Darrell V. McGraw, Jr.
Gerald R. Linkous
Attorney General Randal W. Roahrig & Associates
Charleston, West Virginia Princeton, West Virginia
Katherine M. Mason Attorney for the Appellee,
Assistant Attorney General Tracy B.
Beckley, West Virginia
Thomas L. Berry Angela Ash
Assistant Prosecuting Attorney Public Defender Corporation
for Mercer County Princeton, West Virginia
Princeton, West Virginia Attorney for the Appellee,
Attorneys for the Appellant, Amos B. (father)
West Virginia Department of
Health and Human Resources
Thomas L. Fuda
Henderson & Fuda
Bluefield, West Virginia
Guardian ad Litem for
the minor children,
Emily B. and Amos B. (son)
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICES STARCHER and MCGRAW concur and reserve the right to file
2. '[C]ourts 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 . . . .' Syl. Pt. 1, in part, In re R.J.M., 164
W. Va. 496, 266 S.E.2d 114 (1980). Syllabus point 7, in part, In re Carlita B., 185
W. Va. 613, 408 S.E.2d 365 (1991).
3. 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. Syllabus
point 8, in part, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).
4. 'Child abuse and neglect cases must be recognized as being among
the highest priority for the courts' attention. Unjustified procedural delays wreak havoc
on a child's development, stability and security. Syl. Pt. 1, in part, In re Carlita B., 185
W. Va. 613, 408 S.E.2d 365 (1991).' Syllabus point 3, In re Jonathan G., 198 W. Va.
716, 482 S.E.2d 893 (1996). Syllabus point 2, In re Michael Ray T., ___ W. Va. ___,
___ S.E.2d ___ (No. 26639 Dec. 3, 1999).
5. The commencement of a dispositional improvement period in abuse
and neglect cases must begin no later than the date of the dispositional hearing granting
such improvement period.
6. At all times pertinent thereto, a dispositional improvement period is
governed by the time limits and eligibility requirements provided by W. Va. Code § 49-6-2
(1996) (Repl. Vol. 1999), W. Va. Code § 49-6-5 (1998) (Repl. Vol. 1999), and W. Va.
Code § 49-6-12 (1996) (Repl. Vol. 1999).
7. A natural parent of an infant child does not forfeit his or her parental
right to the custody of the child merely by reason of having been convicted of one or more
charges of criminal offenses. Syllabus point 2, State ex rel. Acton v. Flowers, 154
W. Va. 209, 174 S.E.2d 742 (1970).
8. 'When parental rights are terminated due to neglect or abuse, the
circuit court may nevertheless in appropriate cases consider whether continued visitation
or other contact with the abusing parent is in the best interest of the child. Among other
things, the circuit court should consider whether a close emotional bond has been
established between parent and child and the child's wishes, if he or she is of appropriate
maturity to make such request. The evidence must indicate that such visitation or
continued contact would not be detrimental to the child's well being and would be in the
child's best interest.' Syllabus Point 5, In re Christina L., 194 W. Va. 446, 460 S.E.2d
692 (1995). Syllabus point 8, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996).
The appellant herein and petitioner below, the West Virginia Department of Health and Human Resources [hereinafter DHHR], appeals the September 15, 1999, dispositional order entered by the Circuit Court of Mercer County regarding the minor children Emily B.See footnote 1 1 [hereinafter Emily] and her brother Amos B. (son) [hereinafter A.J.]. In that order, the circuit court denied the DHHR's motion to terminate the parental rights of the children's parents, the appellees herein and respondents below, Tracy B. [hereinafter Tracy] and Amos B. (father) [hereinafter Amos],See footnote 2 2 and granted each of the parents a one-year improvement period to commence upon Tracy's successful completion of an inpatient substance abuse treatment program and Amos' release from federal incarceration. On appeal to this Court, the DHHR contends that the circuit court erroneously granted a delayed improvement period and improperly denied its motion to terminate Tracy's and Amos' parental rights. Upon a review of the parties' arguments, the appellate record, and the pertinent authorities, we reverse the decision of the Circuit Court of Mercer County granting the parents a delayed improvement period. We order reversal in this instance because such an improvement period is not permitted by the relevant statutes governing abuse and neglect matters. See W. Va. Code § 49-6-1, et seq. Furthermore, as a result of this ruling, we vacate the circuit court's order denying the DHHR's motion to terminate the respondent parents' parental rights, and remand this case to permit the lower court to reconsider the matter and to conduct further proceedings consistent with this opinion.
By order entered November 5, 1998, the circuit court determined Emily and
A.J. to be in imminent danger,See footnote 8
with no alternative but to temporarily remove them from
their mother's care. See W. Va. Code § 49-6-3(a) (1998) (Repl. Vol. 1999). In so ruling,
the court also awarded legal and physical custody of the children to the DHHR. The
DHHR, in turn, placed the children with their maternal grandmother, Aletha M., with
whom they had been residing since November 3rd. Thereafter, a preliminary hearing was
held on November 16, 1998. At that time, the circuit court found Emily and A.J.
continued to be in imminent danger so as to preclude their return to Tracy's care, and
continued their legal and physical custody with the DHHR. The court further ordered
supervised visitation between Tracy and the children, and allowed the DHHR discretion
as to whether to permit visitation with Amos.
