Honorable Charles E. McCarty, Judge
Civil Action No. 92-J-10
REVERSED, IN PART,
Submitted: May 11, 1994
Filed: May 20, 1994
Leah R. Taylor
Assistant Prosecuting Attorney Spencer, West Virginia
for Jackson County Attorney for Appellee
Ripley, West Virginia Jacqueline F.
Attorney for Appellee
Sharon Alonzo Lee F. Benford, II
Ravenswood, West Virginia
Daniel C. Taylor Attorney for Appellee
Ripley, West Virginia Rick F.
Attorney for Appellant
Phillip F., Infant Thomas W. Woodward
Deputy Attorney General
David R. Karr Charleston, West Virginia
Ravenswood, West Virginia Attorney for Appellant
Anthony F. Serreno the West Virginia Department
Charleston, West Virginia of Health and Human Resources
Attorneys for Intervenor Appellees
Mark E. Gorman and Sherry B. Gorman
JUSTICE MILLER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. W. Va. Code, 49-6-5(a)(6), which deals with the disposition by a court of a case involving a neglected or abused child, provides, in part: "No adoption of a child shall take place until all proceedings for termination of parental rights under this article and appeals thereof are final."
2. Where a child abuse and neglect proceeding has been
filed against a parent, such parent may not confer any rights on a
third party by executing a consent to adopt during the pendency of
3. "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." Syllabus
Point 4, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400
In this appeal, we are asked to determine if the natural
mother of a young child can sign a consent to adopt after a
petition for abuse and neglect has been filed against her and the
circuit court has ordered temporary custody of the child placed in
the Department of Health and Human Resources (Department).See footnote 1
The salient facts are as follows. On February 11, 1992,
the Department filed a petition against Jacqueline F. and Rick F.
It asked that their three-month-old child named Phillip F. be
removed immediately from their home. This petition was based on
allegations of abuse and neglect and the fact that the child was in
imminent danger of physical harm. The circuit court on the same
date ordered the child's removal and gave temporary custody to the
An adjudicatory hearing was held on March 13, 1992, with
an additional hearing being held on March 30, 1992. The circuit
court, at this latter hearing, entered an order finding the child
to be neglected and abused. It ordered that temporary custody remain with the Department and that the mother be given a
psychiatric evaluation. The mother also was given a six-month
noncustodial improvement period. A further hearing was set for May
At that hearing, the Department filed a family case plan.
The Department had placed temporary custody of the child with James
and Alphia Ihle, who were approved foster parents. Mark E. and
Sherry B. Gorman appeared by counsel at that hearing and asked
leave to intervene. In March of 1991, Mr. and Mrs. Gorman adopted
another child of Jacqueline F. They now sought to adopt Phillip.
The circuit court allowed Mr. and Mrs. Gorman the right to attend
future hearings, but advised that they were not to be considered as
Two further status hearings were held with regard to the
mother's improvement period. At the first hearing on October 5,
1992, the Department showed that the mother had not made any
significant progress. However, the mother did express the desire
to make a more diligent effort, and the circuit court extended the
improvement period for three months. The second status hearing was
held on February 1, 1993. At that time, Mr. and Mrs. Ihle appeared
by counsel and requested the right to intervene as they desired
permanent guardianship of Phillip.
At a hearing on June 7, 1993, the Department presented
evidence that the mother's improvement period was unsuccessful.
Its recommendation was that Phillip's reunification with his
natural parents would not be successful. The Department also
recommended that permanent custody be placed with the Department in
order that it might arrange for Phillip's adoption. The mother
offered evidence to dispute the Department's contention that her
improvement period was not satisfactorily completed. She also
testified that if she could not regain custody of Phillip, she
desired that Mr. and Mrs. Gorman be given custody.
The matter was continued to June 24, 1993, as Mr. and
Mrs. Gorman's counsel indicated he wished to offer evidence that
the mother had satisfactorily completed her improvement period. At
this hearing, Mr. and Mrs. Gorman's attorney produced a written
consent to adopt executed by the mother permitting Mr. and Mrs.
Gorman to adopt Phillip. The circuit court decided that the
mother's consent to adopt extinguished her parental rights. It
held that this action mooted the question of whether she had
satisfactorily completed her improvement period. The circuit court
did not rule on Mr. and Mrs. Gorman's motion that Phillip be placed
with them as foster parents pending his adoption.
At a subsequent hearing on September 10, 1993, the
natural father of Phillip filed a consent to terminate his parental rights as authorized by W. Va. Code, 49-6-7 (1977).See footnote 2 The circuit
court ruled that this termination vested the father's rights as the
natural parent with the Department. The Department requested that
it be given permanent custody of Phillip with leave to place the
child for adoption. The circuit court declined to do this and
awarded only temporary custody. It ruled that Mr. and Mrs. Gorman
had an interest in the matter because of the mother's consent to
adopt, but the Gormans were not parties to the proceedings.
Therefore, the case was dismissed, and this appeal followed.
