IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2015 Term
FILED
March 2, 2015
No. 14-0533 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In Re: C.M. and C.M.
Appeal from the Circuit Court of Raleigh County
The Honorable John A. Hutchison, Judge
Civil Action Nos. 12-JA-113 & 114
REVERSED AND REMANDED
WITH DIRECTIONS
Submitted: January 13, 2015
Filed: March 2, 2015
Jacquelyn S. Biddle, Esq. Patrick Morrisey, Esq.
Huntington, West Virginia Attorney General
Attorney for Petitioner, S.L.H. S.L. Evans, Esq.
Assistant Attorney General
Leigh Boggs Lefler, Esq. Counsel for the West Virginia
Beckley, West Virginia Department of Health and Human
Guardian ad litem for C.M. & C.M. Resources
CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE LOUGHRY dissents and reserves the right to file a separate opinion.
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 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.” Syl. Pt. 1,
In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).
2. “At the conclusion of the improvement period, the court shall review
the performance of the parents in attempting to attain the goals of the improvement period
and shall, in the court’s discretion, determine whether the conditions of the improvement
period have been satisfied and whether sufficient improvement has been made in the context
of all the circumstances of the case to justify the return of the child.” Syl. Pt. 6, In re Carlita
B., 185 W. Va. 613, 408 S.E.2d 365 (1991).
i
3. “As a general rule the least restrictive alternative regarding parental
rights to custody of a child under W. Va. Code, 49-6-5 [1977] will be employed; however,
courts are not required to exhaust every speculative possibility of parental improvement
before terminating parental rights where it appears that the welfare of the child will be
seriously threatened, and this is particularly applicable to children under the age of three
years who are more susceptible to illness, need consistent close interaction with fully
committed adults, and are likely to have their emotional and physical development retarded
by numerous placements.” Syl. Pt. 1, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980).
4. “Termination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, W. Va. Code, 49-6-5
[1977] may be employed without the use of intervening less restrictive alternatives when it
is found that there is no reasonable likelihood under W. Va. Code, 49–6–5(b) [1977] that
conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 2, In re R.J.M., 164
W. Va. 496, 266 S.E.2d 114 (1980).
5. “It is a traumatic experience for children to undergo sudden and
dramatic changes in their permanent custodians. Lower courts in cases such as these should
provide, whenever possible, for a gradual transition period, especially where young children
are involved. Further, such gradual transition periods should be developed in a manner
ii
intended to foster the emotional adjustment of the children to this change and to maintain as
much stability as possible in their lives.” Syl. Pt. 3, James M. v. Maynard, 185 W. Va. 648,
408 S.E.2d 400 (1991).
iii
Workman, Chief Justice:
This case is before the Court upon the appeal of the Mother, S.L.H.,1
(hereinafter referred to as “the Mother”) from the April 30, 2014, order of the Circuit Court
of Raleigh County, West Virginia, terminating her parental rights. The Mother argues that
the circuit court erred when it: 1) terminated her parental rights to her two children2 because
it was not the least restrictive alternative available; 2) abused its discretion by not granting
her a dispositional period; 3) failed to place the children with their maternal grandmother;3
and 4) allowed the children to remain in their paternal aunt’s care. Based upon our review
of the appendix record,4 the parties’ briefs and arguments, and all other matters before the
1
Following this Court’s established practice in cases involving children and sensitive
matters, we use parties’ initials. See State v. Edward Charles L., 183 W. Va. 641, 645 n.1,
398 S.E.2d 123, 127 n.1 (1990) (“Consistent with our practice in cases involving sensitive
matters, we use the victim’s initials. Since, in this case, the victim ... [is] related to the
appellant, we have referred to the appellant by his last name initial.” (citations omitted)); see
also W. Va. R. App. P. 40(e).
2
The children are two boys, who are four years old and two years old. Both boys have
names with the initials C.M.
3
The maternal grandmother, pro se, filed a motion to intervene in this case on January
15, 2014. Contrary to the assigned error, the circuit court did not make any ruling regarding
the grandmother’s motion in its April 30, 2014, order that is the subject of the instant appeal.
Moreover, by order entered May 20, 2014, the circuit court indicated that it had been advised
that the grandmother “had filed a motion to intervene but after argument, the Court will
consider her motion and will set a hearing on the motion in the future.” Consequently, there
is no factual or legal basis for this assigned error and the Court will not address it.
4
The appendix record in this case does not comport with Rule 7 of the West Virginia
(continued...)
