*1 statutory interpreta- dealing with issues
tion. majority’s disagree con-
I likewise that so-called “John Doe” actions
clusion governed by general two-year
must be of limitation set forth W. Va.Code
statute 55-2-12, ten-year limita- rather than the provided by
tion for contract actions majority at-
W. Va.Code 55-2-6. The
tempts to a distinction actions make between insurer,
brought directly against an formally against an un-
eases commenced unin-
known defendant order to collect coverage. motorist
sured or underinsured Plumley v.
This is hollow distinction. (1993),
May, 189 W.Va.
the Court made clear that action
against pursuit insurer uninsured coverage motorist is an action
underinsured simply than I fail to
in contract rather tort. treating
see reason John Doe action object
any differently, single where the proceedings is to in- recover majority plainly in this ease has
surer.
exalts form over substance. reasons, foregoing respectfully
For the I
dissent. I am authorized to state that Jus- joins in this dissent.
tice STARCHER
In re EMILY and Amos B.
No. 26915.
Supreme Appeals Court Virginia.
West April 2000.
Submitted
Decided June 2000.
Concurring Opinion of Justice July
Starcher *4 “DHHR”],
Human Resources [hereinafter 15, 1999, appeals September order entered the Circuit Court of Mercer County regarding Emily the minor children “Emily”] B.1 [hereinafter her brother (son) Amos B. In that [hereinafter “A.J.”]. order, court denied the DHHR’s parental rights motion to terminate the parents, appellees the children’s herein below, respondents Tracy B. [hereinafter (father) “Tracy”] Amos B. [hereinafter “Amos”],2 granted each one-year to commence upon Tracy’s completion successful of an in- patient program substance abuse treatment and Amos’ release from federal incarceration. Court, appeal On to this the DHHR contends erroneously granted that the circuit court delayed improvement period improperly *5 Tracy’s denied its motion to terminate and parental rights. Upon Amos’ review the record, parties’ arguments, appellate authorities, pertinent we reverse the de- McGraw, Jr., General, Attorney Darrell V. County cision of the Circuit Court Mercer Charleston, Virginia, West Katherine M. Ma- granting delayed improvement son, General, Attorney Beckley, Assistant period. We order reversal this instance Virginia, Berry, West and Thomas L. Assis- improvement period because such is not Prosecuting Attorney tant for Mercer Coun- permitted by governing the relevant statutes Princeton, ty, Virginia, Attorneys for West matters. See W.Va.Code Appellant, Virginia Department West 49-6-1, Furthermore, seq. et as a result of and Human Health Resources. ruling, vacate the circuit court’s or- we denying der the DHHR’s motion to termi- Linkous, Roahrig Gerald R. Randal W. & parents’ parental rights, Associates, nate the Princeton, Virginia, West Attor permit and remand this case to the lower ney Appellee, Tracy Angela for the B. and Ash, court to matter and to conduct Princeton, reconsider the Corporation, Public Defender proceedings opin- with this further consistent Virginia, Attorney Appellee, West (father). ion. Amos B. Fuda, Fuda,
Thomas L. Henderson &
Bluefíeld, Virginia, West Guardian ad Litem I. children, Emily
for the minor B. and Amos AND FACTUAL PROCEDURAL (son). B. HISTORY DAVIS, Justice: 5, 1998, DHHR On November filed below, appellant petitioner County peti- herein and the Circuit Court Mercer Virginia Department emergency custody the West Health tion for the of then five- facts, S., 223, 1, 177, involving 1. In this case sensitive we adhere 196 W.Va. 226 n. 470 S.E.2d (1996). practice adopted to our usual in other such n. 1 cases parties by and refer to the their last initials See, complete rather than their surnames. Tracy were once married to each and Amos 2. T., e.g., Ray other, In re Michael 437 n. appears and it that a divorce action was (1999); 525 S.E.2d 318 n. 1 prior State ex rel. instituted to Amos' incarceration. It is unclear, Kaufman, though, parties’ Diva P. v. 559 n. divorce has whether (1997); Tiffany 646 n. 2 In re Marie been finalized. so, three-year-old Patsy Tracy to Emily3 then refused do indicated year-old mother’s, pick up children herself. Tracy’s, fail- she could their based A.J.4 day Ultimately, on fifth of the children’s day from their to the children ure retrieve 3, 1998, stay Patsy, on their Amos’, father’s, with November provider,5 and their care mother, M., grandmother Tracy’s Aletha inability as a present to care for them result Emily picked up and A.J. underlying of his incarceration.6 The events follows. or about petition are as On 5, 1998, By order entered November 30, 1998, Tracy arranged for the October Emily and A. to circuit court determined J. spend night day with their to children danger,8 no but imminent with alternative Patsy “Patsy”], provider, [hereinafter H. care temporarily them fi*omtheir moth- remove understanding that Tra- presumably with the 49-6-3(a) (1998) See care. er’s following the children the cy would retrieve ruling, (Repl.Vol.1999). In so the court also However, Tracy did not return to Pat- day. physical custody legal and awarded day pick up Emily turn, the next sy’s DHHR, house children to DHHR. The Additionally, she neither called nor A.J. placed the children with their maternal children. Neither did she M., on the grandmother, they checked Aletha with whom food, changes clothing, provide them with residing had been since November 3rd. medication, giving Patsy Thereafter, form or a consent preliminary hearing was held time, for to obtain medical care them.7 permission on November 1998. At that youngsters stayed had with Emily their circuit court found continued After A.J. days, Tracy day provider danger preclude three care imminent so as care, inquire requested Tracy’s about them and their return to and continued called bring legal physical custody children to Patsy to her. When their August Emily's welfare of birth is 1993. which the or the life of child is date emergency threatened. Such situation exists *6 when there is . .. reasonable cause to believe September bora on 1995. 