| CHAELYN W. CASTEEL, Esq.
Kingwood, West Virginia
Attorney for Appellant
NATALIE J. SAL, Esq.
Guardian ad litem for Nelson B.
Morgantown, West Virginia
| DARRELL V. MCGRAW, Esq.
C. CARTER WILLIAMS, Esq.
Assistant Attorney General
Moorefield, West Virginia
Attorney for Appellee
Part of Paul B.'s Family Case Plan focused on the need for regular employment and a steady income, as the family's sole source of income was Social Security survivor benefits occasioned from the death of Nelson B.'s mother. At times during the improvement period, Paul B. indicated his intention to seek Social Security Disability benefits in his own name. Caseworkers continued to suggest that Paul B. seek employment with a sheltered workshop. Paul B. did not follow through with these suggestions.
In its dispositional order entered on May 15, 2009, and based upon a hearing held February 19, 2009, the circuit court concluded that despite the best efforts of Paul B. and the Department, Paul B. was presently unable to adequately care for Nelson B.'s needs. The circuit court further concluded that it was not in the best interest of the child for Paul B.'s parental rights to be terminated, but that a permanent placement of Nelson B. was possible by way of a legal guardianship with the maternal aunt and uncle. Continued contact and visitation between Nelson B. and Paul B. was specifically authorized. The court's order clearly left the matter of modification open, by stating as follows:
The Court is not terminating parental rights, and is further issuing this Order without prejudice so as to permit the Respondent Paul B. to later file a petition with this Court seeking return of custody of Nelson B. if the circumstances are appropriate for the same.
The final order further contemplated increased visitation and a greater role for Paul B. in Nelson B.'s life by ordering that:
[A]s the child gets older, the parties should attempt to increase the contact between the child and Respondent Paul B., and shall permit unsupervised visitation when the same becomes safe and appropriate given the child's age and mental health status of Paul B.
The lower court reviewed the permanency placement of Nelson B. on May 15,
2009. By separate order entered June 4, 2009, the circuit court ordered that Nelson B.
remain in the legal and physical custody of the Department for continued placement with his
maternal aunt and uncle. The order references the pemanency plan of legal guardianship
with the child's maternal aunt and uncle but this order does not appear to establish the
guardianship. A careful review of the appellate record indicates that on May 12, 2009, a
petition for legal guardianship was filed by the maternal aunt and uncle, but no final action
has been taken on that petition.
' A parent has the natural right to the custody of his or her infant child, and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment, or other dereliction of duty, or has waived such right, or by agreement or otherwise has permanently transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts.
Syllabus, State ex rel. Kiger v. Hancock, 153 W. Va. 404, 168 S.E.2d  (1969)' ' Syl.
pt. 2, Hammack v. Wise, 158 W. Va. 343, 211 S.E.2d 118 (1975). Syl. Pt. 1, Nancy Viola
R. v. Randolph W., 177 W. Va. 710, 356 S.E.2d 464 (1987).
We have previously held:
As a general rule the least restrictive alternative regarding parental rights to custody of a child under W. Va.Code, 49-6-5 (1977) will be employed; however, courts are not required to exhaust every speculative possibility of parental improvement before terminating parental rights where it appears that the welfare of the child will be seriously threatened, and this is particularly applicable to children under the age of three years who are more susceptible to illness, need consistent close interaction with fully committed adults, and are likely to have their emotional and physical development retarded by numerous placements.
Syl. pt. 1, In re R. J. M., 164 W. Va. 496, 266 S.E.2d 114 (1980).
We have likewise held that in some instances, there is no other remedy short of termination of parental rights when there is no reasonable likelihood that the parenting deficiencies or abuse cannot be substantially corrected.
Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, W. Va. Code, 49-6-5 (1977) may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under W. Va. Code, 49-6-5(b) (1977) that conditions of neglect or abuse can be substantially corrected.
Syl. pt. 2, In re R. J. M., 164 W. Va. 496, 266 S.E.2d 114 (1980).
West Virginia Code §49-6-5(a) (1996) (Repl. Vol. 2009) addresses situations similar to the one faced by the court below in the case sub judice by creating a list of possible dispositions, in order of precedence. The potential dispositions include the following: dismissal of the petition; refererral of the child and family to community agencies for needed assistance; as well as return of the child to his or her own home under the supervision of the Department. When, however, it is determined that the conditions that gave rise to the removal of the child from the home cannot be remedied, West Virginia Code §49-6-5(a)(6) (2009) states:
Upon a finding that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future and, when necessary for the welfare of the child, terminate the parental, custodial and guardianship rights and responsibilities of the abusing parent and commit the child to the permanent sole custody of the nonabusing parent, if there be one, or, if not, to either the permanent guardianship of the department or a licensed child welfare agency. The court may award sole custody of the child to a non-abusing battered parent. If the court shall so find, then in fixing its dispositional order the court shall consider the following factors: (A) The child's need for continuity of care and caretakers; (B) the amount of time required for the child to be integrated into a stable and permanent home environment; and (C) other factors as the court considers necessary and proper. Notwithstanding any other provision of this article, the court shall give consideration to the wishes of a child fourteen years of age or older or otherwise of an age of discretion as determined by the court regarding the permanent termination of parental rights. No adoption of a child shall take place until all proceedings for termination of parental rights under this article and appeals thereof are final. In determining whether or not parental rights should be terminated, the court shall consider the efforts made by the department to provide remedial and reunification services to the parent. The court order shall state: (i) That continuation in the home is not in the best interest of the child and why; (ii) why reunification is not in the best interests of the child; (iii) whether or not the department made reasonable efforts, with the child's health and safety being the paramount concern, to preserve the family, or some portion thereof, and to prevent the placement or to eliminate the need for removing the child from the child's home and to make it possible for the child to safely return home, or that the emergency situation made such efforts unreasonable or impossible; and (iv) whether or not the department made reasonable efforts to preserve and reunify the family, or some portion thereof, including a description of what efforts were made or that such efforts were unreasonable due to specific circumstances.