1
Court, we reverse the circuit court’s decision to terminate the Mother’s parental rights and
remand the case for the implementation of a gradual transition plan to return the children to
the custody of their Mother.5
I. Procedural and Factual History
On August 28, 2012, an abuse and neglect petition was filed against both
4
(...continued)
Rules of Appellate Procedure. Due to the inadequacy of the appendix record, this Court, by
order entered January 16, 2015, requested the entire record in the case. From a review of the
record below, it is evident that the West Virginia Department of Health and Human
Resources (“DHHR”) failed to include the case plans at issue in this case and failed to submit
any written motion and supporting documents upon which the circuit court relied to terminate
the Mother’s parental rights. There were also salient orders entered by the circuit court that
the parties failed to submit to this Court. Further, there are documents included in the
appendix record that were not included in the record below. Those documents, which
include certifications and letters regarding the Mother’s treatment and case summaries
prepared regarding visitation between the Mother and her children, may have been submitted
as exhibits before the circuit court during hearings. The documents, however, were not
contained in the record below.
We find it necessary to remind parties that they are bound to follow the West Virginia
Rules of Appellate Procedure when pursuing an appeal before this Court, which includes the
preparation and filing of an appendix record in compliance with our rules. The appendix
record submitted in this case failed to comport with our rules; however, there was no
objection to it by either the DHHR or the guardian ad litem.
5
Because of the Court’s decision to reverse the termination of the Mother’s parental
rights, we need not address the Mother’s assignments of error regarding the circuit court’s
failure to grant her a dispositional period and to allow the children to remain in their paternal
aunt’s care.
2
C.R.M., who is the children’s father,6 and the Mother. The allegations in the petition
concerned severe domestic violence, as well as alcohol and drug abuse in the presence of the
infant children. The allegations included a referral to Child Protective Services (“CPS”) on
August 14, 2012, concerning both parents abusing alcohol and drugs, namely Oxycontin, and
not providing a safe environment for the children. The petition also contained a referral to
CPS on August 27, 2012, wherein the Mother, who was intoxicated, allegedly hid in the
woods near the home with her two children, having fled due to a domestic altercation with
the father. A preliminary hearing was held on October 18, 2012. By order entered October
26, 2012, the circuit court determined that probable cause existed warranting the removal of
the children from the parents’ home.
On December 6, 2012, the circuit court conducted an adjudicatory hearing.
During the hearing, both parents stipulated to allegations of abuse and neglect. Specifically,
the Mother stipulated “that she neglected her children through her drug abuse affecting her
ability to parent her children.” Both parents separately moved for post-adjudicatory
improvement periods. The circuit court subsequently granted a six-month post-adjudicatory
improvement period for each parent. The circuit court ordered that the Multi-Disciplinary
6
The children’s father’s rights were also terminated by the circuit court as indicated
in the April 30, 2014, order. The circuit court’s termination of the father’s rights is not
before the Court.
3
Team (“MDT”) was to meet by December 14, 2012,7 and that a family case plan was to be
developed and filed with the court by January 7, 2013. No case plan was placed in the record
below or in the appendix record submitted before this Court.8
The appendix record also contained two monthly summaries for December
2012 and January 2013 prepared by Kelly Cook-Stevens, ASO Service Provider, regarding
the Mother’s visits with her children. In December 2012, Ms. Stevens supervised three visits
between the Mother and her children. Ms. Stevens reported:
[Mother]. . . is very interactive and affectionate with her
children. She gets in the floor and plays with them and she
made a tent with . . . [one child] and also played the Nintendo
Wii. She balances the time equally between both boys and they
7
The Mother represents in her brief that the MDT met on December 11, 2012, and a
case plan was developed for the Mother. The Mother represents, and neither the DHHR nor
the guardian ad litem dispute, that the “major components” of that case plan were:
1. [The Mother] . . . is to complete a psychological
evaluation and follow recommendations of the
psychologist.
2. [The Mother] . . . is to work one-on-one with her service
providers.
3. [The Mother] . . . will successfully complete an inpatient
substance abuse program.
The Mother further maintains in her brief that: 1) she completed the psychological
evaluation on January 7, 2013; 2) the DHHR did not make a referral for services until August
2013 and that is when the Mother started counseling, which she successfully completed; and
3) she has successfully completed an inpatient substance abuse program.
8
West Virginia Code § 49-6-5(a) (2014) requires the DHHR to “file with the court a
copy of the child’s case plan, including the permanency plan for the child.”
4
interact very well with her. She changes their diapers
throughout the visit and is very nurturing with both children.
[One of the boys] cries at the end of the visits and she comforts
him well and tries not to show any emotion.
