William L. Pennington
Morgantown, West Virginia
Attorney for Appellant, Darrell S.
Guardian ad Litem
Morgantown, West Virginia
Attorney for Appellees, Frances J.A.S.,
Daryl Jean S., Crystal Nicole S.,
and David Allen R., Jr.
Public Defender Corporation
Kingwood, West Virginia
Attorney for Appellee, Melissa S.R.
Thorn H. Thorn
Morgantown, West Virginia
Attorney for Appellee, David A. R., Jr.
Darrell V. McGraw, Jr.
Charleston, West Virginia
C. Carter Williams
Assistant Attorney General
Petersburg, West Virginia
Attorney for the Appellee, West Virginia
Department of Health & Human Services
The Opinion of the Court was delivered PER CURIAM.
3. In a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided. Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d 221 (1948).
4. Although 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 ).
5. To justify a change of child custody, in addition to a change in circumstances of the parties, it must be shown that such change would materially promote the welfare of the child. Syl. Pt. 2, Cloud v. Cloud, 161 W. Va. 45, 239 S.E.2d 669 (1977).
6. In visitation as well as custody matters, we have traditionally held
paramount the best interests of the child. Syl. Pt. 5, Carter v. Carter, 196 W. Va. 239, 470
S.E.2d 193 (1996).
This is an appeal by Darrell S., biological father of Frances S. and Daryl Jean S., from a July 26, 2002, order of the Circuit Court of Preston County placing Frances and Daryl Jean in the custody of their mother and step-father, Melissa S. R. and David R., during a dispositional improvement period. (See footnote 1) Melinda Russell, guardian ad litem for Frances and Daryl Jean, is also an Appellant in this action, maintaining that Frances and Daryl Jean should not have been returned to their mother's custody during the dispositional improvement period. Upon thorough review of this matter, we reverse and remand for further proceedings consistent with this opinion.
On January 17, 2001, the Department of Health and Human Resources (hereinafter DHHR) filed a child abuse and neglect petition against Melissa S. R. and David R. based upon allegations of domestic violence and alcohol abuse which affected their parenting abilities. (See footnote 4) In addition to the allegations contained in the petition, further investigation revealed that David R. had pled no contest in 1991 to the charge of sexual abuse of his biological fifteen-year-old daughter, not a party to this action. (See footnote 5) Information gathered during investigation of this petition in West Virginia also revealed that Melissa S. R. had relinquished her parental rights to her first three children in Ohio after she had left those children in the care of her mother and they had been sexually abused by relatives.
Subsequent to a stipulated adjudication in this matter, all four children of Melissa S. R. were placed in foster homes, and Melissa and David R. were granted a six- month post-adjudicatory improvement period. During that post-adjudicatory improvement period, Frances and Daryl Jean were placed in the temporary physical custody of their father, Appellant Darrell S., in Colorado. (See footnote 6) The girls were transported to Colorado on July 12, 2001. A Colorado child protective services evaluation found that the home of Darrell S. and his wife, Ivy S., was an alcohol-free, safe environment for Frances and Daryl Jean.
During a multi-disciplinary team meeting in August 2001, marital difficulties between David and Melissa R. were revealed, and Melissa thereafter lived in a local Rape and Domestic Violence Shelter from August 22, 2001, to October 3, 2001. In October 2001, the DHHR requested that the lower court find that there was no reasonable likelihood that the conditions of neglect or abuse could be substantially corrected in the near future and recommended that the parental rights of Melissa and David R. be terminated with respect to all four children. (See footnote 7)
At the conclusion of the post-adjudicatory improvement period, the lower court conducted a dispositional hearing over the course of seventeen days from November 13, 2001, to April 18, 2002. The lower court essentially conducted this extended hearing for the dual purpose of determining the extent to which Melissa and David R. had complied with the requirements of the post-adjudicatory improvement period and deciding the permanent placements for the four children during the dispositional improvement period. Counsel for Appellant Darrell S. was present at the hearings, but was not permitted to participate. (See footnote 8)
The lower court received evidence from DHHR caseworker Jack Wood. Mr. Wood testified that Melissa and David R. had complied with every aspect of their improvement period and had shown significant progress. However, Mr. Wood further explained that the DHHR's recommendation of termination of parental rights had been based upon Dr. Hewitt's psychological assessments conducted in March 2001, before the improvement period began. Dr. Thomas Adamski, a forensic psychiatrist, disagreed with Dr. Hewitt's assessment and concluded that the current behavior of Melissa R. contradicted Dr. Hewitt's conclusions that she was incapable of improvement. Richard Chamberlain, a marriage counselor, testified that Melissa and David R. had participated fully in his counseling program and were genuine in their desire to improve their relationship and parenting skills. Representatives from Burlington United Methodist Family Services also testified that Melissa and David R. were appropriate in their visitation with the children in foster care.
