In re B.H. and S.S.
No. 13-0342
Supreme Court of Appeals of West Virginia
Decided Feb. 5, 2014
754 S.E.2d 743
LOUGHRY, Justice
Submitted Jan. 15, 2014.
cation with a focus in ethics; Mr. Busch be ordered to pay the costs of these proceedings; prior to petitioning for reinstatement, Mr. Busch reimburse these costs to the Lawyer Disciplinary Board; and, if Mr. Busch is successfully reinstated in the future, he be placed on two years of probation with supervised practice by an active attorney in his geographic area in good standing with the State Bar.
Law License Suspended and Other Sanctions.
Michael D. Farnsworth, Jr., Esq., Parkersburg, WV, Guardian Ad Litem for B.H. and S.S.
Patrick Morrisey, Esq., Attorney General, Charleston, WV, Lee A. Niezgoda, Esq., Assistant Attorney General, White Hall, WV, for Respondent West Virginia Department of Health and Human Resources.
LOUGHRY, Justice:
The petitioner, Krista H. (“the mother“), appeals from the January 9, 2014, Corrected Disposition Order through which the Circuit Court of Wood County granted primary custodial responsibility of her daughters, B.H.
I. Factual and Procedural Background
On December 5, 2011, the respondent, the West Virginia Department of Health and Human Resources (“the Department“), filed a verified Petition to Institute Child Abuse and Neglect Proceedings (“Petition“) against the mother in relation to her minor children, B.H. and S.S.4 The father was also a named respondent in the proceeding, although there were no allegations of either abuse or neglect against him in the Petition.5 The Department alleged that the mother was in a personal relationship with a registered sex offender, John Bailey; that the mother exposed her children to Mr. Bailey, as well as his friend, Andrew Oldaker, a registered sex offender with whom the mother, her daughters, B.H. and S.S., and Mr. Bailey lived for a period of time; and that S.S. and B.H. were sexually abused on multiple occasions by Mr. Bailey and other sex offenders with whom the mother associated.6 The Department took emergency custody of the children and, on December 6, 2011, the circuit court ordered that the legal and physical custody of B.H. and S.S. remain with the Department. The mother waived her preliminary hearing and the matter proceeded to adjudication.
3. The father of [B.H. and S.S.] is Randy [H., Jr.] whose whereabouts are unknown.
....
7. The respondent-mother admits to the neglect of the above-named children as follows:
- No permanent residence at the time of filing the petition.
- She and her children were residing with John Bailey, a registered sex offender.
- She was aware that John Bailey and Andrew Oldaker were registered sex offenders, and failed to protect her children by allowing them to be around John Bailey and Andrew Oldaker.
- That as a result of being around John Bailey and other individuals who are registered sex offenders, her children were subjected to sexual abuse.
8. Based upon these stipulations, the children are neglected children within the meaning of the
West Virginia Code 49-6-1 et al.
On January 17, 2012, the circuit court entered an order adjudicating the children abused and neglected and awarding the mother a six-month post-adjudicatory improvement period. The primary goals of the improvement period were to aid the mother in improving her self-esteem; to help her gain insight into how her children had been harmed through their exposure to registered sex offenders; and to teach her how to identify and recognize sex offenders, how to prevent the sexual abuse of her children, and how to provide them with a safe and secure home, free from exposure to sex offenders. The improvement period also allowed the mother to have supervised visitation with her daughters.
Thereafter, periodic review hearings were held before the circuit court to ascertain how the mother was doing in her improvement period. While the mother complied with certain aspects of her improvement period, in other areas she experienced difficulties.7 In Child Protective Services (“CPS“) worker Amanda Damron‘s April 3, 2012, hearing update, she reported that the mother had knowingly started dating and living with another sex offender, Patrick Trembly. CPS worker Damron further reported that the mother indicated that Mr. Trembly was fighting his “wrongful conviction” and that she believed he is innocent.8
In CPS worker Damron‘s update for the July 9, 2012, review hearing, she reported that the mother “seemed to understand what the appropriate boundaries should be with [B.H. and S.S.], but in the next visit, she did nothing that she and the worker [the parenting provider] talked about.” Ms. Damron further reported that the parenting provider was “very uneasy at the thought of unsupervised visitation.”
