West Virginia Dept. of Welfare ex rel. Eyster v. Keesee, 15440

• Decision Date: 27 May 1982
• Docket Number: No. 15440,15440
• Citation: 297 S.E.2d 200,171 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: WEST VIRGINIA DEPARTMENT OF WELFARE, ex rel. Noel EYSTER, Social Service Worker v. Gary KEESEE, et al.

Page 200

297 S.E.2d 200

171 W.Va. 1

WEST VIRGINIA DEPARTMENT OF WELFARE, ex rel. Noel EYSTER Social Service Worker v. Gary KEESEE, et al.

No. 15440.

Supreme Court of Appeals of West Virginia.

May 27, 1982.

Syllabus by the Court

1. "West Virginia Code, Chapter 49, Article 6, Section 2, as amended, and the Due Process Clauses of the West Virginia and United States Constitutions prohibit a court or other arm of the State from terminating the parental rights of a natural parent having legal custody of his child, without notice and the opportunity for a meaningful hearing." Syl. pt. 2, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).

2. When in the disposition of a child neglect or abuse case a parent is granted continued custody of a child under the supervision of the State Department of Welfare pursuant to W.Va.Code, 49-6-6 [1977], the court may not modify such a disposition without a hearing on a motion for modification of which the parent has had adequate and timely notice in accordance with W.Va.Code, 49-6-6 [1977].

Billie Gray, Asst. Atty. Gen., for appellees.

Helen M. Morris, David J. Lockwood, Huntington, for appellants.

NEELY, Justice:

This is an appeal from two separate orders of the Circuit Court of Cabell County entered on 25 June 1981. One order permanently terminated the parental rights of Gary Keesee and the other order permanently terminated the parental rights of Mary Workman to their twin sons, Gregory and Gary Keesee. In order to understand the issue in this case a somewhat extended recitation of the facts is necessary.

The appellants had lived together out of wedlock for nearly three and a half years; their relationship was characterized by violent acts against one another, escalating during the winter of 1980-81 until events reached dangerous proportions. On the evening of 4 March 1981 the State Police called Noel Eyster, Child Protection Services worker for the Cabell County Department of Welfare, to come to Mary Workman's apartment. Arriving at 10 p.m., Mr. Eyster saw a pool of blood on the living room floor, unhinged and smashed closet doors, piles of clothes strewn about, and dents and holes in the refrigerator and gramophone. He found Mary Workman upstairs lying in bed on a blood-soaked pillow with a large gash in the back of her head. She claimed that her boyfriend, Gary Keesee, had hit her with the butt of a shotgun after she had fired it in order to scare him. She refused to go to the hospital for treatment because she thought Keesee would get hold of their seventeen-month-old twin sons in her absence. Only after Mr. Eyster promised to secure overnight shelter for the infants did she agree to go to the hospital.

After bringing the two boys to an emergency shelter, Mr. Eyster went to the hospital and took Ms. Workman home. Later that night there was another altercation between the appellants. Keesee sustained pellet wounds, and Workman suffered a broken nose and an injury to her mouth. With both parents in jail on the morning of 5 March, Mr. Eyster made arrangements to provide for continuing shelter for the children. Later that day a petition alleging abuse and neglect of Gary and Gregory Keesee was filed in the Circuit Court of Cabell County. A hearing was scheduled for 10 March 1981.

However, before the hearing was held, another incident occurred. At approximately 3:30 a.m. on 6 March 1981 Keesee was hospitalized after Workman stabbed him in the chest with a knife. Workman explained her acts by stating that she was distraught at the loss of her children. There was alternative testimony that Keesee was forcing her to engage in sexual acts with a hitchhiker the couple had picked up the day before.

After the hearing which took place on 10 and 12 March, the court ordered custody to remain with the Department of Welfare for thirty days and enjoined Mr. Keesee from visiting Ms. Workman's apartment for the same length of time. The order also directed that the appellants cooperate with the West Virginia Department of Welfare in an attempt to improve their behavior through counseling and psychological testing. At no point in this hearing or in any of the hearings that followed was it ever alleged that the parents had physically harmed their sons in any way.

Within a few days of the events just described it came to the attention of the court that Keesee and Workman were meeting at places other than her apartment, and would then drink, fight, and end up in jail. The court therefore amended the order to enjoin both parties from molesting or interfering with the other. The court also cited both parents for criminal contempt but postponed sentencing until 10 April.

At the 10 April hearing the court heard testimony concerning the progress that the parents had made with respect to their alcohol abuse and penchant for violence. Determining that some visitation rights would actually help Ms. Workman in dealing with her personal problems, the court ordered that, while the children would remain in the custody of the Department of Welfare, Ms. Workman could visit them at times permitted by the Department of Welfare. The court also found that the parties had purged themselves of contempt by staying away from one another.

Following a hearing on 18 May 1981 the court gave Mary Workman the physical care, custody and control of the infant children for a thirty day improvement period. The injunction against the parents seeing each other was continued. However, Keesee visited Workman on 9 June and the two got into a fight again. This time the fight involved his tearing a door off to gain access, beating her with a toy broom, and hitting her over the head with a coke bottle. She got in her licks by tearing buttons off his shirt, hitting him with a chair, and knocking him down a flight of stairs.

The 9 June incident prompted a hearing that was held on 15 June 1981. The court extended the period of temporary custody of the children with Ms. Workman until 11 September. The court also found Keesee in contempt. Rather than sentencing Keesee on the spot, the court scheduled a jury trial for the following day to determine guilt.

Mary Workman was subpoenaed to testify against Keesee at this trial for criminal contempt. When she failed to appear at the trial on 16 June, the court immediately rescinded his order of 15 June that had extended the temporary custody and ordered that the custody of the children be given to the Department of Welfare.

On 17 June 1981 a hearing was held to seek the permanent termination of Ms. Workman's parental rights. At the hearing the State summarized all of the facts that had come out at the various hearings during the previous three months. The State characterized Ms. Workman's failure to comply with the subpoena as being indicative of her inability to put the needs of her children ahead of her affection for their father. When cross-examined Mr. Eyster admitted that Ms. Workman's care for the children over the course of the month since she had regained their custody was satisfactory. Nevertheless, the court permanently terminated Ms. Workman's parental rights.

At a similar proceeding on 23 June 1981, the court heard testimony concerning Mr. Keesee's parental rights. Having failed to find someone other than Ms. Workman to help him raise the children and knowing that the court would not grant him custody without his having someone to so help him, Mr. Keesee elected not to attend the hearing. The court then ordered...