Katie S., In re, No. 23584

CourtSupreme Court of West Virginia
Writing for the CourtRECHT; ALBRIGHT
Citation479 S.E.2d 589,198 W.Va. 79
PartiesIn re KATIE S. and David S.
Docket NumberNo. 23584
Decision Date14 November 1996

Page 589

479 S.E.2d 589
198 W.Va. 79
In re KATIE S. and David S.
No. 23584.
Supreme Court of Appeals of West Virginia.
Submitted Oct. 1, 1996.
Decided Nov. 14, 1996.

Page 591

[198 W.Va. 81] Syllabus by the Court

1. When the Department of Health and Human Services finds a situation in which apparently one parent has abused or neglected the children and the other has abandoned the children, both allegations should be included in the abuse and neglect petition filed under W. Va.Code 49-6-1(a) (1992). Every effort should be made to comply with the notice requirements for both parents. To the extent that State ex rel. McCartney v. Nuzum, 161 W.Va. 740, 248 S.E.2d 318 (1978), holds that a non-custodial parent can be found not to have abused and neglected his or her child it is expressly overruled.

2. "Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to

Page 592

[198 W.Va. 82] support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety." Syllabus Point 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

3. Although parents have substantial rights that must be protected, the primary goal in cases involving abuse and neglect, as in all family law matters, must be the health and welfare of the children.

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

5. " '[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.' In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980). Syllabus point 1, Interest of Darla B., 175 W.Va. 137, 331 S.E.2d 868 (1985)." Syllabus Point 1, In re Lacey P., 189 W.Va. 580, 433 S.E.2d 518 (1993).

6. "Neither W.Va.Code § 49-6-2(b) nor W.Va.Code § 49-6-5(c) mandates that an improvement period must last for twelve months. It is within the court's discretion to grant an improvement period within the applicable statutory requirements; it is also within the court's discretion to terminate the improvement period before the twelve-month time frame has expired if the court is not satisfied that the defendant is making the necessary progress. The only minimum time period set forth in the statute is the three-month period granted in the pre-dispositional section, W.Va.Code § 49-6-2(b)." Syllabus Point 2, In re Lacey P., 189 W.Va. 580, 433 S.E.2d 518 (1993).

7. " '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)." Syllabus Point 1, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993).

8. "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." Syllabus Point 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).

Keith White, Bryant & White, St. Marys, for Christina B., Respondent Below, Appellant.

Ann Fowler, Assistant Prosecuting Attorney for Wood County, Parkersburg, for West Virginia Dept. of Health and Human Resources, Petitioner Below, Appellee.

Joseph P. Albright, Jr., Parkersburg, Guardian Ad Litem for Katie and David S.

Page 593

[198 W.Va. 83] RECHT, Justice: 1

Christina B., 2 the mother of Katie and David S., appeals the termination of her parental rights by order of the Circuit Court of Wood County. On appeal, Christina B. (the respondent) argues the following: (1) the evidence was insufficient to terminate her rights; (2) the circuit court erred in affording her only a seven-month improvement period rather than the ordered twelve-month improvement period; (3) the circuit court erred in opting for adoption of the children rather than long term foster care; and (4) the circuit court erred in failing to consider her disability. Based on our review of the record, we find no error in the circuit court's decision to terminate the respondent's parental rights. Although we affirm that portion of the circuit court's decision, we note that the circuit court failed to consider whether post-termination visitation between the respondent and her children is in the best interest of the children. We reverse the denial of visitation and remand for a hearing to determine whether such visitation is appropriate under In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).

I.

FACTS AND BACKGROUND

On September 26, 1994, the Department of Health and Human Services (hereinafter the Department) filed a juvenile neglect and delinquency petition 3 against Christina B., alleging that she abused or neglected her children, Katie S., who was born on April 28, 1989 and was then five years old, and David S., who was born on May 29, 1993 and was then sixteen months old, within the meaning of W. Va.Code, 49-1-3 (1994). 4 The petition also sought to terminate the parental rights of the children's father, David S., whose address

Page 594

[198 W.Va. 84] was listed as "unknown." The petition alleged the following:

(1) In August 1994, Katie S., left without supervision, was riding her bicycle in the middle of a street, and the child's location was unknown to her mother;

(2) On August 29, 1994, David S. was hanging out and could have fallen out of a second story window when he was left unsupervised by his mother. On that same day, David S. crawled onto the porch and almost fell off the porch;

(3) Between July 1994 and September 1994, David S. was crying and screaming when left unsupervised in his home while his mother remained in bed;

(4) In September 1994, Katie S. missed almost all of the first two weeks of school because of untreated head lice. Her mother failed and refused to treat the child for head lice, and finally, the school personnel had to cut Katie's hair;

(5) The respondent failed routinely to provide breathing treatments necessary to treat David S.'s asthmatic condition;

(6) Because the respondent failed or refused to provide adequate food, the neighbors frequently had to feed the children; and,

(7) In 1990 and 1991, Katie S. was frequently absent from home, and the respondent did not know where the child was.

