forty-eight hours." Even though the Court stated at the hearing on January 25, 1999, that "[w]e need to have a preliminary hearing in ten days ...[,]" no other hearing regarding the petition filed by DHHR occurred until March 11, 1999.

At the March 11, 1999, hearing, Mr. Dennis V. Di Benedetto, the Prosecuting Attorney for Grant County and the DHHR's attorney in this matter, informed the lower court that it had never set a preliminary hearing date, and, thus far, the only evidence which had been presented in the case was in support of the emergency taking. Mr. Di Benedetto further told the court that the DHHR had not "present[ed] any extensive evidence of a preliminary hearing nature."

By order entered March 12, 1999, the circuit court made specific findings that there had been two prior cases involving abuse and neglect allegations brought by the DHHR against the Appellee mother in the first instance and both the Appellees in the second instance. The circuit court also found that "[i]n both previous cases, neither parent was capable of minimum acceptable parenting skills." The circuit court further found, however, that "[t]he fact that the Respondent, Waneta J. W[ ][.] H[ ][.], has had her parental rights terminated to two previous children, and the father George Glen B[ ][.] Sr., has had his rights terminated to one previous child, is not sufficient evidence, absent no showing of abuse or neglect to George Glen B[ ][.] Jr., the current child." The court also found that the prior termination was not sufficient to terminate parental rights. Finally, the court found "no evidence of abuse or neglect of the infant child, George Glen B[ ][.] Jr., by the mother, ... or the biological father, ... as the child was removed from the hospital after birth." Based upon these findings, the lower court ordered legal and physical custody of the infant child be returned to the Appellee mother¹¹ and then dismissed the action court's docket.

II. STANDARD OF REVIEW

The standard of review used by this Court when reviewing circuit court rulings in abuse and neglect cases is as follows:

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 re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996). It is with the above-mentioned standard of review in mind, that we now review the circuit court's order. Because our decision turns on the legal conclusions made by the circuit court, our review is de novo. See id.

III. ISSUES

The crucial issue we address is whether the circuit court erred in returning the infant child to the Appellee mother and in dismissing the action, without first permitting an exposition of the evidence to determine whether this was the proper action. The DHHR argues that because the Appellee mother's parental rights to a sibling have previously been terminated, statutory law mandates that the DHHR undertake efforts to terminate the Appellee mother's parental rights to the newest child, in this case George Glen B., Jr. See W.Va.Code § 49-6-5b (1998). Moreover, the lower court's failure to conduct a preliminary hearing pursuant to the statutorily-mandated¹² time frame of ten days denied the DHHR, as well as the Appellees, the opportunity to submit before the lower court evidence supportive of the parties' respective positions. The Appellees maintain that it is constitutionally impermissible to apply a presumption that the prior involuntary termination of the mother's parental rights to another child or the prior voluntary relinquishment of both parents' rights to another child proves imminent danger to the child, proves abuse or neglect of the child, or requires termination of the parental rights of the parents to the child.¹³ The Appellees further maintain that the DHHR did not show the existence of imminent danger to the physical well-being of George Glen B., Jr., and the request for emergency and extended custody of this child was properly dismissed. Finally, the Appellees assert that the DHHR did not show abuse or neglect as required by statute in order to seek termination of parental rights as a dispositional alternative for this child and the request for termination of parental rights was properly dismissed.

A. DISMISSAL OF PETITION

It is axiomatic that West Virginia Code § 49-6-5b(a)(3) compels the DHHR to file a petition seeking termination of parental rights where, as in the instant matter, parental rights involving a sibling have previously been involuntarily terminated. West Virginia Code § 49-6-5b(a)(3) provides, in relevant part, that "[e]xcept as provided in subsection (b) of this section,¹⁴ the department shall file or join in a petition or otherwise seek a ruling in any pending proceeding to terminate parental rights: ... (3) ... [where] the parental rights of the parent to a sibling have been terminated involuntarily."¹⁵Id. Quite clearly, the statute contemplates that a prior termination of parental rights to a sibling is, at least, some evidence of a child being threatened with abuse and neglect. The legislature has clearly determined that where there has been a prior involuntary termination of parental rights to a sibling, the issue of whether the parent has remedied the problems which led to the prior involuntary termination sufficient to parent a subsequently-born child must, at minimum, be reviewed by a court, and such review should be initiated on a petition pursuant to the provisions governing the procedure in cases of child neglect or abuse set forth in West Virginia Code §§ 49-6-1 to -12 (1998). Although the requirement that such a petition be filed does not mandate termination in all circumstances, the legislature has reduced the minimum threshold...