In the January 2013 summary, Ms. Stevens reported:
Provider supervised three visits during the month of
January. [Mother] . . . is very interactive and affectionate with
her children. [Mother]. . . was very loving with both boys and
focuses on them the entirety of the visits. She balances the time
equally between both boys and they interact very well with her.
She changes [the younger boy’s] . . . diaper throughout the visit
and is very nurturing with both children. [The older boy] . . .
cries at the end of the visits and she comforts him well and tries
not to show any emotion. She graduated from Turning Point on
January 31st and seems to be doing well in her recovery.
The record also contained a March 6, 2013, report prepared by a CPS worker
for DHHR. This report indicated that the Mother “has made progress towards completing the
goals set forth in her Family Case Plan. She successfully completed Turning Point on
January 31, 2013, and has successfully maintained sobriety.” Further, visits with her children
were described as “positive.” The Mother “interacts with her children well and makes up
games to play with them. She balances her time equally between both boys and is nurturing
to both children.”
On March 7, 2013, the circuit court held an improvement period review
hearing. By order entered March 22, 2013, the circuit court noted that it was “advised that
respondent mother is progressing and when she obtains beds for the children, weekend
5
overnights will be started for her and reunification is the permanency plan for her.”
A report of the guardian ad litem, dated June 7, 2013, indicates that a MDT
meeting was conducted on May 21, 2013, wherein it was noted that visitation had been
increased between the Mother and her children, but then decreased due to the Mother’s
housing situation. “The MDT concluded that as soon as the Respondent Mother established
a new housing arrangement with her mother, visitation could resume to overnights and there
would be no opposition by any party to a three (3) month extension.” Further, “there were
no concerns with drug use on the part of the Respondent Mother.” The recommendation was
to give the Mother a three-month extension on her improvement period.
The circuit court held another improvement period review hearing on June 13,
2013. By order entered July 29, 2013, the circuit court stated that “the MDT is proposing and
moving for a three (3) month extension to transition the children back to respondent mother
which motion the Court hereby GRANTS.”
On September 26, 2013, the circuit court conducted another improvement
period review hearing. By order entered November 19, 2013, the circuit court noted that
during the hearing on September 26, the circuit court “was advised that Respondent Mother
was progressing but had suffered a relapse based upon alcohol intoxication and loss of a
6
job[,] but[,] since September 3, 2013, she has been re[-]employed and tested negative for
three (3) weeks.” According to this order, “[t]he Department was willing to agree to an
extension of her improvement period on a dispositional basis but due to her denial of a
problem, the Court, after argument, will take under advisement whether it will deny or grant
an extension of her improvement period.”9 The circuit also directed the MDT to meet
“within ten (10) days and create a treatment plan for . . . [the Mother] and report to the
Court.” No treatment plan or report is contained in the record.10
The appendix record reveals that the Mother entered an inpatient treatment
facility on November 14, 2013. According to a letter dated January 3, 2014, from the
Mother’s attorney to DHHR, the Mother successfully completed Prestera’s Addictions
Recovery Center Program on December 7, 2013. Included with the letter was a treatment
narrative indicating that she successfully completed the short-term residential program.
After completing Prestera’s inpatient treatment program, the Mother enrolled
9
Both the DHHR and the guardian ad litem represented in their respective briefs that
by order dated September 26, 2013, the circuit court granted the Mother a requested
extension of her improvement period. Contrary to this representation, according to the
November 19, 2013, order, the requested extension was not granted. The circuit court only
took it under advisement.
10
Both the DHHR and the guardian ad litem represent that on October 4, 2013, the
Mother signed a second case plan agreeing to attend inpatient rehabilitation. Once again, this
case plan was not made a part of the record.
7
in Prestera’s Co-Occurring Intensive Outpatient Program on January 16, 2014. On January
10, 2014, the mother also was accepted into the West Virginia Oxford House, a residential
sober living program, located in Huntington, West Virginia.
The circuit court conducted another hearing on January 10, 2014. By order
entered March 5, 2014,11 as a result of the January hearing, the circuit court indicated that it
“was advised that Respondent Mother is enrolled in the Oxford House in Huntington, WV,
but the Department and Guardian ad Litem do not believe this facility is appropriate for her
and that there is a bed at Storm Haven in Beckley, WV.”12 The case was continued status
quo and another review hearing was scheduled for April 10, 2014. According to the April
30, 2014, order entered by the circuit court, “[a]nother identified problem with Oxford
[H]ouse was that it was clearly not an appropriate place for children. This prevented the
Department from beginning to reunite the children through overnight visitation and longer
unsupervised visits.”13 The only reason given for this determination was found in the
DHHR’s brief wherein the following statement was made: “The facility was not considered
11
Additionally, in this order the circuit court does not rule on whether it is going to
grant the Mother a requested dispositional improvement period, but simply continues the case
“status quo.”
