The respondent below and appellant herein, Rosemary C. (hereinafter Rosemary), appeals from an order entered July 3, 2008, by the Circuit Court of Mineral County. By that order, the circuit court denied Rosemary's motion for a post-dispositional improvement period and terminated any parental rights to Tiffany B. (See footnote 1) (hereinafter Tiffany), Patricia B. (hereinafter Patricia), Joshua B. (hereinafter Joshua), Brandon B. (hereinafter Brandon), and Tessa F. (hereinafter Tessa), all children to whom Rosemary had no biological relation. (See footnote 2) The lower court's order further denied post-termination visitation. On appeal to this Court, Rosemary argues that the circuit court erred in denying her post- dispositional improvement period and in terminating her parental rights. Rosemary also alleges some procedural improprieties that will be discussed in this opinion. (See footnote 3) Based on the
parties' arguments, the record designated for our consideration, and the pertinent authorities, we affirm the rulings made by the circuit court.
As early as September 2004, the family was referred for various services including Family Preservation, Juvenile Probation, and Youth Services. Parenting plans were designed and counseling was ordered. It was found that Rosemary and Hiram initially were not compliant in taking advantage of these ordered programs. It was also found that Rosemary and Hiram were not compliant with the court-ordered sibling visitation with siblings who had been removed from the home on juvenile petitions. During the lower court proceedings, it was found that Rosemary had a habit of filing juvenile petitions on the children as they got older. The lower court specifically found that
[a]s soon as a child gets old enough to report abuse, Rosemary would file a juvenile petition to get rid of and punish the child. That child is then shunned by Rosemary and Hiram.
Once a child is on the shunned list, there is an effort to exclude that child from her [or his] siblings.
As a result of the June 2007 abuse and neglect petition, the DHHR was granted legal custody of the children, but physical custody remained with Rosemary. A status hearing was held August 31, 2007, regarding a Motion for Contempt filed against Rosemary, wherein the lower court ruled that Rosemary was in contempt for intentionally interfering with sibling visitation that had been previously ordered to occur between the children remaining in her care and their sibling sister who had been removed from the home on a juvenile petition. Because Hiram's actions also contributed to the lack of compliance with visitation, he was also subjected to the same continuing terms and conditions as Rosemary.
In September 2007, an amended abuse and neglect petition was filed by the DHHR. This petition alleged that Rosemary had allowed the children's medical cards to lapse. The DHHR was granted physical custody of the children due to this failure by Rosemary, which resulted in the children being denied continued services from Family Preservation Services and Mountain State Psychological. The children were removed from the home and placed in various foster homes, with only Joshua and Patricia remaining together in the same placement.
On October 3, 2007, an adjudicatory hearing was held and the parties informed the lower court that they had reached an agreed adjudication for the trial court to approve. The stipulations of the parties included Rosemary's concessions that the children had been exposed to inappropriate discipline in her home, resulting in both physical and emotional abuse. She further agreed that she had failed to participate with in-home services and social services recommended by the DHHR; and that the living conditions in her home had been less than adequate for the health, benefit, and welfare of the children. The lower court made a finding that the minor children were abused and/or neglected children and that continued physical custody by Rosemary was not in the children's best interests. The lower court granted a six-month post-adjudicatory improvement period to Rosemary. In that time, Rosemary was directed to participate in counseling recommended by her psychological evaluation and to attend all counseling, medical, psychological, psychiatric, and parenting appointments or sessions determined necessary by the MultiDisciplinary Team (hereinafter MDT). The goals were to address the necessary parenting issues needed to protect the children, to improve the living conditions in the home, and to maintain current medical cards on the children.
The DHHR filed its Family Treatment Plan on February 14, 2008. The plan included the following eight items that must be remedied during the improvement period:
1. Rosemary and Hiram have a history of not following through with services which resulted in the removal of the children from the family home.
2. Rosemary and Hiram file incorrigibility petitions on the children when they reach a certain age, indicating that the child is out of control. The child is then shunned by the other children because Rosemary and Hiram tell them not to speak to the child.
3. The family home is in disarray and through reports of service providers there are cockroaches everywhere crawling on the floors, walls and falling from the ceiling this creates an unhealthy environment for the children to live in due to cockroaches carrying disease.
4. The children report physical and emotional abuse as evidenced by reports of being pushed down the stairs, pushed against the walls, beat up by the other children while being held down by Hiram. Patricia has indicated that she had to toilet in a bucket in the home and was not allowed to use the family bathroom. The bucket was moved to a trailer outside and she was forced to use that. Patricia was also told regularly that she would die by the time she is sixteen. The other children report that Hiram would get angry with them and hang a sign on his door that he is not their father and they have to call him by his given name. Hiram and Rosemary do not permit the children to associate with black children because they do not like them. If caught the children are shunned.
