Karen L. Garrett
Joyce E. Stewart
Garrett & Garrett Guardian ad Litem
Moorefield, West Virginia Moorefield, West Virginia
Attorney for the Appellant, Attorney for the children,
Shannon R., Mother Desarae M., Destiny M. and Britney M.
Darrell V. McGraw, Jr.
Charleston, West Virginia
C. Carter Williams
Assistant Attorney General
Petersburg, West Virginia
Attorneys for the Appellee,
West Virginia Department of
Health and Human Resources
The Opinion of the Court was delivered PER CURIAM.
JUSTICE DAVIS concurs in part and dissents in part and reserves the right to file a separate opinion.
1. 'When this Court reviews challenges to the findings and conclusions of the
circuit court, a two-prong deferential standard of review is applied. We review the final
order and the ultimate disposition under an abuse of discretion standard, and we review the
circuit court's underlying factual findings under a clearly erroneous standard.' Syl. Pt. 1,
McCormick v. Allstate Insurance Company, 197 W. Va. 415, 475 S.E.2d 507 (1996). Syl.
Pt. 1, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998).
2. 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. Syl. Pt. 5, State
ex rel. Dep't of Human Services v. Cheryl M. , 177 W. Va. 688, 356 S.E.2d 181 (1987).
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. 3, State ex rel.
Dep't of Human Services v. Cheryl M.
, 177 W. Va. 688, 356 S.E.2d 181 (1987).
4. Under W.Va. Code, 49-6D-3 (1984), the Department of Human Services
is required to prepare a family case plan with participation by the parties and their counsel
and to submit it to the court for approval within thirty days. Syl. Pt. 4, State ex rel. Dep't of
Human Services v. Cheryl M. , 177 W. Va. 688, 356 S.E.2d 181 (1987).
In formulating the improvement period and family case plans, courts and
social service workers should cooperate to provide a workable approach for the resolution
of family problems which have prevented the child or children from receiving appropriate
care from their parents. The formulation of the improvement period and family case plans
should therefore be a consolidated, multi-disciplinary effort among the court system, the
parents, attorneys, social service agencies, and any other helping personnel involved in
assisting the family. Syl. Pt. 4, In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).
6. Where there is clear and convincing evidence that a child has suffered physical and/or sexual abuse while in the custody of his or her parent(s), guardian, or custodian, another child residing in the home when the abuse took place who is not a direct victim of the physical and/or sexual abuse but is at risk of being abused is an abused child under W.Va.Code, 49-1-3(a) (1994). Syl. Pt. 2, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995).
7. 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. Syl. Pt. 3, James M. v. Maynard, 185 W. Va. 648, 408
S.E.2d 400 (1991).
8. In cases where there is a termination of parental rights, the circuit court
should consider whether continued association with siblings in other placements is in the
child's best interests, and if such continued association is in such child's best interests, the
court should enter an appropriate order to preserve the rights of siblings to continued
contact. Syl. Pt. 4, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991).
9. 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).
This is an appeal by Shannon R.
(See footnote 1)
(hereinafter Appellant) from a final order
of the Circuit Court of Hampshire County terminating her parental rights to her three
children, Britney, Destiny, and Desarae M.
(See footnote 2)
The Appellant appeals that termination order
to this Court, alleging that the lower court committed several reversible errors. Upon
thorough evaluation of the record, briefs, and arguments of counsel,
we reverse the determination of the lower court and remand for one additional improvement period to be
conducted in compliance with applicable statutory mandates and consistent with this opinion.
Desarae was subsequently transferred to Ruby Memorial Hospital in
Morgantown, West Virginia.
(See footnote 5)
She was also transported to Pittsburgh Children's Hospital in
Pittsburgh, Pennsylvania, for a period of approximately one week before returning to Ruby
Memorial Hospital. Including all four hospitals, Desarae was hospitalized from March 9,
2002, through April 29, 2002.
