Jeffrey R.L., In re

• Citation: 435 S.E.2d 162,190 W.Va. 24
• Decision Date: 14 June 1993
• Docket Number: No. 21535,21535
• Court: Supreme Court of West Virginia
• Parties: In re JEFFREY R.L., Juvenile.

Page 162

435 S.E.2d 162

190 W.Va. 24

In re JEFFREY R.L., Juvenile.

No. 21535.

Supreme Court of Appeals of West Virginia.

Submitted April 7, 1993.

Decided June 14, 1993.

Syllabus by the Court

1. " '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).

2. "W.Va.Code, 49-1-3(a) (1984), in part, defines an abused child to include one whose parent knowingly allows another person to commit the abuse. Under this standard, termination of parental rights is usually upheld only where the parent takes no action in the face of knowledge of the abuse or actually aids or protects the abusing parent." Syl. pt. 3, In re Betty J.W., 179 W.Va. 605, 371 S.E.2d 326 (1988).

3. Parental rights may be terminated where there is clear and convincing evidence that the infant child has suffered extensive physical abuse while in the custody of his or her parents, and there is no reasonable likelihood that the conditions of abuse can be substantially corrected because the perpetrator of the abuse has not been identified and the parents, even in the face of knowledge of the abuse, have taken no action to identify the abuser.

4. "In a proceeding to terminate parental rights pursuant to W.Va.Code, 49-6-1 to 49-6-10, as amended, a guardian ad litem, appointed pursuant to W.Va.Code, 49-6-2(a), as amended, must exercise reasonable diligence in carrying out the responsibility of protecting the rights of the children. This duty includes exercising the appellate rights of the children, if, in the reasonable judgment of the guardian ad litem, an appeal is necessary." Syl. pt. 3, In re Scottie D., 185 W.Va. 191, 406 S.E.2d 214 (1991).

5. Each child in an abuse and neglect case is entitled to effective representation of counsel. To further that goal, W.Va.Code, 49-6-2(a) [1992] mandates that a child has a right to be represented by counsel in every stage of abuse and neglect proceedings. Furthermore, Rule XIII of the West Virginia Rules for Trial Courts of Record provides that a guardian ad litem shall make a full and independent investigation of the facts involved in the proceeding, and shall make his or her recommendations known to the court. Rules 1.1 and 1.3 of the West Virginia Rules of Professional Conduct, respectively, require an attorney to provide competent representation to a client, and to act with reasonable diligence and promptness in representing a client. The Guidelines for Guardians Ad Litem in Abuse and Neglect cases, which are adopted in this opinion and attached as Appendix A, are in harmony with the applicable provisions of the West Virginia Code, the West Virginia Rules for Trial Courts of Record, and the West Virginia Rules of Professional Conduct, and provide attorneys who serve as guardians ad litem with direction as to their duties in representing the best interests of the children for whom they are appointed.

Jane Moran, Williamson, Guardian ad litem.

V. Alan Riley, Keyser, for appellee, Gail L.

Darrell V. McGraw, Jr., Atty. Gen., Charlene A. Vaughan, Sr. Asst. Atty. Gen., Charleston, for West Virginia Dept. of Health and Human Resources.

James E. Smith, Keyser, Guardian ad litem below, appellee.

Cinda L. Scales, Askin, Burke & Schultz, Martinsburg, for appellee, Jeffrey L.

Kelley A. Kuhn, Asst. Pros. Atty. for Mineral County, Keyser, amicus curiae.

Mary M. Downey, Facilities Review Panel, Juvenile Justice Committee, Charleston, amicus curiae.

McHUGH, Justice:

Jane Moran, who was appointed as guardian ad litem to represent Jeffrey R.L. in this appeal, ¹ seeks review of an order of the Circuit Court of Mineral County which transferred physical custody of Jeffrey R.L. to his mother, Gail L., and directed the West Virginia Department of Health and Human Resources (hereinafter "DHHR") to monitor the situation with home visits. The guardian ad litem asserts that: (1) the circuit court erred in failing to terminate the parental rights of Jeffrey R.L.'s parents; (2) the circuit court abused its discretion in returning Jeffrey R.L. to his mother's custody without substantial evidence to support the ruling; and (3) Jeffrey R.L.'s best interests were not adequately represented before the circuit court. The Facilities Review Panel, commonly known as the Juvenile Justice Committee, has filed an amicus curiae brief urging this Court to adopt guidelines for attorneys who represent children in abuse and neglect cases to follow in order to ensure effective representation of their clients in those proceedings.

