In re Y.

• Court: West Virginia Supreme Court
• Writing for the Court: PER CURIAM:
• Citation: In re Y., 227 W.Va. 558, 712 S.E.2d 55 (W. Va. 2011)
• Decision Date: 14 June 2011
• Docket Number: No. 11–0300.,11–0300.
• Parties: In re KRISTIN Y., Arther Y., Scharlotte Y., and William Y.

227 W.Va. 558

712 S.E.2d 55

In re KRISTIN Y., Arther Y., Scharlotte Y., and William Y.

No. 11–0300.

Supreme Court of Appeals of West Virginia.

Submitted May 25, 2011.Decided June 14, 2011.

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.” Syllabus point 1, In re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

2. “ ‘ “A parent has the natural right to the custody of his or her infant child, and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment, or other dereliction of duty, or has waived such right, or by agreement or otherwise has permanently transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts.” Syllabus, State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d [798] (1969).’ Syllabus. pt. 2, Hammack v. Wise, 158 W.Va. 343, 211 S.E.2d 118 (1975).” Syllabus Pt. 1, Nancy Viola R. v. Randolph W., 177 W.Va. 710, 356 S.E.2d 464 (1987).

3. “At the conclusion of the improvement period, the court shall review the performance of the parents in attempting to attain the goals of the improvement period and shall, in the court's discretion, determine whether the conditions of the improvement period have been satisfied and whether sufficient improvement has been made in the context of all the circumstances of the case to justify the return of the child.” Syllabus point 6, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

4. “As a general rule the least restrictive alternative regarding parental rights to custody of a child under W. Va.Code, 49–6–5 (1977) will be employed; however, courts 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, and this is particularly applicable to children under the age of three years who are more susceptible to illness, need consistent close interaction with fully committed adults, and are likely to have their emotional and physical development retarded by numerous placements.” Syllabus point 1, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

5. “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).

6. “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.” Syllabus point 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

Darrell V. McGraw, Esq., Attorney General, Katherine Bond, Esq., Assistant Attorney General, Charleston, WV, for Petitioner.John S. Lanham, Esq., Horner, WV, for Respondent.Rebecca Donnellan–Pomeroy, Esq., Clarksburg, WV, Guardian ad litem.

PER CURIAM:

This case is before this Court upon the West Virginia Department of Health and Human Resources's appeal of the November 16, 2010, order of the Circuit Court of Harrison County which terminated the custodial and visitation rights of Anna Y.¹ to her four children, but did not terminate her parental rights to said children.² As a result of this order, the children remain in the custody of the Department with no contact with their mother but are not available for permanent placement in an adoptive home. In this appeal the Department of Health and Human Resources (hereinafter referred to as “the Department”), joined by the children's guardian ad litem, assert that the circuit court erred when it failed to terminate all parental rights of Anna Y.

The Court has before it the petition for appeal, the designated record, the briefs of counsel and the arguments of counsel. For the reasons set forth below, we agree with the Department and the guardian ad litem's contention that the circuit court committed error when it failed to terminated Anna Y.'s parental rights. The circuit court's order is therefore reversed and this matter is remanded forthwith to the Circuit Court of Harrison County for proceedings consistent with this opinion.

I.FACTUAL AND PROCEDURAL BACKGROUND

Anna Y., (hereinafter referred to as “Appellee”), and Ricky Y., (hereinafter referred to as “Father”), are the parents of four children, to-wit: Kristin Y., born January 4, 1999, and age 11 ³; Arther Y., born March 18, 2000, and age 9; William Y. (known as “Eddy” throughout these proceedings), born May 31, 2002, and age 7; and Scharlotte Y., born May 31, 2002, and age 7.

On April 7, 2008, while the Appellee was hospitalized for what was alleged to be a suicidal ⁴ overdose of prescription medicine and the children were in the care of their father and his girlfriend, the West Virginia Department of Health and Human Resources (hereinafter referred to as “Appellant” or “Department”) sought emergency custody pursuant to W. Va.Code § 49–6–3(c) (2009) of the four children. The Department believed the children were in imminent danger of abuse and neglect because the children were currently in the care and custody of Ricky Y., who was prohibited by a 2007 domestic violence protection order from Jefferson County, Ohio, from having contact with the children.⁵ Child protective service workers determined that Anna Y. had purported to effectuate a transfer of custody to Ricky Y. by a notarized statement that she was giving the children to their father. Included in that statement was a request to the Jefferson County, Ohio, court system to dismiss the domestic violence protective order. After finding that the children were in imminent danger if left in the care and custody of Ricky Y., the Magistrate Court of Harrison County immediately ratified the removal of the children from his home, and granted the Department temporary custody of the four children. The next day, on April 8, 2008, the Circuit Court of Harrison County entered an order containing findings that returning the children to the home of either parent would be contrary to their best interests because of the current threats of domestic violence, past sexual abuse and the mother's inability to protect the children because of her hospitalization. The circuit court continued the children's custody with the Department.

On April 9, 2008, the Department filed a petition in the Circuit Court of Harrison County alleging that the four children of Anna Y. and Ricky Y. were abused and neglected children. The petition included a number of allegations of child abuse or neglect, including allegations of sexual abuse of Kristin Y. by her father and his girlfriend, maltreatment and sexual exploitation, as well as domestic violence between the mother and father. The Department referenced the domestic violence order of protection from Jefferson County, Ohio, that prohibited the father from having contact with the children. The petition also alleged that the children were witnesses to and subjected to their parents' drug abuse and that the father physically abused the children. The petition also included charges that the living conditions in the children's home were deplorable, unsafe and unfit. The Department alleged in its petition that services to assist the parents in remedying their unfit living conditions and other factors giving rise to potential abuse or neglect of the children were in place as early as October of 2007.⁶ The Department alleged that when the children were taken into its custody pursuant to the earlier emergency ratification of custody, the children thanked the protective services workers for coming to get them.

The circuit court granted temporary custody of the children to the Department. In its order dated April 10, 2008, the circuit court also appointed counsel to the parties, appointed a guardian ad litem for the children and for the Appellee, Anna Y., and appointed a CASA.⁷

This petition was amended on April 18, 2008, to include educational neglect occasioned by the mother's failure to enroll the youngest children in school, as well as her failure to provide the children with adequate shelter. The amended petition further stated that the allegations of sexual abuse, maltreatment and emotional abuse had been substantiated against the father.

On May 8, 2008, the circuit court held a hearing on the allegations of abuse and neglect against the parents. Ricky Y. did not appear at the hearing. The circuit court continued the hearing until June 18, 2008, and ordered that the four children undergo a sexual abuse evaluation. Several weeks later, on May 22, 2008, a second amended petition was filed by the Department. This amended petition contained additional allegations of sexual abuse of the children, including the charge that the father engaged in sexual activity with the...