Albright, Justice, concurring in part, and dissenting in part:
While I concur with the
majority's determination that Destiny should not be returned to her mother
(Shacara H.), I must respectfully dissent from the majority's conclusion that
the facts establish that Destiny was neglected within the meaning of West
Virginia Code § 49-1-3(h)(1) (1999) (Repl.Vol.2001). The statute is clear
regarding what conduct amounts to neglect:
(h)(1) Neglected child means a child:
(A) Whose 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) Who 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[.]
W.Va. Code § 49-1-3(h)(1) (A), (B).
Under these standards, the
lower court was correct in determining that Destiny was not a neglected
child. See id. There is no indication in the record that the
care Destiny received was inadequate at the time the petition was filed and she was residing
with her guardian and custodian K.T., or that she was then without the necessary
food, clothing, shelter, supervision, or medical care. Id. K.T. was
presumably taking good care of, or at least adequate care of, Destiny, as
the lower court specifically found that [t]here has been no showing
of abuse or neglect on the part of the guardian, Kim T.
In its rush to approve
this child's removal from her caretaker's home, the majority has concluded,
with little discussion of the law, that Shacara S. abandoned Destiny for purposes
of our neglect statutes. See W.Va. Code §§ 49-6-1 to -12
(Repl.Vol.2001). Unfortunately, the term abandonment is not defined
within the sections of the Code that address abuse and neglect other than
for purposes of an emergency taking situation. See W.Va. Code § 49-6-9
(1980) (Repl.Vol.2001) (defining abandoned as without supervision
. . . for an unreasonable period of time in light of the child's age and the
ability to care for himself or herself in circumstances presenting an immediate
threat of serious harm to such child); cf. W.Va. Code §§ 48-22-102,
-306 (2001) (providing definition of abandonment for purposes of adoption
law and identifying conduct presumptively constituting abandonment). Given
this statutory omission, this Court has on occasion looked to the definition
provided in the adoption statutes for guidance in specific cases. See State
ex rel. Paul B. v. Hill, 201 W.Va. 248, 496 S.E.2d 198 (1997) (involving
issue of whether voluntary relinquishment of parental rights incident to adoption
placement could constitute abandonment for abuse and neglect purposes). That
definition identifies as abandonment any conduct . . . that demonstrates
a settled purpose to forego all duties and relinquish all parental claims
to the child. W.Va. Code § 48-22-102.
Based on the mother's execution
of a Power of Attorney and, apparently, the intermittent, albeit limited,
contact that Shacara S. had with Destiny during the months she resided in
Florida, the trial judge viewed the evidence in this case as not rising to
the level of abandonment. While enunciating the proper standard for reversing
the lower court's finding of fact, the majority fails to state that the lower
court was clearly erroneous in its determination regarding the issue of abandonment.
(See footnote 1)
Interestingly, the majority suggests that factual issues arose regarding her [Shacara H.'s] intent to return,
her motivation to provide for the care of Destiny . . . and Destiny's actual
future. Rather, than remanding for a determination of those issues,
however, this Court summarily concluded that abandonment had occurred.
The facts of this case demonstrate,
as the lower court noted in its order,
(See footnote 2) that the statutes at issue
do not expressly provide a method for dealing with the situation that was
presented below. Certainly, the issues presented in the instant case demonstrate
a flaw inherent to the system for providing financial assistance to care givers.
Apparently, the DHHR determined that it could not provide K.T. any financial
assistance in the care of the child, but could provide such financial assistance
if the child were placed with other persons selected by the DHHR who were perfect strangers to this little child.
