Willis, In re, 13379

• Citation: 157 W.Va. 225,207 S.E.2d 129
• Decision Date: 29 July 1974
• Docket Number: No. 13379,13379
• Parties: In the Matter of Ronald Lee WILLIS.
• Court: Supreme Court of West Virginia

Page 129

207 S.E.2d 129

157 W.Va. 225

In the Matter of Ronald Lee WILLIS.

No. 13379.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 9, 1973.

Decided Dec. 11, 1973.

Dissenting Opinion July 29, 1974.

Syllabus by the Court

1. In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions.

2. 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.

3. In an emergency which imminently threatens the welfare, health or life of any minor child, the State, as Parens patriae, exercises an interest which temporarily overrides the rights of natural parents to the custody of the child and warrants the assumption of the child's custody by the State for a reasonable time, without regard to the requirements of Due Process.

4. Any retention of a minor child by the State, accomplished in the first instance by emergency procedures, beyond a period necessary to serve the legitimate interest of government to protect the health and welfare of the child, is unwarranted and unjustified and though presumptively legal at its inception, is, by the passage of time coupled with the omissions of the State to accord due process to the natural parents, void ab initio and of no effect in law.

5. Though constitutionally protected, the right of the natural parent to the custody of minor children is not absolute and it may be limited or terminated by the State, as Parens patriae, if the parent is proved unfit to be entrusted with child care.

6. The standard of proof required to support a court order limiting or terminating parental rights to the custody of minor children is clear, cogent and convincing proof.

7. Each neglect proceeding in a juvenile court based upon the ground of unfitness of the natural parent must be decided on its own particular facts.

8. Once a court exercising proper jurisdiction has made a determination upon sufficient proof that a child has been neglected and his natural parents were so derelict in their duties as to be unfit, the welfare of the infant is the polar star by which the discretion of the court is to be guided in making its award of legal custody. Even then, the legal rights of the parents, being founded in nature and wisdom, will be respected unless they have been transferred or abandoned.

Daniel F. Hedges, Charleston, for Willis.

Chauncey H. Browning, Jr., Atty. Gen., Phillip D. Gaujot, Asst. Atty. Gen., Charleston, for State.

HADEN, Justice:

This is an appeal by John and Rosetta Willis, husband and wife, from a judgment of the Juvenile Court of Fayette County of November 22, 1972 which, upon a finding of neglect terminated their parental rights in their infant child, Ronald Lee Willis, and awarded the legal custody of the child to the West Virginia Department of Welfare, with full power and authority in the department to consent to his adoption.

The State first commenced action in this case on December 23, 1968 upon the filing of an unsworn petition by Regina Hardin, a social worker with the welfare department, which alleged that all five minor children of the Willises were 'neglected' as defined by the laws of the State. The petition contained no factual allegations supporting 'neglect' but merely conclusional words that such children were neglected. According to the testimony of a co-worker of Regina Hardin given in subsequent proceedings almost four years after the filing of the initial petition, the apparent reasons for the action of the welfare department at that time were the extremely unsanitary and substandard living conditions to be found in the Willis home and the poor physical appearance and condition of the minor children living there.

On December 23, 1968, the Juvenile Court of Fayette County entered an order transferring the custody of the children to the welfare department on a temporary basis. The action of the court was taken without notice to the parents, and in that the order stated a hearing was 'pending,' it is indicated that further judicial action was contemplated. Pursuant to the direction of the court, the welfare department, accompanied by a deputy sheriff of Fayette County, assumed custody of the Willis Children on December 28, 1968.

Within several months after the temporary custody change was accomplished, the four older Willis children then ranging in age from four to fourteen years were, at their request, restored to their parents. Ronald Lee, however, was not returned; he had been placed with foster parents shortly after his custody was removed from his natural parents. He has since resided with the foster parents continuously from the date of placement by the welfare department to the present. Considering his age to have been approximately eight months at the time of the initial placement and now to be approximately five and one-half years, he has lived for almost the total of his short life with the foster parents.

From the date of the initial State action in December of 1968 until a court hearing some three years later, John Willis, the natural father of the infant, made repeated informal requests and attempts to regain custody of Ronald Lee, and also to comply with the suggestions and directions of the welfare department to remedy the conditions existing at the home which had apparently precipitated the initial removal of the Willis children.

It was not until February 3, 1972 that further legal proceedings were instituted concerning Ronald Lee's custody. On that date a second petition was filed with the juvenile court by Bruce L. Webb, also a social worker with the department, alleging Ronald Lee Willis to be a neglected child, and alleging as factual grounds constituting neglect, that the child 'has resided with his foster parents for approximately three years; all efforts to improve the natural parents' condition for return have failed; the natural parents' slow mentality also prohibits the child's return to them.'

A hearing was held on that petition on February 15, 1972, at which time both parents were present and represented by counsel, and the petitioner Webb was present and represented by the county prosecutor. Although no transcript or record was taken of that proceeding, an order was entered on the day following the hearing by the juvenile court finding the child to be neglected and permanently awarding his custody, care and control to the welfare department with 'the right to said Department to consent to the said infant's adoption.' The findings and judgment of the court were excepted to by the parents.

Subsequent to the court's order of February 16, 1972, the appellants' counsel informed the social worker Webb, that his clients intended to seek a review of the court's order and requested that Webb, on behalf of the welfare department, notify appellants if further proceedings were contemplated with respect to the infant Ronald Lee. Webb acknowledged such a conversation did occur and that he had agreed to notify the appellants of any change of position by the department in respect to Ronald Lee's custody, but also, he had been assured he would be contacted later by the appellants or their counsel and he was not so contacted. In any event, on April 26, 1972, Webb participated in an adoption proceeding before the same juvenile court in which the child Ronald Lee was permitted to be adopted by the foster parents with whom he had been previously placed by the department. All such proceedings were had and concluded without notifying the Willises.

On May 2, 1972, John Willis the father, through counsel, requested a rehearing upon the validity of the final order of February 16, assailing the order as invalid because the Willises received inadequate notice of the hearing. The petition also was attacked as insufficient in law, challenged hearsay evidence was admitted and considered by the court and the evidence established by proof at the hearing was insufficient in law to constitute neglect. On May 12, 1972, the juvenile court entertained the appellants' motion for rehearing, and as reflected by an order entered August 21, 1972, the court voided the decree of February 16, 1972. It is to be noted that the rather sketchy transcript recounting the proceedings of February 15, 1972 does not reflect that service of notice was had upon the appellants prior to that hearing, nor does any record reflect an affirmative waiver of notice on the part of the appellants.

On August 25, 1972, the court reconsidered its previous order of August 21, 1972 and vacated it for the reason that the petition of February 3, 1972 failed to set forth allegations sufficient to meet the minimum requirements of West Virginia Code, Chapter 49, Article 6, Section 1, as amended. The court also accorded the Willises a 'rehearing' on the matters adjudicated in the February 16 decree. Although this court action took place on August 25, an order reflecting this and other proceedings was not entered until October 6, 1972 after the conclusion of all testimony in a neglect proceeding reheld in September 1972.

It further appears from the corrective order of October 6 either a 'rehearing' or an entirely new proceeding commenced on August 25 at the instance of the welfare department, the final object of which was to seek a court decree declaring Ronald Lee Willis to be a neglected child, to terminate the parental rights of the appellants and to gain authority for the welfare department to consent to the...