Steven B. Nanners, Esq.
Darrell V. McGraw, Jr. Esq.
Rexroad, Willett & Nanners Attorney General
Buckhannon, West Virginia Charleston, West Virginia
Attorney for Appellant C. Carter Williams, Esq.
Assistant Attorney General
Petersburg, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICES DAVIS and MAYNARD dissent and reserve the right to file dissenting opinions.
2. '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). Syllabus Point 7, In re Emily, 208 W.Va. 325, 540 S.E.2d 542 (2000).
This case is before this Court upon appeal of a final order of the Circuit
Court of Upshur County entered on July 13, 2000. Pursuant to that order, the circuit court
terminated the parental rights of the appellant and respondent below, Brian L. D.,See footnote 1
child, Brian James D.See footnote 2
In this appeal, the appellant contends that the circuit court erred
by terminating his parental rights based solely upon the fact that he committed the felony
offense of delivery of a controlled substance. This Court has before it the petition for
appeal, the entire record, and the briefs and argument of counsel.See footnote 3
For the reasons set
forth below, the final order is reversed, and this case is remanded to the circuit court to
develop and oversee a plan to reunify the appellant with his child.
Abuse and neglect proceedings were initially instituted against the appellant
and Brian James D.'s mother, Amanda K., in May 1999, after Amanda K. was
incarcerated as a result of aiding and abetting sexual assault and sexual abuse of an
unrelated juvenile.See footnote 4
The petition alleging abuse and neglect of Brian James D. contained
numerous allegations against Amanda K. but only asserted that the appellant had failed to
visit or have any contact with the child. As a result of a dispositional hearing on August
3, 1999, the allegations against both parents were dismissed, and the appellant was granted
custody of Brian James D.See footnote 5
On March 29, 2000, a second abuse and neglect petition was filed against the
appellant and Amanda K. This petition stated that the appellant had been arrested and
charged with delivery of a controlled substance, marihuana. The petition further alleged
that the appellant had admitted to selling marihuana from his residence, thereby exposing
Brian James D. to drug trafficking and its associated dangers. The petition also noted that
the appellant's wife, Donna H. D., had been arrested and charged with the same felony
and that Amanda K. remained incarcerated. Upon filing of the petition, Brian James D.
was placed in the temporary physical and legal custody of the appellee and petitioner
below, the West Virginia Department of Health and Human Resources (hereinafter
An adjudicatory hearing was held on May 3, 2000, at which time the
appellant admitted that he had sold drugs from his residence while Brian James D. was
present. Thus, the circuit court found that the appellant had abused and neglected Brian
James D. by exposing him to drug trafficking and its associated dangers as asserted by the
DHHR. At the conclusion of the adjudicatory hearing, the appellant moved for leave to
obtain a psychological evaluation regarding his fitness as a parent. The motion was
granted, and a dispositional hearing was scheduled for June 7, 2000.
The dispositional hearing was continued to July 5, 2000, because the
appellant's psychological evaluation was not yet complete. In the meantime, the DHHR
filed a child case plan recommending that the parental rights of both the appellant and
Amanda K. be terminated. In making this recommendation, the DHHR noted the
possibility that the appellant, like Amanda K., might be incarcerated as a result of the
criminal charges pending against him.
During the dispositional hearing on July 5, 2000, the psychological
evaluation of the appellant completed by William Fremouw, Ph.D., was presented to the
court. While Dr. Fremouw reported that the appellant denied the seriousness of his
situation, he stated that the appellant has no diagnosable psychiatric condition. Dr.
Fremouw further stated that, [t]he social summary dated 5/31/00 indicated that [the
appellant] underwent a drug and alcohol assessment and was randomly drug tested on
several occasions in 1999. These tests were negative for drugs and the assessment did not
indicate drug or alcohol problems. This information does support [the appellant's]
contention that he is not a regular drug or alcohol user.
Thereafter, the circuit court terminated the appellant's parental rights.
Subsequently, the appellant pled guilty to two counts of delivery of a controlled substance
and was given a one-to-five-year sentence for each count. However, the appellant was
granted home confinement on the first count after serving 120 days in jail to be followed
by five years probation on the second count. This appeal followed.
We begin our analysis of this case by setting forth our standard of review.
In Syllabus Point 1 of In the Interest of: Tiffany S. Marie, 196 W.Va. 223, 470 S.E.2d
177 (1996), this Court held that:
Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety.
