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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2005 Term
IN RE: MICHAEL S. JR.
Appeal from the Circuit Court of Mingo County
Hon. Judge Michael Thornsbury
Case No. 03JN-43
Submitted: May 11, 2005
Filed: July 6, 2005
Stephen Paul New, Esq.
D. Maynard Hall, Esq.
Beckley, West Virginia
Attorney for Appellant Tina Slone Attorney
Diana Carter Wiedel, Esq.
Legal Aid of West Virginia Darrell
V. McGraw, Jr.
Williamson, West Virginia Attorney
Guardian Ad Litem
William H. Duty, Esq.
Williamson, West Virginia Attorney
for Appellee West
Attorney for Appellee Michael Scott, Sr. Virginia
Department of Health
The Opinion was delivered PER CURIAM.
SYLLABUS BY THE COURT
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). Syllabus
Point 3, In re Michael Ray T.
, 206 W.Va. 434, 525 S.E.2d 315 (1999).
abuse and neglect cases must be recognized as being among the highest priority
for the courts' attention. Unjustified procedural delays wreak havoc on a child's
development, stability, and security. Syllabus Point 2, In re Michael
Ray T., 206 W.Va. 434, 525 S.E.2d 315 (1999).
reviewing challenges to the findings and conclusions of the circuit court, we
apply a two-prong deferential standard of review. We review the final order and
the ultimate disposition under an abuse of discretion standard, and we review
the circuit court's underlying factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo review. Syllabus Point
2, Walker v. West Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d
S. (Tina), the intervenor below and the appellant before this Court,
appeals a final order of the Circuit Court of Mingo County entered on May 27,
2004, terminating the intervenor status of Tina and thus denying her request
to adopt Michael S. Jr. (Michael Jr.).
the circuit court's ruling terminating Tina's intervenor status; and we agree
with the circuit court that it is in the best interest of the child for the West
Department of Health and Human Resources (DHHR) to immediately
begin a search for
another adoptive placement option for Michael Jr.
case arises from a referral received on October 25, 2003, by the DHHR about
the living conditions, hygiene, and mental health of Michael Jr., a five year
old child. The referral alleged that the homes of his biological parents, Brenda
E. and Michael Sr. (Brenda and Michael Sr.), were in
deplorable condition; that both parents and child suffered from poor hygiene;
that Michael Jr. was not potty trained at age five; and that both parents were
the DHHR investigated (See
footnote 1) the referral, the DHHR filed a child abuse and neglect
petition on December 15, 2003, pursuant to W.Va. Code, 49-6-3  against
Brenda and Michael Sr., seeking immediate custody of Michael Jr.
December 15 hearing, the circuit judge found sufficient evidence to justify immediate
removal of Michael Jr. from the custody of his biological parents. Michael Jr.
was directly remanded into the DHHR's custody based on a finding that he was
in imminent danger due to aggravated circumstances. Michael Jr. was also appointed
a guardian ad litem to represent and protect his best interest.
17, 2003, a preliminary hearing was convened and the circuit judge held that
Michael Jr. should remain in the legal and physical custody of the DHHR. (See
footnote 2) The appellant, Tina, who is a friend of Brenda, was given
intervenor status at this hearing because she expressed an interest in adopting
hearing Tina was told that she would be required to fill out the necessary paperwork,
complete a home study, and undergo a psychological evaluation.
adjudicatory hearing was held on January 20, 2004. At that hearing the circuit
court found that Michael Jr. was a neglected child in accordance with W.Va.
Code, 49-6-2(c) . Tina attended this hearing and was informed of the
date for her psychological evaluation.
February 23, 2004 dispositional hearing, Brenda and Michael Sr. requested a post-adjudicatory
improvement period. The circuit court granted a sixty-day improvement period
for Brenda, but denied Michael Sr.'s request. Another dispositional hearing was
scheduled for April 21, 2004, at 3:30 p.m.
16, 2004, Tina transported Brenda to a supervised visit with Michael Jr. The
DHHR caseworker was present at the visit, and reported that there was little
interaction between Tina and Michael Jr., and the interaction that did take place
showed no signs of an emotional bond between the two.
20, 2004, the day before the scheduled April 21 dispositional hearing, the circuit
court changed the time for the April 21 hearing from 3:30 p.m. to 8:30 a.m. Brenda
was present for the April 21, 2004 hearing, but Tina did not attend the hearing.
Due to the limited record, it is unclear whether Tina informed Brenda of the
time change, or if Brenda informed Tina. But it is clear that Tina knew of the
hearing and failed to attend. At the hearing, Brenda was granted an extension
on her improvement period.
held a final dispositional hearing on May 27, 2004. Tina did not attend this
hearing in person, but was represented by counsel. Evidence was presented by
the DHHR caseworker to the affect that no emotional bond existed between Michael
Tina; that Tina did not complete a home study or psychological evaluation; (See
footnote 3) and that Tina had not had any contact with Michael
Jr. in more than a month. Tina also failed to attend a multi-disciplinary treatment
team (MDT) meeting where DHHR workers who were working on the Michael
Jr. case discussed what was in the best interest of Michael Jr.
court's order from the May 27 hearing reflected that Brenda voluntarily relinquished
her parental rights to Michael Sr. The order also terminated the parental rights
of Michael Sr. because of his neglect of Michael Jr. and his non-participation
with the hearings and services offered. The order also states that, due to Tina's
non- cooperation with the proceedings and her failure to attend visitations or
hearings, placement of Michael Jr. with Tina would not be in the best interest
of the child. In conclusion the order stated that Michael Jr. should immediately
be placed for adoption.