On March 11, 2002, the Department of Health and Human Resources (hereinafter DHHR) filed an application for emergency custody, alleging imminent danger to all three children. On March 13, 2002, the DHHR filed an Abuse and Neglect Petition requesting that custody of all three children be placed with the DHHR. The DHHR alleged that all three children were abused and neglected children primarily based upon the unexplained multiple and serious injuries to Desarea and the failure of [the mother] to provide the children with needed medications and supervision. Attorney Joyce Stewart was appointed as guardian ad litem for the children. Attorney Karen Garrett was appointed to represent the Appellant, and Attorney William Keaton was appointed to represent the children's father, Dwayne M.
Psychologist Renee Harris began working with the children in April 2002 and
reported that Destiny had indicated that she had been subjected to sexual abuse by the
Appellant's boyfriend. Subsequent medical examinations of Destiny and Britney were
inconclusive regarding the alleged sexual abuse. On May 2, 2002, the lower court conducted
an adjudicatory hearing and received testimony from Child Protective Services Worker Susan
Wilt regarding her visit to Desarae at Cumberland Memorial Hospital and subsequent
experience in this matter. The lower court also entertained telephonic testimony concerning
Desarae's injuries from Dr. Peter Ehrlich, a pediatric surgeon in Morgantown, West Virginia.
Dr. Susan Nuber of Cumberland, Maryland, also testified telephonically and explained her
findings regarding Desarae's injuries. Both physicians opined that Desarae's injuries were
caused by physical abuse rather than accidental means. The Appellant also testified at this
hearing, maintaining that neither she nor her boyfriend, Victor, had caused any of Desarae's
injuries. At the conclusion of the adjudicatory hearing, the lower court found that Desarae
was an abused and neglected child.
During a May 29, 2002, hearing, the lower court granted the Appellant an
(See footnote 6)
and placed goals and requirements for such improvement period on the
(See footnote 7)
A formal family case plan, as required by West Virginia Code § 49-6D-3(a) (1984)
(Repl. Vol. 2001), was not submitted.
The record reveals multiple areas of difficulty and delay encountered by all
parties during the improvement period. One of the most troubling issues is the Appellant's
apparent lack of ability to remove herself from the relationship with her boyfriend, Victor.
Counsel for the Appellant informed the lower court during the May 29, 2002, hearing that
her client had chosen her children over her boyfriend, but economic limitations had made it
difficult to remove herself from the home she and Victor shared.
The Appellant also alleges that personnel shortages within DHHR limited her
success during her improvement period. She emphasizes an incident in September 2002 in
which the children were not transported to the designated visitation site for visitation. The
caseworkers had apparently terminated their employment with the DHHR and alternate
arrangements had not been made.
The Appellant was initially counseled by Mr. Greg Trainor but was requested
by the DHHR to begin counseling with Cindy Hay since Ms. Hay had conducted some
parenting classes in which the Appellant had participated. The Appellant asserts that her
counseling sessions were limited since the therapist was on vacation from July 15, 2002,
through August 5, 2002.
During a September 2002 MDT meeting, the Appellant reported that she had
maintained a job for two weeks at a gas station store in Winchester, Virginia. Although the
Appellant alleged that she had not seen Victor for a few months, members of Victor's family
had allegedly informed the DHHR that Victor had been staying with the Appellant. The
DHHR also presented a letter from the Appellant to Victor, written in September 2002, in
which she had told Victor that she wanted to have a child with him. The Appellant was also
incarcerated in Baltimore City Jail on a warrant for Failure to Appear at a scheduled court
On December 18, 2002, the lower court conducted a dispositional hearing and
heard testimony from the individual counselor providing services to the Appellant, the
therapist for the children, a representative from Family Preservation Services, and a
caseworker from the DHHR. The evidence revealed that the Appellant was unable to locate
steady employment during the improvement period, continued to maintain some degree of relationship with Victor, and
failed to follow through with all therapy goals. Guardian ad litem Joyce
Stewart, DHHR caseworkers, the therapist for children, and therapist for
mother all indicated that termination of parental rights was in best interest
court found that, pursuant to West Virginia Code § 49-6-5(6), there was no reasonable
likelihood that the conditions of neglect or abuse could be substantially corrected in the near
future, and the Appellant's parental rights were terminated to all children by order dated
January 29, 2003.