Following these proceedings, the parties developed a family case plan
whereby Tracy would complete extensive detoxification and substance abuse treatment
programs, submit to random drug screens by the DHHR, and create a safe and stable home
environment for Emily and A.J., including securing employment and maintaining a drug-
free atmosphere. No family case plan was devised for Amos, however, presumably
because the parties believed his incarceration would preclude his achievement of such
The adjudicatory hearing scheduled for January 13, 1999,See footnote 9
was continued to
March 31, 1999, at the request of Tracy's counsel, as a result of Tracy's enrollment in an
inpatient substance abuse treatment program pursuant to the terms of her family case plan.
On March 31, 1999, the court determined that Tracy had abandoned Emily and A.J. and
that Amos had, by virtue of his incarceration, technically abandoned the children.
Accordingly, the court adjudicated the children to be abused and/or neglected.
On April 28, 1999, the DHHR moved to terminate both parent's parental
rights based upon the circuit court's findings of abandonment and its statutory obligation
to seek termination of parental rights in cases involving abandonment.See footnote 10
See W. Va. Code
§ 49-6-5b(a)(2) (1998) (Repl. Vol. 1999) (directing that the DHHR shall file or join in
a petition or otherwise seek a ruling in any pending proceeding to terminate parental rights
. . . [i]f a court has determined the child is abandoned). Finally, on September 15, 1999,
the circuit court conducted a dispositional hearing in this case.See footnote 11
Upon the evidence
presented for its consideration, the court rendered the following findings and conclusions:
The Court FINDS that these infant children have a close and continuing relationship and strong bond with the respondent father,[See footnote 12 12 ] that it appears the respondent mother was probably the primary caretaker prior to the initiation of this action, and the Court suspects there is a strong bond between the respondent mother and the infants. The Court FINDS that when a reunification plan is adopted as to one parent, termination of the other parent's parental rights normally serves no purpose. This Court has difficulty terminating the respondent mother's rights, because this Court FINDS it very difficult to terminate the rights of the respondent father under the facts before the Court. The Court FINDS that the respondent father has recently resided in a structured environment as a result of his conviction for bank robbery, that he is participating and complying with all services provided by the Federal Correction Facility, such as visitation, drug and alcohol counseling, and parenting programs. On the other hand, the respondent mother is in an unstructured environment, and has failed to comply with any services provided her, and suffers from an apparent drug addiction. The Court FINDS that this case is one of those rare exceptions to delay the implementation of a permanency plan; as the respondent father is due to be released from incarceration between October 2000 and March 2001; specifically that this is not a case where a limited six month improvement period will be appropriate. The Court FINDS that an extended improvement period, or delay in implementing the same, will not unduly prejudice the infants because the infants are doing well in their current foster placement with the visitation available, that it is in the best interest of the infants to currently maintain the existing bond with their parents, and although the Department of Health and Human Resources has identified adoption as the permanency plan for these infants, the Department has not secured a permanent placement as of this date.
This Court will defer further disposition in this matter, and it is the ORDER and DECREE of this Court that the State's Motion to Terminate Parental Rights be denied as to both respondent parents. It is the ORDER and DECREE of this Court that both respondent parents be granted a one (1) year post-adjudicatory improvement period,[See footnote 13 13 ] that the formal implementation of the respondent father's six (6) month statutory improvement period be delayed until his release from incarceration, and that the formal implementation of the respondent mother's six (6) month statutory improvement period be delayed until she has successfully completed a long- term inpatient substance abuse treatment. . . .[See footnote 14 14 ]
(Footnotes added). From this order of the circuit court, the DHHR appeals.
At issue in this assignment of error is the authority of a circuit court to grant
an improvement period to parents facing the termination of their parental rights, and the
court's ability to further alter the commencement of such an improvement period.
Typically, an improvement period in the context of abuse and neglect proceedings is
viewed as an opportunity for the miscreant parent to modify his/her behavior so as to
correct the conditions of abuse and/or neglect with which he/she has been charged. The
goal of an improvement period is to facilitate the reunification of families whenever that
reunification is in the best interests of the children involved. State ex rel. Amy M. v.
Kaufman, 196 W. Va. 251, 258, 470 S.E.2d 205, 212 (1996). See also Syl. pts. 3 and 5,
State ex rel. West Virginia Dep't of Human Servs. v. Cheryl M., 177 W. Va. 688, 356
S.E.2d 181 (1987) (Syl. pt. 3: Under W. Va. Code, 49-6-2(b) (1984), when an
improvement period is authorized, then the court by order shall require the Department of
Human Services to prepare a family case plan pursuant to W. Va. Code, 49-6D-3
(1984).; Syl. pt. 5: The purpose of the family case plan as set out in W. Va. Code, 49-
6D-3(a) (1984), is to clearly set forth an organized, realistic method of identifying family
problems and the logical steps to be used in resolving or lessening these problems.).
As such, one who faces the termination of his/her parental rights may, during
the pendency of an abuse and neglect proceeding, move the presiding court for an
improvement period pursuant to W. Va. Code § 49-6-12(a(1),b(1),c(1)). Accord Syl. pt.
9, State ex rel. Diva P. v. Kaufman, 200 W. Va. 555, 490 S.E.2d 642 (1997) ('W. Va.
Code, 49-6-2(b) (1984), permits a parent to move the court for an improvement period
which shall be allowed unless the court finds compelling circumstances to justify a denial.'
