Jonathan G., In re, 23465

CourtSupreme Court of West Virginia
Citation482 S.E.2d 893,198 W.Va. 716
Decision Date18 December 1996
Docket NumberNo. 23465,23465
PartiesIn re JONATHAN G.

Page 893

482 S.E.2d 893
198 W.Va. 716
No. 23465.
Supreme Court of Appeals of West Virginia.
Submitted Nov. 19, 1996.
Decided Dec. 18, 1996.

Page 896

[198 W.Va. 719] Syllabus by the Court

1. The foster parents' involvement in abuse and neglect proceedings should be separate and distinct from the fact-finding portion of the termination proceeding and should be structured for the purpose of providing the circuit court with all pertinent information regarding the child. The level and type of participation in such cases is left to the sound discretion of the circuit court with due consideration of the length of time the child has been cared for by the foster parents and the relationship that has developed. To the extent that this holding is inconsistent with Bowens v. Maynard, 174 W.Va. 184, 324 S.E.2d 145 (1984), that decision is hereby modified.

2. "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." Syl. Pt. 3, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993).

3. "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 re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

4. " 'Under W. Va.Code, 49-6-2(b) (1984), when an improvement period is authorized, then the court by order shall require the Department of Human Services to prepare a family case plan pursuant to W. Va.Code, 49-6D-3 (1984).' Syl. Pt. 3, State ex rel. West Virginia Dept. of Human Serv. v. Cheryl M., 177 W.Va. 688, 356 S.E.2d 181 (1987)." Syl. Pt. 3, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

5. "In formulating the improvement period and family case plans, courts and social service workers should cooperate to provide a workable approach for the resolution of family problems which have prevented the child or children from receiving appropriate care from their parents. The formulation of the improvement period and family case plans should therefore be a consolidated, multi-disciplinary effort among the court system, the parents, attorneys, social service agencies, and any other helping personnel involved in assisting the family." Syl. Pt. 4, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

6. "The clear import of the statute [West Virginia Code § 49-6-2(d) ] is that matters involving the abuse and neglect of children shall take precedence over almost every other matter with which a court deals on a daily basis, and it clearly reflects the goal that such proceedings must be resolved as expeditiously as possible." Syl. Pt. 5, In

Page 897

[198 W.Va. 720] re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

7. "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." Syl. Pt. 6, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

8. "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." Syl. Pt. 3, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991).

9. "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." Syl. Pt. 4, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991).

10. "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).

11. A child has a right to continued association with individuals with whom he has formed a close emotional bond, including foster parents, provided that a determination is made that such continued contact is in the best interests of the child.

Tracy B. Dawson, Steptoe & Johnson, Martinsburg, Guardian Ad Litem

Pamela Games-Neely, Prosecuting Attorney of Berkeley County, Martinsburg, for State of West Virginia.

Scott A. Ollar, Camiletti, Ollar & Santa Barbara, Martinsburg, for Kenneth and Patricia Stem.

Bryan Craig Manford, Martinsburg, for Johnny G.

Robert Schiavoni, Hammer, Ferretti & Schiavoni, Martinsburg, for Lisa Knighton.

Barbara L. Baxter, Assistant Attorney General, Charleston, for Department of Health and Human Services.

Jane Moran, Williamson, for Amicus Curiae.

WORKMAN, Justice:

Appellants Kenneth and Patricia Stem, as prior long-term foster parents of the infant Jonathan G., 1 appeal from the October 23,

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[198 W.Va. 721] 1995, decision 2 of the Circuit Court of Berkeley County denying them permanent visitation rights with Jonathan G. The Stems assert additional error with regard to the circuit court's failure to permit them to participate meaningfully in the termination proceedings that occurred on June 21 and 22, 1994; the circuit court's decision to return Jonathan G. to his biological parents; and the circuit court's decision to remove the West Virginia Department of Health and Human Resources ("DHHR") from this case. DHHR cross-assigns as error the circuit court's decision to return Jonathan G. to his parents, the prosecuting attorney's improper representation of DHHR, and the circuit court's removal of DHHR from the case. Upon a thorough review of this matter, we 3 affirm the circuit court's order restoring permanent custody to the natural parents, but remand this case for further proceedings to determine whether it would be in Jonathan G.'s best interest to have continued contact with the Stems.

I. Factual and Procedural Background

Jonathan G. was born to Johnny G. and Lisa K. on April 23, 1990. While his parents are hearing impaired, 4 Jonathan G. has no hearing problems. In June of 1990, Jonathan G. suffered a spiral break of his left femur, which was subsequently determined by the treating physicians to be accidental in nature. Then on December 8, 1990, Jonathan G.'s mother took him to the emergency room for what was later diagnosed as "shaken baby syndrome." The shaking incident actually occurred a day earlier. As a result of the shaking, Jonathan suffered intercranial hemorrhaging. The severity of his injuries required immediate transfer to Johns Hopkins in Baltimore, Maryland, for treatment.

On December 19, 1990, DHHR filed an abuse and neglect petition pursuant to West Virginia Code § 49-6-1 (1996), seeking temporary custody of Jonathan G. 5 A hearing was held on the abuse and neglect petition on December 28, 1990, and the circuit court found that DHHR had demonstrated probable cause concerning the abuse of Jonathan G. The circuit court granted DHHR custody of Jonathan G. for sixty days, ordered supervised visitation for Jonathan G.'s parents, and further directed that the natural parents were to submit to psychological examinations. Through this same order, 6 the court ordered DHHR to develop a family case plan in accordance with the provisions of West Virginia Code § 49-6D-3 (1996) and to make all reasonable efforts in assisting Jonathan G. to remain in his home. The Stems, as foster parents, were awarded physical custody of Jonathan G. on December 29, 1990, when he was ten months old. Jonathan G. continued in their care and custody until September 2, 1994, when he was over four years old.

An adjudicatory hearing was held on February 19, 1991. During this hearing, the circuit court received the psychological report of Hal Slaughter. The order reflecting the findings of this proceeding states that:

Upon motion by the State, the Counsel for the natural parents and infant child, as well as the State, agreed to stipulate that the report of Hal Slaughter was acceptable and should be entered in the record.

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[198 W.Va. 722] The Court then notified the parties that the mother within the report had admitted that she was in fact the party who had abused the child. The mother acknowledged in the affirmative. The Court accordingly accepts the stipulation of the parties to Mr. Slaughter's report.

As a result of the adjudicatory proceeding, the circuit court concluded that Jonathan G. was an abused and neglected child; continued the custody of the infant child with DHHR; ordered DHHR to develop a family case plan; ordered supervised visitation for the...

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