State ex rel. W.Va. Dept. of Human Services v. Cheryl M.

Decision Date02 April 1987
Docket NumberNo. 17156,17156
Citation356 S.E.2d 181,177 W.Va. 688
PartiesSTATE ex rel. W.VA. DEPARTMENT OF HUMAN SERVICES v. CHERYL M., et al.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. "In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions." Syllabus Point 1, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).

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.

3. Under W.Va.Code, 49-6-2(b) (1984), when an improvement period is authorized, then the court by order shall require the Department of Human Services to prepare a family case plan pursuant to W.Va.Code, 49-6D-3 (1984).

4. Under W.Va.Code, 49-6D-3 (1984), the Department of Human Services is required to prepare a family case plan with participation by the parties and their counsel and to submit it to the court for approval within thirty days.

5. The purpose of the family case plan as set out in W.Va.Code, 49-6D-3(a) (1984), is to clearly set forth an organized, realistic method of identifying family problems and the logical steps to be used in resolving or lessening these problems.

J. David Judy, III, Judy & Judy, Moorefield, for appellant.

Kenneth Knopf, Asst. Atty. Gen., Charleston, William Bean, Pros. Atty., Moorefield, for appellee.

MILLER, Justice:

Cheryl M. appeals from the final order of the Circuit Court of Hardy County which terminated her parental rights to her infant child, Amanda. 1 She assigns as error the trial court's retention of temporary custody of Amanda beyond statutory limits, the trial court's failure to allow a statutory improvement period, and the trial court's failure to adopt the least restrictive alternative that is appropriate to the circumstances.

Cheryl M. and Mark J. are the natural parents of Amanda, born July 19, 1983, in the State of Maine where her parents were residents. 2 In April, 1984, Cheryl and Amanda came to Wardensville, West Virginia, to see Mark, who was traveling with a carnival which was giving a performance in that area. The child abuse incident occurred during Cheryl's argument with Mark over his lack of monetary support.

The argument began at the motel where he was staying with his cousin and her husband who also worked for the carnival. They claimed that Cheryl dropped the baby while arguing with Mark. Cheryl claimed she placed Amanda on Mark's bed. The argument continued outside where Mark's relatives claimed Cheryl dropped Amanda. Cheryl stated she slipped on wet grass, fell, and the baby landed on top of her. The final incident occurred when she placed the baby on an open porch while still arguing with Mark and the baby rolled to the edge, but was caught by Mark.

Dr. Thomas Peck, examining Amanda at the DHS's request on the day of the incident, found a "well child physically" of average height and weight. He concluded, "I see no evidence on my exam to support that there has been significant injury from this abuse event." X-rays revealed no evidence of any acute or chronic trauma. A medical report submitted by Dr. E.R. Caldwell, III, of a May 21, 1984 examination stated that Amanda's growth and development were normal and her EEG was also found to be completely normal. The doctor concluded she appeared healthy and was social and smiling.

On April 28, 1984, after this incident, the West Virginia Department of Human Services (DHS), was called and took physical custody of Amanda. A petition requesting temporary custody filed later that day was granted by the Circuit Court of Hardy County. 3 The DHS in its petition did not address the availability of alternatives other than the impossibility of transferring physical custody to the father who worked for a carnival. The circuit court made no finding about alternatives less restrictive than the removal of the child and placed physical custody with the DHS which, in turn, placed Amanda in a foster home.

On May 10, 1984, at the preliminary hearing, the DHS recommended that Amanda be returned, through the Interstate Compact on the Placement of Children, 4 to the State of Maine. This would permit the Maine Department of Human Services to supervise her reunification with her mother who had family living in Maine. Cheryl and court-appointed counsel for Amanda concurred with this recommendation. The circuit court deferred acting on this motion and requested that the DHS obtain a placement plan from the Maine Department of Human Services. 5 The circuit court continued temporary custody of Amanda with the DHS pending receipt of a plan for services from the State of Maine. Cheryl returned to Maine in anticipation of her child following.

Maine submitted a plan dated July 16, 1984, to the DHS, which was received on July 23, 1984. The DHS sent the plan to the circuit court on September 12, 1984, including it as an attachment in a request for termination of all parental rights. At an October 16, 1984 hearing, the DHS obtained permission to amend its petition to terminate Cheryl's parental rights. Cheryl, who had recently returned from Maine, 6 appeared at this hearing.

On November 7, 1984, the DHS filed its amended petition requesting the termination of Cheryl's parental rights. On November 15, 1984, Cheryl through her attorney filed a response to the amended petition in which she sought an improvement period. The court held a hearing on December 13, 1984, in which the facts surrounding the original abuse were developed and a finding of abuse and neglect was made, but no action was taken to terminate Cheryl's parental rights or on her request for an improvement period. Further hearings were held on April 15 and 18 and July 8, 1985, and at the July hearing, the parental rights were terminated.

This Court has long recognized the constitutional protections surrounding the right of a natural parent to the custody of his or her infant children, stating in Syllabus Point 1 of In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973):

"In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions."

See also State v. T.C., --- W.Va. ---, 303 S.E.2d 685 (1983); State ex rel. Miller v. Locke, 162 W.Va. 946, 253 S.E.2d 540 (1979).

We relied in Willis on Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1213 31 L.Ed.2d 551, 559 (1972), where the United States Supreme Court stated:

"The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, [262 U.S. 390, 399, 43 S.Ct. 625, 626-27, 67 L.Ed. 1042 (1923) ], the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, [316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942) ], and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496, 85 S.Ct. 1678, 1688, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring)."

Stanley retains its constitutional vitality as is evidenced by Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599, 606 (1982), where the Supreme Court, after concluding that parental rights cannot be terminated under the due process clause upon less than a "clear and convincing" evidence standard, declared:

"The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life." 7

Our statute, W.Va.Code, 49-6-2(c) (1984), also requires "clear and convincing" proof. In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).

W.Va.Code, 49-6-2(b) (1984), 8 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. We explained in State v. Scritchfield, 167 W.Va. 683, 692-93, 280 S.E.2d 315, 321 (1981):

"Clearly, the statute presumes the entitlement of a parent to an opportunity to ameliorate the conditions or circumstances upon which a child neglect or abuse proceeding is based pending final adjudication, no doubt in recognition of the fundamental right of a parent to the custody of minor children until the unfitness of the parent is proven. See, e.g. In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973). The statute permits the court to deny such a request only upon a finding of 'compelling circumstances.' "

See also In re Thaxton, --- W.Va. ---, 307 S.E.2d 465 (1983).

Once the DHS amended its petition seeking permanent custody of Amanda, Cheryl moved the court for an improvement period. The trial court did not rule on the motion until the final adjudicatory hearing in July, 1985, when the court in effect denied it by terminating her parental rights. The court reasoned that for all practical purposes an improvement period had existed since the first hearing.

This conclusion cannot be supported by the facts. We can only conclude that the DHS provided, at best, only minimal assistance and that, although Cheryl cooperated, the DHS never altered its position that her parental rights should be terminated. As we have earlier noted, this position was taken by the DHS in its September 12, 1984 report to the court, 9 before Cheryl had returned to this State. The initial...

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