In re A.P.

• Decision Date: 12 April 2019
• Docket Number: No. 18-0448,18-0448
• Court: West Virginia Supreme Court
• Parties: In Re A.P.-1, A.P.-2, A.P.-3

In Re A.P.-1, A.P.-2, A.P.-3

No. 18-0448

SUPREME COURT OF APPEALS OF WEST VIRGINIA

April 12, 2019

WORKMAN, Justice, concurring, in part, and dissenting, in part:

I concur with the majority that the adjudication and disposition determinations should have been made in separate hearings under the procedural status of this case and a very limited remand for a dispositional hearing is appropriate. I vehemently disagree, however, with several other points of the majority opinion which will be set forth in summary form and then discussed at length in this opinion.

First, the majority erred in holding that the lower court lacked continuing jurisdiction in this case once the circuit court initially declined to adjudicate the petitioner father as having abandoned the children. Further, in not permitting the existing proceedings to continue on remand, and instead offering the Department of Health and Human Resources ("DHHR") the option of filing a new petition, the majority has essentially created the potential of the children never having a permanent placement.

Second, the majority missed an opportunity to clarify that long-term incarceration is a form of neglect, when the applicable statutes are read in pari materia, as the law requires.

Third, the majority opinion leaves total confusion on whether incarceration can be considered at both the adjudicatory and dispositional stages by including language both in the body of the opinion and in a footnote that are inconsistent on their face. Clearly, both under the law and in the realm of basic common sense, the factors relating to incarceration as enunciated in In Re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011), are a valid consideration in and can support a finding at either stage when the applicable criteria are met.

I. Discussion

Incarceration as a Form of Neglect

From the perspective of overall abuse and neglect law, the most significant problem with the majority opinion is the missed opportunity to clarify that abandonment engendered by long-term incarceration can be a form of neglect, when the statutory definitions of each concept are considered in pari materia, as required by law.

The abandonment of a child is defined as "any conduct that demonstrates the settled purpose to forego the duties and parental responsibilities to the child." W.Va. Code § 49-1-201 (2015 & Supp. 2018). A "neglected child" is defined, in pertinent part, as a child,

[w]hose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child's parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care, or education, when that refusal, failure, or inability is not due primarily to a lack offinancial means on the part of the parent, guardian, or custodian[.]

Id. These statutory definitions of abandonment and neglect are part of a body of legislation that was enacted to protect the welfare of children. To that end, it is essential to remember that "effect must be given to each part of the statute and to the statute as a whole so as to accomplish the general purpose of the legislation." Syl. Pt. 2, in part, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975).

In giving each of these statutory definitions effect so as to accomplish the critically important legislative purpose of protecting the welfare of children, one is led to the inescapable conclusion that an incarcerated parent can be adjudicated as having abandoned his or her child[ren] through evidence of the parent's inability to meet even the most minimal parental duties and responsibilities to the child[ren]. Moreover, it is clear that the statutory definition of neglect encompasses not only abandonment, as defined by statute, but also incarceration, so long as the factors surrounding that incarceration demonstrate that the parent is unable to provide the basic needs of his child[ren] as described in the neglect definition.

In the case at bar, DHHR filed a petition against the petitioner which made broad allegations of "Abuse and/or Neglect and/or Abandonment." Nonetheless, it is apparent that the circuit court considered the statutory definition of abandonment in isolationduring the initial adjudicatory phase without also considering and giving effect to the statutory definition of neglect. W.Va. Code § 49-1-201; see also Smith, 159 W.Va. at 109, 219 S.E.2d at 362, syl. pt. 2, in part. Because the petitioner presented evidence that showed his continued interest in his children following his incarceration, the circuit court declined to find that he had abandoned his children. It was, however, abundantly clear that the petitioner cannot possibly provide the children with their most basic daily needs during the next minimum 10-11 years incarceration. Consequently, he has effectively abandoned them under the neglect statute. W.Va. Code § 49-1-201. This was an error that the lower court later recognized and attempted to correct during the disposition hearing, where no new evidence was presented. The guardian ad litem simply advocated for the best interests of the children during that hearing in light of the petitioner's lengthy incarceration and the factors set forth in syllabus point three of In Re Cecil T.:

When no factors and circumstances other than incarceration are raised at a disposition hearing in a child abuse and neglect proceeding with regard to a parent's ability to remedy the condition of abuse and neglect in the near future, the circuit court shall evaluate whether the best interests of a child are served by terminating the rights of the biological parent in light of the evidence before it. This would necessarily include but not be limited to consideration of the nature of the offense for which the parent is incarcerated, the terms of the confinement, and the length of the incarceration in light of the abused or neglected child's best interests and paramount need for permanency, security, stability and continuity.

