Tiffany Marie S., In Interest of

• Decision Date: 20 March 1996
• Docket Number: No. 23198,23198
• Citation: 196 W.Va. 223,470 S.E.2d 177
• Court: West Virginia Supreme Court
• Parties: In the Interest of: TIFFANY MARIE S., Taylor Brook S., Children Under the Age of Eighteen Years Nancy S.E., Appellant, Department of Health and Human Resources, Appellee.

Page 177

470 S.E.2d 177

196 W.Va. 223

In the Interest of: TIFFANY MARIE S., Taylor Brook S.,

Children Under the Age of Eighteen Years

Nancy S.E., Appellant,

Department of Health and Human Resources, Appellee.

No. 23198.

Supreme Court of Appeals of

West Virginia.

Submitted Feb. 6, 1996.

Decided March 20, 1996.

[196 W.Va. 225] 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

[196 W.Va. 226] 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

2. "Circuit courts should appoint counsel for parents and custodians required to be named as respondents in abuse and neglect proceedings incident to the filing of each abuse and neglect petition. Upon the appearance of such persons before the court, evidence should be promptly taken, by affidavit and otherwise, to ascertain whether the parties for whom counsel has been appointed are or are not able to pay for counsel. In those cases in which the evidence rebuts the presumption of inability to pay as to one or more of the parents or custodians, the appointment of counsel for any such party should be promptly terminated upon the substitution of other counsel or the knowing, intelligent waiver of the right to counsel. Counsel appointed in these circumstances are entitled to compensation as permitted by law." Syl. pt. 8, In the Matter of Lindsey C., 196 W.Va. 395, 473 S.E.2d 110 (1995). (Emphasis in original.)

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)." Syl. pt. 3, State ex rel. W.Va. Department of Human Services v. Cheryl M., 177 W.Va. 688, 356 S.E.2d 181 (1987).

4. "In formulating the improvement period and family case plans, courts and social service workers should cooperate to provide a workable approach for the resolution of family problems which have prevented the child or children from receiving appropriate care from their parents. The formulation of the improvement period and family case plans should therefore be a consolidated, multi-disciplinary effort among the court system, the parents, attorneys, social service agencies, and any other helping personnel involved in assisting the family." Syl. pt. 4, In the Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

5. "W.Va.Code, 49-6-2(c) [1980], requires the State Department of Welfare [now the Department of Health and Human Resources], in a child abuse or neglect case, to prove 'conditions existing at the time of the filing of the petition ... by clear and convincing proof.' The statute, however, does not specify any particular manner or mode of testimony or evidence by which the State Department of Welfare is obligated to meet this burden." Syl. pt. 1, In the Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).

Appeal from the Circuit Court of Raleigh County; Honorable Thomas B. Canterbury, Judge, Civil Action No. 93-AN-07-C.

Kin Sayre, Beckley, Guardian Ad Litem.

Pat Lamp, Assistant Public Defender, Beckley, for Appellant.

Joanna Bowles, Assistant Attorney General, Charleston, for Appellee.

CLECKLEY, Justice:

Nancy S.E. ¹ appeals a final order entered May 8, 1995, by the Circuit Court of Raleigh County, which terminated her parental rights to her two daughters, Tiffany Marie S. and Taylor Brook S. She asserts the circuit court erred by (1) failing to timely appoint counsel to represent her; (2) ordering an improvement period in excess of twelve months; (3) admitting irrelevant and prejudicial evidence of unrelated criminal charges;

(4) conducting the termination hearing in her absence, and (5) finding she abused or neglected her two children. Nancy S.E. also contends the West Virginia Department of Health and Human Resources (Department) did not timely formulate a family case plan or show she failed to comply with the case plan. After reviewing the record, we find no reversible error and affirm the decision of the circuit court.

