R. J. M., In re

• Decision Date: 25 March 1980
• Docket Number: No. 14612,14612
• Citation: 266 S.E.2d 114,164 W.Va. 496
• Court: West Virginia Supreme Court
• Parties: In re R. J. M.

Page 114

266 S.E.2d 114

164 W.Va. 496

In re R. J. M.

No. 14612.

Supreme Court of Appeals of West Virginia.

March 25, 1980 and May 9, 1980.

Syllabus by the Court

1. As a general rule the least restrictive alternative regarding parental rights to custody of a child under W.Va.Code, 49-6-5 (1977) will be employed; however, courts 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.

2. 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.

C. Blaine Myers, Parkersburg, for R. J. M Chauncey H. Browning, Jr., Atty. Gen., Billie Gray, Asst. Atty. Gen., Charleston, for Circuit Court, Wood County.

NEELY, Chief Justice:

This is an appeal from an order of the Circuit Court of Wood County terminating parental rights. The appellant parents make general assignments about the insufficiency of the evidence and argue that the circuit court should have granted them an improvement period pursuant to W.Va.Code, 49-6-5(a)(4) (1977) and 49-6-5(c) (1977). Since their court appointed attorney did not move for an improvement period pursuant to W.Va.Code, 49-6-2(b) (1977) the appellants alleged ineffective assistance of counsel. We disagree and affirm.

R.J.M., the child involved in this proceeding, was born on 8 January 1978. Her mother was 16 years old at the time of R.J.M.'s birth and had left the tenth grade about a year earlier when she was pregnant with her first child Shawn. Shawn was also the subject of a neglect petition at the time of the proceedings under consideration here regarding R.J.M., and while the record does not develop the facts surrounding Shawn's removal from the home, it is apparent that he had been placed under the supervision of the Department of Welfare. R.J.M.'s father is an unskilled laborer suffering from a nervous condition.

In early March 1978, Gladys Foster, a mother of three and a grandmother, acquainted with the parents in this case because one of her daughters was living with them, noticed that R.J.M. looked ill and hungry. On her next visit, Mrs. Foster brought a jar of baby food and a jar of milk, which she fed to R.J.M. Mrs. Foster noticed no feeding problems or vomiting and in response to Mrs. Foster's suggestion that R.J.M. looked ill the mother promised to take her daughter to a doctor.

At about the same time, Isodene Alkire, a Department of Welfare homemaker who was working in the subject home, became concerned about R.J.M.'s health. She noticed that the child looked pale and unhealthy and observed that the mother had stopped giving her baby the prescribed formula and was substituting a mixture of Karo syrup, water and milk. When Mrs. Alkire asked the mother if she had discussed this change with her pediatrician she replied that she had not, but had made the change because the baby was spitting up the formula. Mrs. Alkire reported her concern to Larry Lowe of the Department of Welfare Child Protective Services Office who had been working with the parents since December 1977 concerning problems with their older child Shawn. On 3 March 1978, both Mrs. Alkire and Mr. Lowe visited the subject home and discussed with the mother the necessity for proper feeding of her child.

On 15 March 1978, Mrs. Alkire came to the subject home and took the mother and R.J.M. to Camden Clark Hospital in Parkersburg where R.J.M. was seen by Dr. Robert Crooks, a pediatrician, who found the baby to be suffering from gastroenteritis, dehydration and "failure to thrive" (malnutrition). R.J.M.' § skin showed the wrinkling and dryness common to undernourished children, a remarkable condition since R.J.M. had been a healthy normal seven pound eleven ounce baby at birth. R.J.M. had gained only one ounce in the two months since birth. The history given by the mother to Dr. Crooks was that her baby had been healthy until three days earlier when she developed diarrhea, began vomiting, and refused to eat. This was the first time the infant had been seen by a doctor since her birth.

R.J.M. was discharged from the hospital two weeks later, by which time her weight had increased by almost half to ten pounds ten ounces. Mr. Lowe, alerted by hospital staff members to the mother's apparent unwillingness to participate in a feeding program planned by Dr. Crooks, tried to discuss the matter with the mother before she took R.J.M. home, but found her uncooperative. He explained that the mother appeared not to understand the need for consistent feeding.