12
The Mother indicated in her brief before the Court that the reason she chose the
treatment program in Huntington was because she “felt she could be most successful in
recovery to remove herself from the Beckley area where she had previously used and
relapsed.”
13
This finding was not contained in the March 5, 2014, order.
8
to be an appropriate place for child visitation because it was apparently tended and staffed
by recovering addicts.” Notwithstanding this representation, there is no evidence in the
record before the Court regarding why the DHHR and the guardian ad litem “believed” that
the Oxford House was not appropriate for the Mother. Similarly, there is no evidence
regarding why the Oxford House “was clearly not an appropriate place for children.”
Also contained within the appendix record is a March 7, 2014, letter from Tara
R. Henry, BA, a case manager with Prestera Center for Mental Health Services, Inc. Ms.
Henry reports that the Mother is enrolled in Co-Occurring Intensive Outpatient Program that
she started on January 16, 2014. Ms. Henry also indicates that the Mother is participating
in “individual and group therapy, individual and group supportive intervention, as well as 12
step groups.” Ms. Henry states that once the Mother graduates, she will be referred to the
Substance Abuse Outpatient program to continue her recovery.
Further, the appendix record contains a letter, dated April 7, 2014, from Terry
Johnson, an assistant outreach worker at the Oxford House. Ms. Johnson advises that the
Mother
has met all the requirements associated with membership and is
in good standing. She is drug screened randomly and has passed
them all. She has successfully found employment and is
actively fulfilling her agreement with Oxford House West
Washington by getting a sponsor, working steps and attending
her choice of recovery meetings regularly.
9
A second undated letter in the record from Natalie Roe of the Oxford House
indicates that the Mother “has become an amazing leader and accepted the responsibility of
the house president. She has continued to gain employment and grow in her recovery.”
According to this letter, the Mother was scheduled to graduate on April 16, 2014, and she
“maintains actively in the program through follow up therapy[,]” attending Alcoholics
Anonymous (“AA”) and Narcotics Anonymous (“NA”) meetings. She was also employed.
On April 10, 2014, the circuit court held a hearing14 “on a motion to terminate
the improvement periods of both parents, and for disposition of both parents.” While the
record contains a motion filed by the DHHR to terminate the father’s parental rights, there
is no motion filed by the DHHR seeking a termination of the Mother’s parental rights.15 The
only mention in the record that disposition for the Mother might occur at this hearing was
14
Notwithstanding the parties’ failure to submit an appendix record that comports with
West Virginia Rule of Appellate Procedure 7, which is applicable to abuse and neglect
appeals, see note four supra, the parties also elected to proceed in this matter without
transcripts of the hearings below as permitted by Rule 11 of the West Virginia Rules of
Appellate Procedure concerning abuse and neglect appeals. See W. Va. R. App. P. 11 (i) (“In
order to provide an inexpensive and expeditious method of appeal, the petitioner is
encouraged to perfect an appeal under this Rule without the transcript of testimony taken in
the lower court. In lieu of filing all or part of the transcript of testimony, the petitioner shall
set out in the petitioner’s brief a statement of all facts pertinent to the assignments of error.”)
(Emphasis added). The parties, however, failed to include in their briefs “all the facts
pertinent to the assignment of error.” See id. The parties’ respective factual recitations
contained in the briefs lack any discussion of the evidence that was introduced at the
dispositional hearing that resulted in the termination of the Mother’s rights.
15
If the DHHR orally moved to terminate the Mother’s parental rights, there is nothing
in the record which demonstrates that.
10
found in the March 5, 2014, order wherein the court sets “[a]n improvement period review
hearing or dispositional hearing on . . . [the Mother]” for April 10, 2014. The April 30, 2014,
order regarding this hearing indicates that the circuit court heard testimony that the Mother
had signed a case plan on October 4, 2013, agreeing to attend an inpatient rehabilitation
facility. According to the order, she
filled out intake forms for four (4) rehab facilities and was
contacted by John D. Good Recovery Center for a phone
interview and she stated she did not need detox and was
removed from the waiting list. Respondent Mother was later
admitted to Prestera’s twenty eight (28) day Addictions
Recovery Center on November 14, 2013, but left the program.16
The Department had asked the Respondent Mother to move to
a facility in Beckley, WV, so that the Mother could spend more
time with her children because of the difficulty of transporting
the children to Huntington and because Oxford House is not
appropriate for any children’s visitation.17
(Footnotes added).
