State v. Michael M.

• Decision Date: 22 June 1998
• Docket Number: No. 24962., No. 24961, No. 24879
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Petitioner Below, Appellant, v. MICHAEL M., II, and Angela H., Respondents Below, Appellees. STATE of West Virginia, Petitioner Below, Appellant, v. BRIANNA H., infant, Travis H., father, and Melissa Y., mother, Respondents Below, Appellees. STATE of West Virginia, Petitioner Below, Appellant, v. TOBIAS W., infant, et al., Respondents Below, Appellees.

504 S.E.2d 177

202 W.Va. 350

STATE of West Virginia, Petitioner Below, Appellant, v. MICHAEL M., II, and Angela H., Respondents Below, Appellees.

STATE of West Virginia, Petitioner Below, Appellant, v. BRIANNA H., infant, Travis H., father, and Melissa Y., mother, Respondents Below, Appellees.

STATE of West Virginia, Petitioner Below, Appellant, v. TOBIAS W., infant, et al., Respondents Below, Appellees.

Nos. 24879, 24961, 24962.

Supreme Court of Appeals of West Virginia.

Submitted March 24, 1998.

Decided June 22, 1998.

Pamela Jean Games-Neely, Christopher C. Quasebarth, Berkeley County Prosecuting Attorney, Martinsburg, for Appellant.

Tracy Weese, Shepherdstown, for Appellee Michael M., II.

David J. Joel, Martinsburg, for Appellee Angela H.

David A. Camilletti, Shepherdstown, for Appellees Tobias W., Joshua W., and Alicia W.

Paul G. Taylor, Henry, Taylor & Janelle, Martinsburg, for Appellee Brianna H.

Keith L. Wheaton, Martinsburg, for Appellee Melissa Y.

Paul E. Lane Martinsburg, for Travis H.

Amanda L. Lewis, Martinsburg, for Appellee Kelly S McCUSKEY, Justice:

These are three consolidated child abuse and neglect cases which cause us to decide the important question of whether foster care or an adoptive home is the preferred permanent placement for a child who has been removed from his or her family following a termination of parental rights. In each case, the appellant, West Virginia Department of Health and Human Resources (the "Department"), challenges a disposition order entered by the Circuit Court of Berkeley County. The Department contends that the circuit court abused its discretion by directing that the children involved be placed in permanent foster care, rather than adoptive homes. Also at issue in these cases is the lower court's grant of post-termination visitation rights to the children's parents. While we understand the circuit court's obvious frustration with the delays that too frequently accompany the Department's efforts to execute court orders in matters of this kind, we must, nonetheless, conclude that the circuit court abused its discretion on both points. Accordingly, we reverse, in part, and remand the cases for further action consistent with this opinion.

I. Factual and Procedural Background

These appeals challenge final orders of the Circuit Court of Berkeley County in three child abuse and neglect cases. We have consolidated the appeals for purposes of argument and decision. In the three cases, following termination of parental rights, the circuit judge ordered that the children be placed in permanent foster care and granted their parents post-termination visitation rights. In each case, the Department asks this Court to remand to the circuit court with instructions that the final order be modified to permit the Department to secure adoptive parents for the child or children involved. In two cases, the Department also requests that we instruct the circuit court to deny post-termination visitation as not being in the children's best interests. In the third case, while the Department does not contest the grant of such visitation, the guardian ad litem assigns the grant as error.

A. Michael M., II

Angela H. is the natural mother of Michael M., II.¹ Michael M.'s biological father is deceased. On July 2, 1997, at the age of nine months, Michael M. was examined in the emergency room at City Hospital in Martinsburg, West Virginia, having been taken there by Angela H., his maternal grandmother, and his mother's boyfriend, Robbie G. An x-ray of Michael M.'s right leg showed that he had suffered fractures of both his femur and tibia. The explanation given by Angela H. for her baby's fractured bones was medically implausible,² and, consequently, the matter was reported to the Department by hospital personnel as a case of suspected child abuse.

After referral to the Department, the case progressed according to the statutory procedure in cases of child abuse or neglect. See W.Va.Code § 49-6-1, et seq. On July 8, 1997, the Department filed a petition, alleging that Michael M. was an abused and neglected child within the meaning of W.Va. Code § 49-1-3 [1994].³ On that same date, the circuit judge awarded emergency custody of the infant to the Department. A preliminary hearing was held on July 17, 1997. Following the hearing, the circuit court ordered that Michael M. be placed in the temporary physical custody of his paternal aunt and uncle, provided that the Department found their home to be suitable. On July 22, 1997, that placement was achieved. On August 25, 1997, the lower court conducted an adjudicatory hearing. See W.Va.Code § 49-6-2 [1996]. In an Adjudication Order, filed on August 29, 1997, the circuit judge concluded that Michael M. was an abused child as defined in W.Va.Code § 49-1-3 [1994]; ordered the Department to retain temporary custody of Michael M. and develop a permanency plan within 30 days; and ordered that Michael M.'s visitation with his mother continue, but not in the presence of Robbie G., the putative abuser.