228 W.Va. at 91, 717 S.E.2d at 875 (emphasis added).

Unquestionably, a parent whose term of incarceration is so lengthy that his children will be almost grown before the father is released from prison¹ is a critical consideration under the statutory definition of neglect and is a permissible consideration under In re Cecil T. Another consideration under In re Cecil T. is the nature of the offense. Here the petitioner committed murder, not a garden-variety, nonviolent crime, obviously without considering the impact of his criminal conduct on his children. His actions alone resulted in his lengthy term of incarceration, which will preclude him from meeting even his minimal parenting responsibilities.

In short, the Cecil T. factors, along with the statutory definitions for "abandonment" and "neglect" in West Virginia Code § 49-1-201, are all unquestioningly relevant to determining whether the Department has established that the parent is abusing or neglecting, as required by West Virginia Code § 49-4-601(1). Importantly, "[s]tatutes in pari materia must be construed together and the legislative intention, as gathered from the whole of the enactments, must be given effect." Syl. Pt. 3, State ex rel. Graney v. Sims, 144 W.Va. 72, 105 S.E.2d 886 (1958); accord Syl. Pt. 2, in part, Beckley v. Kirk, 193 W.Va. 258, 455 S.E.2d 817 (1995) (same); Syl. Pt. 5, in part, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W.Va. 14, 217 S.E.2d 907 (1975) ("Statutes which relate to the samepersons or things, or to the same class of persons or things, or statutes which have a common purpose will be regarded in pari materia to assure recognition and implementation of the legislative intent.").

Although "[a] natural parent of an infant child does not forfeit his or her parental right to the custody of the child merely by reason of having been convicted of one or more charges of criminal offenses[,]" syl. pt. 2, State ex rel. Acton v. Flowers, 154 W.Va. 209, 174 S.E.2d 742 (1970), the majority should have clarified that a parent's incarceration, particularly a lengthy one, results in the child[ren] being neglected by that parent. Thus, even when an incarcerated parent's conduct reflects a continued interest in his or her children, the statutory definitions of abandonment and neglect must be considered together and under the circumstances of this case can result in an adjudication and/or disposition of abandonment/neglect and termination of parental rights. Smith, 159 W.Va. at 109, 219 S.E.2d at 362, syl. pt. 2, in part; Graney, 144 W.Va. at 72, 105 S.E.2d at 887, syl. pt. 3.

Ajudication v. Disposition

The majority further confuses the issue by making inconsistent statements regarding whether the In re Cecil T. factors can be considered on both the adjudication and disposition stages, or only at disposition. The opinion holds that:

On its face, Syllabus Point 3 of In re Cecil T. applies only in the context of a lawful disposition hearing held after a circuitcourt makes a finding of abuse or neglect at the adjudicatory hearing. Here, the circuit court lacked the continued jurisdiction to conduct a disposition hearing once it declined to adjudge Petitioner as having abandoned A.P.-1, A.P.-2, and A.P.-3. For that reason, In re Cecil T. could not have applied to Petitioner's case, below, nor could it have justified the termination of Petitioner's parental rights.

But the majority's accompanying footnote 29 makes a completely inconsistent (although I believe correct) statement of law to the effect that this blatant inconsistency leaves the law muddled up on this important issue:

Circuit courts should be mindful that In re Cecil T. does not foreclose a finding at the adjudicatory stage that a parent's absence due to incarceration that harms or threatens the physical or mental health of the child is neglect. See W.Va. Code § 49-1-21 (defining "neglect"). Of course, in order for the circuit court to make the appropriate adjudication,

...