In Re: Timber M. & Reuben M.
231 W. Va. 44
W. Va.2013Background
- Timber M. disclosed sexual abuse by her stepfather Jack G. in Aug 2011; mother failed to protect and allowed unsupervised contact.
- Emergency custody was ratified in Dec 2011; the Department filed abuse/neglect petitions in Dec 2011; adjudicatory hearing occurred May 2012.
- Mother denied admission of abuse; improvement-period motion denied; disposition in Aug 2012 terminated parental rights and awarded custody to Kevin M.
- Court remanded for a separate custody determination due to concerns about Kevin M.’s fitness and lack of record explaining the custody decision.
- Court affirmed termination of parental rights but vacated the custodial placement and remanded to address whether permanent custody with Kevin M. is appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due process in removal and notice | Norma G. argues Department violated due process by ignoring statutes/rules. | DHHR asserts no due-process violation; notices and appointments complied with law. | No due-process violation found. |
| Opportunity for improvement period | Norma G. sought an improvement period but failed to acknowledge abuse. | Court properly denied improvement period given lack of acknowledgment and participation. | Improvement period denial upheld. |
| Least restrictive disposition | Mother claims less restrictive options than termination were available. | Court found no reasonable likelihood conditions could be corrected; termination appropriate. | Termination affirmed; remand for custody consideration. |
| Custody with Kevin M.; evidentiary record gap | Family placement with Kevin M. should be supported by clear findings. | Record insufficient to justify Kevin M.’s custody; concerns about fitness noted. | Remand for proceedings to determine Kevin M.’s fitness and full custodial propriety. |
Key Cases Cited
- In re Emily, 208 W.Va. 325 (2000) (clear/convincing standard; abuse/neglect findings reviewable under de novo/clearly erroneous framework)
- In re Cecil T., 228 W.Va. 89 (2011) (compound standard; child welfare determinations deferential to circuit court findings)
- In re Jeffrey R.L., 190 W.Va. 24 (1993) (driving principle: termination may be warranted when no substantial likelihood of correction)
- In re Tiffany Marie S., 196 W.Va. 223 (1996) (sua sponte addressing issues in abuse/neglect appeals permissible to protect welfare)
- State ex rel. Lipscomb v. Joplin, 131 W.Va. 302 (1948) (polar star/welfare of child governs discretion in custody)