In re George Glen B., Jr., 26742.

• Decision Date: 08 June 2000
• Docket Number: No. 26742.,26742.
• Citation: 532 S.E.2d 64,207 W.Va. 346
• Court: West Virginia Supreme Court
• Parties: In re GEORGE GLEN B., JR.

532 S.E.2d 64

207 W.Va. 346

In re GEORGE GLEN B., JR.

No. 26742.

Supreme Court of Appeals of West Virginia.

Submitted February 22, 2000.

Decided June 8, 2000.

James P. Geary, II, Esq., Patricia L. Kotchek, Esq., Geary & Geary, L.C., Petersburg, West Virginia, Attorneys for Appellee Waneta B.

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

Marvin Downing, Esq., Moorefield, West Virginia, Attorney for Appellee George Glen B.

Darrell V. McGraw, Jr., Attorney General, Katherine M. Mason, Esq., Assistant Attorney General, Beckley, West Virginia, Dennis V. DiBenedetto, Esq., Petersburg, West Virginia, Attorneys for Appellant Department of Health and Human Resources. STARCHER, Justice:

This appeal from the Circuit Court of Grant County raises the question of whether a circuit court may terminate parental rights to a child solely on the basis that, several years prior to the child's birth, the parental rights to siblings of the child had been terminated. We also consider whether it is mandatory that the Department file a petition to terminate the current parental rights of a parent who has previously had parental rights to another child terminated by the court. We hold that while the Department does have a mandatory duty to file a petition, a circuit court may not terminate parental rights without additional evidence of abuse or neglect of the current child.

I. Factual Background

George Glen B., Jr. was born on January 20, 1999. George is the second child born to appellees Waneta B. and George Glen B., Sr.; he is the third child born to Waneta B.

The day after George was born, the Department filed a petition in the Circuit Court of Grant County requesting emergency custody of the child, as well as seeking to terminate the parental rights of the appellee mother and appellee father. The petition was filed on the basis of two previous cases of abuse and neglect filed regarding siblings of George against the appellee mother. In the first case, filed in 1994, 13 weeks after a sibling was born, the appellee mother's parental rights were involuntarily terminated. In the second case, filed in 1996, the Department took custody of a sibling 10 days after her birth; the appellee mother and appellee father later voluntarily agreed to relinquish their parental rights to the child. In the instant case, relying upon a "temporary custody" order, the Department removed George from the hospital on January 22, 1999.

On January 25, 1999, the circuit court conducted a hearing to consider the merit of the Department's taking emergency custody of George. By order dated January 28, 1999, the circuit court stated that custody of the child was to remain with the Department, "[p]ending the Court's decision," and "[t]hat the Court ... [would] render a decision ... within the next forty-eight hours." Unfortunately, no additional orders were issued, and no other hearings occurred until a brief hearing was held on March 11, 1999.

By an order dated March 12, 1999, the circuit court made specific findings that there had been two prior cases involving allegations of abuse and neglect brought by the Department against the appellee mother in the first instance, and against both 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," and that both cases were resolved with the termination of the appellees' parental rights.

However, the circuit court declined to terminate the appellees' parental rights or proceed any further on the petition, concluding that a prior termination of parental rights, without more, was not a sufficient ground to terminate parental rights. The court found that:

The fact that the Respondent, Waneta [B.]..., 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 circuit court concluded that it would be improper "to terminate parental rights of the mother and father absent any showing of abuse or neglect of this child." Based upon these findings, the circuit court dismissed the abuse and neglect petition, and ordered the Department to return George to the custody of the appellees "in a manner that is in the best interests of the infant child."

The Department appealed the circuit court's March 12, 1999 order to this Court. In an opinion issued on July 12, 1999, we reversed the circuit court's order and remanded the case for further hearings. We held that the circuit court had erred in dismissing the abuse and neglect petition outright without allowing the Department an opportunity to present evidence regarding the circumstances surrounding the prior terminations of parental rights, and without allowing the parties to develop evidence concerning whether the appellee parents had taken steps to remedy the circumstances which resulted in the prior abuse and neglect petitions. See In re George Glen B., 205 W.Va. 435, 443, 518 S.E.2d 863, 871 (1999). We also directed the circuit court to hold its future hearings pursuant to the procedures contained in the West Virginia Rules of Procedure for Child Abuse and Neglect and W.Va.Code, 49-6-2 [1998]. 205 W.Va. at 444-45, 518 S.E.2d at 871-72.

Upon remand, the circuit court conducted hearings on July 28 and 29, 1999, and allowed the parties to present a total of over 9 hours of testimony and argument. From this testimony as well as several hundred pages of exhibits, the circuit court issued two orders dated August 5, 1999 and August 30, 1999.

In its orders, the circuit court concluded that "there is no neglect or abuse of George Glen B[][.] Jr. by anyone, now or has there ever been." Accordingly, the court held that the Department had failed to show abuse or neglect by the appellee parents sufficient to warrant the termination of their parental rights.

In its findings, the circuit court found that the appellees had "substantially remedied the circumstances surrounding the prior terminations" of their parental rights.¹ The circuit court also found that the Department "has become so emotionally involved in this case that they cannot be objective," noting that the Department provided the appellee parents with no services, including visitation with George, without being ordered to do so by the court. In sum, the circuit court's order chastised the Department for only seeking termination and not considering other alternatives.

However, the circuit court concluded that George "may be at risk if he is returned to the [appellees] without appropriate supervision." The circuit court therefore ordered that while the Department would technically retain physical custody of George, a private company, Action Youth Care, was ordered to provide supervision for a gradual transition to ensure an appropriate transfer of George to the custody of his parents. The court placed full responsibility and authority for the transition and its timing on Action Youth Care:

The primary responsibility of Action Youth Care is to ensure the safety of George Glen B[][.] Jr. Overnight visitation shall begin as soon as Action Youth Care determines it is in the best interests of the child. Action Youth Care may remove the child from the custody of his parents without further Order of this Court if they determine it necessary for his protection.

In the event the efforts at reunification should fail, Action Youth Care shall notify the Court and the Court will take such action ... as may be appropriate.

The Department now appeals the circuit court's August 5 and August 30, 1999 orders.

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.

Syllabus Point 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 orders.

III. Discussion

A. The Duties Imposed by W.Va.Code, 49-6-5b

The Department contends that W.Va.Code, 49-6-5b(a)(3) [1998] mandates that the Department file a petition to terminate parental rights where there has been an involuntary termination of parental rights to a sibling in a prior proceeding. W.Va.Code, 49-6-5b(a)(3) states, in pertinent part and with emphasis added:

(a) ... [T]he department shall file or join in a petition or otherwise seek a ruling in any pending proceeding to terminate parental rights:

. . .

(3) If a court has determined the parent has committed murder or voluntary manslaughter of another of his or her children; has attempted or conspired to commit such murder or voluntary manslaughter or has been an accessory before or after the fact of either crime; has committed unlawful or malicious wounding resulting in serious bodily injury to the child or to another of his or her children; or the parental rights of the

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