I

At the outset, we point out that it is necessary to set forth the facts before us in detail because of the nature of this proceeding and the decision we make. Gail L. gave birth to Jeffrey R.L. on May 23, 1991. Jeffrey's birth was a normal vaginal delivery; however, Jeffrey suffers from hemangioma, an overgrowth of blood vessels on the back of his neck. He has been receiving treatment from Bilal Itani, M.D. for his hemangioma and recurring vomiting since his birth. X-rays of Jeffrey were taken for his medical problems on May 24, 1991 and July 26, 1991. These x-rays revealed no trauma or fractures. ²

Gail L. arranged for Jeffrey R.L. to be examined again by Dr. Itani on August 30, 1991, because he was not moving his right arm in the same way he was moving his left arm. The x-rays taken by Dr. Itani revealed fractures to his skull, clavicle, ribs, arms and legs. Upon reviewing these x-rays, Dr. Itani arranged to have Jeffrey R.L. transferred to West Virginia University Hospital for further evaluation and treatment.

Although Gail L. and her grandparents had asserted that the injuries were the result of a genetic bone disease, the staff at West Virginia University Hospital confirmed that Jeffrey R.L. had sustained fifteen fractures to his skull, clavicle, ribs, arms and legs, which were at various stages of healing, and that these fractures were not disease-related. The physicians instead diagnosed that Jeffrey was suffering from battered child syndrome.

Upon receiving the diagnosis from West Virginia University Hospital, Grant Hospital, where Dr. Itani was employed, filed a report of child abuse with the Child Protective Services of the DHHR. On September 5, 1991, the DHHR worker assigned to the case, Barbara Mosier, and State Trooper Scott Goodnight went to Gail L.'s home to investigate the report of child abuse. Ms. Mosier found that Gail L., her husband Jeffrey L., ³ her grandmother and her grandfather were all caretakers of Jeffrey R.L. Gail L., who denied knowing the cause of Jeffrey's injuries, suggested that perhaps he sustained these injuries while rolling around in his crib. Upon examining the crib, however, Ms. Mosier observed that the inside of the crib was well-padded.

By order dated September 9, 1991, the DHHR was granted emergency custody of Jeffrey R.L. The DHHR then filed a petition in the circuit court seeking to have the parental rights to Jeffrey R.L. terminated, and requesting that it be granted guardianship of him. A preliminary hearing on the petition was held before the circuit court on September 19, 1991. The DHHR presented two witnesses at the hearing, Ms. Mosier and William Thomas Corder, M.D., Jeffrey R.L.'s attending pediatric physician upon discharge from West Virginia University Hospital. The guardian ad litem before the trial court presented no testimony.

Dr. Corder testified that Jeffrey R.L. was examined by a pediatric neurologist, a genetics expert, an orthopedist and an ophthalmologist. Dr. Corder testified that all of the experts consulted, with the exception of the ophthalmologist who only ruled out osteogenesis imperfecta, ⁴ concluded that Jeffrey R.L. was suffering from battered child syndrome. ⁵ Dr. Corder testified that it would be impossible for Jeffrey R.L. to have sustained all of his fractures from rolling around in his crib, that great force would be necessary to cause fractures of the ribs, and that the other fractures he sustained were "consistent with a twisting, torsion, shaking of limbs[.]" ⁶ Dr. Corder also testified that when he first saw Jeffrey R.L. he thought the child was blind because most three-month-old children enjoy looking at faces and Jeffrey R.L. did not look at his face. ⁷ After a few days of interacting with the nurses, however, Dr. Corder testified that Jeffrey R.L. "started regarding faces[.]"

Ms. Mosier testified at the hearing that she became involved in the case following a referral from Grant Memorial Hospital. Ms. Mosier testified that she spoke with the physicians at West Virginia University Hospital who told her that they believed Jeffrey R.L. suffered from battered child syndrome. Ms. Mosier testified that she then spoke to both of the parents who stated that the child could have a bone disease that caused the fractures, that he could have hurt himself rolling around in his crib, or that he could have sustained the fractures during his delivery. ⁸ Ms. Mosier examined the child's crib and found it to be well-padded on the inside. Ms. Mosier then found out through the hospital that Jeffrey R.L. did not have a genetic bone disease, and that he had a normal delivery.

At the conclusion of the preliminary hearing, the court found probable cause to believe Jeffrey R.L. was an abused or neglected child, and concluded that temporary custody should be awarded to the DHHR. The court ordered controlled visitation and directed that the parents undergo psychological evaluations.

Both parents were evaluated by Gregory Trainor, M.A., in October of 1991. With...