Based upon evidence of improvement by David and Melissa R., the guardian ad litem recommended that Crystal and David, Jr., be returned to Melissa and David R. The guardian ad litem also recommended that Frances and Daryl Jean remain in their father's care in Colorado during the dispositional improvement period.
On May 6, 2002, the lower court issued an opinion letter containing its findings of fact and conclusions of law. The letter included no explicit findings regarding the best interests of the children. In accordance with the opinion letter, the lower court entered an order dated May 15, 2002, granting a six-month dispositional improvement period to Melissa and David R., pursuant to West Virginia Code § 49-6-12(c). Once again, the order failed to include explicit findings regarding the best interests of the children. The lower court noted that Melissa and David R. were receiving sexual offender education and that they appeared motivated to remain sober and free of domestic violence. By the time of the entry of the Mary 15, 2002, order, Frances and Daryl Jean had been living in their father's care in Colorado for an entire school year.
On May 17, 2002, Appellant Darrell S. filed a motion for stay of execution, objecting to the placement of his daughters with their mother and step-father. On May 20, 2002, guardian ad litem Melinda Russell filed a motion for a stay of execution, also objecting to the lower court's placement of Frances and Daryl Jean with Melissa and David. R. during the dispositional improvement period. On May 21, 2002, the DHHR filed a motion for stay of execution, arguing that the four children should not be placed with Melissa and David R. (See footnote 9)
In response to the motions for stay, the lower court issued a May 28, 2002, order articulating its acknowledgment that the best interests of Frances and Daryl Jean should be considered in formulating the dispositional improvement period. Thus, the lower court conducted placement reconsideration hearings on June 25, 2002; July 3, 2002; and July 18, 2002. Appellant Darrell S. traveled from Colorado to participate in the hearings. Daryl Jean specifically testified that she wished to remain with her father in Colorado. Frances also testified, but did not wish to express a preference. (See footnote 10) Through telephone conferencing, the lower court heard the testimony of Valerie White of Boulder County Social Services in Colorado. Ms. White had conducted a home study of the residence of Darrell S. and his wife and had continued to monitor the girls while they lived in Colorado. Ms. White testified that the girls were well-adjusted with their father in Colorado and should remain there. The lower court also heard the testimony of Ms. Dianne Eraker, a counselor for the girls in Colorado. She recommended that the girls remain in Colorado with their father, recognizing the need for stability during this critical stage of adolescence. DHHR caseworker Jack Wood testified that the best interests of the girls would be served by allowing them to remain with their father during their mother's dispositional improvement period. David Walker, a parenting trainer, testified that he wanted to observe the interaction between the girls and Melissa and David R. during his parenting classes.
By order dated July 26, 2002, the lower court found that Frances and Daryl Jean (See footnote 11) should be returned to the custody of Melissa and David R. during the dispositional improvement period. The court found that [n]either the Petitioner [DHHR], the Guardian Ad Litem, nor Mr. [S.] offered sufficient evidence compelling enough to justify this Court changing its previous order returning the children to Melissa [R.]. The court did not include explicit findings regarding the best interests of the children and specifically stated that a successful completion of the dispositional improvement period would be required before making any final decisions regarding placement of the children.
On August 13 and 16, 2002, petitions for appeal to this Court were filed by Darrell S. and guardian ad litem Melinda Russell. Frances and Daryl Jean were returned to West Virginia and have remained in the custody of Melissa and David R. since October 25, 2002. The dispositional improvement period concluded on December 5, 2002, and the lower court granted an additional three-month extension, ending on March 5, 2003.
In this appeal, guardian ad litem Melinda Russell assigns the following errors: (1) abuse of discretion in disrupting the stable lives of Frances and Daryl Jean to return them to the custody of Melissa and David R.; (2) abuse of discretion by rigidly imposing the same disposition on two different sets of half-siblings where different permanency plans were available; and (3) error in giving weight to a sexual offender evaluation of David R. which did not meet the Daubert (See footnote 12) test for scientific evidence.
Appellant Darrell S. assigns the following assignments of error: (1) error in
excluding him from participation
(See footnote 13)
in the original hearings; (2) abuse of discretion in failing
to consider issues of child custody when deciding residential placement during the
dispositional improvement period; (3) error in failing to find that placement of Frances and
Daryl Jean with their father was in their best interests.