Syl. Pt. 2, State ex rel. West Virginia Dep't of Human Servs. v. Cheryl M., 177 W. Va.
688, 356 S.E.2d 181 (1987).). See also W. Va. Code § 49-6-2(b) (1996) (Repl. Vol.
1999) (indicating that, [i]n any proceeding brought pursuant to the provisions of this
article, the court may grant any respondent an improvement period in accord with the
provisions of this article); W. Va. R. P. for Child Abuse & Neglect Proceed. 17(c)
(explaining proper form of motions in child abuse and neglect proceedings). Among the
types of improvement periods that may be available to the petitioning parent are those that
serve as an alternative disposition of an abuse and neglect proceeding [hereinafter
dispositional improvement period],See footnote 17
such as the improvement periods at issue herein:See footnote 18
The court may as an alternative disposition allow the parents or custodians an improvement period not to exceed six months. During this period the court shall require the parent to rectify the conditions upon which the determination was based. The court may order the child to be placed with the parents, or any person found to be a fit and proper person for the temporary care of the child during the period. At the end of the period the court shall hold a hearing to determine whether the conditions have been adequately improved, and at the conclusion of such hearing, shall make a further dispositional order in accordance with this section.
W. Va. Code § 49-6-5(c). Accord W. Va. R. P. for Child Abuse & Neglect Proceed. 38.
Thus, a circuit court may, in its discretion, grant the abusing/neglecting parent an
improvement period before it finally decides whether his/her parental rights should be
Improvement periods are further regulated, both in their allowance and in their duration, by the West Virginia Legislature, which has assumed the responsibility of implementing guidelines for child abuse and neglect proceedings generally. See W. Va. Code § 49-6-1, et seq. W. Va. Code § 49-6-12 (1996) (Repl. Vol. 1999), the main statute pertaining to improvement periods, contains various criteria to be considered by a circuit court in determining the propriety of such relief in a given case. For dispositional improvement periods,See footnote 19 19 the statute provides:
(c) The court may grant an improvement period not to exceed six months as a disposition pursuant to section five [§ 49-6-5] of this article when:
(1) The respondent moves in writing for the improvement period;
(2) The respondent demonstrates, by clear and convincing evidence, that the respondent is likely to fully
participate in the improvement period and the court further
makes a finding, on the record, of the terms of the
(3) In the order granting the improvement period, the court (A) orders that a hearing be held to review the matter within sixty days of the granting of the improvement period, or (B) orders that a hearing be held to review the matter within ninety days of the granting of the improvement period and that the department submit a report as to the respondent's progress in the improvement period within sixty days of the order granting the improvement period;
(4) Since the initiation of the proceeding, the respondent has not previously been granted any improvement period or the respondent demonstrates that since the initial improvement period, the respondent has experienced a substantial change in circumstances. Further, the respondent shall demonstrate that due to that change in circumstances, the respondent is likely to fully participate in the improvement period; and
(5) The order granting the improvement period shall require the department to prepare and submit to the court an individualized family case plan in accordance with the provisions of section three, article six-d [§ 49-6D-3] of this chapter.
W. Va. Code § 49-6-12(c).See footnote 20 20 While delineating a six-month duration for dispositional improvement periods,See footnote 21 21 this section also permits a circuit court to extend a dispositional improvement period for an additional three months, if the circumstances of an individual case warrant such an extension:
(g) A court may extend any improvement period granted pursuant to subsection . . . (c) of this section for a period not to exceed three months when the court finds that the respondent has substantially complied with the terms of the improvement period; that the continuation of the improvement period will not substantially impair the ability of the department to permanently place the child; and that such extension is otherwise consistent with the best interest of the child.[See footnote 22 22 ]
W. Va. Code § 49-6-12(g) (footnote added). Upon the conclusion of a dispositional improvement period, and any extension thereof, the circuit court is required to conduct a final dispositional hearing within sixty days of the improvement period's cessation. See W. Va. Code §§ 49-6-2(d), 49-6-12(k); W. Va. R. P. for Child Abuse & Neglect Proceed. 38. But see W. Va. Code § 49-6-12(j) (instructing that such a hearing may be continued only for good cause).
Even with these detailed guidelines, however, a parent charged with abuse
and/or neglect is not unconditionally entitled to an improvement period. For example,
when the award of an improvement period would jeopardize the best interests of the
subject child, the parent requesting such relief ordinarily will not be accommodated.
[C]ourts 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 . . . . Syl. Pt. 1, in part, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980).
Syl. pt. 7, in part, In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991). Similarly, when a parent cannot demonstrate that he/she will be able to correct the conditions of abuse and/or neglect with which he/she has been charged, an improvement period need not be awarded before the circuit court may terminate the offending parent's parental rights.
'Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, W. Va. Code, 49-6-5  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)  that conditions of neglect or abuse can be substantially corrected.' Syllabus Point 2, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980). Syllabus point 4, In re Jonathan P., 182 W. Va. 302, 387 S.E.2d 537 (1989). Syllabus Point 1, In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993).
Syl. pt. 7, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996). Likewise, when the conduct forming the basis of the abuse and/or neglect allegations consists of abandonment, such parental recalcitrance is perceived as so egregious as to warrant the virtually automatic denial of an improvement period. Abandonment of a child by a parent(s) constitutes compelling circumstances sufficient to justify the denial of an improvement period. Syl. pt. 2, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991). Finally, a dispositional improvement period is not available to a respondent parent where a finding is made pursuant to W. Va. Code, 49-6-5(a)(6)  that there is 'no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future,' and, pursuant to W. Va. Code, 49-6-2(b) , 'compelling circumstances' justify a denial thereof. Syl. pt. 3, in part, In re Darla B., 175 W. Va. 137, 331 S.E.2d 868 (1985).