Mr. Lowe sought to maintain contact with the family following R.J.M.'s discharge from the hospital and during the next several weeks he made numerous attempts to visit the mother and R.J.M. which were to no avail. Remembering that the mother was to bring R.J.M. for an appointment with Dr. Crooks on 4 April, he went to the doctor's office to await her arrival. The appointment was never kept and when asked about it the mother explained that she had forgotten. Mr. Lowe waited for the mother again at Dr. Crook's office on 7 April but again she did not come. On 10 April Mr. Lowe discovered that the parents had moved from their previous address. Three days later he located the mother at the home of a relative, in Belpre, Ohio.

Despite his many attempts to remain in touch with the family, Mr. Lowe was unable to locate them again until 24 April 1978 when he received a telephone call from Mr. and Mrs. Harry Love of Parkersburg, West Virginia. They informed Mr. Lowe that R.J.M. had been left in their care and was ill and in need of medical attention. R.J.M.'s parents could not be located and Mr. Lowe responded by arranging for the Department of Welfare to be given emergency temporary custody.

Later that same day, Mr. Lowe received a telephone call from the mother. She declined to divulge her whereabouts, but explained that the purpose of her call was to inform Mr. Lowe and the Department of Welfare that R.J.M. was in Ohio. She expressed dismay when Mr. Lowe informed her that her daughter was in the custody of the Department of Welfare and in a foster home. That same day R.J.M. was seen by Dr. Crooks who discovered that she was not ill but weighed only ten pounds five ounces, a loss of five ounces since her discharge from the hospital less than one month earlier.

Mr. Lowe tried eleven times during the following weeks to contact the parents in order to discuss R.J.M. with them, all to no avail. On 12 May 1978 he filed a neglect petition on behalf of R.J.M. and at the preliminary hearing the circuit court found probable cause to believe that the allegations in the petition were correct and ordered custody to continue in the Department of Welfare. At the close of the preliminary hearing counsel for the parents expressed his intention to move for an improvement period. The court scheduled a hearing on the motion, but at the hearing the motion was withdrawn without explanation and psychiatric examinations of both parents requested instead.

The adjudicatory hearing, held on 9 June 1978, resulted in a termination of the parental rights of the appellants. The court found by clear and convincing proof that R.J.M.'s illness, malnutrition and abandonment were the result of her parents' refusal to care and provide for the child and that there was

. . . no reasonable likelihood (sic ) that the conditions of neglect or abuse can be substantially corrected in the near future as are necessary for the welfare of the child in that the parents have refused and not responded to or followed through with a reasonable rehabilitative effort of social, medical and other rehabilitative agencies designed to reduce and prevent the neglect of the child evidenced by the continuation of substantial and repeated acts of neglect after efforts were made by the West Virginia Department of Welfare, by the nurses at the hospital and by various other such agencies to supply the needed assistance to the family to avoid the neglect.

. . . that the mother is of average to above average intelligence, the father is of average intelligence, both of whom are able to grasp the nature and character of their failure to properly care for the child and the consequences thereof, and are able to understand and respond to the assistance, support, and help offered to them by the various child welfare agencies, and that the parents have, as disclosed by the evidence, willfully failed and refused to accept such services to the substantial detriment of the health, welfare and wellbeing of the child, and the substantial endangerment of the child's physical condition.

We conclude that the Court's findings of fact are amply supported by the evidence and further conclude from the records that every possible opportunity was given to these parents to behave in a responsible way toward their child. While the record does not reveal trial counsel's continued insistence upon an improvement period, the record does reveal that such an insistence, under the facts and circumstances of this case, would have been a vain act.

Starvation is a particularly insidious type of child abuse; if the parents in the case before us had routinely flogged their child to within an inch of her life the legitimacy of the trial court's action would never been questioned. An infant less than a year old is at the utter...