See also In re Brandon Lee B., 211 W. Va. 587, 567 S.E.2d 597 (2001), cert. denied, 536
U.S. 942 (2002); In re Beth Ann B., 204 W. Va. 424, 513 S.E.2d 472 (1998); State v. Michael
M., 202 W. Va. 350, 504 S.E.2d 177 (1998). The following guidance is also provided in
syllabus point one of In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996):
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.
In the review requested in the case sub judice, it is the lower court's ultimate determination of the custody of Frances and Daryl Jean during the dispositional improvement period that has been challenged. We consequently review that determination under an abuse of discretion standard.
Rule 38 of the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings, regarding hearings subsequent to improvement periods and final disposition,
also recognizes the importance of the best interests of the child in this context, providing in
pertinent part as follows:
No later than sixty (60) days after the end of the alternative disposition improvement period, the court shall hold a hearing to determine the final disposition of the case, including whether the conditions of abuse and/or neglect have been adequately improved in accordance with W. Va. Code § 49-6-5(c). The court also shall determine the necessary disposition consistent with the best interests of the child. . . .
Particularly crucial to this Court's evaluation of this custody issue is the testimony of one of the children, twelve-year-old Daryl Jean. During her testimony, she explicitly stated that she preferred to remain living with her father in Colorado. As this Court has repeatedly recognized, children over the age of fourteen are capable of deciding custody issues for themselves, and the opinions of children approaching that age must also be earnestly considered. As this Court explained in David M. v. Margaret M., 182 W. Va. 57, 385 S.E.2d 912 (1989).
In the child custody context, children fall into one of
three groups, depending on their age. Children under six years
of age are called children of tender years: They are the most
dependent on their parents, but they usually cannot articulate an
intelligent opinion about their custody. Children between six
and fourteen are also dependent on their parents, but they can
usually articulate a preference regarding custody arrangements
and explain their reasons. By the age of fourteen a child takes
on many of the qualities of an adult; in most cases, unless
geography interferes, a child over fourteen will decide for
himself or herself the parent with whom he or she wants to live,
regardless of what a court says.
182 W. Va. at 64, 385 S.E.2d at 919-20 (footnotes omitted). This Court's observations regarding a child's contribution to the custody determination are based upon concepts contained in West Virginia Code § 44-10-4 (1923) (Repl. Vol. 1997), regarding the right of a minor to nominate his or her guardian.
If the minor is above the age of fourteen years, he may in
the presence of the county court, or in writing acknowledged
before any officer authorized to take the acknowledgment of a
deed, nominate his own guardian, who, if approved by the court,
shall be appointed accordingly; and if the guardian nominated
by such minor shall not be appointed by the court, or if the
minor shall reside without the State, or if, after being
summoned, he shall neglect to nominate a suitable person, the
court may appoint the guardian in the same manner as if the
minor were under the age of fourteen years.
In Rose v. Rose, 176 W. Va. 18, 340 S.E.2d 176 (1986), this Court discussed the issue of consulting children regarding custody selections and explained that the child's preference is not binding on the trial court and the parties may introduce evidence to rebut the child's testimony. Id. at 179 n. 3, 340 S.E.2d at 178 n. 3. The Rose Court also emphasized as follows:
[A]n inquiry should be made into the child's intelligence and maturity to see if the child's choice was intelligently made. Equally important, however, is the child's rationale for his decision. In order to be accorded weight, a child's preference for one parent over the other ought to be based on good reason.
Id. at 21 n. 4, 340 S.E.2d at 179 n.4. The Rose Court stated that [i]n making its examination
of the child, the trial court should try to explore several aspects of the child's decision. Id.
at 21 n. 4, 340 S.E.2d at 179 n. 4. Guidelines were offered regarding the lower court's
determination, as follows:
1. The trial court should give greater weight to the wishes of a child which are expressed with strength, clearness, or with great sincerity. . . .
2. A child's preference should be given less weight where it appears that the preference is based on a desire for less rigid discipline or restraint. . . .
3. The trial court should investigate whether the statement of preference by the child was induced by the party in whose favor the preference was expressed. If so, said statement of preference should be accorded little, if any, weight. . . .
4. Where an otherwise intelligent child makes an illogical decision based on unimportant factors, the trial court may disregard the child's statement of preference. . . .
Id. at 21 n. 4, 340 S.E.2d at 179 n.4.
