James M. v. Maynard

• Decision Date: 29 July 1991
• Docket Number: No. 19948,19948
• Citation: 408 S.E.2d 400,185 W.Va. 648
• Court: West Virginia Supreme Court
• Parties: JAMES M., Timothy M., Ike S.M., and Brandon C.M., infants under the age of eighteen years, Petitioners, v. Honorable Elliott E. MAYNARD, Judge of the Circuit Court of Mingo County, and Steve M., Respondents.

Page 400

408 S.E.2d 400

185 W.Va. 648

JAMES M., Timothy M., Ike S.M., and Brandon C.M., infants under the age of eighteen years, Petitioners, v. Honorable Elliott E. MAYNARD, Judge of the Circuit Court of Mingo County, and Steve M., Respondents.

No. 19948.

Supreme Court of Appeals of West Virginia.

Submitted March 12, 1991.

Decided July 29, 1991.

[185 W.Va. 649] Syllabus by the Court

1. " '[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 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.' Syl.Pt. 1, in part, In re R.J.M., W.Va. , 266 S.E.2d 114 (1980)." Syl.Pt. 1, in part, In re Darla B., 175 W.Va. 137, 331 S.E.2d 868 (1985).

2. Abandonment of a child by a parent(s) constitutes compelling circumstances sufficient to justify the denial of an improvement period.

3. It is a traumatic experience for children to undergo sudden and dramatic changes in their permanent custodians. Lower courts in cases such as these should provide, whenever possible, for a gradual transition period, especially where young children are involved. Further, such gradual transition periods should be developed in a manner intended to foster the emotional adjustment of the children to this change and to maintain as much stability as possible in their lives.

4. In cases where there is a termination of parental rights, the circuit court should consider whether continued association with siblings in other placements is in the child's best interests, and if such continued association is in such child's best interests, the court should enter an appropriate order to preserve the rights of siblings to continued contact.

5. The guardian ad litem's role in abuse and neglect proceedings does not actually cease until such time as the child is placed in a permanent home.

Jane Moran, Williamson, for petitioners.

Teresa McCune, Williamson, for respondent Steve M WORKMAN, Justice:

This case is before the Court upon a petition for writ of prohibition ¹ against the Honorable Elliott E. Maynard, Judge of the Circuit Court of Mingo County, by the petitioners, James M. ² , Timothy M., Ike S.M., and Brandon M., who seek relief from a January 11, 1991, order in which the lower court granted the respondent father, Steve M.'s, motion for an in-home improvement period in Ohio and further ordered that Timothy M. and James M. be surrendered to respondent's custody on the night of January 11, 1991, with Ike S.M. and Brandon M. being surrendered to his custody within thirty days thereafter. ³ Petitioners contend that the court abused its discretion in awarding the father of the children an in-home improvement period and disregarding the compelling needs and best interests of the children. We agree with the petitioners' contention and award the writs of prohibition requested, thereby reversing the lower court's ruling and directing the lower court to enter an order terminating the parental rights to these children.

During the course of the proceedings below, Betty M. related a marital history marked by her husband's alcohol abuse and physical abuse toward her severe enough to have required her hospitalization. There were frequent separations, the last in late December 1988, when Steve M. quit his job, abandoned the family and moved to Ohio. When Steve M. departed, he left his wife no transportation and a $1,500.00 heating bill. At that time, James (or Jamie) was three years old, Timothy (or Timmy) was two years old, Ike was approximately twelve months old, and Betty M. was pregnant with their fourth child, Brandon. The family had been living in a trailer in Justice, Mingo County, for approximately three weeks, but was unable to pay the rent after Steve M's departure and stayed temporarily at the Tug Valley Recovery Shelter.

When Betty M. was abandoned with three children under four and another on the way, she was not well-equipped to survive. The record reflects that she had also been a victim of physical and emotional abuse by an alcoholic father. Married at seventeen, she had a full scale I.Q. of seventy-six, and her verbal comprehension skills were also very low. Psychological evaluations indicated she was unable to cope with many of life's simplest problems, with one of her most pronounced ineptitudes being in the area of parenting.

