State v. T.C.

Decision Date25 May 1983
Docket NumberNo. 15793,15793
Citation303 S.E.2d 685,172 W.Va. 47
PartiesSTATE of West Virginia v. T.C., Infant and B.B., Mother; and P.B., Stepfather.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. In a child abuse and neglect hearing, before a court can begin to make any of the dispositional alternatives under W.Va.Code, 49-6-5, it must hold a hearing under W.Va.Code, 49-6-2, and determine "whether such child is abused or neglected." Such a finding is a prerequisite to further continuation of the case.

2. W.Va.Code, 49-6-1, et seq., does not foreclose the ability of the parties, properly counseled, in a child abuse or neglect proceeding, to make some voluntary dispositional plan. However, such arrangements are not without restrictions. First, the plan is subject to the approval of the court. Second, and of greater importance, the parties cannot circumvent the threshold question which is the issue of abuse or neglect.

Chauncey H. Browning, Atty. Gen., and Mary Beth Kershner, Asst. Atty. Gen., Charleston, for appellant.

Howard J. Blyler, Cowen, for appellees.

MILLER, Justice:

This is an appeal by the State of West Virginia protesting an order of the Circuit Court of Nicholas County, which restored the custody of T.C., then age four and one-half years, to the appellees, the child's mother and stepfather. We are asked to determine what procedures are required by West Virginia law in cases of alleged child abuse and to determine if those requirements were met in this case.

In June, 1980, T.C., then age three and one-half years, was brought by her stepfather, P.B., to the emergency room of the hospital in Summersville. He explained that the little girl had injured her leg by falling in the bathtub while bathing. X-rays taken in Summersville and subsequently in Charleston revealed a spiral fracture of her left upper leg and a healing spiral fracture of her left upper arm. Pursuant to these findings, a report of child abuse was made to the Department of Welfare in Nicholas County under W.Va.Code, 49-6A-2. 1

In July, 1980, the Department of Welfare filed a petition for emergency custody of T.C., and an order was entered removing her from the custody of her mother and stepfather and placing the child with her mother's aunt.

At a hearing on July 23, 1980, the testimony of Dr. Jacobson, who had examined T.C. at the Summersville hospital, was presented. The doctor's opinion was that the child's fractures could only have been caused by "a significant rather marked force applied in the opposite direction to the upper and lower end of the leg." Before the next witness could testify, a private conference was held by the child's parents, the Welfare personnel, and all counsel. The parties agreed that the child would be taken out of the aunt's custody and placed in a foster home, that the mother and stepfather would undergo psychological evaluations, and that the parents could visit the child during this period. The court approved this agreement, but no finding of abuse was made.

No further action was taken in this case for almost eight months. On March 6, 1981, Welfare Department workers, the parents, and counsel for the parties again appeared before the court. At that time, the court was advised of what had transpired since the last hearing, but no evidence was taken. The court noted that the parents' psychological evaluations in 1980 had not revealed "anything bad" and that no criminal charges had been brought against P.B. 2 Based upon further information that the child had been out of the parents' home for a long time, and that visitation arrangements had been difficult in the foster home and at alternative sites, the court determined that the child's custody should be returned to the parents after a transition period of five-weeks of increased visitation. No order was entered reflecting these arrangements.

On August 10, 1981, over one year after T.C.'s injuries, a third hearing was held. This hearing was apparently based on a new petition filed in June, 1981, by the Welfare Department, which alleged the same instances of abuse as set forth in the first petition and the need for a rehabilitation program. This hearing was, however, conducted as a continuation of earlier proceedings and has been referred to by the appellants as a dispositional hearing under W.Va.Code, 49-6-5. Again, no testimony was heard. The Nicholas County Prosecuting Attorney acknowledged that the child was then in the custody of the parents. 3 The prosecutor requested that legal custody remain with the Department such that the child could physically reside with her parents but that the Department could legally enter the home at frequent intervals to observe and monitor the home situation. At the August 10, 1981, hearing the court ordered a "rehabilitation plan" such that the legal and physical custody went to the parents, and that the Welfare Department would be permitted to monitor the child and the home. The order was entered in October, 1981.