In Judith R. v. Hey, 185 W. Va. 117, 405 S.E.2d 447 (1990), this Court observed that the child in question was over the age of fourteen years and recognized that the legislature of this state has granted her the right to nominate her own guardian. Id. at 120, 405 S.E.2d at 450. The Court explained: While W.Va.Code § 44-10-4 (1982) applies to circumstances where a guardian is to be appointed in lieu of a natural parent, we have previously found the statute to be 'evidence of the legislature's conclusion concerning the age at which an adolescent should be given some substantial say in his own affairs.' S.H. v. R.L.H., 169 W. Va. 550, 555, 289 S.E.2d 186, 189 (1982). Id.
Analyses of the best interests of a child and assessments of the child's own
preferences for placement are necessarily fraught with uncertainties and speculation
regarding the most appropriate custody resolution. This Court has repeatedly encountered
child custody battles in which neither parent presents a commendable record of stellar
parenting skills. Alcohol abuse, prior criminal convictions, and allegations of prior sexual
misconduct are unfortunate realities in these conflicts we seek to resolve. Courts are often
faced with the difficult task of choosing between the lesser of two evils and placing the child
in the environment which appears to present the fewest risks. As Justice Starcher observed
in his concurrence to in In re Emily, 208 W. Va. 325, 540 S.E.2d 542 (2000),
While we may not be able to provide every child with the perfect, white bread, cookie-cutter childhood replete with sitcom-like suburban experiences, the court system must fashion a solution that provides protection for children, with a reasonable opportunity to reach adulthood safely and in as good physical and mental health as practicable.
208 W. Va. at 345, 540 S.E.2d at 562 (Starcher, J., concurring) .
Given the circumstances with which the lower court was presented in the
present case, we conclude that the lower court abused its discretion by ordering the transfer
of custody of Frances and Daryl Jean from Darrell S. to Melissa and David R. during the
dispositional improvement period. The lower court was presented with the direct testimony
of Daryl Jean that she preferred to live with her father in Colorado. Further, the Colorado
home study report indicated that the living environment was appropriate, and the therapist
who had counseled Frances and Daryl Jean in Colorado testified that it would be within
Frances and Daryl Jean's best interests to remain with their father. Due to the passage of
time, however, placement during the dispositional improvement period is no longer an issue.
That improvement period has concluded, and the lower court must now determine the
permanent placement of the children.
(See footnote 15)
This Court has explained that [t]o justify a change of child custody, in addition to a change in circumstances of the parties, it must be shown that such change would materially promote the welfare of the child. Syl. Pt. 2, Cloud v. Cloud, 161 W. Va. 45, 239 S.E.2d 669 (1977). While we understand the lower court's reluctance to remove Frances and Daryl Jean from the custody of their mother, the best interests of the children must be fully evaluated and Daryl Jean's stated preference must be recognized. In order to facilitate a thorough evaluation of those issues, the lower court should conduct a hearing upon remand which specifically addresses the preferences of Frances and Daryl Jean and fully explores issues surrounding their best interests. The lower court should provide the biological father and the biological mother with meaningful opportunity to be heard , including the right to testify and to present and cross-examine witnesses. In all custody matters, we have traditionally held paramount the best interests of the child. Syl. Pt. 5, in part, Carter v. Carter, 196 W. Va. 239, 470 S.E.2d 193 (1996).
Cases involving children must be decided not just in the context of competing
sets of adults' rights, but also with a regard for the rights of the child(ren). In re Brian D.,
194 W. Va. 623, 636, 461 S.E.2d 129, 142 (1995). The question at the dispositional phase
of a child abuse and neglect proceeding is not simply whether the parent has successfully
completed his or her assigned tasks during the improvement period. Rather, the pivotal
question is what disposition is consistent with the best interests of the child. In the present
case, the lives of Frances and Daryl Jean have been severely uprooted during the legal
processes of this abuse and neglect proceeding. Despite the efforts of the Melissa and David
R. to rectify their deficiencies, simple reunification may not be in the best interests of Frances
and Daryl Jean, and the lower court's evaluation on remand must fully address those best
interests in determining a disposition which most effectively serves the children.
Reversed and Remanded with Directions.
Once a court exercising proper jurisdiction has made a
determination upon sufficient proof that a child has been
neglected and his natural parents were so derelict in their duties
as to be unfit, the welfare of the infant is the polar star by which
the discretion of the court is to be guided in making its award of
legal custody. Even then, the legal rights of the parents, being
founded in nature and wisdom, will be respected unless they
have been transferred or abandoned.