The Department argues that the mother's consent to adopt
should be treated as a consensual termination of parental rights
under W. Va. Code, 49-6-7.See footnote 3 This section is part of an article
dealing with procedures for parental child abuse and neglect cases
in W. Va. Code, 49-6-1, et seq. It is apparent that this type of
an agreement placed as it is in the abuse and neglect article
primarily is designed to permit a parent charged with abuse and
neglect to surrender his parental rights to the Department rather
than contest the charges. This type of termination was done by the
natural father in this case who surrendered his parental rights to
The mother's consent to the adoption of Phillip by the
Gormans must be viewed as a consent to adopt under W. Va. Code, 48-
4-3 (1985), which relates to procedures for the adoption of a
child. Under W. Va. Code, 48-4-3(a), the consent of the mother and
legal or determined father to adopt the child ordinarily is
required. In W. Va. Code, 48-4-3(c), it is recognized that
parental consent is not required if they "have been deprived of the
custody of the person of such child by law[.]"See footnote 4 This section goes
on to enumerate the persons who may give such consent. The logical
inference is that where custody has been removed by law from a
parent, consent is not only unnecessary, but legally insufficient.
In this case, custody of Phillip was granted to the Department at
the time of the filing of the abuse and neglect petition, which was
before the consent to adopt was signed.
Of perhaps greater significance is the following language
in W. Va. Code, 49-6-5(a)(6), which deals with the disposition by
a court of a case involving a neglected or abused child and
provides, in part: "No adoption of a child shall take place until
all proceedings for termination of parental rights under this
article and appeals thereof are final." This language is designed
to forestall any attempt by anyone to obtain custody of an abused
or neglected child through adoption until there is a final
disposition of the abuse and neglect case by the circuit court.
Thus, the consent to adopt given by Jacqueline F. is a nugatory act
until the final disposition of this case.
From the foregoing provisions, we conclude that where a
child abuse and neglect proceeding has been filed against a parent,
such parent may not confer any rights on a third party by executing
a consent to adopt during the pendency of the proceeding.
In this case, the circuit court was correct in
determining that the mother's rights to the child were terminated.
This termination was not because of the consent to adopt, but
because of the evidence from the Department that the mother could
not demonstrate the capacity to correct the conditions that led to
the initial abuse and neglect of Phillip.
On remand, the circuit court should place permanent
custody of Phillip with the Department. It should direct the
Department to consider whether the best interests of Phillip would
be served by permitting him to be adopted by the foster parents,
the Ihles, or to be adopted by the Gormans who previously adopted
In the event that the Department determines that
permanent placement with the Ihles is in the best interests of
Phillip, an additional issue which should be considered is the
right of Phillip to continued association with his sibling who was
previously adopted by the Gormans. As this Court first recognized
in Honaker v. Burnside, 182 W. Va. 448, 452, 388 S.E.2d 322, 325
(1989), the need for "continued contact with other significant
figures in . . . [a child's] life," may require the establishment
of visitation rights between a child and other persons who qualify
as "significant figures." (Footnote omitted). We explained that
"'[v]isitation is not solely for the benefit of the adult visitor
but is aimed at fulfilling what many conceive to be a vital, or at
least a wholesome contribution to the child's emotional well being
by permitting partial continuation of an earlier established close
relationship.'" 182 W. Va. at 452, 388 S.E.2d at 325, quoting
Looper v. McManus, 581 P.2d 487, 488 (Okla. Ct. App. 1978).
We expanded on these concepts in James M. v. Maynard, 185
W. Va. 648, 408 S.E.2d 400 (1991), by holding in Syllabus Point 4:
"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."
Similarly, in the event that Phillip and his sibling are not placed with the same family, the circuit court should consider whether it would be in the best interests of Phillip to establish and order a right to visitation between Phillip and his sibling in the interest of facilitating continued association between these two siblings.
Obviously, this is not an easy task, especially in a
situation such as this where two competing sets of parents have
strong emotional feelings invested in this child. But in such
event, the Department and these parents should struggle mightily to
put aside all rancor and work to foster a continued relationship
between these children, with the Department providing continued
services such as counseling to help facilitate this goal.
For the foregoing reasons, we affirm, in part, and
reverse, in part, the final order of the Circuit Court of Jackson County and remand this case for further proceedings consistent with
Affirmed, in part,
reversed, in part,
Footnote: 1This case is styled in the name of Sharon Alonzo who is the social worker for the Department that filed the initial petition in the circuit court. Due to the sensitive nature of the allegations, we use initials instead of the last names of the parents and the child. See State v. George W.H., ___ W. Va. ___, ___ n.1, 439 S.E.2d 423, 427 n.1 (1993).
Footnote: 2W. Va. Code, 49-6-7, provides: "An agreement of a natural parent in termination of parental rights shall be valid if made by a duly acknowledged writing, and entered into under circumstances free from duress and fraud."
Footnote: 3For the text of W. Va. Code, 49-6-7, see note 2, supra.
Footnote: 4W. Va. Code, 48-4-3(c), states:
"If all persons entitled to parental rights of the child sought to be adopted are deceased or have been deprived of the custody of the person of such child by law, then and in such case, the written consent, acknowledged as aforesaid, of the legal guardian of such child or those having at the time the legal custody of the child shall be obtained and so presented, and if there be no legal guardian nor any person having the legal custody of the child, then such consent must be obtained from some discreet and suitable person appointed by the court or judge thereof to act as the next friend of such child in the adoption proceedings."