Lacey P., In re

• Decision Date: 24 June 1993
• Docket Number: No. 21528,21528
• Citation: 433 S.E.2d 518,189 W.Va. 580
• Court: West Virginia Supreme Court
• Parties: In re LACEY P., Shanna P. and Nicholas P. and Michelle S.

Page 518

433 S.E.2d 518

189 W.Va. 580

In re LACEY P., Shanna P. and Nicholas P. and Michelle S.

No. 21528.

Supreme Court of Appeals of West Virginia.

Submitted May 4, 1993.

Decided June 24, 1993.

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.' 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).

2. 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).

Ernest M. Douglass, Parkersburg, for Tauna P.

Teresa Tarr, Michele L. Rusen, Asst. Pros. Attys., for West Virginia Dept. of Health and Human Resources.

Susan Simmons, Elizabeth, for infants.

BROTHERTON, Justice:

This case involves the appeal of Tauna P., the mother of the above captioned children, from the June 12, 1992, order of the Circuit Court of Wood County which terminated her parental rights, placed the children into protective custody, including her unborn child, and ordered that the Department of Health and Human Services assist the appellant in being surgically sterilized.

The appellant/mother is approximately twenty-three years old. She has five children and has never been married. The children's ages range from approximately six years to one year. On October 4, 1991, the West Virginia Department of Health and Human Services (HHS) filed a petition in the Circuit Court of Wood County, pursuant to W.Va.Code § 49-6-3 (1990), seeking temporary custody of Lacey, Shanna, Nicholas, and Michelle. Shortly thereafter, the appellant became pregnant with her fifth child. A preliminary hearing was held on October 15, 1991, at which time the court heard evidence. A review of the transcript reveals that since 1989, the appellant has been investigated on numerous occasions by various social service agencies in Ohio and West Virginia for allegations of abuse and neglect of her children. The HHS contends that the appellant also has a history of moving from county to county, which coincided with the social services agencies' investigations of charges of abuse and neglect.

In early 1991, the appellant was living in Washington County, Ohio, when she was charged with neglecting her children. In April, 1991, the appellant agreed to a protection plan in order to prevent the removal of the children. Services were set up for budgeting, parenting skills, housekeeping skills, and nutritional education. The appellant never attended any of the appointments or classes. In May, 1991, the Ohio Department of Human Services planned to take the children from the home because of allegations of drug use and child abandonment, but the appellant moved to Wood County, West Virginia, before they could be removed. Those allegations were not substantiated. On May 31, 1991, the West Virginia Department of Health and Human Services received a referral from the Washington County, Ohio, Human Services Department regarding the appellant's neglect charges. Child Protective Services Worker Tracy Morris was assigned to the case.

On August 8, 1991, Morris met with the appellant and discussed enrolling the children in pre-school, infant stimulation classes, and daycare. The appellant failed to keep three appointments to enroll her oldest child, Lacey, in the Headstart Program. By the time Lacey was enrolled, the program was already full for the year. The appellant then enrolled Lacey and Shanna in pre-school, but their attendance was sporadic.

On August 26, 1991, the appellant informed the HHS that her electricity was going to be shut off for nonpayment. The HHS used funds to pay the overdue bill, and shortly thereafter, Morris paid a home visit and observed the appellant strike Shanna and Nicholas.

On August 27, 1991, the appellant again contacted the HHS and told them that her water was being shut off. The appellant also asked if Michelle's father could move in with her. Morris told the appellant that that was not a good idea because of Mr. Smith's past physical abuse of Shanna and because he hit all of the children. ¹ The appellant admitted that the father stayed in the house on the weekends and that she was aware that he hit the children. Michelle's paternal grandmother, Pat, was already living with the appellant and the children, and was believed to be a poor influence.

On September 11, 1991, Morris visited the home again and noted that the children were bruised and the baby, Michelle, was left unattended on an elevated changing table. Michelle also had a case of diaper rash so severe that she was bleeding. Morris reported that the water was still off and that water was being kept in large, unrefrigerated, unprotected containers, in which the children played. On that date, the appellant signed a protective services plan whereby she agreed to provide a safe, clean, and healthy environment for the children, and keep all her utilities on and paid by budgeting her finances. However, by September 16, 1991, all the children were sick with varying degrees of fever, diarrhea, congestion, and coughing. Morris took the appellant and the children to the emergency room, and it was determined that Nicholas had pneumonia and an ear infection. At that time, the appellant was given several prescriptions for the children and asked to bring stool samples back to the hospital in order to determine the cause of the diarrhea. Follow-up appointments were also made.

On September 19, 1991, the appellant signed a protection plan to prevent the removal of her children. The plan stated as follows:

[T]he children are not to be left alone with any member of the __________ family, Mike, [Michelle's father,] and Pat, [Michelle's grandmother], included, or any other person who is not suitable, intoxicated, or under the influence of drugs. The children are not to be hit in any way. Discipline shall be enforced by time-outs or standing in the corner. All shots are to be caught up by October 30th. All medical attention shall be sought as soon as any child appears ill. Follow-up for this treatment will be done as directed.... [T]he children were to attend pre-school and/or daycare every day unless ill or services aren't available ... Diapers will be checked every hour and changed if at all messy ... and ... rent and utility bills will be paid on time because the utilities had all been shut off.

Unfortunately, the appellant failed to follow any part of that plan. Prescriptions were not filled, no samples were returned to the hospital, and the children were not taken back for their follow-up appointments, with the exception of Shanna, who saw a physician who wanted tests performed. Those tests were not done. By October 4, 1991, all four children had pneumonia.

On October 4, 1991, the HHS filed a petition in the Circuit Court of Wood County seeking temporary custody of the four children. By order dated October 15, 1991, the court granted the HHS' request. On November 8, 1991, the court held an adjudicatory hearing, and the appellant stipulated to the allegations regarding the medical neglect. The court ruled that the children were neglected children as defined by W.Va.Code § 49-1-3(c) and § 49-1-3(g)(1)(A) (1991), but allowed the appellant an out-of-home improvement period during which the children remained in foster care. ²

On December 15, 1991, the court signed an agreed order approving the family case plan prepared by the Department of Human Services. On February 4, 1992, the oldest child, Lacey, was returned to the appellant's home because she had been acting out in school and it was believed that her conduct occurred because she missed her mother. The other children remained in foster care. On March 20, 1992, the court conducted a review of the improvement period. At that time, the evidence showed that the appellant had not complied with any of the requirements in the family case plan. Further, since Lacey had been returned to the appellant's care on February 4, 1992, the child had missed several days of pre-school, her behavior was quite violent while she was with her mother, and the child was dressed in old, ill-fitting, inappropriate clothes instead of wearing the new clothes purchased for her while she was in foster care. It was also revealed that the appellant was approximately four months pregnant, although she had not received any prenatal care. The appellant stated that she had intended to have her tubes tied after Michelle was born, but had not had it done.

On May 1, 1992, the court reviewed the improvement period and ordered it discontinued. On June 12, 1992, a dispositional hearing was held, and the court terminated the appellant's parental rights. Evidence taken at that hearing was essentially the same as that heard in October, 1991, and March 20, 1992. The appellant's caseworker, Ms. Morris, also recommended termination of the parental rights. Ms. Morris noted that during the improvement period, the appellant only made an effort to follow the plan while living at the Eve Shelter, where she attended some meetings and had two hours of...