With this standard in mind, we now consider the parties' arguments.
The appellant contends that the circuit court erred by terminating his parental
rights based solely upon the fact that he was charged with and admitted to selling
marihuana from his apartment, at times, while his child was present. After carefully
reviewing and examining the record in this case, we agree. In Syllabus Point 7 of In re
Emily, 208 W.Va. 325, 540 S.E.2d 542 (2000), this Court held that '[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).
In other words, incarceration, per se, does not warrant the termination of an incarcerated
parent's parental rights. At the same time, we have also acknowledged that an individual's
incarceration may be considered along with other factors and circumstances impacting the
ability of the parent to remedy the conditions of abuse and neglect. Emily, 208 W.Va. at
, 540 S.E.2d at 559.
The final order in this case, however, indicates that the appellant's parental
rights were terminated because of his arrest for delivery of a controlled substance. The
State did not allege that the appellant is addicted to or uses drugs, nor did the State assert
that the appellant's parenting abilities were impaired by selling marihuana. In fact, during
the dispositional hearing, Sarah Crum, the child protective service worker who handled
this case for the DHHR, testified that the primary reason she was recommending that the
appellant's parental rights be terminated was because the appellant was arrested for
trafficking a controlled substance. Ms. Crum further testified that:
I cannot think of any service that we could provide to [the appellant] that are going to correct the problem. [The appellant] has continually stated that he does not do drugs. We've had him tested for that, it came back negative. We had drug and alcohol assessment done and it came back and said that he had no problem with that. And I can think of no services that are going to correct the situation of selling drugs.
In addition, Dr. Fremouw reported that the results of random drug testing of the claimant in 1999 were negative indicating that the appellant does not have drug or alcohol problems.
This Court takes very seriously the fact that the appellant exposed his child to the substantial risks inherent in dealing drugs, and recognizes that such conduct clearly constituted abuse and neglect sufficient to trigger remedial action by the circuit court. We disagree, however, with DHHR's contention that the appellant's conduct in this case demonstrates that there is no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected in the near future...., as required by W.Va. Code § 49-6-5(a)(6). While Ms. Crum testified that she did not envisage any services that could be provided to curb the appellant's drug dealing, we observe that he is now subject to a lengthy term of home confinement and probation, which presumably will provide the necessary supervision to ensure that the criminal conduct that brought rise to the present proceeding will not be repeated. Moreover, we stress that the appellant is now on notice that any repeat of such activity will likely warrant action terminating his parental rights.See footnote 6 6
The DHHR maintains that the circuit court did not err in terminating the appellant's parental rights not only because criminal charges were pending against him, but also because of the child's need for permanency. This Court is certainly aware of the fact that this child was placed in at least six different homes before his second birthday. However, with the exception of his current placement which resulted from this abuse and neglect proceeding, the evidence shows that these placements occurred while the child was in the custody of Amanda K. Without question, this child deserves permanency in his life. Having carefully examined the record, we conclude that this child can receive the permanency he needs in his father's custody. As discussed in detail above, the record shows that the allegations of abuse and neglect in this case stemmed solely from the appellant's arrest, and that his parental rights were terminated for that reason alone. In accordance with our case law holding that a criminal conviction per se does not warrant the termination of parental rights, we find that the circuit court erred by terminating the parental rights of the appellant to his child.
Having found that the appellant's parental rights were erroneously
terminated, we remand this case to the circuit court to immediately develop and oversee
a plan for reunifying the appellant with his child as promptly as practicable. According
to the record in this case, Brian James D. has been in the custody of the DHHR for over
a year. This Court has previously determined that in these circumstances, a gradual
transition of custody is needed to give both the parent and child a sufficient adjustment
period. See James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991); Honaker v.
Burnside, 182 W.Va. 448, 388 S.E.2d 322 (1989).
Therefore, for the reasons set forth above, the final order of the circuit court of Upshur County entered on July 13, 2000, is reversed, and this case is remanded to the circuit court to immediately develop and oversee a plan to reunify James Brian D. with his father as promptly as practicable.
Reversed and Remanded.
was stupid. Thus, so far as the circuit court's decision to terminate parental rights was predicated upon a factual finding that the appellant refused to acknowledge the irresponsible nature of his drug-dealing activity, we find it clearly erroneous. See Syllabus Point 2, in part, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997) (we review the circuit court's underlying factual findings under a clearly erroneous standard....).