Jonathan P., Matter of

• Decision Date: 30 November 1989
• Docket Number: No. 19229,19229
• Citation: 387 S.E.2d 537,182 W.Va. 302
• Court: West Virginia Supreme Court
• Parties: In the Matter of JONATHAN P.

Page 537

387 S.E.2d 537

182 W.Va. 302

In the Matter of JONATHAN P.

No. 19229.

Supreme Court of Appeals of

West Virginia.

Nov. 30, 1989.

Syllabus by the Court

1. W.Va.Code, 49-6-3 (1984), authorizes, upon the filing of a petition, the immediate, temporary taking of custody of a child by the Department of Human Services when there exists an imminent danger to the physical well-being of the child and there are no reasonably available alternatives to the removal of the child.

2. "W.Va.Code, 49-6-2(b) (1984), permits a parent to move the court for an improvement period which shall be allowed unless the court finds compelling circumstances to justify a denial." Syllabus Point 2, State ex rel. W. Va. Dep't of Human Serv. v. Cheryl M., 177 W.Va. 688, 356 S.E.2d 181 (1987).

3. Under W.Va.Code, 49-6-2(b) (1984), a request for an improvement period must be made "prior to final hearing."

4. "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).

Dana R. Shay, Fairmont, for Mother.

Susan K. McLaughlin, Roger Williams, Fairmont, for infant.

J. Montgomery Brown, Pros. Atty., Rucco Fucillo, Asst. Pros. Atty., Fairmont, for State.

MILLER, Justice:

This is an appeal by Marilyn P. from an order of the Circuit Court of Marion County, entered on August 25, 1988, terminating her parental rights to her infant son, Jonathan P. ¹ Marilyn P. contends that the trial court erred in: (1) finding that there was sufficient evidence of child neglect; (2) failing to grant an improvement period; (3) terminating her parental rights on the ground that there was no reasonable likelihood that the conditions of abuse or neglect could be substantially corrected; (4) admitting the testimony of a social worker from the Department of Human Services (DHS); and (5) allowing the former prosecuting attorney to represent the infant child. We do not find reversible error, and, accordingly, the order of the Circuit Court of Marion County is affirmed.

Jonathan was born on September 20, 1986. On April 7, 1987, a temporary custody order was issued granting custody of Jonathan to DHS. ² On April 14, 1987, a hearing was conducted to determine whether custody of Jonathan should remain with DHS. At that hearing, Nancy Riley, a worker for DHS, testified that Marilyn refused all help offered to her by DHS. The social worker testified that Marilyn did not have formula to feed Jonathan and that she expressed no concern about sleeping in a car with Jonathan despite the cold temperature. At the conclusion of the hearing, the circuit court granted temporary custody of Jonathan to DHS under the conditions set forth in the social summary prepared by Ms. Riley.

On June 25, 1987, the court issued its order granting a sixty-day assessment period based on the recommendations made at the April 14, 1987 hearing. During this assessment period, the court ordered custody to remain with DHS while Marilyn underwent psychological evaluation and counseling. The court further ordered Marilyn to contact DHS to arrange for visitation with Jonathan.

By order entered on September 22, 1987, pursuant to a joint motion of the parties, the circuit court continued this matter until completion of Marilyn's psychological evaluation and ordered that custody remain with DHS until a further hearing could be held.

On May 23, 1988, a hearing was held to determine whether Marilyn's parental rights should be terminated. By order entered on August 25, 1988, the circuit court terminated her parental rights and placed permanent custody of Jonathan with DHS. It is from that decision that Marilyn now appeals.

I.

Marilyn first contends that the temporary custody order initially removing Jonathan from her care failed to allege specific conduct which would show imminent danger to his physical well-being, as defined in W.Va.Code, 49-1-3(e) (1984). The State contends that the circuit court's finding that the child was nutritionally deprived is specifically recognized in this section as a ground for removal. ³

W.Va.Code, 49-6-3 (1984), authorizes, upon the filing of a petition, the immediate, temporary taking of custody of a child by DHS when there exists an imminent danger to the physical well-being of the child and there are no reasonably available alternatives to the removal of the child. State v. Carl B., 171 W.Va. 774, 301 S.E.2d 864 (1983). In State ex rel. Miller v. Locke, 162 W.Va. 946, 253 S.E.2d 540 (1979), we observed that W.Va.Code, 49-6-3, allows a taking only in an emergency situation in which the welfare or the life of the child is endangered.