I. FACTUAL AND PROCEDURAL HISTORY

On February 24, 1993, Alice Oglesby, a social worker with the Department, filed a petition pursuant to W.Va.Code, 49-6-1 (1992), ² alleging that six-year-old Michael Emerson J., three-year-old Tiffany Marie S. and one-month-old Taylor Brook S. were abused and/or neglected children according to W.Va.Code, 49-1-3 (1992). ³ More specifically, the petition alleged that Brian S. ⁴ sexually molested Michael and Tiffany, that he had been arrested and charged with sexual assault, ⁵ and that Nancy S.E. had initially denied his guilt. The Department also expressed concern that Nancy S.E. would not be able to protect her children should Brian S. be released on bond, and the Department sought legal and physical custody of the children, but placed Taylor, Tiffany, and Michael with Nancy S.E.

The circuit court entered an order on February 24, 1993, filing the Department's petition, setting the matter for further hearing, advising the parties of their right to counsel, and granting the Department temporary custody. On April 19, 1993, the circuit court held a hearing, at which Nancy S.E. appeared unrepresented by counsel. ⁶ The circuit court continued the temporary legal and physical custody of the three children with the Department for an additional ninety Nancy S.E. then determined she was unable to deal with all three children and sent Michael to live with her mother and Tiffany to stay with a family friend. On July 13, 1993, the circuit court held a preliminary hearing at which Nancy S.E. again appeared unrepresented by counsel. The circuit court further continued the temporary legal and physical custody of Taylor, Tiffany, and Michael ⁸ with the Department. The circuit court also granted Nancy S.E. a twelve-month improvement period and ordered the Department and Nancy S.E. to jointly formulate a family case plan within thirty days. ⁹ Following this hearing, the Department placed Tiffany in foster care in August, 1993.

[196 W.Va. 228] days. ⁷

Throughout the fall of 1993, Taylor continued to reside with Nancy S.E. The Department provided supervised visitation between Nancy S.E. and Tiffany because Nancy S.E. admitted she was seeing Brian S. Nancy S.E. worked at various jobs during this period and left Taylor with a babysitter for days and weeks at a time. The Department responded to several complaints that Taylor's babysitter was providing an unsuitable environment but found no evidence of inadequate conditions. In March, 1994, Nancy S.E. informed the Department she wanted to give Taylor to a male friend and his girlfriend. The Department on March 9, 1994, placed Taylor in foster care incident to her change of guardianship. Nancy S.E. subsequently stated she would like to have Taylor returned to her.

The circuit court held a hearing on May 19, 1994, at which Nancy S.E. appeared in person and by counsel. ¹⁰ As a result of this hearing, the circuit court ordered the Department to formulate a family case plan, directed Taylor's return to Nancy S.E. by July 5, 1994, and extended the improvement period until July 18, 1994.

Thereafter, the Department returned Taylor to Nancy S.E. on July 4, 1994. During the July 18, 1994, hearing, the parties reached an agreement which the circuit court entered on September 14, 1994. The agreed order extended the improvement period for an additional three months, returned Taylor's full custody to Nancy S.E., dismissed the Department's petition as to Taylor, and continued the Department's custody of Tiffany. The Department then returned Tiffany to Nancy S.E. on August 23, 1994. At an October 17, 1994, hearing, the circuit court accepted an agreed order whereby the Department agreed to return Tiffany's full custody to Nancy S.E. and to monitor the family for an additional three months.

The record indicates that during the fall of 1994, Nancy S.E. again worked at various jobs for up to eighty hours a week and frequently left Taylor and Tiffany with daycare providers and babysitters for periods of three to four weeks. In late November, 1994, Nancy S.E. telephoned Kim Peck and admitted using crack cocaine. Nancy S.E. also stated she was performing undercover work for the police to prevent being arrested on bad check charges. On November 29, 1994, the Department placed Taylor and Tiffany in respite foster care. Nancy S.E. alternately tried to regain custody of the girls and agreed to their placement in respite foster care. She also missed appointments with home services and scheduled visitations with her daughters.

The circuit court held a hearing on January 6, 1995, during which Kim Peck testified as to Nancy S.E.'s self-reported drug use and undercover work. Additionally, Nancy S.E. indicated she would voluntarily relinquish her parental rights to Taylor and Tiffany if Brian S. would do the same. Following this hearing, Nancy S.E. moved to Florida and decided she did not want to relinquish her parental rights to her two daughters. The circuit court on January 10, 1995, entered an order ratifying the Department's emergency taking of Taylor and Tiffany and granting the Department temporary legal custody of the girls once more.

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