State v. Scritchfield, 14943
| Decision Date | 17 July 1981 |
| Docket Number | No. 14943,14943 |
| Citation | 280 S.E.2d 315,167 W.Va. 683 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Kimberly Sue SCRITCHFIELD, an infant under the age of Eighteen (18) Years, andMargaret Scritchfield. |
Syllabus by the Court
1. If the allegations of fact in a child neglect petition are sufficiently specific to inform the custodian of the infants of the basis upon which the petition is brought, and thus afford a reasonable opportunity to prepare a rebuttal, the child neglect petition is legally sufficient.
2. Where a child neglect petition is premised upon the inability of the parent to care for the child due to the parent's mental illness, such petition must set forth specific allegations of fact sufficient to inform the parent of the nature of the condition or conduct which constitutes or is likely to result in neglect in order to satisfy the requirements of W.Va. Code § 49-6-1(a) (1980 Replacement Vol.).
3. Where a court having jurisdiction of child neglect or abuse proceedings denies a motion by a parent or guardian for an improvement period under W.Va. Code § 49-6-2(b), the court must state on the record the compelling circumstances warranting the denial of such motion.
4. Where child neglect proceedings are premised upon a mental condition or illness of the parent which previously required the parent's hospitalization and during which time the child was not in the custody of the parent, an improvement period may be granted to observe the progress of the parent to determine if he or she is mentally able to care for the child without placing the child in the custody of such parent.
C. Patrick Carrick, Fairmont, for appellant.
Chauncey H. Browning, Atty. Gen., Billie Gray, Asst. Atty. Gen., Charleston, for appellee.
Margaret Scritchfield appeals from the final judgment order of the Circuit Court of Marion County which granted permanent custody of the appellant's infant daughter, Kimberly Sue Scritchfield, to the West Virginia Department of Welfare. The court found that the infant was a neglected child and permanently terminated the parental rights of the mother, Margaret Scritchfield, appellant herein, and of the father, who was "unknown to the Court." 1 The appellant contends that the custody proceedings which resulted in the termination of her parental rights were conducted without regard to and in violation of the requirements of our child welfare statutes, W.Va. Code § 49-6-1 et seq. (1980 Replacement Vol.). The appellant also asserts that the lower court erred in granting the Department of Welfare temporary custody of the infant for more than thirty days and in denying the appellant's request for an improvement period to remedy any adverse circumstances found. The appellant's final contention is that the evidence does not support the lower court's finding that the infant was a neglected child and that the court therefore erred in terminating her parental custody and in granting permanent custody of the child to the Department of Welfare. We find merit in several of the appellant's contentions and we reverse the judgment of the circuit court and remand the case for further proceedings.
The child custody proceedings below were commenced on September 1, 1978, upon the filing of a petition, signed and verified by an employee of the Department of Welfare, which sought to have Kimberly Sue Scritchfield, then aged two years, declared a neglected child. The petition cited the medical condition of the mother as the cause of the alleged neglect and stated that the Department of Welfare had provided support for the child since August 2, 1976. The petition requested that the Department of Welfare be granted permanent custody of the child with the right to consent to her adoption. By order of the circuit court dated September 5, 1978, separate counsel were appointed to represent the appellant and the child.
Preliminary hearings were held on October 20, 1978, and on October 27, 1978. At the conclusion of these proceedings, the circuit court denied the appellant's request for an improvement period and ordered that the child remain in the temporary custody of the Department of Welfare for a period not to exceed thirty days pending a final hearing on the matter. At least one continuance was granted upon request of the attorney for the child and the final hearing was not held until April 30, 1979. During this time the child remained in the temporary custody of the Department of Welfare.
The testimony taken at the hearings revealed that the appellant, who was 33 years old at the time of the final hearing, was the mother of three children. Her oldest daughter, who was 17 years old, was married, had one child and had established her own home with her husband not far from her mother's home. The appellant's son, age 11, was living with his mother at the time of the final hearing and was attending elementary school. The appellant's infant daughter, Kimberly Sue, was 3 years old at the time of the final hearing and had been in the temporary custody of the Department of Welfare since she was six months old. The infant had been placed in a foster home, but was permitted to visit her mother from time to time through arrangements made by employees of the Department of Welfare.
The appellant has had a history of mental illness and has been diagnosed as suffering from schizophrenia. Between 1970 and 1978 she had been hospitalized for treatment at the Weston State Hospital four times. The last of these periods of hospitalization ended with the appellant's release from the Weston State Hospital in September of 1978. At the time of the final hearing the appellant appeared to be aware of her mental problems, was taking medication to relieve the symptoms of schizophrenia and depression and was receiving treatment on an out-patient basis at the Valley Community Health Center in Fairmont.
In June 1976, the Department of Welfare had petitioned the circuit court to remove all three children from the custody of the appellant after a welfare worker inspected her home and found the living conditions at the home unsatisfactory. Case workers for the Department of Welfare testified that the appellant was emotionally unstable and unable to properly care for the children, that she moved frequently and that she was unable to remember appointments at this time. In the summer of 1977, the two older children were returned to the appellant's custody, but Kimberly Sue remained in a foster home in the temporary custody of the Department of Welfare.
The foster care worker who filed the child neglect petition in this proceeding testified that since the appellant's release from Weston State Hospital in September 1978, the mother's relationship with her infant daughter had improved. The worker testified that the child visited her mother frequently and that the visits were going well, but that there was little parent-child interaction. She also stated that at the time of the final hearing the appellant appeared to be caring adequately for her eleven-year-old son, but that in view of the appellant's record of periodic hospitalization she was too unstable to care for Kimberly Sue. The witness found no fault with the living conditions in the appellant's home.
A psychiatrist from the Valley Community Health Center testified that the appellant's mental condition one week prior to the final hearing was under fair control and that he thought that she would be able to care for her infant daughter. He also stated, however, that the appellant's health condition might in time result in inferior housekeeping and food preparation. It was the opinion of the psychiatrist that "24-hour supervision would be necessary for an undetermined period of time" if the child, then age 3, was returned to the mother's custody. He was also concerned that it would be detrimental to the child to remove her from the environment in which she had been living since she was a few months old and return her to her mother's home where new family bonding ties would need to be developed.
A social worker at Weston State Hospital, however, expressed the opinion that the appellant was capable of providing "the necessary shelter and mothering and clothing and feeding and education of a small child such as Kimberly" at the time she left the hospital in September 1978. The witness, who had considerable practical experience in her work at other institutions, testified that the appellant had become involved in group therapy programs for the patients at the hospital and had done very well. She was certain that comparable programs in which the appellant could participate were available in the community. The social worker expressed the opinion that the appellant's mental problems stemmed at least in part from the fact that she deeply desired to have her daughter returned to her but felt powerless in the case of the decisions being made concerning the infant's custody. She recommended a program of limited interaction between mother and daughter at first, with gradually lengthened visits leading to the eventual return of the child to the custody of the appellant.
The appellant in her own behalf testified that she lived in an apartment, which consisted of two bedrooms, a living room, a bath and a kitchen, with her eleven-year-old son. The appellant's sister and married daughter live nearby and she occasionally baby sits for her grandchild in her own home. She also testified that a good friend was available to take care of her infant daughter if it was necessary.
At the conclusion of the hearing, the court requested counsel for the infant to submit recommendations in writing for disposition of the matter and reasons therefor. The court-appointed attorney recommended that the Department of Welfare be given permanent custody of the child. 2 On June 6, 1979, the court entered a final order finding the child to be a neglected child and...
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