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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2010 Term
IN THE INTEREST OF JESSICA G.
Appeal from the Circuit Court of Logan County, West Virginia
Hon. Eric H. O'Briant, Judge.
Case No. 08-JA-33-0
VACATED AND REMANDED
Submitted: May 4, 2010
Filed: June 3, 2010
Mark Hobbs, Esq.
Darrell V. McGraw, Jr.
Chapmanville, West Virginia Attorney General
Attorney for the Appellant,
Charleston, West Virginia
Michael L. Jackson, Esq.
Assistant Attorney General
Erica Barker Cook, Esq.
Charleston, West Virginia
Partain Law Office
Attorneys for the Appellee,
Logan, West Virginia
West Virginia Department of
Guardian ad litem for the Minor Child, Health and Human Resources
The Opinion of the Court was delivered PER CURIAM.
JUSTICE WORKMAN concurs and reserves the right to file a concurring Opinion.
SYLLABUS BY THE COURT
1. 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. Syllabus
Point 1, In the Interest of: Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).
2. Where it appears from the record that the process established by the
Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes for the
disposition of cases involving children adjudicated to be abused or neglected has been
substantially disregarded or frustrated, the resulting order of disposition will be vacated and
the case remanded for compliance with that process and entry of an appropriate dispositional
order. Syllabus Point 5, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001).
Morris G., (See footnote 1)
hereafter Appellant or father, appeals an order of the Circuit
Court of Logan County which terminated his parental rights to the minor child, Jessica G.,
and transferred physical and legal custody of Jessica G. to the West Virginia Department of
Health and Human Services, hereafter DHHR. The Appellant argues that the circuit court
failed to properly consider the wishes of his then thirteen-year-old daughter, Jessica G.,
before terminating his parental rights. In a brief filed with this Court, the guardian ad litem
for Jessica G. also assigns as error that the circuit court failed to make findings of fact as
to whether it considered the wishes of Jessica G., age thirteen, regarding the permanent
termination of the parental rights of the Appellant as required by West Virginia Code 49-6-
5(a)(6) and if so, why such wishes were ignored.
Having fully considered the record, arguments and briefs of the parties, we
vacate the circuit court's order terminating the Appellant's parental rights and remand this
matter for further proceedings consistent with this Opinion.
I. Factual Background
The Appellant is the biological father of Jessica G. and has a long history of
addiction to prescription medications. The record shows that on August 10, 2007, an abuse
and neglect proceeding was instituted against the Appellant and Jessica G.'s biological
mother, Kelly G., alleging substance abuse and neglect of Jessica G. The circuit court, upon
receipt of the petition, granted DHHR temporary custody of Jessica G. In a subsequent
hearing, the Appellant was granted a pre-adjudicatory improvement period, which he
successfully completed and custody of Jessica G. was returned to the Appellant.
On April 7, 2008, the DHHR received another referral, again alleging
substance abuse by the Appellant. An investigation into that referral found the Appellant to
be taking his medication as prescribed, but that Kelly G. admitted to extensive substance
abuse. However, an abuse and neglect petition was not filed because Kelly G. had moved
out of the Appellant's home, the Appellant had full custody of Jessica G. and the Appellant
informed DHHR that he was divorcing Kelly G.
On July 2, 2008, DHHR received another referral, this time informing DHHR
that the Appellant had overdosed on benzodiapines and opiates, necessitating his
hospitalization in intensive care and placement on a ventilator. DHHR filed an abuse and
neglect petition and sought immediate custody of Jessica G., which the circuit court granted.
In his Answer to DHHR's abuse and neglect petition, the Appellant admitted
to the allegations that his substance abuse had resulted in the neglect of Jessica G., and
moved for a post-adjudicatory improvement period. The record shows that over the course
of the next several months, the circuit court and DHHR made substantial efforts to provide
the Appellant with opportunities to treat his addiction to prescription medications. (See footnote 2)
efforts ultimately proved unsuccessful, and DHHR moved to terminate the Appellant's and
Kelly G.'s (See footnote 3)
parental and custodial rights.
On June 5, 2009, a hearing was held on DHHR's motion, at which time neither
the Appellant, nor Kelly G., appeared. The only witness who testified at the hearing was a
social worker employed by DHHR. The social worker testified that while the Appellant had
successfully completed an inpatient treatment program early in the proceedings, he failed to
follow through with his treatment plan which required the Appellant to enroll in a post-
discharge addiction treatment program.