A parent's rights are necessarily limited in this respect because the pre-
eminent concern in abuse and neglect proceedings is the best interest of the child subject
thereto. Syl. pt. 3, In re Michael Ray T., ___ W. Va. ___, ___ S.E.2d ___ (No. 26639
Dec. 3, 1999) ('Cases involving children must be decided not just in the context of
competing sets of adults' rights, but also with a regard for the rights of the child(ren).'
Syllabus point 7, In re Brian D., 194 W. Va. 623, 461 S.E.2d 129 (1995).).
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.
Syl. pt. 8, in part, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973). In other words, '[a]lthough 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.' Syl. Pt. 3, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996). Syl. pt. 3, In re Billy Joe M., ___ W. Va. ___, 521 S.E.2d 173 (1999). Accord Syl. pt. 1, State v. C.N.S., 173 W. Va. 651, 319 S.E.2d 775 (1984) ('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.' Syllabus Point 5, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).).
For this reason, then, the Legislature has very specifically commanded that
abuse and neglect proceedings shall be accorded the utmost priority on circuit court
Any petition filed and any proceeding held under the provisions of this article shall, to the extent practicable, be given priority over any other civil action before the court, except proceedings under article two-a [§ 48-2A-1 et seq.], chapter forty-eight of this code and actions in which trial is in progress. Any petition filed under the provisions of this article shall be docketed immediately upon filing. . . .
W. Va. Code § 49-6-2(d). Echoing these directives, this Court has adopted comparable language in Rule 2 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, which provides, in relevant part:
These rules shall be liberally construed to achieve safe,
stable, secure permanent homes for abused and/or neglected
children and fairness to all litigants. These rules are not to be
applied or enforced in any manner which will endanger or
harm a child. These rules are designed to accomplish the
(a) To provide fair, timely and efficient disposition of cases involving suspected child abuse or neglect[ and]
. . . .
(d) To reduce unnecessary delays in court proceedings through strengthened court case management . . . .
In the same vein, we repeatedly have held in our case law that abuse and neglect proceedings should be resolved as expediently as possible in order to safeguard the well being of the young children at the heart of such proceedings.
'Child abuse and neglect cases must be recognized as being among the highest priority for the courts' attention. Unjustified procedural delays wreak havoc on a child's development, stability and security.' Syl. Pt. 1, in part, In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991). Syllabus point 3, In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996).
Syl. pt. 2, In re Michael Ray T., ___ W. Va. ___, ___ S.E.2d ___ (No. 26639 Dec. 3, 1999). See also Syl. pt. 7, In re George Glen B., 205 W. Va. 435, 518 S.E.2d 863 (1999) ('The clear import of the statute [West Virginia Code § 49-6-2(d)] is that matters involving the abuse and neglect of children shall take precedence over almost every other matter with which a court deals on a daily basis, and it clearly reflects the goal that such proceedings must be resolved as expeditiously as possible.' Syl. Pt. 5, In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).).
Having reviewed the law of this State regarding improvement periods, we
turn now to the parties' contentions in the instant appeal. In its order granting Tracy and
Amos dispositional improvement periods, the circuit court delayed the commencement
thereof until Amos' release from incarceration and until Tracy has successfully
completed a long-term inpatient substance abuse treatment program. This ruling,
however, has no basis in the applicable governing law. While the Legislature has created
various types of improvement periods and has established specific time limits therefor,
nowhere has it provided for the delayed implementation thereof. See W. Va. Code §§ 49-
6-2(b,d), 49-6-5(c), 49-6-12. In fact, the very nature of a delayed improvement period
contradicts the established legislative purpose of expediting abuse and neglect proceedings
to safeguard the welfare of the child(ren) subject thereto. See W. Va. Code § 49-6-2(d);
Syl. pt. 7, In re George Glen B., 205 W. Va. 435, 518 S.E.2d 863.
Moreover, under the circumstances of the present case, the delayed
implementation of the respondent parents' improvement periods is particularly problematic
because, by the very terms of the court's ruling, the delay is indefinite. By basing the
commencement date upon such a speculative condition as Tracy's successful completion
of a substance abuse treatment program, the circuit court presupposes that she will be able
to accomplish, in the short-term, what she has been unwilling to do for the ten and one-half
months preceding the circuit court's order.See footnote 23
Furthermore, the language employed by the
circuit court in granting the respondent father a delayed improvement period is ambiguous.
Because it has not defined what constitutes Amos' release from incarceration, it is
unclear as to whether his improvement period shall commence upon his release to a half-
way house or home confinement, or whether his improvement period is further delayed
until his ultimate release from federal custody in March, 2001. In any event, for each of
the potential dates upon which Amos' improvement period could start, one naturally must
assume that he will, in fact, be eligible for release upon those dates certainSee footnote 24
and that he
will not have lost any good time credited to his sentence. One must also suppose that
Amos will be able to assimilate back into society, after a four year sojourn therefrom due
to his own socially deviant behavior, to such a degree as to be determined a fit and proper
caretaker for his children. As a result of the plethora of difficulties surrounding the very
idea of delayed improvement periods, not to mention the logistical impossibilities of
implementing the same and the rights of the innocent children which will unquestionably
be trammeled if such an attempt is made, we conclude that the circuit court's order
granting such relief to the respondent parents was in error.