16
There is no evidence that the Mother left the program. The only evidence in the
appendix record demonstrates that she successfully completed Prestera’s twenty-eight day
inpatient treatment program.
17
As previously mentioned, there is no evidence in the record as to why Oxford House
was not appropriate for children’s visitation, only the DHHR’s representation that the facility
is “apparently tended and staffed by recovering addicts.” Counsel for the Mother represented
to the Court during oral argument that the treatment facility the DHHR recommended that
the Mother go to in Beckley was similar to the Oxford House that the Mother enrolled in in
Huntington. According to the website for Storm Haven, located in Beckley, like the Oxford
House, it too is a “sober living environment”founded by Doug Stanley, who “was in recovery
from alcohol addiction[.]” Storm Haven Recovery Home,
http://stormhavenrecoveryhome.org (last visited March 2, 2015).
11
Following the April 10 hearing, but before the circuit court entered the April
30, 2014, order concerning that hearing, the Mother submitted a letter dated April 28, 2014,
from Prestera Center indicating that the Mother “has completed 8 of the 9 interventions for
her substance abuse treatment goal[,]” and had also “completed 3 of the 7 interventions of
the goal for depression.” The appendix record also contains a “certificate of completion” of
“Prestera’s Co-Occurring Intensive Outpatient Program” dated June 22, 2014, as well as log
sheets showing that the Mother was attending AA/NA meetings.
By order entered April 30, 2014,18 the circuit court found that: 1) the children
had been in the custody of the DHHR for nineteen of the last twenty-two months; 2) the
Mother had not substantially complied with the case plan she signed; 3) the Mother had not
made sufficient progress towards reunification with her children; 4) the Mother was
unwilling to make the reunification of her family her first priority; and 5) the Mother
deliberately ignored reasonable directives of DHHR and recommendations contained in the
treatment plan that she signed and agreed to follow. As the circuit court stated in its order,
the Mother “refused to enter a long term intensive rehabilitation program, refused to move
to a facility in Beckley where she could spend more time with her children, and failed to
make any substantial progress toward reunification with her children in a timely manner.”
18
Following this order, on May 20, 2014, the circuit court entered an order allowing
visitation by the Mother with her children to continue in Raleigh County “but not
unsupervised or overnight.”
12
Further, the order provided that the Mother “failed to show this Court by clear and
convincing evidence that she will be able to comply with a future improvement period and
further she has failed to prove by clear and convincing evidence that she is motivated to put
her children’s best interests ahead of her own personal pursuits.” Based upon the foregoing,
the circuit court terminated the Mother’s parental rights to her two children, determined that
“the infant children shall remain in the temporary legal and physical custody of the
Department of Health and Human Resources with placement of the infant children to be in
the discretion of the Department[,]” and found that “[t]he permanency has not been achieved
but the Department has made reasonable efforts to achieve the same and that this hearing
meets the requirements for foster care review . . . .” It is this ruling that forms the basis for
the instant appeal.
II. Standard of Review
This Court has explained that
“[f]or appeals resulting from abuse and neglect proceedings,
such as the case sub judice, we employ a compound standard of
review: conclusions of law are subject to a de novo review,
while findings of fact are weighed against a clearly erroneous
standard.” In re Emily, 208 W. Va. 325, 332, 540 S.E.2d 542,
549 (2000).
In re J.S., 233 W. Va. 394, 400, 758 S.E.2d 747, 753 (2014). We have also applied the
following standard of review to cases involving abuse and neglect proceedings:
Although conclusions of law reached by a circuit court
13
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 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.
Syl. Pt. 1, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996); accord In re B. H.,
233 W. Va. 57, 754 S.E.2d 743 (2014)(applying same standard of review in abuse and
neglect proceeding where mother admitted to neglect, circuit court adjudicated the children
abused and neglected, and issue before Court concerned whether mother had substantially
complied with terms of her post-adjudicatory improvement period). We are also ever
mindful of our strong precedence in abuse and neglect cases that “the best interests of the
child is the polar star by which decisions must be made which affect children.” Michael K.T.
v. Tina L.T., 182 W. Va. 399, 405, 387 S.E.2d 866, 872 (1989) (citation omitted); see Syl.
Pt. 3, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“Although parents have
substantial rights that must be protected, the primary goal in cases involving abuse and
neglect, as in all family law matters, must be the health and welfare of the children.”).
Guided by these standards of review, we turn to the arguments before us.
14
III. Discussion
A. Termination of the Mother’s parental rights.
The Mother argues that the circuit court erred in terminating her parental rights.