Further, W. Va. Code §49-6-5(b)(6) provides a definition for the phrase no reasonable likelihood that conditions of neglect or abuse can be substantially corrected.
The applicable code section states:
(b) As used in this section, no reasonable likelihood that conditions of neglect or abuse can be substantially corrected shall mean that, based upon the evidence before the court, the abusing adult or adults have demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own or with help. Such conditions shall be considered to exist in the following circumstances, which shall not be exclusive:
After applying the statutory language to the facts that faced the circuit court, we find that the Department exercised reasonable efforts to reunify Nelson B. with his father. Through a tailored improvement period and with the collaborative effort of many entities, the Department attempted to give Paul B. the ability to be a fit and proper parent to his young son. The course of his mental illness, however, was such that Paul B. continued through the improvement period, to suffer periods of time where he was unable to adequately provide for his young son's needs. In his appeal to this Court, Paul B. encourages us to continue to speculate as to whether he will ever be able to make a home for his child. This case is especially difficult because it is clear that Paul B. loves his son, that the child is bonded to his father and that Paul B. undertook tremendous steps and made some gains during the course of his improvement period. However, despite these efforts by Paul B., as well as the efforts of the Department to reunify this family, Paul B.'s mental illness is such that it appears impossible to safely return Nelson B. to the care of his father. During the course of this improvement period and indeed prior to the filing of the petition that led to this appeal, the Department sought to assist Paul B. with intensive, in-home parent education and other services. Despite these services, and Paul B.'s hard work to become a safe and suitable parent for his child, Paul B. could not provide a stable home, a stable income or stable transportation. He continued to suffer from the manifestations of a severe and chronic mental illness that from time-to-time required hospitalization. When these events occur, the health, safety and welfare of Nelson B. is certainly adversely impacted.
(6) The abusing parent or parents have incurred emotional illness, mental illness or mental deficiency of such duration or nature as to render such parent or parents incapable of exercising proper parenting skills or sufficiently improving the adequacy of such skills. . .
We believe that the circuit court placed the child in an appropriate permanent placement with his maternal aunt and uncle. The home where the child was placed is a familiar home to this child, inasmuch as Paul B. and Nelson B. resided there at some points in their lives together. And while this is a final placement under our statutory scheme, it appears that Paul B. has been given an extraordinary opportunity to remain active in his child's life despite the limitations on parenting caused by his mental illness, by having regular, meaningful contact with the child, including the chance to increase the time spent with the child. As the guardian ad litem opined in her brief to this Court, this solution is clearly in the best interest of Nelson B., and is (sic) frankly is probably in the best interest of Paul B.
The circuit court could have decided this case much differently and perhaps terminated Paul B.'s parental rights. In the case of In re: Maranda T., 223 W. Va. 512, 678 S.E.2d 18 (2009), this Court affirmed the termination of the parental rights of a mother who suffered from low intellectual functioning. In Maranda T., the mother attempted to abide by the plan proposed during an improvement period, but because of her intellectual limitations was unable to get to a point of being able to care for her child. In that case, unlike the case before the court today, the mother's parental rights were terminated, with post-termination visitation between the parent and the child ordered. The mother in Maranda T. was given approximately 14 months of services before the court terminated her parental rights; in the present case, counting the Department's efforts before the formal petition was filed, Paul B. has received in excess of 21 months of services. (See footnote 4) The lower court employed a lesser-restrictive alternative and left Paul B. in a position to increase his role and involvement in Nelson B.'s life.
. After carefully reviewing the evidence presented, the record and the briefs of the parties, we conclude that the circuit court did not err in determining that Paul B. was unable to adequately parent his child. Although significant efforts were put forth by Paul B., and these efforts continue to date, (See footnote 5) he is currently unable to provide the type of home that his young son requires. As such, the circuit court correctly made the difficult decision to end the custodial parental relationship, while maintaining regular and meaningful contact between the child and his biological father. And because the circuit court declined to terminate the parental rights, if Paul B. were to show significant improvement in the conditions which gave rise to this proceeding, his role in the child's life could be modified.
We are concerned that the permanency plan formulated by the Department has yet to be concluded, depriving Nelson B. of the finality of his placement. While the child's caretakers have filed a petition for infant guardianship in the Circuit Court of Preston County, no discernable action has been taken. Thus, the child remains in the legal and physical custody of the Department, with placement in the home of fit and proper persons willing and able to solidify their relationship with the child through a legal guardianship. The child deserves the finality and permanency of a legal guardianship, and the circuit court should promptly act on the petition now that this appeal has concluded.