Submitted: February 22, 2000
Filed: June 8, 2000
James P. Geary, II, Esq.
Darrell V. McGraw, Jr.
Patricia L. Kotchek, Esq. Attorney General
Geary & Geary, L.C. Katherine M. Mason, Esq.
Petersburg, West Virginia Assistant Attorney General
Attorneys for Appellee Waneta B. Beckley, West Virginia
Dennis V. DiBenedetto, Esq.
William H. Judy, III, Esq. Petersburg, West Virginia
Judy & Judy Attorneys for Appellant Department of
Moorefield, West Virginia Health and Human Resources
Guardian Ad Litem for George Glen B. Jr.
Marvin Downing, Esq.
Moorefield, West Virginia
Attorney for Appellee George Glen B.
JUSTICE STARCHER delivered the Opinion of the Court.
This appeal from the Circuit Court of Grant County raises the question of
whether a circuit court may terminate parental rights to a child solely on the basis that,
several years prior to the child's birth, the parental rights to siblings of the child had been
terminated. We also consider whether it is mandatory that the Department file a petition to
terminate the current parental rights of a parent who has previously had parental rights to
another child terminated by the court. We hold that while the Department does have a
mandatory duty to file a petition, a circuit court may not terminate parental rights without
additional evidence of abuse or neglect of the current child.
George Glen B., Jr. was born on January 20, 1999. George is the second child
born to appellees Waneta B. and George Glen B., Sr.; he is the third child born to Waneta B.
The day after George was born, the Department filed a petition in the Circuit Court of Grant County requesting emergency custody of the child, as well as seeking to terminate the parental rights of the appellee mother and appellee father. The petition was filed on the basis of two previous cases of abuse and neglect filed regarding siblings of George against the appellee mother. In the first case, filed in 1994, 13 weeks after a sibling was born, the appellee mother's parental rights were involuntarily terminated. In the second case, filed in 1996, the Department took custody of a sibling 10 days after her birth; the appellee mother and appellee father later voluntarily agreed to relinquish their parental rights to the child. In the instant case, relying upon a temporary custody order, the Department removed George from the hospital on January 22, 1999.
On January 25, 1999, the circuit court conducted a hearing to consider the merit of the Department's taking emergency custody of George. By order dated January 28, 1999, the circuit court stated that custody of the child was to remain with the Department, [p]ending the Court's decision, and [t]hat the Court . . . [would] render a decision . . . within the next forty-eight hours. Unfortunately, no additional orders were issued, and no other hearings occurred until a brief hearing was held on March 11, 1999.
By an order dated March 12, 1999, the circuit court made specific findings that there had been two prior cases involving allegations of abuse and neglect brought by the Department against the appellee mother in the first instance, and against both appellees in the second instance. The circuit court also found that [i]n both previous cases, neither parent was capable of minimum acceptable parenting skills, and that both cases were resolved with the termination of the appellees' parental rights.
However, the circuit court declined to terminate the appellees' parental rights or proceed any further on the petition, concluding that a prior termination of parental rights, without more, was not a sufficient ground to terminate parental rights.
The court found that:
The fact that the Respondent, Waneta [B.] . . . , has had her parental rights terminated to two previous children, and the father George Glen B[.] Sr., has had his rights terminated to one previous child, is not sufficient evidence, absent no showing of abuse or neglect to George Glen B[.] Jr., the current child.
The circuit court concluded that it would be improper to terminate parental rights of the mother and father absent any showing of abuse or neglect of this child. Based upon these findings, the circuit court dismissed the abuse and neglect petition, and ordered the Department to return George to the custody of the appellees in a manner that is in the best interests of the infant child.