More precisely, the Mother contends that the circuit court erred in finding that she left
Prestera’s Addictions Recovery Center early and that she had not made sufficient progress
towards reunification with her children and had not substantially complied with the family
case plan. Conversely, the DHHR argues that the circuit court properly terminated the
Mother’s parental rights because she failed to demonstrate a reasonable likelihood that the
conditions of abuse and neglect could be corrected. The DHHR maintains that she “failed
to comply with her improvement period or to consider recommendations that would result
in her timely reunification with her children,” because she ignored the DHHR’s
recommendations regarding where to enroll in treatment for her addiction thereby frustrating
reunification with her children.
This Court has held that
[a]t the conclusion of the improvement period, the court
shall review the performance of the parents in attempting to
attain the goals of the improvement period and shall, in the
court’s discretion, determine whether the conditions of the
improvement period have been satisfied and whether sufficient
improvement has been made in the context of all the
circumstances of the case to justify the return of the child.
Syl. Pt. 6, In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991). Moreover, we have held
15
that
[a]s a general rule the least restrictive alternative
regarding parental rights to custody of a child under W. Va.
Code, 49-6-5 [1977] will be employed; however, courts are not
required to exhaust every speculative possibility of parental
improvement before terminating parental rights where it appears
that the welfare of the child will be seriously threatened, and this
is particularly applicable to children under the age of three years
who are more susceptible to illness, need consistent close
interaction with fully committed adults, and are likely to have
their emotional and physical development retarded by numerous
placements.
Syl. Pt. 1, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980). Finally,
[t]ermination of parental rights, the most drastic remedy
under the statutory provision covering the disposition of
neglected children, W. Va. Code, 49-6-5 [1977] may be
employed without the use of intervening less restrictive
alternatives when it is found that there is no reasonable
likelihood under W. Va. Code, 49-6-5(b) [1977] that conditions
of neglect or abuse can be substantially corrected.
In re R.J.M., 164 W. Va. at 496, 266 S.E.2d at 114, Syl. Pt. 2.
The undisputed evidence before the circuit court clearly demonstrated that the
Mother successfully completed the twenty-eight-day inpatient rehabilitation at the Prestera
Center. The record is completely devoid of any evidence that supports the finding that the
Mother left this program. Moreover, completion of an inpatient treatment program was the
requirement of her case plan and the record shows that she did complete such a program.
Again, there is no evidence in the record, or in the circuit court’s order, that supports any
16
finding that the Mother was directed by the circuit court to obtain treatment only where the
DHHR recommended. Rather, the requirement placed on the Mother was that she had to
undergo treatment. The Mother successfully completed both inpatient and long-term
outpatient treatment programs for her addiction. She has also been participating in individual
and group therapy, individual and group supportive intervention, as well as twelve-step
groups. According to the Mother’s brief, she has attended AA and NA meetings on a daily
basis since January 10, 2014. Additionally, the Mother removed herself from the abusive
relationship with the children’s father. She remains sober, she is employed, she is going to
attend college, and, according to her status update, she has obtained housing.19
The circuit court focused solely upon the Mother’s failure to complete the
treatment program in Beckley recommended by the DHHR. The DHHR maintained, and the
circuit court found, that because of this, the Mother frustrated the goal of reunification with
her children and failed to make her children her first priority.20
19
In her status update filed with the Court pursuant to West Virginia Rule of Appellate
Procedure 11(j), the Mother is currently living in Vienna, West Virginia, in an apartment
with a one-year lease. She has been working at Red Lobster since October 20, 2014. She was
previously employed by SRBI, a telemarketer, from March 2014 to October 2014. She was
supposed to start school at WVU-Parkersburg on January 12, 2015, with the goal of
becoming a surgical technician. She will attend classes on Mondays and Wednesdays. She
continues to screen weekly for drugs and her results have been negative.
20
Visitation between parent and child during an out-of-custody improvement period
is important in evaluating whether a parent is making strides towards reunification with the
child. As we stated in In re Carlita B., “[a] parent’s level of interest in visiting with his or
(continued...)