What the majority overlooks
in its rush to rubberstamp Destiny's removal from the only continuous care
givers she had known at the time the petition was filed,
(See footnote 3) is the critical issue of
the child's psychological and emotional attachment to K.T. This Court has
long advised the DHHR and the courts dealing with these matters that children
cannot be plucked from one home environment, absent emergency situations that
were not present here, without due consideration of the effects on the child
and the child's attachment to caretakers and siblings. See In re Brian
D., 194 W.Va. 623, 638, 461 S.E.2d 129, 144 (1995) (recognizing that a
child has a right to continued association with those to whom he has formed
an emotional bond) (citing Honaker v. Burnside, 182 W.Va. 448,
452-53, 388 S.E.2d 322, 325- 26 (1989)). Yet, in this case, the child was
apparently removed from K.T.'s home with little concern for these important
issues that play an undeniably pivotal role in the child's formation as an
Further troubling is the
majority's use of a validly executed document transferring physical custody
of Destiny to a guardian, ostensibly prepared not for the purpose of abandoning
the child, but to secure the child's attainment of proper medical care, if necessary, and to alleviate any question of K.T.'s legal right to have Destiny
in her physical custody. While the majority makes clear in its opinion that
this document on its own was not evidence of Sharcara H.'s intent to abandon
Destiny, my concern is that the decision will perhaps be relied upon to obtain
rulings of abandonment, possibly without the proper statutory basis, rather
than forcing the DHHR to go through the requisite statutory steps of proving
that a child was in actuality abused or neglected
within the statutory scheme established by the Legislature. See W.Va.
Code §§ 49-6-1 to -12.
When the facts of this case are fairly examined, one is left with a definite sense that the DHHR has managed to obtain legal custody of Destiny with no proper showing that the child was abused or neglected under our law. See W.Va. Code § 49-1-3. Any conclusion that the mother in this instance never intended to return and reclaim her child amounts to rank speculation on the record before us. In my judgment, it is simply wrong for this Court to sanction, even indirectly, a finding of abandonment that is grounded in fact on the proper exercise by the mother of her legal right and duty to provide for the care of her minor child during an anticipated absence, especially in light of the fact that there were no findings of improper care related to the guardian's (or custodian's) physical custody of the child. (See footnote 4) Obviously, if actual evidence of neglect had been present, this would be an open and shut case.
Paradoxically, the child was removed from the home of the only care givers
she knew based primarily on the care givers's professed need of financial
assistance and yet, the statutory definition of a neglected child
expressly excludes a determination of neglect based on lack of financial
means on the part of the parent, guardian or custodian. W.Va. Code §
My final concern involves
the manner in which the majority grants relief to the DHHR. Typically, in
a case where the underlying decision of the circuit court included a finding
of no abuse and/or neglect, and this Court determined that a reversal of such
decision was warranted, the matter would be remanded with specific instructions
that the lower court enter an order adjudicating the child to be abused and/or
neglected. The majority opinion lacks any such direction. This is of concern
as this Court cannot sua sponte make such a factual finding. Also missing
from the relief delineated in the majority opinion is any direction for the
circuit court, upon its entry of a finding of neglect, to proceed to the dispositional
phase of such litigation. See W.Va. Code § 49-6-5. As we observed
in In re Travis W., 206 W.Va. 478, 525 S.E.2d 669 (1999), neither
this Court nor circuit courts can simply ignore mandatory procedural requirements.
Id. at 486, 525 S.E.2d at 677.
I am authorized to state that Justice Starcher joins in this concurring and dissenting opinion.
When circuit judges determine
that a child is neglected, or that parental rights be terminated, the decisions
of this court often (and in my view quite properly) state that in these difficult
cases we must give deference to the circuit court's perception and weighing
of the evidence. Why? Because the judges see the people involved. The judges
get a sense and feel of the situation and can size it up. Is this parent well-meaning
and trying? Could the parent, with enough support, do a decent job? Look at
the child _ is it really fair to say that the child is neglected? Is it really
fair to say that the parent is an abuser? Is it fair to separate a child from
a parent, even when limited parenting skills are obvious? It's a tough call
to make such determinations, and I think that it's a call that requires a
face-to-face look at the people involved, to be done well.
But when circuit judges say _ based on the same sorts of assessments _ that a child should not be found to be neglected, or that parental rights should not be terminated, that the court should give the parent-child relationship another chance _ then I sense that our decisions too often tend to find reasons why we shouldn't defer to or trust the circuit judge's judgment.
Id. at 775, 500 S.E.2d at 888.
In this case, the majority simply discarded the lower court's determination that Destiny had not been neglected under our law to expedite the process under which DHHR could obtain legal custody of the child. Engaging in statutory end runs, such as that employed by the majority in this case to obtain the specific result of removing a child from his or her home, especially where no statutory basis for the removal exists, can only serve to harm both the child in the short term and the judicial system in the long run.