The Department appealed the circuit court's March 12, 1999 order to this Court. In an opinion issued on July 12, 1999, we reversed the circuit court's order and remanded the case for further hearings. We held that the circuit court had erred in dismissing the abuse and neglect petition outright without allowing the Department an opportunity to present evidence regarding the circumstances surrounding the prior terminations of parental rights, and without allowing the parties to develop evidence concerning whether the appellee parents had taken steps to remedy the circumstances which resulted in the prior abuse and neglect petitions. See In re George Glen B., 205 W.Va. 435, 443, 518 S.E.2d 863, 871 (1999). We also directed the circuit court to hold its future hearings pursuant to the procedures contained in the West Virginia Rules of Procedure for Child Abuse and Neglect and W.Va. Code, 49-6-2 . 205 W.Va. at 444-45, 518 S.E.2d at 871-72.
Upon remand, the circuit court conducted hearings on July 28 and 29, 1999, and allowed the parties to present a total of over 9 hours of testimony and argument. From this testimony as well as several hundred pages of exhibits, the circuit court issued two orders dated August 5, 1999 and August 30, 1999.
In its orders, the circuit court concluded that there is no neglect or abuse of George Glen B[.] Jr. by anyone, now or has there ever been. Accordingly, the court held that the Department had failed to show abuse or neglect by the appellee parents sufficient to warrant the termination of their parental rights.
In its findings, the circuit court found that the appellees had substantially remedied the circumstances surrounding the prior terminations of their parental rights.See footnote 1 1 The circuit court also found that the Department has become so emotionally involved in this case that they cannot be objective, noting that the Department provided the appellee parents with no services, including visitation with George, without being ordered to do so by the court.
In sum, the circuit court's order chastised the Department for only seeking termination and
not considering other alternatives.
However, the circuit court concluded that George may be at risk if he is returned to the [appellees] without appropriate supervision. The circuit court therefore ordered that while the Department would technically retain physical custody of George, a private company, Action Youth Care, was ordered to provide supervision for a gradual transition to ensure an appropriate transfer of George to the custody of his parents. The court placed full responsibility and authority for the transition and its timing on Action Youth Care:
The primary responsibility of Action Youth Care is to ensure the safety of George Glen B[.] Jr. Overnight visitation shall begin as soon as Action Youth Care determines it is in the best interests of the child. Action Youth Care may remove the child from the custody of his parents without further Order of this Court if they determine it necessary for his protection.
In the event the efforts at reunification should fail, Action Youth Care shall notify the Court and the Court will take such action . . . as may be appropriate.
The Department now appeals the circuit court's August 5 and August 30, 1999 orders.
The standard of review used by this Court when reviewing circuit court rulings in abuse and neglect cases is as follows:
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.
Syllabus Point 1, In re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996). It is with the above-mentioned standard of review in mind that we now review the circuit court's orders.
These procedural statutes must be read in pari materia with W.Va. Code, 49-6-
5b(a)(3). So, while the Department has a duty to file, join or participate in proceedings to
terminate parental rights in the circumstances listed in W.Va. Code, 49-6-5b(a)(3), the
Department must still comply with the evidentiary standards established by the Legislature
in W.Va. Code, 49-6-2 before a court may terminate parental rights to a child, and must
comply with the evidentiary standards established in W.Va. Code, 49-6-3 before a court may
grant the Department the authority to take emergency, temporary custody of a child.
In our earlier opinion in this case, we stated that when a prior involuntary termination of parental rights to a sibling has occurred, the Department's minimum threshold of evidence necessary for termination is reduced. We held, in Syllabus Point 2 of In re: George Glen B., Jr., 205 W.Va. 435, 518 S.E.2d 863 (1999):
Where there has been a prior involuntary termination of parental rights to a sibling, the issue of whether the parent has remedied the problems which led to the prior involuntary termination sufficient to parent a subsequently-born child must, at minimum, be reviewed by a court, and such review should be initiated on a petition pursuant to the provisions governing the procedure in cases of child neglect or abuse set forth in West Virginia Code §§ 49-6-1 to -12 (1998). Although the requirement that such a petition be filed does not mandate termination in all circumstances, the legislature has reduced the minimum threshold of evidence necessary for termination where one of the factors outlined in West Virginia Code § 49-6-5b(a) (1998) is present.