reviewing challenges to the findings and conclusions of the circuit court,
we apply a two-prong deferential standard of review. We review the final order
and the ultimate disposition under an abuse of discretion standard, and we
review the circuit court's underlying factual findings under a clearly erroneous
standard. Questions of law are subject
to a de novo review. Syllabus Point 2, Walker v. West Virginia
Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997).
under the abuse of discretion standard, we will not disturb a circuit court's
decision unless the circuit court makes a clear error of judgment or exceeds
the bounds of permissible choices in the circumstances. Hensley v. West Virginia
Department of Health and Human Resources, 203 W.Va. 456, 461, 508 S.E.2d
616, 621 (1998).
dealing with children this Court has repeatedly stated that the best interest
of the child is the polar star upon which decisions should be based. In re
Erica C., 214 W.Va. 375, 589 S.E.2d 517 (2003). Determining what is in the
child's best interest is especially important when the child has been abused
and neglected by his or her own parents and is currently in limbo as to a permanent
home. Child abuse and neglect cases must be recognized as being among the
highest priority for the courts' attention. Unjustified procedural delays wreak
havoc on a child's development, stability, and security. Syllabus Point
2, In re Michael Ray T., 206 W.Va. 434, 525 S.E.2d 315 (1999). With the
standard of the best interest of the child guiding this decision, we turn to
the issue in the instant case: whether the circuit court erred in ruling against
placing Michael Jr. in the adoptive custody of Tina, and in dismissing her as
argues that her dismissal as an intervenor and possible adoptive parent of Michael
Jr. was improper because she was not given any notice of a time change for a
dispositional hearing, and that the lack of notice caused her to miss the April
Thus, Tina argues, she was prevented from presenting her side of the
story as to why she would be an appropriate candidate to adopt Michael
the DHHR points to the fact that the biological mother, Brenda, testified that
she spoke with Tina and that Tina did know of the time change for the dispositional
hearing. The DHHR also presented evidence showing that it notified Tina of the
change in time. Finally, the DHHR points to all of the previous hearings, meetings,
and visitations in the case where Tina could have shown a consistent and caring
interest in Michael Jr., but did not.
the limited record from below does not show that formal written notice was given
to Tina of the time change, the circuit court found that she was informed of
the time change by Brenda. Formal written notice of a time change for a proceeding
may be necessary in some instances. However, in the instant case it is clear
that Tina had actual notice as to when the dispositional hearing was going to
occur, and she did not attend the hearing.
of formal written notice in this instance should not be overlooked, but it is
not outcome determinative. 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). Syllabus Point 3, In re Michael Ray
T., 206 W.Va. 434, 525 S.E.2d 315 (1999). Michael Jr. needs immediate permanency,
consistency, and stability to counteract the lack of care and learning of his
Tina's absence from court proceedings, because of an alleged lack of notice or
other reasons cannot be taken as meaning that she had a lack of opportunity to
have her position considered by the court.
canceled her psychological evaluation, and never scheduled a home study. She
did not attend an MDT in which placement options for Michael Jr. were discussed.
Tina transported Brenda to visitations with Michael Jr., but Tina herself only
visited once with Michael Jr. - then only for a short period of time. During
this short visit, the DHHR caseworker noticed no emotional bond between Tina
and Michael Jr. Tina never requested additional meetings with Michael Jr., and
took no steps to further the possibility of becoming his adoptive parent. The
court stated that [d]ue to Tina S.'s non-cooperation with these proceedings
and failure to attend the visitations with the child and the hearings in this
matter, placement of the child with Tina S. would not be in the best interests
of the child.
the record before the court, there is more than sufficient evidence to affirm
the circuit court's decision to dismiss Tina as intervenor and possible adoptive
parent of Michael Jr.
conclusion, we find that the circuit court did not abuse its discretion in
dismissing the intervenor, Tina S., from consideration as the potential adoptive
parent for Michael Jr., because she was non-cooperative with the proceedings
and failed to attend visitations and hearings. Any further delay in this case
would be unjust to Michael Jr. and
would be against his best interest. Accordingly, it is in the best interest
of Michael Jr. that he be placed for permanent adoption according to DHHR policy
and procedure. The order of the Circuit Court of Mingo County is affirmed.
The investigator not only
found deplorable living conditions, but was also told by Michael Sr., that
he had been previously convicted in Ohio of several counts of gross sexual
imposition against minor children.
The judge also found, inter
, that: (1) Michael S. and Brenda E. lived in two separate homes;
(2) Brenda E.'s home had large holes in the bathroom and kitchen floors and
you could see the ground; (3) Michael Sr., the father, did not have potable
water in his home and his source of electricity was an extension cord run
from Brenda E.'s home; (4) both homes were unkept and dirty; (5) each home
had puppy feces on the floor; (6) [Michael Jr.] lived in the home with Michael
Sr. and slept in bed with him; (7) Michael Sr., had been convicted of several
counts of gross sexual imposition against children under the age of thirteen;
and (8) Brenda E. was aware of prior sexual convictions.
It was later determined
that the evaluation was never performed, based on a letter from the doctor
who was to perform the evaluation, because Tina had canceled the appointment
and never rescheduled.