FILED
No. 19-1078 – State of West Virginia ex rel. S.W., N.W., June 12, 2020
& M.W. v. The Honorable Patrick N. Wilson, released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
Judge of the Circuit Court of Marion County, SUPREME COURT OF APPEALS
West Virginia, and S.K. OF WEST VIRGINIA
Jenkins, Justice, concurring in part and dissenting in part, joined by Chief Justice
Armstead:
I concur that the Circuit Court of Marion County committed clear legal error
in granting an improvement period to S.K. that exceeded the time limitation imposed by
West Virginia Code § 49-4-610(9). This statutory provision includes clear language that
no combination of improvement periods can cause a child to be in foster care for more than
fifteen months of the most recent twenty-two months unless the court finds compelling
circumstances by clear and convincing evidence that it is in the child’s best interests to
extend the time limit. Here, it cannot be disputed that the children spent more than fifteen
of the most recent twenty-two months in foster care, and the circuit court failed to make
appropriate findings that the improvement period was in the children’s best interest.
However, while I concur with the majority opinion as to the holding set forth above, I
fervidly disagree with the majority’s ultimate decision to remand this case with instructions
to terminate S.K.’s parental rights.
The majority opinion finds that the circuit court failed to make appropriate
findings that the grant of an improvement period was in the children’s best interest—and I
agree. However, the majority then goes on to conclude that the case should be remanded
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with instructions “that the circuit court must terminate S.K.’s parental rights.” (Emphasis
added). Essentially, the majority inserts itself as the fact finder and pre-judges that the
improvement period is not in the best interests of the children. Nevertheless, the majority
opinion makes this determination after clearly stating that
the circuit court’s order includes no findings, let alone detailed
findings, that granting S.K.’s motion for an improvement
period in violation of the time limit imposed by § 49-4-610(9)
was in the best interest of these children. We also do not find
anything in the record to suggest as much.
Without evidence from the record, or detailed findings from the circuit court—either
supporting an improvement period or not—I do not think that it is this Court’s place to
make a conclusion regarding the termination of S.K.’s parental rights.
This Court has held that “[w]hen the record in an action or suit is such that
an appellate court can not in justice determine the judgment that should be finally rendered,
the case should be remanded to the trial court for further development.” Syl. pt. 2 of South
Side Lumber Co. v. Stone Constr. Co., 151 W.Va. 439, 152 S.E.2d 721 (1967). Having
determined that the circuit court erred in failing to make appropriate, detailed findings, I
proffer that this case should be remanded so that the circuit court can re-examine the
evidence and make appropriate findings under the legal standard set forth in West Virginia
Code § 49-4-610(9).
For these reasons, I respectfully concur in part and dissent in part. I am
authorized to state that Chief Justice Armstead joins in this separate opinion.
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