Furthermore, we also held in our prior decision in this case that, when the Department brings a petition to terminate parental rights based solely upon the prior involuntary termination of parental rights of a sibling, the circuit court must allow the parties to develop any evidence regarding the actions taken by the parent or parents to alleviate the conditions surrounding the prior termination. We stated, at Syllabus Point 4:
When an abuse and neglect petition is brought based solely upon a previous involuntary termination of parental rights to a sibling pursuant to West Virginia Code § 49-6-5b(a)(3) (1998), prior to the lower court's making any disposition regarding the petition, it must allow the development of evidence surrounding the prior involuntary termination(s) and what actions, if any, the parent(s) have taken to remedy the circumstances which led to the prior termination(s).
Having closely examined the language used by the Legislature in W.Va. Code, 49-6-5b(a)(3), we do not believe that the Legislature intended to eliminate the Department's burden of proving the presence of current or imminent abuse or neglect of a child when the parental rights to a sibling have been previously involuntarily terminated, and our previous holding in George Glen B. should not be construed as eliminating the Department's burden of proof. We also do not believe that the Legislature intended to eliminate the circuit court's discretion over whether or not to terminate a party's parental rights. The presence of one of the factors outlined in W.Va. Code, 49-6-5b(a)(3) merely lowers the threshold of evidence necessary for the termination of parental rights. W.Va. Code, 49-6-5b(a)(3) does not mandate that a circuit court terminate parental rights merely upon the filing of a petition filed pursuant to the statute, and the Department continues to bear the burden of proving that the subject child is abused or neglected pursuant to W.Va. Code, 49-6-2.
Having carefully examined the extensive record and testimony in this case, we conclude that the Department properly filed the instant action to investigate and develop evidence regarding whether the appellee parents had alleviated the conditions surrounding the prior terminations of their parental rights to George's siblings. However, we also find substantial evidence that the appellees have remedied the circumstances which prompted the filing of the previous two abuse and neglect petitions. We therefore conclude that the circuit court did not err in finding that the appellees had corrected the conditions leading to the prior terminations of parental rights. The circuit court was therefore correct in holding that, because of the absence of any evidence of current or threatened abuse or neglect, George should be returned to his parents' custody.
In its orders, the circuit court concluded that the Department has become so
emotionally involved in this case that they cannot be objective, and criticized the
Department for want[ing] to terminate parental rights or do nothing. To address this
problem, the circuit court delegated responsibility to a private agency, Action Youth Care,
to establish and carry out a plan for reunifying George with the appellee parents.See footnote 4
The Department appeals the circuit court's orders contending that our abuse and neglect statutes, W.Va. Code, 49-6-1, et seq., place any decisions about the safety of at- risk children solely within the discretion of the circuit court once a petition has been filed. The Department argues that the circuit court cannot delegate that authority to another agency, particularly a private company. We agree.
This Court has repeatedly stated that when a petition alleging abuse and neglect has been filed, a circuit court has a duty to safeguard the child and provide for his or her best interests. See, e.g., State ex rel. Paul B. v. Hill, 201 W.Va. 248, 257-58, 496 S.E.2d 198, 207-8 (1997) (circuit courts have an obligation to consider the best interests of the child [as] paramount, and a circuit court cannot ... ignore its parens patriae duty to protect the best interests of [the child].). Furthermore, circuit courts are statutorily charged with promptly ruling upon the merits of an abuse and neglect petition, W.Va. Code, 49-6-2 , and if abuse or neglect is found, crafting a disposition to achieve an appropriate placement of an abused and/or neglected child. W.Va. Code, 49-6-5 .