5. The children have reported that [various other adults] would stay at the home and use drugs with Hiram. When this would happen the children were exposed to people being passed out and possibly overdosing on the drugs.[ (See footnote 12)]
6. Hiram and Rosemary have not recognized the problems in the home. They have not realized the impact that their actions and words have had on the children. They do not feel the children have been abused emotionally or physically. They view themselves as the victims in the case. They feel the children are being allowed to run the court and MDT and that the MDT should not be listening to the children's wishes although all of the children at one time or another have expressed that they do not want to return to the family home.
7. The children have many concerns about returning home. They are concerned about the treatment they would receive if they return to the family home.
8. Hiram does not have any means of support.
On April 16, 2008, a status hearing was held to review the improvement period and the case plan. Rosemary's counsel's motion to meet with the children, in the presence of their guardian ad litem, was granted for the purpose of ascertaining the children's wishes
on where they would like to reside. The same counsel also made a request for Hiram to receive independent court-appointed counsel, which was denied. (See footnote 13) DHHR was requested to file the Children's Case Plan by June 1, 2008. In an order entered June 13, 2008, the circuit court acknowledged receipt of the DHHR's Children's Case Plan. In that plan, the DHHR stated that
[w]hile participating in services the MDT has seen a significant amount of improvement from both Hiram and Rosemary. They have become more open to the children and dealing with them at their present ages. They have acknowledged a lack of information regarding Patricia's illness and apologized for their treatment of her during a family session. Both Hiram and Rosemary have listened to what the children have to say and how the children are feeling and then address the issues at hand. Both have learned to recognize the need to work together on the disciplining of the children so that the children can not triangulate the situation to achieve whatever goal they may have at the time. The children have become increasingly comfortable with Hiram and Rosemary. They have been able to express their fears without concerns of being shunned by Hiram. The children have had moments of wanting to return to the home and other moments of wanting to remain in foster care. Due to the family's successful completion of the treatment plan, the Department has no alternative but to recommend reunification of the children with Hiram and Rosemary[.]
Therein, the DHHR recommended a reunification plan with the goal to transition Tiffany, Patricia, Joshua, and Brandon, upon completion of his residential treatment program, back to Rosemary's home. In its June 13, 2008, order, the circuit court advised that it did not agree with the DHHR's assessment of the case and that it had reservations about the permanency plan for the children. Therefore, the lower court directed that the dispositional hearing scheduled for June 19, 2008, be held pursuant to W. Va. Code § 49-5D-3a (2004) (Repl. Vol. 2004) (See footnote 14) and that the MDT should present evidence as to its rationale for the proposed service plan.
A dispositional hearing was held June 19, 2008. Testimony was heard from the child protective services worker, a clinical therapist who provided individual and family therapy, a case manager and counselor who provided parenting training, and two psychologists who provided therapy to the children. All of the witnesses indicated their recommendation that reunification be attempted between the children and Rosemary. At the conclusion of the testimony, all counsel, including the children's guardian ad litem, recommended that the children be returned to Rosemary's home with continued services and oversight by the DHHR. The matter was taken under advisement by the lower court, which set forth its findings of fact and conclusions of law in its Dispositional Hearing Order entered July 3, 2008. In its order, the lower court stated that
in this case there is ample evidence already in the record to show that the treatment goals have not been met, that the Department [DHHR] chose to ignore significant facts, that both respondents testified falsely, and that the best interest of these children will not be served by returning them to this strange home.
(Emphasis in original). The lower court's order emphasized its conclusions that Rosemary and Hiram failed to follow through with services, that they filed incorrigibility petitions on children when they reach a certain age and then shun that child, that the house is in disarray with little or no food and a flea infestation problem, that Hiram and Rosemary have failed to appreciate the extent of the physical and emotional abuse suffered by the children as a result of their actions and inactions, that the children were exposed to illegal drug abuse by adults in the home, and that Hiram and Rosemary view themselves as victims and fail to understand the impact of their behavior on the children. Moreover, the children, during an interview with the court on June 12, 2008, indicated their fear and concern about treatment they would receive if they were returned to the home, as well as the treatment they would receive if they did not want to return home, including Rosemary and Hiram's anticipated refusal to let them visit any of their siblings who might have returned to the home. The lower court's order further identified as a major concern that Hiram has no means of support, and identifying that there is a question as to whether Hiram and Rosemary can afford to feed and clothe the four children at issue. (See footnote 15) Significantly, in regards to the current placements of the children outside of the home, the lower court order found that [a]ll of these children continued to improve until contact with Hiram and Rosemary was increased. Their behavior then deteriorated. (Empahsis in original).
The disposition in the lower court's order was stated as follows:
The Court has seriously considered whether to grant a dispositional period of improvement. However, the Court denies the request for the following reasons:
1. There is no reason to believe that [Rosemary and Hiram] will change as has been set forth previously.
2. Any trial placement back in the home that didn't work out would disrupt and possibly make return to current placements for the children impossible.
3. The children have regressed when they are around Rosemary and Hiram.
4. Given what has happened in this case, this Court simply cannot trust the members of this MDT to recognize and report to the Court if something were to go wrong.