Accordingly, we hold that the commencement of a dispositional improvement
period in abuse and neglect cases must begin no later than the date of the dispositional
hearing granting such improvement period. We hold further that, at all times pertinent
thereto, a dispositional improvement period is governed by the time limits and eligibility
requirements provided by W. Va. Code § 49-6-2 (1996) (Repl. Vol. 1999), W. Va. Code
§ 49-6-5 (1998) (Repl. Vol. 1999), and W. Va. Code § 49-6-12 (1996) (Repl. Vol. 1999).
As the delayed dispositional improvement periods at issue herein clearly
violate the statutory mandates and contravene the judicial decisions pertaining to
improvement periods, the decision of the circuit court awarding each of the respondent
parents a delayed dispositional improvement period is hereby reversed.
Responding to these contentions, Amos and Tracy dispute that they have ever
abandoned their children so as to warrant the termination of their parental rights. Tracy
contends that her conduct does not satisfy the six-month abandonment period contained in
W. Va. Code § 48-4-3c(a)(2) (1997) (Repl. Vol. 1999).See footnote 26
Likewise, Amos contends that
he did not abandon his children because when he was incarcerated, he entrusted Emily and
A.J. to their mother's care. In addition, the respondent parents assert that neither the
statutes governing abuse and neglect proceedings nor this Court's jurisprudence
interpreting the same include incarceration as a factor upon which the termination of a
parent's parental rights may be based. Accordingly, they urge that the fact that a parent
is incarcerated does not, per se, warrant the termination of the imprisoned parent's
parental rights. See, e.g., In re Adoption of Maynor, 38 N.C. App. 724, 248 S.E.2d 875
(1978); Hon. Jean M. Johnson & Christa N. Flowers, You Can Never Go Home Again:
The Florida Legislature Adds Incarceration to the List of Statutory Grounds for
Termination of Parental Rights, 25 Fla. St. U. L. Rev. 335 (1998). Finally, Tracy
contends that if, apart from the fact of his incarceration, Amos is entitled to participate in
an improvement period and/or retain his parental rights, then her parental rights should not
be terminated because, in the words of the circuit court, when a reunification plan is
adopted as to one parent, termination of the other parent's parental rights normally serves
Although the allegations of abuse and neglect lodged by the DHHR against the respondent parents warrant careful consideration, and a final resolution to these year- and-a-half long proceedings is imperative, we are left with the firm conviction that the final disposition of this abuse and neglect case is more appropriately decided, in the first instance, by the circuit court. Our reasons for this conclusion are two-fold. First, in the context of abuse and neglect proceedings, the circuit court is the entity charged with weighing the credibility of witnesses and rendering findings of fact. Syl. pt. 1, in part, In re Travis W., ___ W. Va. ___, ___ S.E.2d ___ (No. 26640 Dec. 7, 1999) ([W]hen 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. . . . (internal citations and quotations omitted)). This Court, therefore, cannot set aside a circuit court's factual determinations unless such findings are clearly erroneous. Id. In the instant appeal, the record presented for our appellate consideration does not adequately contain essential information necessary for this Court to review the circuit court's rulings under a clearly erroneous standard. Conspicuously absent from the appellate record are the transcripts of the various hearings held in the proceedings underlying this appeal. Also missing from the record presented for our consideration are the reasoned recommendations of the children's guardian ad litem as to the disposition most consistent with Emily's and A.J.'s welfare and best interests, the only indication of which is a solitary reference in the circuit court's dispositional order reflecting that the Guardian Ad Litem is seeking termination of the respondent mother's rights only.See footnote 27 27 Both of these pieces of vital information have been omitted from the record presented for our consideration despite our clear and oft-repeated admonitions that parties appearing before this Court are responsible for designating the appellate recordSee footnote 28 28 and that guardians are duty-bound to provide guidance to the tribunal charged with determining the subject child(ren)'s ultimate fate.See footnote 29 29
Second, as we decided in the preceding section, see supra Section III.A., the circuit court erred by granting the parties a delayed improvement period as such a construct does not exist in either the statutory or jurisprudential law of this State. From those portions of the record that we do have at our disposal in the instant proceeding, however, it seems that the circuit court was very likely torn between the DHHR's allegations of abuse and neglect, on the one hand, and Amos' efforts to improve his parenting skills and continue his relationship with his children, on the other hand. While we do not profess to know the innermost workings of the Circuit Court of Mercer County, particularly in light of the fact that the appellate record is completely devoid of any hearing transcripts reflecting the lower court's reasoning for its rulings, we nonetheless find that it is quite likely that the circuit court granted the respondent parents delayed improvement periods in lieu of considering the merits of the DHHR's motion to terminate their parental rights. In that we have thwarted the circuit court's attempted circumvention of a final disposition of this case at the present time, we conclude that it is proper to vacate the court's order insofar as it denied the DHHR's termination motion and to remand this case to permit the circuit court to reconsider, on the merits, the DHHR's motion to terminate Amos' and Tracy's parental rights. See Syl. pt. 7, In re Michael Ray T., ___ W. Va. ___, ___ S.E.2d ___ (No. 26639 Dec. 3, 1999) (''In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken.' Syllabus Point 1, Mowery v. Hitt, 155 W. Va. 103[, 181 S.E.2d 334] (1971). Syl. pt. 1, Shackleford v. Catlett, 161 W. Va. 568, 244 S.E.2d 327 (1978).' Syllabus point 3, Voelker v. Frederick Business Properties Co., 195 W. Va. 246, 465 S.E.2d 246 (1995).).