4. AJ. was following the threaten the conditions any health or life of child in the home: allegations also based its The DHHR abuse 5. Tracy’s history neglect upon of substance and (4) by guardian parent, Abandonment the or police reports prior of her failure to and custodian[.] supervise the children. 49-l-3(e) 1998). (Repl.Vol. § W.Va.Code 49-l-3(e) (1999) (Repl. § See also W.Va.Code underlying appeal, During the events Amos 6. (same). Vol.1999) presenting its abuse and incarcerated in the Federal Correction- has been court, neglect petition to the circuit the DHHR Beaver, Institution-Beckley, located in al West upon statutory relied definitions of "child serving fifty-one Virginia, where he is a month neglect” “neglected and child” to demonstrate robbery of a bank and a conve- sentence for danger, by the children’s imminent as illustrated expected He is to be released from nience store. alleged petition. the facts its See W.Va.Code custody completion upon of his sentence in 49-l-3(c) (defining "[c]hild abuse March, 2001, early he be released as but as and|7or] neglect” including "physical injury, as October, 2000, Dunbar, “half-way a house” injury, negligent mental or emotional ... or confinement, Virginia, home West or on as a by parent, treatment or maltreatment of a child a good time credit. result guardian responsible or custodian who is welfare, child’s under circumstances which harm that, Patsy Tracy Emily reported when left and child”); or threaten the health and welfare of the care, colds, were ill in her both children A.J. 49-l-3(h)(l) (1998) (construing W.Va.Code Pasty one child had a fever. When men- and [wjhose "(A) "[njeglected term child” as a child Tracy children’s medical conditions to tioned the physical or mental health is harmed or threat- them, Tracy inquired about medication for and refusal, by inability present ened a failure or respond. did not parent, guardian sup- the child's or custodian to food, necessary clothing, ply the child with shel- danger,” requisite 8. "Imminent to the removal of ter, education, supervision, when medical care or guard- from the home of or a child his/her refusal, inability pri- failure or is not due such marily so, petition to do see ian at the behest of a part to a lack of financial means on the 49-6-3(a)(l) (Repl.Vol. custodian; (B) [wjho parent, guardian or or 1999), as is defined follows: food, necessary clothing, presently is shelter, without care, supervision danger physical well-being medical education or "Imminent to the emergency disappearance of the child” means situation in because of the or absence super- join DHHR. The court further petition ordered the DHHR “shall in a file Tracy vised visitation between and the chil- ruling a pending pro- otherwise seek dren, and allowed the DHHR as to ceeding parental discretion rights to terminate ... [i]f permit visitation whether with Amos. a court has determined the child is aban- doned”). 15,1999, Finally, September on Following proceedings, parties these circuit court conducted a hear- developed family plan whereby Tracy case ing in Upon pre- this case.11 the evidence complete would and extensive detoxification consideration, sented for its the court ren- substance programs, abuse treatment submit following findings dered the and conclusions: DHHR, drug to random screens and create a safe and stable home environment The Court FINDS that these infant chil- A.J., Emily including securing em- continuing dren have close and relation- ployment maintaining drug-free atmo- ship strong respondent bond with the sphere. family plan No case was devised for father,12 it appears respondent Amos, however, presumably par- because probably primary mother was caretak- ties preclude believed his incarceration would action, prior er to the initiation of this goals. his achievement of such suspects strong the Court there is bond adjudicatory hearing The scheduled for respondent between the mother and the 13, 1999,9 January was to March continued infants. The Court FINDS that when a 31,1999, request counsel, at Tracy’s as plan adopted reunification as to one Tracy’s a result of inpatient enrollment in an parent, termination of parent’s the other substance program pursu- abuse treatment rights normally pur- serves no family ant to plan. the terms of her case On pose. difficulty This Court has terminat- 31, 1999, March determined that ing respondent rights, mother’s be- Tracy Emily had abandoned A.J. very cause Court FINDS it difficult to had, by incarceration, that Amos virtue of his rights respondent terminate the fa- “technically abandoned” the children. Ac- ther under the facts before the Court. adjudicated cordingly, the court the children Court FINDS that neglected. to be abused and/or recently father has resided in a structured 28, 1999, April
On the DHHR moved to environment as a result of his conviction parents’ parental terminate both robbery, participating based for bank that he is findings court’s complying abandon- provided with all services statutory obligation ment and its Facility, seek the Federal Correction such as *7 parental rights visitation, termination of in cases involv- drug counseling, and alcohol and ing See hand, abandonment.10 parenting programs. 49-6- On the other 5b(a)(2) (1998) (Repl.Vol.1999) ('directing respondent that mother is in an unstrue- custodian”).