17
The Mother’s choice of undergoing treatment for her addiction in Huntington
as opposed to Beckley may have made it more difficult to visit her children. Despite the
representations by the DHHR and the guardian ad litem regarding the difficulty with
visitation caused by the Mother undergoing treatment in Huntington, there is no evidence
20
(...continued)
her child during an out-of-home improvement period is an extremely significant factor for
the circuit court to review. A parent who consistently demonstrates a desire to be with his
child obviously has far more potential for being a nurturant and committed parent than one
whose interest in being with his child is erratic.” 185 W. Va. at 628, 408 S.E.2d at 380. In
the instant case, the Mother enunciated a sound reason for choosing the Huntington treatment
program. Moreover, her interest in visiting her children was not at issue, rather the logistics
of arranging visitations with the Mother was made more difficult due to her decision to enter
a treatment program that was further away from her children. That decision was necessitated
by her desire to remedy the thing that made her a neglectful mother – her addiction to drugs
and alcohol. The DHHR, and the circuit court, therefore, lost sight of the purpose of the
improvement period We also discussed the purpose of improvement periods in In re Carlita
B. as follows:
The goal should be the development of a program
designed to assist the parent(s) in dealing with any problems
which interfere with his ability to be an effective parent and to
foster an improved relationship between parent and child with
an eventual restoration of full parental rights a hoped-for result.
The improvement period and family case plans must establish
specific measures for the achievement of these goals, as an
improvement period must be more than a mere passage of time.
It is a period in which the . . . [DHHR] and the court should
attempt to facilitate the parent’s success, but wherein the parent
must understand that he bears a responsibility to demonstrate
sufficient progress and improvement to justify return to him of
the child.
Id. at 625, 408 S.E.2d at 377.
18
regarding how visitation was made more difficult or, more importantly, how the Mother was
purposely trying to thwart reunification with her children by obtaining treatment from one
facility instead of the other. Likewise, despite statements in the DHHR’s brief that the
Oxford House in Huntington “was not considered to be an appropriate place for child
visitation [including overnight visitation] because it was apparently tended and staffed by
recovering addicts[,]” there was no evidence in the record to support this assertion. Nor was
there any evidence in the record to indicate that Storm Haven in Beckley, which was the
treatment facility recommended by the DHHR, was an appropriate venue for visitation,
including overnight visitation. There is, however, evidence in the appendix record that
demonstrates that the Mother maintained consistent visitation with her children during her
improvement period. The record further demonstrates that during visitation with her
children, the Mother was very nurturing and loving with them. She gave each child equal
amounts of her time, prepared their meals, and played with them.
There is also a lack of evidence to support the circuit court’s determination that
“the Respondent Mother has shown that she is unwilling to make the reunification of her
family her first priority.” The record is devoid of evidence to support the circuit court’s
finding that “the Respondent Mother has deliberately ignored reasonable directives of the
DHHR and recommendations contained in the treatment plan that she signed and agreed to
follow.” Neither does the record support the circuit court’s finding that the Mother “failed
19
to make any substantial progress towards reunification with her children in a timely manner.”
Rather, the appendix record demonstrates that the Mother successfully completed multiple
treatment programs, obtained housing and employment, enrolled in college, and participated
in successful visitations with her children. Thus, based upon our review of both the record
below and the appendix record, we find the Mother was making steady progress during the
post-adjudicatory improvement period. The circuit court erred in its findings to the contrary,
including its determination that there was “no reasonable likelihood that the conditions of
neglect or abuse can be substantially corrected in the near future. . . .” See W. Va. Code §
49-6-5(a)(6). Having found that the circuit court’s findings supporting termination were
clearly erroneous, see In re Tiffany Marie S., 196 W. Va. at 223, 470 S.E.2d at 177, we
reverse the circuit court’s decision.21
21
West Virginia Code § 49-6-5 clearly establishes that termination of a parent’s rights
is the last resort. In this case, given the great strides made by the Mother, who by all
accounts was and continues to be pursuing a path toward recovery from her addiction, there
were other options short of termination of rights that the circuit court should have employed.
According to West Virginia Code § 49-6-5:
The court shall give precedence to dispositions in the following
sequence:
(1) Dismiss the petition;
(2) Refer the child, the abusing parent, the battered parent
or other family members to a community agency for needed
assistance and dismiss the petition;
(3) Return the child to his or her own home under
supervision of the department;
(4) Order terms of supervision calculated to assist the
child and any abusing parent or battered parent or parents or
(continued...)
20
B. Transition Period
Because termination of the Mother’s parental rights is not warranted in this case, the
priority now is to reunify the Mother with her children. Our concern in this case, and every
case involving children, is the welfare of the children. The two boys in this case have been
in the care and custody of the DHHR and the paternal aunt for the majority of their lives.
Consequently, this case calls for a gradual transition period of custody to the Mother in a
manner that will cause the least amount of trauma and stress for the two children involved.
As this Court first held in syllabus point three of James M. v. Maynard, 185 W. Va. 648, 408
S.E.2d 400 (1991):
21
(...continued)
custodian which prescribe the manner of supervision and care of
the child and which are within the ability of any parent or
parents or custodian to perform;
(5) Upon a finding that the abusing parent or battered
parent or parents are presently unwilling or unable to provide
adequately for the child’s needs, commit the child temporarily
to the custody of the state department, a licensed private child
welfare agency or a suitable person who may be appointed
guardian by the court. . . .