In spite of our conclusion that the circuit court is the better-equipped tribunal to render an initial disposition of this case, the parties' arguments nevertheless incorporate several important legal issues instructive to the circuit court's ultimate decision on remand.
First, the respondent parents assert that incarceration, per se, does not warrant the termination of an incarcerated parent's parental rights. With this statement of the applicable law, we readily agree.See footnote 30 30 As it has been duly noted, the Legislature has assumed the task of establishing a body of law to govern abuse and neglect proceedings. See W. Va. Code § 49-6-1, et seq. Within this statutory authority, however, the Legislature has not deemed it necessary to base the termination of an individual's parental rights solely upon the fact of his/her incarceration. See W. Va. Code § 49-6-5(a,b).See footnote 31 31
Indeed, in our numerous cases applying the Legislature's edicts in this regard, we also have been reluctant to find that incarceration, per se, warrants the termination of an imprisoned parent's parental rights. See, e.g., State v. Tammy R., 204 W. Va. 575, 577 n.4, 578 n.7, & 580 n.13, 514 S.E.2d 631, 633 n.4, 634 n.7, & 636 n.13 (1999) (per curiam) (limiting appellate review to issue of child's placement and declining to consider whether mother's incarceration amounted to abandonment so as to warrant termination of her parental rights); West Virginia Dep't of Health & Human Resources ex rel. Wright v. Brenda C., 197 W. Va. 468, 479, 475 S.E.2d 560, 571 (1996) (per curiam) (Cleckley and Albright, JJ., concurring) (recognizing majority's failure to address impact of mother's incarceration upon circuit court's decision to terminate her parental rights); Nancy Viola R. v. Randolph W., 177 W. Va. 710, 712 n.2, 356 S.E.2d 464, 466 n.2 (1987) (not[ing] that counsel for the appellant urges that Randolph W.'s prolonged incarceration constitutes willful abandonment of his child and determining that, [b]ecause of our holding in this case, we need not address the abandonment issue, which has far-reaching implications for any parent or guardian who may be incarcerated in a penal institution or becomes a patient in a mental institution). Instead, we have cautiously acknowledged that while certain incidences of incarceration certainly are more egregious than others and should be considered when contemplating the termination of parental rights,See footnote 32 32 [a] natural parent of an infant child does not forfeit his or her parental right to the custody of the child merely by reason of having been convicted of one or more charges of criminal offenses. Syl. pt. 2, State ex rel. Acton v. Flowers, 154 W. Va. 209, 174 S.E.2d 742 (1970) (emphasis added).
Thus, while an individual's incarceration may be a criterion in determining
whether his/her parental rights should be terminated, other factors and circumstances
impacting his/her ability to remedy the conditions of abuse and neglect should also be
considered when making such a disposition.See footnote 33
See, e.g., In re Jamie Nicole H., 205
W. Va. 176, 180-81, 517 S.E.2d 41, 45-46 (1999) (affirming circuit court's order refusing
to extend mother's improvement period based upon her inability to care for her children
and her lack of employment and suitable housing, which presumably resulted, in part,
from her repeated incarcerations during abuse and neglect proceedings); Nancy Viola R.,
177 W. Va. at 713-15, 356 S.E.2d at 467-69 (basing termination of father's parental rights
upon his conviction of first degree murder of his child's mother; his prolonged period of
imprisonment therefor; his history of habitual alcohol abuse; and his history of domestic
violence towards his child's mother). For example, in the case sub judice, the circuit court
may consider Amos' incarceration in deciding whether his parental rights should be
terminated, but the court must also evaluate additional evidence relevant to his ability to
parent his children, such as his history of substance abuse; the allegations of his past
domestic violence towards Tracy; his participation in parenting classes during his
incarceration; his regular visits with and telephone calls to his children during his
imprisonment; his frequent inquiries as to the health and well being of his children during
these proceedings; and any additional information which the lower court deems instructive
to its decision.
Next, the respondent parents contend that Amos' parental rights should not
be terminated because he has a strong emotional bond with Emily and A.J. fostered, in
large part, by his regular visits with his children during his incarceration.See footnote 34
record in this case, it is apparent that this precise factual issue has not been finally resolved
by the circuit court in that reports by the psychologist evaluating the children variously
indicate that there does and there does not exist such a bond, and that, if such emotional
ties do exist, they are not equally experienced by both children. Likewise, we can find no
indication in the appellate record of the guardian ad litem's views on whether continued
visitation between the children and their father would be in the youngsters' best interests
or whether it would, in fact, be detrimental to them. On this factual issue, then, we defer
to the circuit court's initial evaluation of the evidence. See Syl. pt. 1, In re Travis W., ___
W. Va. ___, ___ S.E.2d ___ (No. 26640 Dec. 7, 1999). Once the lower court has
properly considered this information, it may use such findings to instruct its final
disposition of this case vis-a-vis the extent of, if any, parental contact Amos will be
entitled to retain.