child’s or permitted by See also W.Va. screens as an earlier order of the 49-l-3(c, h(l)) (1999) (same). Code§ circuit court. order, preliminary 9. In its the court noted that dispositional hearing, initially 11. The scheduled parties statutory had waived the time con- 19, 1999, May for was continued on numerous adjudicatory hearing straints for the due to the unavailability psy- occasions due to the of the holidays. Christmas and New Year’s See W.Va. chologist Emily who evaluated and A.J. and as a 49-6-l(a) (1998) 1999) (Repl.Vol. Code (requir- securing result of various difficulties Amos’ ing, tempo- cases in which transport prison from federal to the circuit court rary custody of child has been awarded to proceedings. For further treatment of an incar- DHHR, adjudicatory hearing to be held "within parent’s right dispositional cerated to attend a thirty days [awarding temporary of such order hearing concerning possible termination of custody], a unless continuance for a reasonable parental rights, Syl. pts. see 10 and his/her certain, granted good time is to a date Pancake, cause State ex rel. Jeanette H. v. shown”); Neglect W.Va.R.P. for Child Abuse (2000), & which commits such (same). Proceed. 25 presiding a decision to the circuit discre- court’s tion. that, alleged 10. The DHHR also in its motion departure inpatient since her from her treatment parties represent 12. The that Amos has been program, Tracy’s known, visiting Emily whereabouts had been un- approximately and A.J. twice that, absence, as a result of her it a month since his transfer to the federal correc- Beaver, March, drug facility had been unable to conduct random tional 1998. environment, tion, implementation has failed to com- and that formal tured her, provided respondent ply with services mother’s six month stat- apparent drug delayed addiction. utory improvement period from be suffers until FINDS that this case is one of successfully completed long-term The Court has a she exceptions delay imple- rare inpatient those substance abuse treatment.... permanency plan; as of a mentation (Footnotes added). From this order of the respondent father is due be released court, appeals. circuit the DHHR incarceration between October 2001; specifically that this is and March II. a month where limited six im- not a case appropriate. period will be provement STANDARD OF REVIEW FINDS that an extended im- The Court appeals resulting For from abuse implement- period, delay provement neglect proceedings, such as the case sub same, unduly prejudice will not ing the judice, employ compound we a standard of doing the infants are well because infants subject review: conclusions of law are to a de placement with current foster in their review, findings novo while fact are available, that it is the best visitation weighed against clearly a erroneous stan currently main- of the infants to interest dard. parents, existing with their tain the bond ‘“Although conclusions of law reached although Department of Health subject a court are de novo adop- Human Resources has identified review, action, when an such as an permanency plan as the for these in- tion case, upon fants, Department tried the facts has secured a jury, placement this date. without the circuit court shall make permanent as of a determination based the evidence disposition will This Court defer further findings and shall of fact and make conclu- matter, and it is the ORDER and in this sions of law as to whether child is Court State’s DECREE neglected. findings abused These shall Rights to Terminate Parental be Motion reviewing not be set court un- aside respondent parents. as to both It denied clearly finding clearly less A erroneous. and DECREE of is the ORDER when, although erroneous there is respondent parents both evidence Court support the year finding, reviewing court post-adjudicatory a one granted entire period,13that formal im- on the evidence is left with the improvement respondent father’s six definite and firm that a plementation conviction mistake However, statutory improvement period has been month committed. review- delayed ing finding until his from incarcera- release not overturn sim- order, respondent parents disposi- In its the circuit court cuit court to the as improvement periods granted to refers to the periods. tional "post-adjudicatory as im- period[s].” provement this relief *8 Because was regard, 14. In this court the circuit further in- dispositional granted context hear- in the of the parties expected structed