The social worker also testified to Jessica G.'s statements regarding termination
of the Appellant's parental rights, stating: I would note that the child is thirteen and does
not wish her father's parental rights to be terminated and that there is a very strong bond
between Jessica and her father and that if the Appellant's rights were terminated as
requested, that she would want them [Jessica G. and the Appellant] to be able to have some
sort of contact, just because there is such a significant bond. Notwithstanding the
significant bond between Jessica G. and her father, the social worker testified that she did
not think it would be appropriate for [the Appellant] to regain custody of Jessica.
Following the social worker's testimony, and argument of counsel for the
parties, the circuit court granted DHHR's motion to terminate the Appellant's parental
rights. (See footnote 4)
In terminating the Appellant's parental rights, the circuit court made the following
findings from the bench:
. . . [in] Jessica's best interest we all have hoped that
Kelly and Morris would deal with their substance abuse
issues. Early on it was recognized and recommended
that they avail themselves voluntarily of in-patient
treatment programs to help them get clean so that we
could work keeping them clean so that they could
properly parent their teenage daughter.
The [DHHR] did not object to post-adjudicatory
improvement period for either parent. However, the
parents have failed to respond or follow through with
recommended treatment which would have improved
their capacity for parenting. They have willfully refused
and are presently unwilling to cooperate in the
development of a reasonable family case plan to lead to
the child's return to their care, custody, and control.
We have had [treatment plans] and formulated
preliminary plans to let them rehabilitate themselves but
they again have refused and are presently unwilling to
cooperate. Their attendance at hearings has been
sporadic. They have not followed through with their
drug screens as they promised that they would do which
can only lead to the conclusion that they are continuing
to use drugs. There is no doubt that each of them loves
their daughter and that their daughter loves them; and
that their daughter yearns for them to clean up their act
so that they can be a family unit.
However, the Court finds by clear and convincing
evidence in this case that there is no reasonable
likelihood that the conditions of Morris and Kelly being
addicted to controlled substances can be substantially
corrected; and therefore, the Court grants the petition to
[t]erminate both the parental and custodial rights of each
of the biological parents.
After terminating the Appellant's parental and custodial rights, the circuit court
did note the testimony that established the strong bond between Jessica G. and the Appellant,
and ordered the Appellant be provided post-termination visitation with Jessica G., under such
conditions as deemed appropriate by the DHHR.
II. Standard of Review
We set forth our standard of review in abuse and neglect cases in Syllabus
Point 1of In the Interest of: Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996), which
states as follows:
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.
The record before us clearly demonstrates that the Appellant is addicted to
prescription medications and that the underlying action was instituted following the
Appellant's having overdosed - the overdose resulting in the Appellant's being placed in
intensive care and on a ventilator. There is no dispute by the parties that several efforts were
undertaken by DHHR and the circuit court, during the pendency of the action below, to
provide the Appellant an opportunity to obtain treatment for his addiction.
While the Appellant participated in the treatment plans, it is clear that he did
so with varying degrees of effort and ultimately failed to overcome his addiction. This
failure resulted in a recommendation by DHHR that the Appellant's parental rights be
terminated. The circuit court agreed with DHHR's recommendation and terminated the
Appellant's parental rights on the basis that the Appellant's addiction rendered him incapable
of providing the necessary parental care and supervision of Jessica G.
On appeal, the Appellant and the guardian ad litem for Jessica G. argue that
the circuit court erred in failing to properly consider the wishes of Jessica G. before
terminating the Appellant's parental rights. The guardian ad litem further argues that the
conditions giving rise to the neglect of Jessica G. - the Appellant's addiction
resolvable by a means other than termination of the Appellant's parental rights. This point
is succinctly stated in the guardian ad litem's brief as follows:
. . . the [DHHR] was wrong when it believed it had no
choice but to ask for termination of the Appellant's
parental rights. Under West Virginia Code 49-6-5(a)(5),
Jessica G. could have been placed in foster care until she
reached the age of eighteen. Such disposition could have
allowed [the Appellant] to petition the court at a later
date and show he was willing to provide for Jessica G.'s
The guardian ad litem further argues that another alternative disposition that
the court could have considered was to bifurcate the parental rights of the Appellant . . . and
terminate his custodial rights only. The guardian ad litem reasons that such a bifurcation
would have allowed [the Appellant] to retain his parental rights to Jessica G. and to honor
the wishes of Jessica G. To be clear, the guardian ad litem does not argue that Jessica G.