In other words, if the circuit court deems that there exists a sufficient
emotional bond between the respondent father and his children, but also concludes that his
parental rights should be terminated, that tribunal may grant Amos post-termination
visitation with Emily and A.J., provided such a continued relationship is in the children's
best interests and would not unreasonably interfere with their permanent placement.
State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 260, 470 S.E.2d 205, 214 (1996).
When parental rights are terminated due to neglect or abuse, the circuit court may nevertheless in appropriate cases consider whether continued visitation or other contact with the abusing parent is in the best interest of the child. Among other things, the circuit court should consider whether a close emotional bond has been established between parent and child and the child's wishes, if he or she is of appropriate maturity to make such request. The evidence must indicate that such visitation or continued contact would not be detrimental to the child's well being and would be in the child's best interest. Syllabus Point 5, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995).
Syl. pt. 8, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996). See also Syl. pt. 11, In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996) (A child has a right to continued association with individuals with whom he has formed a close emotional bond, including foster parents, provided that a determination is made that such continued contact is in the best interests of the child.). We repeat our admonition, however, that in visitation matters, the best interests of the child(ren) are paramount. Syl. pt. 5, Carter v. Carter, 196 W. Va. 239, 470 S.E.2d 193 (1996).
Lastly, Tracy contends that if Amos is permitted to retain his parental rights,
hers need not be terminated. Instead, she claims that [t]he Circuit Court can merely
order the custodial parent to not allow the children involved to have contact with the non-
custodial parent, and that allowance of parental rights would enable the collection of child
support from the non-custodial parent. As we have previously discussed, the circuit court
is the more appropriate tribunal to decide, in the first instance, whether the respondent
parents' parental rights should, in fact, be terminated. However, we wish to clarify a few
points of law implicated by Tracy's contentions on this point.
First, the argument advanced by Tracy in this respect fails to appreciate the
fact that the termination of parental rights is not an all-or-nothing proposition. The statute
governing terminations, W. Va. Code § 49-6-5, permits the termination of one parent's
parental rights while leaving the rights of the nonabusing parent completely intact, if the
circumstances so warrant. The circuit court is authorized,
[u]pon 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, [to] terminate the parental, custodial or guardianship rights and/or responsibilities of the abusing parent and [to] 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.
W. Va. Code § 49-6-5(a)(6) (emphasis added). By the same token, simply because one parent has been found to be a fit and proper caretaker for his/her child does not automatically entitle the child's other parent to retain his/her parental rights if his/her conduct has endangered the child and such conditions of abuse and/or neglect are not expected to improve. Id.
Additionally, to retain her parental rights, Tracy must demonstrate that she
is, in fact, able to properly care for Emily and A.J. As we noted with respect to Amos,
the circuit court must consider all the circumstance influencing Tracy's parenting abilities
in rendering such a decision, including her occasional visits with Emily and A.J.; her
substance abuse problems; her maintenance of, or her inability to maintain, a suitable
home and steady employment; and her disappearance from January, 1999, until August,
Finally, in rendering a final disposition of this matter, we urge the circuit
court to consider all of the possible dispositions available in abuse and neglect proceedings,
see W. Va. Code § 49-6-5, and the circumstances under which termination of parental
rights is statutorily required, see W. Va. Code § 49-6-5b (1998) (Repl. Vol. 1999).See footnote 35
Reversed, in part, Vacated, in part, and Remanded.
Footnote: 1 1In this case involving sensitive facts, we adhere to our usual practice adopted in other such cases and refer to the parties by their last initials rather than by their complete surnames. See, e.g., In re Michael Ray T., ___ W. Va. ___, ___ n.1, ___ S.E.2d ___, ___ n.1, slip op. at 1 n.1 (No. 26639 Dec. 3, 1999); State ex rel. Diva P. v. Kaufman, 200 W. Va. 555, 559 n.2, 490 S.E.2d 642, 646 n.2 (1997); In re Tiffany Marie S., 196 W. Va. 223, 226 n.1, 470 S.E.2d 177, 180 n.1 (1996).
serving a fifty-one month sentence for the robbery of a bank and a convenience store. He is expected to be released from custody upon the completion of his sentence in March, 2001, but he may be released as early as October, 2000, to a half-way house in Dunbar, West Virginia, or on home confinement, as a result of good time credit.
Imminent danger to the physical well-being of the
child means an emergency situation in which the welfare or
the life of the child is threatened. Such emergency situation
exists when there is . . . reasonable cause to believe that the
following conditions threaten the health or life of any child in
. . . .
(4) Abandonment by the parent, guardian or custodian[.]
W. Va. Code § 49-1-3(e) (1998) (Repl. Vol. 1998). See also W. Va. Code § 49-1-3(e) (1999) (Repl. Vol. 1999) (same). In presenting its abuse and neglect petition to the circuit court, the DHHR relied upon the statutory definitions of child neglect and neglected child to demonstrate the children's imminent danger, as illustrated by the facts alleged in its petition. See W. Va. Code § 49-1-3(c) (1998) (defining [c]hild abuse and[/or] neglect as including physical injury, mental or emotional injury, . . . or negligent treatment or maltreatment of a child by a parent, guardian or custodian who is responsible for the child's welfare, under circumstances which harm or threaten the health and welfare of the child); W. Va. Code § 49-1-3(h)(1) (1998) (construing term [n]eglected child as a child (A) [w]hose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child's parent, guardian or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care or education, when such refusal, failure or inability is not due primarily to a lack of financial means on the part of the parent, guardian or custodian; or (B) [w]ho is presently without necessary food, clothing, shelter, medical care, education or supervision because of the disappearance or absence of the child's parent or custodian). See also W. Va. Code § 49-1-3(c,h(1)) (1999) (same).