The order directed [t]hat any parental rights, including visitation of Rosemary . . . and Hiram . . . to Tiffany . . . Patricia . . . Joshua . . . Brandon . . . and Tessa . . . are hereby TERMINATED. The lower court further denied requests for post-termination visitation stating that further visitation is not in the children's best interests. It is clear from the reports . . . that the children regress when they have contact with Hiram and Rosemary. . . . The children need a clean break. DHHR was ordered to provide for significant visitation among the children. It is from this order that Rosemary appeals to this Court.
Subsequent to the lower court's dispositional order, the DHHR has now filed a response with this Court wherein it alters the earlier recommendation made to the lower court. Because the children have improved so dramatically in their current placements, and because they seem to regress when they have any contact with Rosemary, DHHR is now advocating that the children remain in their current placements and that visitation with Rosemary occur only at the discretion of the individual children. Additionally, two new guardians ad litem subsequently were appointed because the original guardian ad litem took a public office and could no longer be involved in the case. (See footnote 16) The two new guardians performed their own independent assessment, including home visits and interviews. Their opinions are that the children's best interests are to sever all contact with Rosemary and Hiram. The two guardians opine that there is ample concern for continuing emotional problems for the children and also conclude that the home is unsafe and uninhabitable for children. They do not recommend visitation. The guardians ask this Court to remand the case for the lower court to continue proceedings in accordance with its dispositional order so that permanency can be achieved for the children.
[a]lthough conclusions of law reached by a circuit court
are subject to de novo review, when an action, such as an abuse
and neglect case, is tried upon the facts without a jury, the
circuit court shall make a determination based upon the evidence
and shall make findings of fact and conclusions of law as to
whether such child is abused or neglected. These findings shall
not be set aside by a reviewing court unless clearly erroneous. A
finding is clearly erroneous when, although there is evidence to
support the finding, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn
a finding simply because it would have decided the case
differently, and it must affirm a finding if the circuit court's
account of the evidence is plausible in light of the record viewed
in its entirety.
Syl. pt. 1, In the Interest of: Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). Mindful of the applicable standards, we proceed to consider the parties' arguments.
Further, she contends that the lower court improperly considered her modest income in deciding whether to terminate rights. (See footnote 18) She also contends that the dispositional order was improperly entered more then ten days from the hearing date in violation of Rule 36 of the Rules of Procedure for Child Abuse and Neglect Proceedings. (See footnote 19) Finally, because her son, Hiram, was also included in the improvement periods, Rosemary contends that he should
have been appointed counsel. (See footnote 20)
Initially, the DHHR and the original guardian ad litem advocated for the return of the children to the care of Rosemary, and this was the position advanced during the underlying proceedings. However, because these children have been in the same placement since 2007 and are doing extremely well and only seem to regress with any contact with Rosemary, the DHHR is now advocating that the children remain in their current placements and that visitation with Rosemary occur only at the discretion of the individual children. The current guardians ad litem concur with the position of the DHHR expressed on appeal to this Court, with the exception that the guardians recommend that no visitation occur between the children and Rosemary.
As previously explained by this Court, [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). Further guidance is provided as follows:
'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. Further, 'courts are not required to exhaust every speculative possibility of parental improvement before terminating parental rights where it appears that the welfare of the child will be seriously threatened . . . .' 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 the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991). Thus, this Court elevates the health and welfare of the children above any parental rights of Rosemary to these children.
Significantly, in this case, the lower court found by clear and convincing evidence that [Rosemary and Hiram] have failed to substantially comply with the treatment plan and the terms of the post-adjudicatory period of improvement. Therefore, the trial
court rejected the Children's Case Plan. In this regard, this Court has held that,
[a]t the conclusion of the improvement period, the court shall review the performance of the parents in attempting to attain the goals of the improvement period and shall, in the court's discretion, determine whether the conditions of the improvement period have been satisfied and whether sufficient improvement has been made in the context of all the circumstances of the case to justify the return of the child.
Syl. pt. 6, In the Interest of Carlita B., id. While all of the MDT personnel opined that Rosemary had made great strides in her improvement period, the lower court found that she had failed to comply with the period of improvement. The lower court acknowledged that Rosemary had performed better toward the end of the treatment period; however, the court found that a view of the overall treatment period showed that little progress had actually been made. The lower court emphasized Rosemary and Hiram's history of failing to follow through with services, the emotional abuse experienced by the children as a result of juvenile petitions filed by Rosemary against the children when they reach a certain age, and the family shunning that continued even in the midst of group therapy sessions. Further, while Rosemary appears to have attempted to eradicate the cockroach problem from her house, there was recent evidence of a problem with flea infestations, which resulted in multiple bites to one of the children during a visit. Significantly, as found by the lower court, Rosemary fails to appreciate the extent of the physical and emotional abuse suffered by the children as a result of the actions and inactions by both Rosemary and Hiram.
The children have been in their current placements since 2007. By all accounts
from the DHHR and the two current guardians ad litem, these children are doing better in
their current placements than they ever have done, and they regress after any contact with
Rosemary and/or Hiram. Thus, the circuit court's determinations should be affirmed.