should be returned to the custody of the Appellant as a result of this appeal and specifically
takes the position that the Appellant should not have custody until his addiction is in
The record is clear that the circuit court was made aware by the Appellant,
DHHR and the guardian ad litem that Jessica G. did not want her father's parental rights
terminated and that Jessica G. had a significant bond with her father. In granting post-
termination visitation to the Appellant, the circuit court acknowledged this bond. However,
under W.Va. Code, 49-6-5(a)(6)  (See footnote 5) , the circuit court should have considered Jessica G.'s
wishes before terminating the Appellant's parental rights:
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. (Emphasis
After reviewing the circuit court's order terminating the Appellant's parental
and custodial rights, as well as a review of the transcript of the dispositional hearing, we find
that the circuit court failed to adequately explain why Jessica's G., who was thirteen years
old at the time of the dispositional hearing (and is now fourteen years old), was not
otherwise of an age of discretion, Id., and why her wishes were not factored into whether
termination of the Appellant's parental rights, and the concomitant bond between Jessica G.
and her father, might be contrary to Jessica G.'s best interests and emotional well-being. We
are particularly concerned with the complete absence of any testimony at the dispositional
hearing by a licensed mental health care provider as to the possible psychological
consequences to Jessica G. by terminating her father's parental rights.
In Syllabus Point 5, In re: Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001)
we held that:
Where it appears from the record that the process
established by the Rules of Procedure for Child Abuse
and Neglect Proceedings and related statutes for the
disposition of cases involving children adjudicated to be
abused or neglected has been substantially disregarded or
frustrated, the resulting order of disposition will be
vacated and the case remanded for compliance with that
process and entry of an appropriate dispositional order.
In the case before us, the circuit court should have considered Jessica G.'s
wishes, pursuant to W.Va. Code, 49-6-5(a)(6), before terminating the Appellant's parental
and custodial rights and failed to do so. Accordingly, we vacate the circuit court's order
terminating the Appellant's parental rights and remand this matter for further proceedings.
On remand, the circuit court shall consider Jessica G.'s wishes and whether placement in a
foster home until her eighteenth birthday might best serve the interest of this child. Those
findings shall be specifically set forth in the court's dispositional order. (See footnote 6)
For the reasons set forth herein, the order of the Circuit Court of Logan County
is vacated and this matter remanded for further proceedings consistent with this Opinion.
We follow our traditional practice in child abuse and neglect matters, as well as other cases
involving sensitive facts, and do not use the last names of the parties. See, e.g.
, In the Matter
of: Scottie D.
, 185 W.Va. 191, 192 n. 1, 406 S.E.2d 214, 215 n. 1 (1991).
The record reflects that the Appellant had been seriously injured in an accident and began
taking pain medications, leading to his addiction. At the time of the institution of the abuse
and neglect proceeding underlying this appeal, the Appellant continued to be prescribed pain
medication and was under the care of a pain management specialist.
The record indicates that Kelly G. had been largely uncooperative during the post-
adjudicatory improvement period granted to her, including signing herself out against
medical advice from an inpatient treatment program.
The circuit court also terminated Kelly G.'s parental rights. She did not appeal that
, 49-6-5(a)(6) states, in relevant part, as follows:
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. (Emphasis
In the event that the circuit court again finds that termination of the Appellant's parental
rights is in Jessica G.'s best interest, we encourage the circuit court to again specifically
address - as it appropriately did at the time of the dispositional hearing and dispositional
order presently before us in this Appeal - those matters set forth in Syllabus Point 5 of In
re Christina L
., 194 W.Va. 446, 460 S.E.2d 692 (1995), where we held that:
When parental rights are terminated due to neglect or abuse, the
circuit court may nevertheless in appropriate cases consider whether
continued visitation or other contact with the abusing parent is in the
best interest of the child. Among other things, the circuit court should
consider whether a close emotional bond has been established between
parent and child and the child's wishes, if he or she is of appropriate
maturity to make such request. The evidence must indicate that such
visitation or continued contact would not be detrimental to the child's
well being and would be in the child's best interest.
Nothing in this Opinion should be interpreted to require the transfer of the custody of
Jessica G. from the DHHR to the Appellant. This Opinion vacates only the circuit court's
June 8, 2009, dispositional order. All prior orders of the circuit court regarding temporary
custody of Jessica G. remain in full force and effect.