In the instant case, the circuit court concluded that George could be at risk if
quickly returned to the custody of his parents, and determined that a gradual transition period
was needed to give George, and the appellees, a sufficient adjustment period. We have
previously approved of gradual changes in the custody of children. For example, in Honaker
v. Burnside, 182 W.Va. 448, 450-51, 388 S.E.2d 322, 324 (1989), a case where there were
no allegations of abuse or neglect, we approved of a gradual, 6-month transition of custody
of a child between her step-father and natural father when the child's natural mother had
Similarly, in James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991), we required the circuit court to establish a plan for the gradual shift of custody for children found to be abused and neglected to their natural father. We held, at Syllabus Point 3, that:
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.
Explicit 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.
We therefore hold that when 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).See footnote 5 5
Accordingly, we find that the circuit court erred in delegating to Action Youth Care all responsibility regarding the reunification of George with his parents, and reverse the circuit court's orders on this point. On remand, the circuit court must establish a concrete transition plan for reunification, and must oversee the execution of that plan.See footnote 6 6
The Department challenges the circuit court's de facto granting of an
improvement period to the appellee parents, arguing that an improvement period may be
granted only after a party makes a motion for an improvement period. See W.Va. Code, 49-6-
2(b) . The Department contends that the appellees never asked for an improvement
period. Furthermore, the Department contends that the de facto improvement period is not
being conducted in accordance with a family case planSee footnote 7
developed by the Department,
because none was created.
In our examination of W.Va. Code, 49-6-5 , we find that the right of a parent to an improvement period, and the Department's duty to create a case plan governing that improvement period, only arises after the circuit court has determined that a child has been abused or neglected. W.Va. Code, 49-6-5(a) states, in pertinent part:
Following a determination . . . wherein the court finds a child to be abused or neglected, the department shall file with the court a copy of the child's case plan, including the permanency plan for the child. The term case plan means a written document that includes, where applicable, the requirements of the family case plan . . . .
In the instant case, the circuit court specifically found no evidence of abuse or neglect by the appellees against George. Accordingly, there was no need for the creation of a case plan by the Department, nor a need for a formal improvement period. We therefore find no error on this point by the circuit court. However, as we previously discussed, the circuit court properly acted within its discretion in allowing for a gradual transition of custody and reunification of George with his parents. See Syllabus Point 3, James M. v. Maynard, discussed supra.
The Department also challenges the circuit court's failure to hold a final
adjudicatory hearing within 30 days of the July 28-29, 1999 preliminary hearing.
Rule 25 of the Rules of Procedure for Child Abuse and Neglect  requires circuit courts to hold an adjudicatory hearing within 30 days of any temporary custody order entered following the preliminary hearing. The rule states, in pertinent part:
When a child is placed in the temporary custody of the Department or a responsible person . . . the final adjudicatory hearing shall commence within thirty (30) days of the temporary custody order entered following the preliminary hearing and must be given priority on the docket unless a preadjudicatory improvement period has been ordered. . . .
In the instant case, the circuit court entered orders on August 5 and August 30, 1999 placing George in the temporary custody of the Department (but, as previously mentioned, gave Action Youth Care complete authority over George's reunification with his parents). Rule 25 of the Rules of Procedure for Child Abuse and Neglect mandates that a hearing should have occurred no later than 30 days after the August 30, 1999 order. However, the circuit court stated, in its orders, that it would set an adjudicatory hearing within 90 days to determine what future proceedings are needed. This ruling, as well as the circuit court's failure to hold an adjudicatory hearing by September 30, 1999, was in error.
Accordingly, we reverse the circuit court's finding that it was authorized to schedule a hearing 90 days after its order upon the preliminary hearing, and remand the case for further proceedings. We direct that, on remand, the circuit court is to act immediately to develop and oversee a plan for the expeditious reunification of George with his parents.
As set forth above, we affirm in part and reverse in part the circuit court's
August 5 and August 30, 1999 orders. On remand, we direct that the circuit court act
immediately to develop and oversee a concrete plan for the expeditious reunification of
George with his parents.
Affirmed in part, Reversed in part, and Remanded.