The Court FINDS that the reunification plan previously developed by the Department of Health and Human Resources for the respondent mother was a good plan, and directs that the same be implemented as a post-adjudicatory improvement period for the respondent mother; the Department is ORDERED to finance any substance abuse treatment programs it arranges for the respondent mother, and the respondent father should continue to pursue any appropriate services provided by the prison system, and not engage in any behavior that would delay his release.
[a]lthough it is sometimes a difficult task, the trial court
must accept the fact that the statutory limits on improvement
periods (as well as our case law limiting the right to
improvement periods) dictate that there comes a time for
decision, because a child deserves resolution and permanency
in his or her life, and because part of that permanency must
include at minimum a right to rely on his or her caretakers to
be there to provide the basic nurturance of life.
State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 260, 470 S.E.2d 205, 214 (1996).
the body of statutes governing adoptions, provides, in pertinent part:
(a) Abandonment of a child over the age of six months
shall be presumed when the birth parent:
(1) Fails to financially support the child within the means of the birth parent; and
(2) Fails to visit or otherwise communicate with the child when he or she knows where the child resides, is physically and financially able to do so and is not prevented from doing so by the person or authorized agency having the care or custody of the child: Provided, That such failure to act continues uninterrupted for a period of six months immediately preceding the filing of the adoption petition.
Rule XIII [current Rule 21.01] of the West Virginia Rules for Trial Courts of Record provides that a guardian ad litem shall make a full and independent investigation of the facts involved in the proceeding, and shall make his or her recommendations known to the court. Rules 1.1 and 1.3 of the West Virginia Rules of Professional Conduct, respectively, require an attorney to provide competent representation to a client, and to act with reasonable diligence and promptness in representing a client. The Guidelines for Guardians Ad Litem in Abuse and Neglect cases, which are adopted in this opinion and attached as Appendix A, are in harmony with the applicable provisions of the West Virginia Code, the West Virginia Rules for Trial Courts of Record, and the West Virginia Rules of Professional Conduct, and provide attorneys who serve as guardians ad litem with direction as to their duties in representing the best interests of the children for whom they are appointed.). See also Syl. pt. 5, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991) (The guardian ad litem's role in abuse and neglect proceedings does not actually cease until such time as the child is placed in a permanent home.); Syl. pt. 3, In re Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991) (In a proceeding to terminate parental rights pursuant to W. Va. Code, 49-6-1 to 49-6-10, as amended, a guardian ad litem, appointed pursuant to W. Va. Code, 49-6-2(a), as amended, must exercise reasonable diligence in carrying out the responsibility of protecting the rights of the children. This duty includes exercising the appellate rights of the children, if, in the reasonable judgment of the guardian ad litem, an appeal is necessary.). See also W. Va. R. P. for Child Abuse & Neglect Proceed. 52(g) (directing that [t]he duties and responsibilities of a child's guardian ad litem shall continue until such child has a permanent placement, and the guardian ad litem should not be relieved of his responsibilities until such permanent placement has been achieved).
no reasonable likelihood that conditions of neglect or abuse
can be substantially corrected shall mean that, based upon the
evidence before the court, the abusing adult or adults have
demonstrated an inadequate capacity to solve the problems of
abuse or neglect, on their own or with help. Such conditions
shall be deemed to exist in the following circumstances, which
shall not be exclusive:
(1) The abusing parent or parents have habitually abused or are addicted to alcohol, controlled substances or drugs, to the extent that proper parenting skills have been seriously impaired and such person or persons have not responded to or followed through the recommended and appropriate treatment which could have improved the capacity for adequate parental functioning;
(2) The abusing parent or parents have willfully refused or are presently unwilling to cooperate in the development of a reasonable family case plan designed to lead to the child's return to their care, custody and control;
(3) The abusing parent or parents have not responded to or followed through with a reasonable family case plan or other rehabilitative efforts of social, medical, mental health or other rehabilitative agencies designed to reduce or prevent the abuse or neglect of the child, as evidenced by the continuation or insubstantial diminution of conditions which threatened the
health, welfare or life of the child;
(4) The abusing parent or parents have abandoned the child;
(5) The abusing parent or parents have repeatedly or seriously injured the child physically or emotionally, or have sexually abused or sexually exploited the child, and the degree of family stress and the potential for further abuse and neglect are so great as to preclude the use of resources to mitigate or resolve family problems or assist the abusing parent or parents in fulfilling their responsibilities to the child; or
(6) The abusing parent or parents have incurred emotional illness, mental illness or mental deficiency of such duration or nature as to render such parent or parents incapable of exercising proper parenting skills or sufficiently improving the adequacy of such skills.
W. Va. Code § 49-6-5(b).
ha[ve] been in foster care for fifteen of the most recent twenty-
two months as determined by the earlier of the date of the first
judicial finding that the child[ren] [were] subjected to abuse or
neglect or the date which is sixty days after the child[ren]
[were] removed from the home[.]
W. Va. Code § 49-6-5b(a)(1) (1998) (Repl. Vol. 1999).