In re Isaiah A.

• Decision Date: 15 April 2010
• Docket Number: No. 35031.,35031.
• Court: West Virginia Supreme Court
• Parties: In re ISAIAH A.

228 W.Va. 176

718 S.E.2d 775

In re ISAIAH A.

No. 35031.

Supreme Court of Appeals of West Virginia.

Submitted March 30, 2010.Decided April 15, 2010.

Syllabus by the Court

1. “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 the Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

2. “When this Court reviews challenges to the findings and conclusions of the circuit court, a two-prong deferential standard of review is applied. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard.” Syl. Pt. 1, McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996).

3. “Although parents have substantial rights that must be protected, the primary goal in cases involving abuse and neglect, as in all family law matters, must be the health and welfare of the children.” Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

4. “Child abuse and neglect cases must be recognized as being among the highest priority for the courts' attention. Unjustified procedural delays wreak havoc on a child's development, stability and security.” Syl. Pt. 1, in part, In the Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

5. “ ‘[C]ourts are not required to exhaust every speculative possibility of parental improvement before terminating parental rights where it appears that the welfare of the child will be seriously threatened....’ Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syl. Pt. 7, in part, In the Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

6. “ ‘ “Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, W. Va.Code, 49–6–5 [1977] may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under W. Va.Code, 49–6–5(b) [1977] that conditions of neglect or abuse can be substantially corrected.” Syllabus Point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).’ Syllabus point 4, In re Jonathan P., 182 W.Va. 302, 387 S.E.2d 537 (1989).” Syl. Pt. 1, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993).

7. “Pursuant to West Virginia Code § 49–6–12(g) (1998), before a circuit court can grant an extension of a post-adjudicatory improvement period, the court must first find that the respondent has substantially complied with the terms of the improvement period; that the continuation of the improvement period would not substantially impair the ability of the Department of Health and Human Resources to permanently place the child; and that such extension is otherwise consistent with the best interest of the child.” Syl. Pt. 2, In re Jamie Nicole H., 205 W.Va. 176, 517 S.E.2d 41 (1999).

8. “When parental rights are terminated due to neglect or abuse, the circuit court may nevertheless in appropriate cases consider whether continued visitation or other contact with the abusing parent is in the best interest of the child. Among other things, the circuit court should consider whether a close emotional bond has been established between parent and child and the child's wishes, if he or she is of appropriate maturity to make such request. The evidence must indicate that such visitation or continued contact would not be detrimental to the child's well being and would be in the child's best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).

Timothy P. Lupardus, Guardian ad Litem, Pineville, WV, for Appellant.

Thomas H. Evans, III, Oceana, WV, for Appellee, Alicia T.

Angela A. Walters, Attorney General's Office, Princeton, WV, for Appellee, WV DHHR.PER CURIAM:

This is an appeal by Timothy Lupardus, guardian ad litem, and the Department of Health and Human Resources (hereinafter “Appellants”) from an order of the Circuit Court of Wyoming County declining to terminate the parental rights of Alicia T. (hereinafter “mother”) to her son, Isaiah A.¹ The Appellants contend that the lower court erred in refusing to terminate the mother's parental rights and failed to correctly apply the applicable statutory standard for a determination regarding termination of parental rights. Based on the arguments of the parties, the record as provided to this Court, and the pertinent authorities, we reverse the ruling of the lower court and remand with directions to enter an order terminating the parental rights of Alicia T. to Isaiah A.

I. Factual and Procedural History

An Abuse and Neglect Petition was filed on September 14, 2006, concerning eleven-month-old Isaiah A.² The evidence submitted in support of the Petition indicated that Isaiah's mother was bipolar and had consistently refused medication. She had also extensively used illegal drugs and tested positive for barbiturates, oxyzapan, PCP, and cocaine. She had demonstrated difficulty maintaining emotional control, and Isaiah had been discovered amid a variety of pills on the floor after the mother had taken an accidental overdose. The mother had also been uncooperative with DHHR attempts to provide remedial services.³

A preliminary hearing was held on October 2, 2006, and the lower court granted the mother a ninety-day pre-adjudicatory improvement period by order entered December 20, 2006. Evidence presented at that juncture further indicated that the mother had been charged with several crimes, including petit larceny, disorderly conduct, obstructing a police officer, and entering without breaking. She had also tried to remove Isaiah from the home of a relative with whom he had been placed.

An adjudicatory hearing was conducted on March 15, 2007, and the mother stipulated that Isaiah had indeed been abused and/or neglected. The lower court granted a ninety-day post-adjudicatory improvement period by order entered April 3, 2007,⁴ and stated that a dispositional hearing would be conducted on July 12, 2007.⁵

On May 3, 2007, the mother executed a document purporting to transfer custody of Isaiah to the DHHR for the purpose of being placed for adoption. She later maintained that she did not knowingly and intentionally relinquish her rights to Isaiah. Although the mother refused to submit to many of the required drug tests, she did test positive for morphine, benzodiazepines, hydrocodone, oxycodone, oxazepam, and marijuana during drug screenings. The DHHR filed a Petition for Termination of Parental Rights on August 15, 2007.

By order entered October 31, 2007, the first ninety-day extension of the improvement period was granted by the lower court, and the lower court specified that a disposition hearing would be conducted on January 10, 2008. A January 7, 2008, status report submitted to the lower court by DHHR indicated very poor progress on the conditions of the extended improvement period. The mother had failed to cooperate with the in- home services provider ⁶ and had failed to appear for required drug screenings, despite the offered incentive of being permitted to visit Isaiah if she had three consecutive negative drug screenings. The mother also continued to date a convicted felon, Wendell T.,⁷ and departed from a scheduled visit with Isaiah early because Wendell T. had not been permitted to accompany her on the visit. The DHHR reported that “it appeared that [mother] was focused more on Wendell not being in the visit then [sic] visiting with her son.”

A second ninety-day extension of the mother's improvement period was granted by order entered January 28, 2008, and the court stated that a dispositional hearing would be conducted on April 10, 2008. The mother thereafter began having weekend visits with Isaiah, but these were discontinued based upon her refusal to appear for drug testing and her failure to cooperate with her in-home service providers. The DHHR submitted a status report dated April 4, 2008, and reported that the mother had become angry when she learned that she needed to appear for drug testing. She had initially agreed to the testing but subsequently refused to attend when a DHHR worker arrived to transport her to the testing location. She later tested positive for Oxymorphine, and her visitation thereafter became supervised.⁸

On April 10, 2008, the mother requested another extension of her post-adjudicatory improvement period. By order entered May 5, 2008, the lower court granted a third ninety-day extension of the improvement period and specified that a dispositional hearing would be conducted on July 10, 2008. The mother again refused a drug screening on May 28, 2008, and also informed Isaiah's foster mother that she was not going to visit Isaiah anymore. On July 14, 2008, the DHHR formally discontinued visits between the mother and Isaiah. She had not visited Isaiah for three months and had been in several recent fights. The mother actually missed fifteen of twenty-eight scheduled visits with Isaiah and refused scheduled parenting instruction based upon her claim that she was already an excellent mother and did not need the...