The Appellant appeals the termination of parental rights, alleging that the lower
court erred by(1) allowing physicians from Morgantown, West Virginia, and Cumberland,
Maryland, to testify at the adjudicatory hearing through a telephonic conference; (2) failing
to require the DHHR to prepare an individualized family case plan; (3) erroneously ruling
that the conditions of neglect or abuse cannot be corrected; (4) failing to recognize a conflict
of interest of a DHHR worker because she had previously worked in the Appellant's home;
(5) failing to grant a less restrictive alternative; (6) allowing a psychologist for Britney and
Destiny to testify regarding the statements of the children on the issue of sexual abuse; (7)
terminating her parental rights to Britney and Destiny despite the absence of an adjudication
finding them to be neglected or abused; (8) refusing to permit counsel for the Appellant to
argue a motion for return of custody of Britney and Destiny.
This Court has repeatedly examined the benefits of a family case plan and the
statutory requirement for the family case plan as an important component of an improvement
period. See In re Jamie Nicole H., 205 W. Va. 176, 182, 517 S.E.2d 41, 47 (1999)
(Pursuant to West Virginia Code § 49-6D-3 (1998), a family case plan must be developed
by the DHHR and submitted to the circuit court). In syllabus point five of State ex rel.
Department of Human Services v. Cheryl M., 177 W. Va. 688, 356 S.E.2d 181 (1987), we
explained that [t]he 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. Syllabus point
three of Cheryl M. stated: 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). 177 W. Va. at 688,
356 S.E.2d at 181 (emphasis supplied). Syllabus point four of Cheryl M. continued as
follows: Under W.Va. Code, 49-6D-3 (1984), the Department of Human Services is
required to prepare a family case plan with participation by the parties and their counsel
and to submit it to the court for approval within thirty days.
In Cheryl M., somewhat similar to the case at bar, the lower court and the
Department of Human Services had failed to formulate a family case plan.
(See footnote 9)
This Court in
Cheryl M. emphasized that a family case plan
is designed to foreclose a natural parent from
being placed in an amphorous improvement period where there are no detailed standards by
which the improvement steps can be measured. 177 W. Va. at 693-94, 356 S.E.2d at 186-
87. The Cheryl M. Court also noted that the family case plan also provides a meaningful
blueprint that the [DHHR] can monitor and which will also give the court specific
information to determine whether the terms of the improvement period were met. Without
such a plan, a court is then confronted with general testimony as to whether the natural
parent has shown the requisite 'improvement.' 177 W. Va. at 694, 356 S.E.2d at 187.
In Cheryl M, this Court provided the following explanation of the improtance
of the family case plan:
The point that bears emphasizing is that under W.Va. Code, 49-6-2(b), the family case plan is triggered when a court orders an improvement period. Here, the court took no formal action to order an improvement period and, as a consequence, there was never any court-approved family case plan as required by W.Va. Code, 49-6D-3(b).
It must be remembered that W.Va. Code, 49-6D-3, is a
part of a larger enactment known as the West Virginia Child
Protective Services Act (CPSA), W.Va. Code, 49-6D-1, et seq.
Its purpose and intent are set out in W.Va. Code, 49-6D-2,
which emphasizes that the intention of the legislature [is] to
provide for the removal of a child from the custody of the
child's parents only when the child's welfare cannot be
otherwise adequately safeguarded. (Emphasis added).
177 W. Va. at 694, 356 S.E.2d at 187.
This Court in Cheryl M. also addressed the issue of rigorous compliance with
statutory mandates and quoted the following language from a Connecticut case, In re
Juvenile Appeal, 420 A.2d 875 (Conn. 1979):
Insistence upon strict compliance with the statutory criteria before termination of parental rights and subsequent adoption proceedings can occur is not inconsistent with concern for the best interests of the child. Rather, it enhances the child's best interests by promoting autonomous families and by reducing the dangers of arbitrary and biased decisions amounting to state intrusion disguised under the rubric of the child's 'best interests.'