In late August 2012, the mother filed a motion for a ninety-day extension of her improvement period, which the circuit court granted. Approximately one month into the ninety-day extension, CPS worker Damron
In CPS worker Damron‘s final report to the circuit court, she advised that the mother‘s unsupervised visitations began the prior month in the basement apartment of her mother‘s home where she was residing, and that the visitations went well. Ms. Damron further advised that while the mother had complied with services, the Multi-Disciplinary Team (“MDT“) members continued to be concerned that she had “not changed her behavior enough to ensure that she will not expose her children to inappropriate people.” Ms. Damron concluded her report by stating that all MDT members, except the mother, agreed that the best interests of the children would be served by allowing them to remain in the primary custody of their father with a visitation plan for the mother.
On February 5, 2013, the disposition hearing was held during which Ms. Damron testified consistently with her final report, as discussed above. The mother testified that she now understands that it is important to keep her children away from certain kinds of people; that she was attracted to these people because they “paid attention” to her;
At the conclusion of the disposition hearing, the Department‘s counsel advised that the children‘s best interest would be served by terminating the mother‘s custodial rights and allowing the children to remain with their father while giving the mother visitation. The GAL concluded that it was in the children‘s best interest to remain with their father with frequent and liberal visitation with their mother.15
On March 13, 2013, the circuit court entered its first Disposition Order in which it terminated the mother‘s custodial rights16 and adopted the Parenting Plan proposed by the MDT, which made the father the primary residential parent and gave the mother unsupervised visitation with the children.17 In its Corrected Disposition Order entered during the pendency of this appeal, the circuit court did not terminate the mother‘s custodial rights. Instead, the circuit court found that the mother had “substantially complied” with the terms and conditions of her improvement period,18 but that it was in the children‘s best interest that their father be appointed as their “primary residential parent.” The circuit court stated in this order that it had considered the children‘s wish to remain in the primary custody of their father, as well as the “totality of circumstances in the case, including but not limited to the academic performance of the children while living with their father and the safe and stable environment they have enjoyed while living there[.]” The circuit court again adopted the MDT‘s proposed Parenting Plan19 and dismissed the proceeding from the court‘s docket.20
During oral argument before this Court, all parties agreed that the mother‘s first assignment of error challenging the termi-nation
II. Standard of Review
We are asked to review a circuit court‘s disposition order entered upon a petition for termination of parental rights. Our standard of review in this regard is well established:
“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.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). As we have previously explained, “a circuit court‘s substantive determinations in abuse and neglect cases on adjudicative and dispositional matters—such as whether neglect or abuse is proven, or whether termination is necessary—is entitled to substantial deference in the appellate context.” In re Rebecca K.C., 213 W.Va. 230, 235, 579 S.E.2d 718, 723 (2003) (internal citations omitted). With these principles in mind, the parties’ arguments will be considered.
III. Discussion
In the present appeal, the mother asserts that the circuit court erred in granting primary custody of B.H. and S.S. to their father as she had substantially complied with the terms of her post-adjudicatory improvement period; the children had lived with her solely since they were infants; and she had been denied an adequate period of unsupervised visitation to demonstrate what she had learned from her improvement period. We begin our analysis of this issue by acknowledging that
“[a]lthough 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). Indeed, “‘[i]n 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. 1, State ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972).” Syllabus Point 4, State ex rel. David Allen B. v. Sommerville, 194 W.Va. 86, 459 S.E.2d 363 (1995).” Syl. Pt. 2, In the Interest of Kaitlyn P., 225 W.Va. at 123-124, 690 S.E.2d at 131-132.
In re Timber M., 231 W.Va. 44, 53, 743 S.E.2d 352, 361 (2013). Further, although parents have substantial rights, “‘courts are not required to exhaust every speculative possibility of parental improvement ... where it appears that the welfare of the child will be seriously threatened....’ Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syl. Pt. 4, in part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).
In the case-at-bar, the mother‘s post-adjudicatory improvement period provided her with “‘an opportunity to modify her behavior so as to correct the conditions of abuse and neglect with which she ha[d] been charged.’ In re Emily, 208 W.Va. at 334, 540 S.E.2d at 551.” In re Isaiah A., 228 W.Va. 176, 184, 718 S.E.2d 775, 783 (2010). As this Court has previously directed,
[a]t the conclusion of the improvement period, the court shall review the perform-ance
of the parents in attempting to attain the goals of the improvement period and shall, in the court‘s discretion, determine whether the conditions of the improvement period have been satisfied and whether sufficient improvement has been made in the context of all the circumstances of the case to justify the return of the child. Syl. Pt. 6, In Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991) (emphasis added).