On September 19, 1997, the Department filed a child's case plan for Michael M. See W.Va.Code § 49-6-5(a) [1996]. In that document, the Department suggested that Angela H.'s parental rights be terminated and that Michael M. be placed permanently in the home of his paternal aunt and uncle, who were willing to adopt him. The Department also recommended that Angela H. be given visitation rights in the event that her parental rights were terminated. A disposition hearing took place on September 29, 1997. See W.Va.Code § 49-6-5 [1996]. Subsequently, on October 2, 1997, the circuit court entered a disposition order in which it found that there was no reasonable likelihood that the conditions of abuse could be corrected within a reasonable period of time;⁴ terminated Angela H.'s parental rights; and granted Angela H. visitation rights. In addition, the circuit court awarded permanent guardianship of Michael M. to the Department with the direction that he be placed in permanent foster care. In so ordering, the circuit court stated:

However, it does not follow that Angela [H.] should have no future contact with this child and so the Court is of the opinion that visitation rights ought to be granted within limitation. WVDHHR in its permanency plan suggested adoption within the family as being the desired course of action. However, this Court is dismayed by the administrative delays within WVDHHR vis-a-vis adoptions and believes that permanent foster care is more appropriate especially since contact between the natural mother and the child is to be maintained. In this connection, however, WVDHHR is to understand that when the Court directs it to place a child in permanent foster care, the Court intends that there is to be a placement with a family which is willing to serve in that capacity until the child reaches his majority or is otherwise emancipated and that such a grant of authority does not permit a movement from one foster home to another, which process is deemed by this Court to be injurious to the child.

B. Brianna H.

Brianna H. is the natural daughter of Travis H. and Melissa Y. On April 14, 1997, six-month-old Brianna H. was admitted to City Hospital in Martinsburg, West Virginia at the direction of Dr. Edward Arnett, a local pediatrician. X-rays taken at the hospital revealed that Brianna H. had sustained multiple fractures of her ribs and right leg.

Brianna H.'s injuries were reported to the Department for investigation, and on April 15, 1997, the Department filed a civil petition against Travis H. and Melissa Y.⁵ On the same date, the circuit court awarded the Department temporary custody of Brianna H. On April 24, 1997, a preliminary hearing was held. After the hearing, the circuit judge entered an order continuing the transfer of custody to the Department and directing the Department to permit supervised visitation between Brianna H. and her parents.

An adjudicatory hearing occurred on July 1, 1997. In an Adjudication Order filed July 7, 1997, the circuit judge found that Brianna H. was an abused and/or neglected child;⁶ ordered the Department to retain temporary custody of Brianna H. and to continue supervised visitation between Brianna H. and her parents; and required the Department to prepare and submit a "permanency plan"⁷ for Brianna H.

On September 30, 1997, the evidentiary portion of a disposition hearing took place. At the hearing, counsel for Travis H. voiced an objection to the child's case plan, which the Department had submitted to the circuit court prior to the hearing. Counsel for all sides agreed that the plan did not fully comply with Rule 28 of the Rules of Procedure for Child Abuse and Neglect Proceedings promulgated by this Court. Consequently, the circuit judge ordered the Department to submit a revised case plan within ten days and further ordered the parties to reconvene on October 17, 1997, to conclude the hearing.

On October 10, 1997, the Department submitted a revised child's case plan, recommending that parental rights be terminated and visitation discontinued. The Department also proposed, in the plan, that Brianna H. be placed for adoption, either with a family member or in one of the adoptive homes that had already been approved by the Department.

On October 17, 1997, the disposition hearing was concluded with oral arguments by counsel. On October 20, 1997, the circuit judge entered a disposition order which departed markedly from the revised child's case plan submitted by the Department. In the order, the circuit judge terminated the parental rights of Travis H. and Melissa Y., as recommended by the Department. However, the circuit court, by its order, also required that Travis H. and Melissa Y. be afforded supervised visitation with Brianna H. Moreover, instead of ordering that Brianna H. be placed in an adoptive home, the circuit court awarded permanent guardianship of Brianna H. to the...