420 A.2d at 886-87. We also explained as follows in syllabus point four of In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991):
In formulating the improvement period and family case plans, courts and social service workers should cooperate to provide a workable approach for the resolution of family problems which have prevented the child or children from receiving appropriate care from their parents. The formulation of the improvement period and family case plans should therefore be a consolidated, multi-disciplinary effort among the court system, the parents, attorneys, social service agencies, and any other helping personnel involved in assisting the family.
Id. at 616, 408 S.E.2d at 368. We further explained as follows in Carlita B.:
The goal [of improvement periods and case plans] 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 D.H.S. 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.
record in this case indicated that extreme cruelty was inflicted upon Desarae.
Despite the egregiousness of these accusations, however, once the lower court
grants an improvement period, certain procedural requirements have to be
followed. It is very tempting to circumvent the statutory requirement by
focusing upon the severity of abuse, the absence of clear indication that
the mother is capable of improvement even given a concise family case plan,
or the recalcitrance of the mother in removing herself from the relationship
with the alleged abuser. Indeed, these are compelling arguments. The fact
remains, however, that the Legislature has set forth certain requirements, explained in detail
in the statutes, for the proper conduct of an improvement period during an abuse and neglect
proceeding. A pre-eminent factor is the preparation and adoption of a family case plan.
One of the purposes served by such a family case plan is the identification not only of goals but of specific means of measuring progress or the lack of progress toward those goals. A properly prepared and implemented family case plan provides the parent or parents, the DHHR, and the court with a means of measuring progress and effort, of dealing promptly with failure to provide or avail oneself of services, or in the best of circumstances, of documenting successful completion of an improvement effort. By contrast, a mere recital of goals, as included on the record in this case, may lead, as it has here, to conflicting testimony about which, if any, goals were met or the degree to which such goals were met. It may also lead to uncertainty regarding whether the failure to achieve one or more of the goals arises from mere obstinacy, the lack of or interruption of services to the family, or some other cause or circumstances.
This Court concludes that we cannot overlook the requirement of a family case
plan in this case where it is crystal clear that none was prepared and there is substantial
evidence that oversight of the family's progress was simply non-existent during the weeks
in which there were no DHHR caseworkers available to monitor that progress. Moreover,
we believe it inappropriate to overlook the absence of a family case plan in this case, lest
courts, workers, and families who strive to meet designated requirements and work through
such plans come to view such plans as optional rather than the mandatory tools our statute
Based upon the foregoing, we find that the lower court committed reversible
error in failing to require a family case plan as mandated by West Virginia Code § 49-6D-3.
In an effort to formulate an appropriate remedy for this error, we instruct the lower court, on
remand, to grant one final six-month improvement period to the Appellant. Such
improvement period shall include the formulation and implementation of a family case plan.
While we require a new improvement period in lieu of the one previously awarded, we
heartily endorse the past efforts of the lower court to require strict compliance by the
Appellant with the factors which the lower court deemed to be critically important to the
Appellant's success. Accordingly, notwithstanding our grant of a new improvement period,
the Appellant must be aware that this is essentially a last opportunity. The circuit court
retains discretion to terminate the new improvement period and enter an order terminating
the Appellant's parental rights to all three children if, at any time during such improvement
period, the lower court finds that (1) the Appellant has resumed a relationship with Victor
M. (2) has failed to provide permanent housing for the children, or (3) has failed to maintain
While we do not anticipate that a family case plan would include a provision
for immediate reunification, we caution that based upon the length of separation between the mother and children, the family case plan, as well as any subsequent reunification plan, must
provide for the gradual development of parental contacts with the children at a pace and in
circumstances specifically reviewed and approved by the trial court.
In a later section of this
opinion, we address the question of reunification at the conclusion of the improvement
period, if such reunification is deemed appropriate by the lower court. We leave it to the
discretion of the lower court to assure that any contacts during the improvement period are
developed in a gradual and orderly manner to minimize the trauma to the children. Finally,
at the conclusion of the improvement period, the circuit court must make such dispositional
order as it deems appropriate under its findings of fact and conclusions of law then found and
Reversed and Remanded with Directions.