State ex rel. Virginia M. v. Virgil Eugene S. II

• Decision Date: 19 July 1996
• Docket Number: No. 22949,22949
• Citation: 475 S.E.2d 548,197 W.Va. 456
• Parties: STATE of West Virginia ex rel. VIRGINIA M., Petitioner Below, Appellee, v. VIRGIL EUGENE S. II, an Infant; Gina Lynn S. and Ralph M., His Parents, Respondents Below, Appellants.
• Court: West Virginia Supreme Court

Page 548

475 S.E.2d 548

197 W.Va. 456

STATE of West Virginia ex rel. VIRGINIA M., Petitioner Below, Appellee, v. VIRGIL EUGENE S. II, an Infant; Gina Lynn S. and Ralph M. His Parents, Respondents Below, Appellants.

No. 22949.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1996.

Decided July 19, 1996.

Syllabus by the Court

1. "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 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." Syl. Pt. 1, In the Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

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." Syl. Pt. 2, State ex rel. West Virginia Dep't of Human Servs. v. Cheryl M., 177 W.Va. 688, 356 S.E.2d 181 (1987).

William C. Martin, Prosecuting Attorney of Braxton County, Sutton, for State.

Matthew A. Victor, Charleston, for Virgil S.

Maureen Conley, Legal Aid Society of Charleston, Charleston, for Gina S.

PER CURIAM.

The Appellant, Gina Lynn S., appeals from an order of the Circuit Court of Braxton County dated September 20, 1994, terminating her custodial rights to her son, Virgil Eugene S., and granting permanent custody to the child's paternal grandmother, Virginia M. ¹ The order also terminated the custodial rights of the father, Ralph M., who does not join in this appeal. Gina Lynn S. asserts that her custodial rights should not have been terminated, and that the circuit court should have granted her an improvement period prior to termination. Based on our review of the record, we agree that the circuit court erred when it denied her request for an improvement period, and we remand the case for further proceedings consistent with this opinion.

I.

Virgil Eugene S. ("Gene") is seven years old. He was a premature baby, and suffers from a host of physical problems, including mild cerebral palsy, hyperactivity, eye problems, and asthma. From the time he left the hospital as an infant, Gene has spent more time in the Braxton County home of his paternal grandmother, Virginia M., than in Charleston with his mother, Gina Lynn S. This arrangement was mutually satisfactory for several years, including a period in which the mother and grandmother informally agreed to alternate care for Gene every two weeks.

Gina Lynn S. has two other children and limited resources, so Virginia M.'s participation in Gene's upbringing helped her to provide for his special physical and medical needs. There is also evidence that early in the child's life Gina Lynn S. often entrusted him to her mother-in-law to avoid exposing him to domestic violence perpetrated by Ralph M. (Virginia M.'s adopted son), who is no longer in the home. Later, Gina Lynn S. testified that she felt some pressure to leave Gene with Virginia M. for longer visits when the grandmother represented that both she and her husband had cancer. Gina Lynn S. testified that Virginia M. seemed to want Gene near her, and that she complied because she feared the grandmother would not be alive much longer. Nevertheless, Gina Lynn S. did participate significantly as Gene's parent, having him in her home often and consenting to his extended stays with Virginia M., prior to the initiation of these proceedings.

Early in 1993, after over four years of sharing Gene's care, Virginia M. became dissatisfied. She contacted the Department of Health and Human Resources ("DHHR") for help, complaining that Gina Lynn S. allowed Gene to reside with her for extended periods of time, but did not provide financial help or Gene's Medicaid card. Virginia M. also wanted to enroll Gene in preschool, but did not have legal authority to sign papers as his parent or guardian. DHHR determined that the case did not warrant intervention, because Gina Lynn S. had properly provided for the child by placing him with his grandparents. ² DHHR then referred Virginia M. to the county prosecutor for a possible solution to her problems.