In its temporary custody order, the circuit court found that there was imminent danger to Jonathan's physical well-being "by reason of lack of cooperation from mother to provide adequate food and shelter for the child." The order concluded that there were no reasonably available alternatives to removal of the child since "the mother has refused any supportive services and fails to recognize the dangers she is exposing him to." ⁴

The evidence in the record supports the circuit court's findings. Marilyn and her son had been sleeping in a car with temperatures outside as low as 30 degrees. Marilyn had no formula to feed her son. Instead, she was feeding him regular milk which was causing him to have diarrhea. Although the social worker advised Marilyn how to obtain an emergency food voucher in order to get formula for Jonathan she refused to accept the assistance offered.

Here, there clearly existed an imminent danger to Jonathan's physical well-being, and there was sufficient evidence to warrant the circuit court's issuance of a temporary custody order. The extremely young age of the child, who was six months of age at the time of the petition, is a significant factor. As we mentioned in Syllabus Point 1, in part, of In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980), "children under the age of three years who are more susceptible to illness, need consistent close interaction with fully committed adults[.]"

II.

Marilyn next contends that the circuit court failed to grant her an improvement period and unlawfully continued to allow custody of Jonathan to remain with DHS. The State argues that Marilyn was given a sufficient period of time to improve her present conditions and that the court did not commit error by denying an improvement period.

We explained in Syllabus Point 2 of State ex rel. W. Va. Dep't of Human Serv. v. Cheryl M., 177 W.Va. 688, 356 S.E.2d 181 (1987), that our statute does not automatically require an improvement period and that the parent must request such an improvement period:

"W.Va.Code, 49-6-2(b) (1984), permits a parent to move the court for an improvement period which shall be allowed unless the court finds compelling circumstances to justify a denial." ⁵

The circuit court's order dated June 25, 1987, granting DHS custody of Jonathan for a sixty-day evaluation period, provided that Marilyn should contact DHS to arrange for visitation with Jonathan. By order entered on September 22, 1987, the initial sixty-day assessment period was extended by agreement of all the parties. The September 22, 1987 order in effect extended the assessment period and Marilyn's visitation privileges for another year. During this time, Marilyn did not move for an improvement period.

Even after the extension, Marilyn did not request an improvement period. The record shows that Marilyn visited her son four times during the period from June to December, 1987, and had no contact after December, 1987, until the May 23, 1988 hearing.

According to Marilyn's testimony, she had been hitchhiking in New York, New Jersey, North Carolina, Virginia, Florida, Texas, New Mexico, and Arizona. During this time, she testified that she was doing psychical research. She stated that she had been "thinking ahead to this case" and had decided to do "a little bit of my own investigation" into the areas of extrasensory perception and clairvoyance. Marilyn stated that she thought she may have a "sixth or seventh sense," and she wanted to be tested for this before the May 23, 1988 hearing.

Marilyn also had, at best, a sporadic work history along with this itinerant lifestyle. She testified that she worked approximately four weeks from December 23, 1987, until May 23, 1988. Two of those weeks she worked in Virginia Beach, but she testified that she "just couldn't handle it anymore." Marilyn testified that she worked in a warehouse in Florida for two weeks and also "did some cleaning" to make "a few dollars here and there." Marilyn stated that she received "a lot of charity from friends."

Marilyn did request an improvement period on June 29, 1988. However, this request was made after the May 23, 1988 final hearing to terminate her parental rights and approximately fourteen months after the initial temporary custody order was entered. Under W.Va.Code, 49-6-2(b) (1984), a request for an improvement period must be made "prior to final hearing." In view of this delay and of the failure to make a timely request, we find that the trial court did not err in refusing an improvement period.

III.

Marilyn also contends that the circuit court should not have terminated her parental rights since there was insufficient evidence of no reasonable likelihood that the conditions of neglect or abuse could be substantially corrected. We have acknowledged this principle in Syllabus Point 2 of In re R.J.M., supra :

"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...