Meanwhile, on December 29, 1988, not long after Steve M. left his family, the Department of Human Services ⁴ (hereinafter referred to as DHS) was referred to the home where Betty M. and her three children were then living. The DHS report indicated that at the time of the referral, the children were found to be dirty and improperly dressed, with no coats or shoes. Further, the oldest child was suffering from swollen genitals, a condition which Betty M. told DHS had existed for some time, and the youngest child had a cold and severe diarrhea. The family was living a somewhat nomadic lifestyle, moving about On that same day, DHS transported the family to a health care center where the children were examined and treated. Jamie was referred to a physician for his genital condition. The family was also assisted with food, shelter, clothing, transportation, and parenting counselling. They were placed at the Mountaineer Hotel from December 29, 1988, through January 4, 1989, under a homeless program, because they had no money, relatives, or any other place to stay.

[185 W.Va. 651] from place to place. At the time of the referral to DHS, they were residing with three men, at least one of whom was described as very loud, intoxicated, and rude on the occasion of the DHS visit.

The DHS on January 10, 1989, rented an apartment for the family, and continued to assist them with food, diapers, medicine and clothing. However, Mrs. M. left the apartment without notifying the landlord or DHS, leaving behind two large boxes of food, a lot of the children's clothing, and substantial damage to the apartment.

Jamie had been diagnosed as having a cyst on his scrotum, and scheduled for surgery on February 15, 1989. However, Betty M. failed to bring the child for the appointment.

Mrs. M. surfaced again on February 16, 1989, when she called DHS to advise that they were once again homeless and that the youngest child (Ike) had been sick and not had anything to drink for seven days. DHS provided immediate medical attention and assigned a DHS volunteer to work with Betty M. to care for the children. Prescriptions were given for the child, but never filled. The family left the Williamson area almost immediately. The family had also apparently been receiving AFDC benefits from the State of Ohio, and Mrs. M. would go there periodically to pick up her check. The D.H.S. would lose contact with her until she needed more assistance.

Therefore, the DHS, on February 16, 1989, filed a petition seeking removal of the three children from the custody of their mother for both physical and medical neglect. The petition also alleged that Steve M. had left the family home. The children were taken into the custody of DHS, and a preliminary hearing was scheduled for February 21, 1989. Although the DHS was forced to give Steve M. notice of the preliminary hearing via publication in a Columbus, Ohio, newspaper, since his whereabouts were unknown, the record does indicate that, by his own admission, he learned of the removal of his children by the DHS in March 1989 in a phone conversation with his sister. A preliminary hearing was conducted on February 21, 1989, and the lower court granted a six-month out-of-home improvement period to Betty M. and Steve M. However, since Steve M. had left the children, his voluntary absence precluded him from taking advantage of this improvement period.

The children were subsequently placed in foster care. Jamie and Timmy were so aggressive and violent that the Mingo County foster parents with whom they were originally placed requested that they be removed from their home. They were then placed in a special needs home ⁵ in the Charleston, West Virginia, area through a special needs foster placement agency. Ike was successfully placed in a Mingo County foster care home. Brandon was not born until September 5, 1989. The DHS subsequently returned Ike to his mother's physical custody on October 6, 1989. Both Brandon and Ike remained in their mother's custody until the DHS filed an amended petition on February 5, 1990, and took emergency custody ⁶ of both children on the basis of physical abuse and medical neglect by the mother and failure to provide proper care. In addition to the petition for emergency custody, the DHS filed a second amended petition on behalf of all four children, alleging continuing physical and medical neglect and abuse, and re-alleging that Steve M. had left the Specifically, the DHS alleged in the petition for emergency custody that Mrs. M. had left Ike and Brandon with Gail A. on February 1, 1990, with only one can of Similac and four jars of baby food. Mrs. M. dropped the children off at 4:00 p.m. and was to return to pick them up at 9:00 p.m., but failed to return as agreed. Finally, on February 3, 1990, Mrs. A. returned the children to Mrs. M. Mrs. M. reported that she had been too intoxicated to pick up the children. The DHS also alleged other instances where Mrs. M. had left her children with inappropriate care. For instance, on January 6, 1990, the DHS learned that Mrs. M. had left her children overnight with Abby B., an elderly man in a wheelchair. Mrs. M. indicated that she had also left her children in the care of a sixteen-year-old juvenile and one of her male friends. Additionally, on January 31, 1990, Patrolman Dave Tincher...