While the circuit court acknowledged the mother‘s substantial compliance with the terms and conditions of her improvement period, we have recognized that “it is possible for an individual to show ‘compliance with specific aspects of the case plan’ while failing ‘to improve ... [the] overall attitude and approach to parenting.‘” W.Va. Dept. of Human Serv. v. Peggy F., 184 W.Va. 60, 64, 399 S.E.2d 460, 464 (1990). In re Jonathan Michael D., 194 W.Va. 20, 27, 459 S.E.2d 131, 138 (1995). Moreover, “[t]he assessment of the overall success of the improvement period lies within the discretion of the circuit court.... ‘regardless of whether ... the individual has completed all suggestions or goals set forth in family case plans.‘” In Interest of Carlita B., 185 W.Va. 613, 626, 408 S.E.2d 365, 378 (1991).” In re Jonathan Michael D., 194 W.Va. at 27, 459 S.E.2d at 138.21
In reviewing the circuit court‘s rulings in the case sub judice, we remain mindful that
whenever a child appears in court, he is a ward of that court.
W.Va.Code § 49-5-4 (1996) ; Mary D. v. Watt, 190 W.Va. 341, 438 S.E.2d 521 (1992). Courts are thus statutorily reposed with a strong obligation to oversee and protect each child who comes before them. As Justices Cleckley and Albright stated in West Virginia Department of Health and Human Resources ex rel. Wright v. Brenda C., 197 W.Va. 468, 475, 475 S.E.2d 560, 569 (1996), “[a]bove all else, child abuse and neglect proceedings relate to the rights of an infant.” Id. at 477, 475 S.E.2d at 569.
State v. Julie G., 201 W.Va. 764, 776, 500 S.E.2d 877, 889 (1997) (J. Workman, dissenting). Further, as we stated in In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013),
[I]t is clear from our [child abuse and neglect] procedural rules, as well as our prior case law, that “[t]here cannot be too much advocacy for children.” State ex rel. Diva P. v. Kaufman, 200 W.Va. 555, 570, 490 S.E.2d 642, 657 (1997) (Workman, C.J., concurring). Indeed, if one thing is firmly fixed in our jurisprudence involving abused and neglected children, it is that the “polar star test [is] looking to the best interests of our children and their right to healthy, happy productive lives[.]” In re Edward B., 210 W.Va. 621, 632, 558 S.E.2d 620, 631 (2001). This Court has repeatedly stated that a child‘s welfare acts as “the polar star by which the discretion of the court will be guided.” In Re: Clifford K., 217 W.Va. 625, 634, 619 S.E.2d 138, 147 (2005) (internal citation omitted).
231 W.Va. at 59-60, 743 S.E.2d at 367-68.
Grounded in these same fundamental principles, this Court observed that “[t]he 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 re Frances J.A.S., 213 W.Va. 636, 646, 584 S.E.2d 492, 502 (2003). Indeed, the overriding consideration must be whether the issues that brought about the allegations of abuse and/or neglect have been addressed by the parent in a substantive and effective manner, and whether those conditions of abuse and/or neglect have been sufficiently remedied such that it is in the child‘s best interests to be returned to the parent‘s custody.
In the present appeal, although the mother substantially complied with the terms and conditions of her improvement period, there were continuing concerns that she would again become involved with inappropriate individuals and thereby continue to expose her daughters to the serious risks attendant with such ill-advised associations. We observe that there is evidence for these concerns in the appendix record.
As previously indicated, the mother stipulated that she was aware that John Bailey and Andrew Oldaker were registered sex offenders; that she failed to protect her children by allowing them to be around Messrs. Bailey and Oldaker; and, that as a result of being around Mr. Bailey and other individuals who are registered sex offenders, her children were subjected to sexual abuse. The appendix record also reflects that the mother continued her relationship with John Bailey after learning that he was a registered sex offender because she believed he was innocent. In fact, as late as October 2012, a parenting provider reported that the mother still did not believe that John Bailey is a registered sex offender, but says that she does so as to appear protective of her children. Moreover, during the mother‘s improvement period, she entered into a relationship with yet another registered sex offender, Patrick Trembly. She endeavored to excuse this relationship on the basis that her daughters were never around Mr. Trembly because they were in the Department‘s custody.22 Further, as with John Bailey, after learning that Mr. Trembly was a registered sex offender, the mother believed he was innocent and agreed “to help him go over his papers[,]” “as a friend.”