At a hearing on October 5, 1994, the respondent, who was represented by counsel, told the circuit court that she did not contest the allegations in the petition. The circuit court, after finding Katie and David S. to be abused and neglected by the respondent, granted her an improvement period of twelve (12) months. Also attending the hearing was the children's father; however, even though the father had little contact with his children, he was not found to have abused or neglected his children. Although the order granted an improvement period "to the respondent-parents," rehabilitation efforts centered entirely on the mother, and the record does not show any further involvement by the father. At the final hearing, the father did not appear but his appointed counsel did. The circuit court found because of the father's abandonment, he was "not a proper party" and dismissed him.

On October 28, 1994, the Department prepared a family case plan outlining tasks for the respondent to complete during the improvement period to achieve the final goal of changing her behavior toward her children. During the first part of the improvement period, while the children remained outside the home, the respondent was to attend parenting classes, write reports, participate in counseling, read a parenting book, establish a residence and demonstrate an improvement in her parenting skills. During the first six months, the children visited with their mother in her home some several times with some...

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714 practice notes
  • In re Abbigail Faye B., No. 33716.
    • United States
    • Supreme Court of West Virginia
    • 23 Mayo 2008
    ...goal . . . in all family law matters . . . must be the health and welfare of the children." Syllabus point 3, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 11. "But the court is in no case bound to deliver the child into the custody of any claimant, but may leave it in such custody ......
  • Clifford v. Paul, No. 31855 (WV 6/17/2005), No. 31855
    • United States
    • Supreme Court of West Virginia
    • 17 Junio 2005
    ...(1948)]." Syl. pt. 1, State ex rel. Cash v. Lively, 155 W. Va. 801, 187 S.E.2d 601 (1972). See also Syl. pt. 3, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) ("Although parents have substantial rights that must be protected, the primary goal . . . in all family law matters .......
  • In re J.S., No. 13-0583
    • United States
    • Supreme Court of West Virginia
    • 25 Abril 2014
    ...also significant. However, the best interest and welfare of the child outweigh all other considerations. See Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) ("Although parents have substantial rights that must be protected, the primary goal in cases involving abuse and negle......
  • In re Clifford K., No. 31855.
    • United States
    • Supreme Court of West Virginia
    • 8 Agosto 2005
    ...(1948)]." Syl. pt. 1, State ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972). See also Syl. pt. 3, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) ("Although parents have substantial rights that must be protected, the primary goal . . . in all family law matters . .......
  • Request a trial to view additional results
704 cases
  • In re Abbigail Faye B., No. 33716.
    • United States
    • Supreme Court of West Virginia
    • 23 Mayo 2008
    ...goal . . . in all family law matters . . . must be the health and welfare of the children." Syllabus point 3, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 11. "But the court is in no case bound to deliver the child into the custody of any claimant, but may leave it in such custody ......
  • Clifford v. Paul, No. 31855 (WV 6/17/2005), No. 31855
    • United States
    • Supreme Court of West Virginia
    • 17 Junio 2005
    ...(1948)]." Syl. pt. 1, State ex rel. Cash v. Lively, 155 W. Va. 801, 187 S.E.2d 601 (1972). See also Syl. pt. 3, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) ("Although parents have substantial rights that must be protected, the primary goal . . . in all family law matters .......
  • In re J.S., No. 13-0583
    • United States
    • Supreme Court of West Virginia
    • 25 Abril 2014
    ...also significant. However, the best interest and welfare of the child outweigh all other considerations. See Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) ("Although parents have substantial rights that must be protected, the primary goal in cases involving abuse and negle......
  • In re Clifford K., No. 31855.
    • United States
    • Supreme Court of West Virginia
    • 8 Agosto 2005
    ...(1948)]." Syl. pt. 1, State ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972). See also Syl. pt. 3, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) ("Although parents have substantial rights that must be protected, the primary goal . . . in all family law matters . .......
  • Request a trial to view additional results

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