In April, 1982, the State appealed the order returning custody to the parents, and requested a stay of that judgment. We granted the appeal and stay, and on January 26, 1983, ordered that temporary physical custody be awarded to the Department of Welfare pending the outcome of this decision.

The State's primary argument is that W.Va.Code, 49-6-1, et seq., requires certain mandatory hearings and findings by a circuit court once an abuse or neglect petition has been filed, and that these statutory requirements have not been met. In State ex rel. Miller v. Locke, 162 W.Va. 946, 253 S.E.2d 540 (1979), we found that W.Va.Code, 49-6-1, et seq., meets the constitutional due process standards set out in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), and in In Re: Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973). We also concluded that its various sections should be read in pari materia.

It is instructive to briefly review some of the procedural steps authorized by this statute. The content and service of the initial petition to institute a child abuse or neglect proceeding is contained in W.Va.Code, 49-6-1. In the next section, general provisions are made for the right to counsel and the appointment of counsel in cases of indigency. This section also permits the parents or custodian to have an improvement period, provides for hearing rights (i.e., a meaningful opportunity to be heard), and requires that the court "shall make findings of fact and conclusions of law as to whether such child is abused or neglected." W.Va.Code, 49-6-2(c). Finally, this section authorizes the right to a transcript of the hearing for purposes of an appeal. W.Va.Code, 49-6-2(d).

It is important to note the interrelationship between W.Va.Code, 49-6-2, and W.Va.Code, 49-6-5, which provides for dispositional alternatives and begins with this statement:

"Following a determination pursuant to section two [ § 49-6-2] of this article, the court may request from the state department information about the history, physical condition and present situation of the child. The court shall forthwith proceed to disposition giving both the petitioner and respondents an opportunity to be heard. The court shall give precedence to dispositions in the following sequence."

We believe that the statutory structure is clear and that before a court can begin to make any of the dispositional alternatives under W.Va.Code, 49-6-5, it must have held a hearing under W.Va.Code, 49-6-2, and have determined "whether such child is abused or neglected." Such a finding is the prerequisite to any further proceedings in the case. If the court determines that there is insufficient evidence to warrant a finding of abuse or neglect, then the petition is dismissed under W.Va.Code, 49-6-5(a)(1). On the other hand, if neglect or abuse is found, then the other dispositional alternatives under W.Va.Code, 49-6-5, are to be considered. 4

The primary purpose of making an initial finding of abuse or neglect is to protect the interest of all parties and to justify the continued jurisdiction under W.Va.Code, 49-6-1, et seq. Several courts have spoken to this issue under statutes which are analogous to ours, as illustrated by this discussion in In the Interest of T.M.M., 267 N.W.2d 807, 812 (N.D.1978):

"The Act clearly provides for a two-stage hearing on petitions alleging deprivation. The first phase of the hearing is often referred to as the adjudicatory phase, wherein the only question for decision is whether the child is 'deprived' within the meaning of Section 27-20-02, subsection 5. In the adjudicatory phase of the hearing, the primary issue is not what is in the best interest of the child, but rather whether there is clear and convincing evidence that the child is deprived. Interest of R.D.S., 259 N.W.2d 636 (N.D.1977); In Interest of M.L., [239 N.W.2d 289 (N.D.1976) ]. It is only after the court has found the child to be deprived that the question of what disposition will best serve the interests of the child arises.

"The second phase of the hearing, the dispositional phase, is to be conducted only after the court has first found the child deprived. If there is no such finding, the court 'shall dismiss the petition' and no longer has jurisdiction of the case. In Interest of M.L., supra."

A similar result was reached by the Montana court in In the Matter of L.F.G., 183 Mont. 239, 245-46,, 598 P.2d 1125, 1129 (1979), where the court stated:

"[T]hese statutes make it clear that a finding of abuse, neglect, or dependency is the jurisdictional prerequisite to any court ordered transfer of custody.... Appellants argue it is then, and only then, that the 'best interest of the child' standard so well established by this Court has its application in the resolution of the question of custody.... Thus, before the District Court may consider what the 'best interests of the child' may in fact be, the court must have found that the...

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