We recognize the difficulty that the circuit court confronted in terms of assessing whether the mother had made “sufficient improvement in the context of all the circumstances of the case to justify the return of the child[ren].” Syl. Pt. 6, in part, Carlita B., 185 W.Va. 613, 408 S.E.2d 365. Unlike an abuse and neglect proceeding that involves a dirty home or a parent abusing drugs, where a parent‘s success in an improvement period can be measured in concrete terms of whether the home is clean or the parent‘s drug screens are negative, here, the circuit court had to assess whether the mother had internalized what the service providers endeavored to teach her during her improvement period and whether she would, in fact, protect her children by avoiding relationships with individuals in whose presence her children were placed at risk of abuse.
In addressing this difficult question, the circuit court had the benefit of numerous improvement period review hearings during which it was advised of continuing concerns about unsupervised visitation and whether the mother would protect her daughters if they were under her full-time care. At disposition, CPS worker Damron summarized for the circuit court the children‘s circumstances prior to the instant proceedings when they were residing with the mother: “[T]hey moved several times, missed several days of school, their grades were suffering, and ultimately the children were sexually abused as a result of the mother exposing the children to inappropriate individuals because she put her need to have a relationship above the children‘s need for safety.” Ms. Damron also advised the circuit court that after the children were removed from the mother, they have excelled in their school work and also their attendance. The children have enjoyed playing basketball and other after school activities that they have never been able to participate in before. The children have a routine every day that creates a safe and stable environment for them and allows them to actually act their age. The children reside full time with their father, who
(Footnote added.). The circuit court received multiple recommendations at disposition that the best interests of the children would be served by remaining in the primary custody of their father with visitation to the mother, which is what the children desired, as well. See Matter of Brian D., 194 W.Va. 623, 636, 461 S.E.2d 129, 142 (1995) (“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).... and [the children‘s] own feelings and emotional attachments should be taken into consideration by the lower court.“).
As we have previously held, “‘[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).” Syl. Pt. 5, In re Frances J.A.S., 213 W.Va. 636, 584 S.E.2d 492 (2003). During oral argument, counsel advised this Court that the parents have been following the MDT‘s Parenting Plan since it was first adopted by the circuit court in March 2013, and that there have been no concerns raised concerning the welfare of the children during that time. Accordingly, based upon our review of the appendix record, the relevant law, and the parties’ arguments, and giving substantial deference to the circuit court‘s dispositional decision,24 this Court concludes that the circuit court‘s adoption of the MDT‘s Parenting Plan serves the best interests of B.H. and S.S. by fostering their bond with their mother25 through liberal unsupervised visitation while simultaneously insuring their safety and materially promoting their welfare by allowing primary custody to remain with their father.
Lastly, we address the mother‘s argument that she was not given sufficient unsupervised visitations to permit her to demonstrate the full extent of what she had learned from her improvement period.26 As indicated above, any delay in ordering unsupervised visits was due to the mother‘s actions and conduct, which led to continuing concerns that she would not protect her daughters from additional acts of abuse. Although the circuit court awarded the mother unsupervised visitation in December 2012, in the face of these continuing concerns, it also directed that the only persons who were to be present during the unsupervised visitation were the mother and the children‘s maternal grandmother and that the Department, its services provider, or the GAL were to follow-up immediately after such visitations to ensure their appropriateness. The unsupervised visitation began the following month.
Based on all of the above, we find that the mother had ample opportunity during her improvement period to demonstrate that she had learned and internalized how to make better parenting decisions and better choices in terms of the persons with whom she chooses to associate so as to protect her daughters. Consequently, any delay in awarding unsupervised visitation was due to the mother‘s behaviors and actions which caused continuing concern for the children‘s safety. Accordingly, we find no error in this regard.
IV. Conclusion
Based upon this Court‘s thorough review of this matter and for the foregoing reasons, the Circuit Court of Wood County‘s Corrected Disposition Order awarding primary custody of B.H. and S.S. to the father with
Affirmed.
Notes
On or around December 1, 2011, [S.S.] stated that John took her the night before and threw her on the bed then ripped her pants off and stuck his fingers in her spot and pointed at her vaginal area. She stated that he also made her rub his chest. [S.S.] stated that it never stops. She stated that sometimes she does not mind it because if she does things with him he buys her really cool stuff.