(6) Upon a finding that there is no reasonable likelihood
that the conditions of neglect or abuse can be substantially
corrected in the near future and, when necessary for the welfare
of the child, terminate the parental, custodial and guardianship
rights and responsibilities of the abusing parent and commit the
child to the permanent sole custody of the nonabusing parent, if
there be one, or, if not, to either the permanent guardianship of
the department or a licensed child welfare agency. The court
may award sole custody of the child to a nonabusing battered
parent. . . .
21
It is a traumatic experience for children to undergo
sudden and dramatic changes in their permanent custodians.
Lower courts in cases such as these should provide, whenever
possible, for a gradual transition period, especially where young
children are involved. Further, such gradual transition periods
should be developed in a manner intended to foster the
emotional adjustment of the children to this change and to
maintain as much stability as possible in their lives.
See Honaker v. Burnside, 182 W. Va. 448, 453, 388 S.E.2d 322, 326 (1989). Further,
[a]s this Court stated in In re George Glen B., Jr., 207 W. Va.
346, 355, 532 S.E.2d 64, 73 (2000), “[e]xplicit in both Honaker
v. Burnside and James M. v. Maynard is the principle that the
circuit court, and not the Department or a private agency, bears
the burden of crafting a plan for the gradual transition of
custody.” Moreover, “[w]hen a circuit court determines that a
gradual change in permanent custodians is necessary, the circuit
court may not delegate to a private institution its duty to develop
and monitor any plan for the gradual transition of custody of the
child(ren).” Syllabus Point 7, In re George Glen B., Jr.
Kristoper O. v. Mazzone, 227 W. Va. 184, 195, 706 S.E.2d 381, 392 (2011).
Upon remand, we direct the circuit court to expeditiously set this matter for a
hearing to establish a clear gradual transition period plan for reunification of the children
with their Mother. Even though the length of a gradual transition period is within the circuit
court’s discretion, due to the length of time that the children have been with their paternal
aunt, a transition period of several months similar to the one we discussed in Honaker would
be reasonable. See 182 W. Va. at 453, 388 S.E.2d at 326. As in Honaker,
[f]or the transition period to be effective in accomplishing this
purpose, it should provide for ever-increasing amounts of
22
visitation for the natural . . . [Mother] so as to lead to a natural
progression to full custody. Such transition plan should give
due consideration to both . . . [the Mother’s and the paternal
aunt’s] work and home schedules and to the parameters of the
. . . [children’s] daily school and home life, and should be
developed in a manner intended to foster the emotional
adjustment of these children to this change while not unduly
disrupting the lives of the parties or the children.
Id. Additionally, the circuit court must impose specific conditions upon the Mother, such as
attending regular AA /NA meetings, and must continue to closely monitor those conditions
beginning with bi-monthly reviews for a reasonable period of time in order to be certain that
the Mother continues her path to recovery.22 On remand, the Mother also needs to
demonstrate that she is able to care for her children, that her current residence is suitable for
the children, that she is able to provide for the children and that she has childcare for the
children when she is working and attending school. Lastly, it is in the best interests of the
children for the circuit court to provide for the continued reasonable visitation between the
children and their paternal aunt. The paternal aunt and these children undoubtedly have
bonded and the close relationship formed as a result must be allowed to continue.23
This Court is fully aware that transitioning custody from the paternal aunt back
22
The circuit court can gradually increase the time period between reviews as it deems
appropriate.
23
The DHHR should do all it can to facilitate the transition period in this case,
including assisting with the visits between the Mother, the paternal aunt and these children,
by aiding with transportation needs if necessary.
23
to the Mother is no small feat, both logistically and emotionally, for all involved. As we
recognized in Honaker, “[n]o matter how artfully or deliberately the trial court judge draws
the plan for these coming months, however, its success and indeed the chances for . . . [the
children’s] future happiness and emotional security will rely heavily on the efforts . . . [of the
Mother and the paternal aunt]. The work that lies ahead for both of them is not without
inconvenience and sacrifice on both sides.” Id. We are optimistic that the Mother and the
paternal aunt will work together for the sake of the children to show them that they are loved
and to give them security and stability they need in their lives.
IV. Conclusion
Based upon the foregoing, we reverse the decision of the circuit court and
remand the matter for further proceedings consistent with this opinion. The Clerk of this
Court is directed to issue the mandate in this case forthwith.
Reversed and remanded
with directions.
24