On January 11, 1993, the Prosecuting Attorney for Braxton County filed a petition on behalf of Virginia M. alleging abuse and neglect, and requesting a grant of temporary custody under West Virginia Code § 49-6-3 (1995). The Circuit Court of Braxton County granted emergency temporary custody to Virginia M. the same day.

The circuit court held a preliminary hearing on January 27, 1993, after which it granted continued custody to Virginia M., and visitation rights to Gina Lynn S. On March 17, 1993, the lower court held a hearing on a motion by the State to terminate visitation. Following that hearing, the court made a finding of neglect, ³ but did not terminate visitation. Almost a year later, on February 7, 1994, the court held a third hearing, ⁴ after which it granted continued custody to Virginia M., and denied Gina Lynn S.'s motion for an improvement period pursuant to West Virginia Code § 49-6-2(b) (1995). The court conducted a dispositional hearing on March 11, 1994, again denied the mother's motion for an improvement period, and issued its final order on September 20, 1994.

The majority of the evidence at these hearings was testimony by Virginia M. and Gina Lynn S. The grandmother asserted that she had most of the responsibility for her grandson's care, and that she and her husband provided him with a good home. She commented on her daughter-in-law's poor housekeeping, drinking, and slovenly habits, but tempered these criticisms with remarks such as, "I think the world and all of Gina, but I don't approve of the way she takes care of the baby," and conceded that Gina could be a decent mother if given an opportunity.

For her part, Gina Lynn S. testified that she stayed with Gene day in and day out for four months in the hospital after his premature birth, and looked after his special needs by taking him to various physicians in Charleston, and to the Shriners' hospital in Kentucky. Most of the housekeeping problems, according to Gina Lynn S., were attributable to Ralph M., who was chronically unemployed, abused alcohol, and abused Gina Lynn S. Although the two were never married, they lived together "off and on" for about four years. Ralph M. has not, however, been in the household since February, 1992, approximately one year before this action was filed. Since Gene was removed from her custody, Gina Lynn S. has attended every hearing, visited Gene in Braxton County when she was able, talked with him on the phone, and brought him Christmas presents.

The most damaging evidence concerned an incident that occurred after the court's grant of custody to Virginia M. at the January 27, 1993, hearing. Dr. William Douglas Given ⁵ testified at the March 17, 1993, hearing on the State's motion to terminate visitation. Dr. Given had examined Gene a few days after Gene returned from a weekend visit with Gina Lynn S. on March 6th and 7th. Dr. Given found several areas of bruising consistent with being struck with an object, and also noted a "marked failure to thrive." When questioned by Dr. Given, Gene reported that his three-year-old cousin had beaten him with a "razor stroke." Dr. Given concluded that, in his opinion, the child was abused. Dr. Given based his opinion, in part, on Gene's "failure to thrive," because his weight and height were less than the 50th percentile for his age. Because Gene resided with his grandparents more than with his mother, and failure to thrive in the context of child abuse is generally considered to be the result of long-term conditions of physical and/or emotional neglect, ⁶ we are inclined to discount this factor as evidence of any mistreatment by Gina Lynn S. It is cause for concern, and may have indicated that there was neglect in this case. However, the record is unclear as to whether Gene's size was in any way related to his cerebral palsy or other medical problems.

In this appeal, Gina Lynn S. asserts that the circuit court erred by (1) failing to dismiss the case at the preliminary hearing for failure to present a prima facie case of abuse or neglect; (2) finding that the evidence of abuse and neglect met the "clear and convincing" standard; and (3) refusing to grant her an improvement period. ⁷ The guardian ad litem, on behalf of the child, requests that this Court affirm the lower court's grant of custody to Virginia M., but remand the case to the circuit court for consideration of an improvement period for Gina Lynn S., or another custodial arrangement, in order to provide for the best interests of the child in the event that Gene outlives his grandmother. ⁸

II.

Our standard of review in an abuse and neglect proceeding has been summarized as follows:

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...