the the conduct as to during adjudicatory hearing, ing, rather than the them at this time: earlier, six it which occurred some months seems improvement periods awarded are that the more plan The Court that the FINDS reunification improvement aptly "dispositional denominated by previously developed Department the were, fact, they granted type periods,” as a as in respon- the Health and Human Resources for disposition Compare in this case. of alternative good plan, dent mother was a directs that 49-6-2(b) (1996) 1999); (Repl.Vol. § W.Va.Code post-adjudicato- implemented the same be as a (1996) 1999); 49-6-12(b) (Repl.Vol. § W.Va.Code ry improvement period respondent for the Neglect W.Va.R.P. for & Child Abuse Pro- mother; Department the is ORDERED to fi- (pertaining post-adjudicatory ceed. 37 to im- any pro- nance abuse treatment substance 49-6-5(c) § provement periods) with W.Va.Code mother, grams arranges respondent it for the (1998) (Repl.Vol.1999); § 49-6- W.Va.Code respondent and the father should to continue 12(c); Neglect W.Va.R.P. & for Child Abuse any provided by pursue appropriate services disposition (discussing Proceed. 38 alternative system, engage any prison in the and not be- periods). Accordingly, improvement we will delay havior that his release. would by granted the henceforth refer to the relief cir-
333 pletion inpatient an the substance ply it would have decided case because abuse/detox- (2) program finding a if ification the circuit court differently, and it must affirm by denying of the evidence erred the DHHR’s motion to circuit court’s account the parents’ parental rights. in terminate the plausible light in of the record viewed Tiffany In re 1, entirety.’ Syl. its Pt. Delayed Improvement A. Period S., Marie 470 177 196 W.Va. S.E.2d complains DHHR first that the George In re (1996).” Syllabus Point erroneously granted circuit court respon B., Glen 205 W.Va. parents delayed improvement perio dent a (1999). respect, In argues d.15 this the DHHR that W., In re Travis improvement periods type by awarded (1999). With this standard 525 S.E.2d the circuit court in this case are not autho mind, arguments. parties’ we consider by statutory governing rized law child See W.Va. neglect proceedings. III. 49-6-2(b) (1996) § (Repl.Vol.1999); Code DISCUSSION 49-6-5(c) § (Repl.Vol. W.Va.Code Court, 1999); § appeal (Repl. to this DHHR as- 49-6-12 On Vol.1999). turn, Tracy im- In signs reply two errors: the circuit court and Amos respondent parents properly that court properly granted the the circuit awarded them begin improvement periods in delayed improvement period to after accordance with the statutes.16 See id. Tracy’s governing prison Amos’ com- release remand, additionally statutory complains guidelines 15. The DHHR that the it must heed the for improvement improperly granted parents periods, parents' and mould the circuit court improvement periods, ed, one-year improvement period if should be warrant- in violation of provided by Legis- governing disposi- to time constraints applicable which statute limits admonition, lature. To reiterate our earlier improvement periods tional tion, to six months’ dura- task, [ajlthough it is sometimes a difficult discretionary with a three-month extension. accept 49-6-5(c); trial court must fact that the statuto- § W.Va.Code 49-6- See W.Va.Code (as ry improvement periods 12(c, limits on well as g). suggests part, For his Amos limiting right improvement our case law statutory properly court followed the periods) dictate that there comes a time one-year awarding parents guidelines both decision, a child because deserves resolution delayed improvement period. regard, In this life, permanency or her his because that, following represents Amos the conclusion of part permanency must include mini- at dispositional improvement period the six-month rely right mum a on his or her caretakers to 49-6-5(c), by authorized W.Va.Code the circuit provide there basic nurturance of life. dispositional required court is to hold a new Amy Kaufman, State ex rel. M. v. could, theory, hearing. Because the court (1996). 470 S.E.2d dispose by granting respon- anew case parent(s) improvement dent another six-month Tracy also contends that her entitlement to an argues period, Amos that the duration of the by improvement period negated should not be periods improvement the circuit awarded i.e., duty, her counsel’s dereliction failure underlying proceedings appeal in the court appropriate procedural to follow the rules which were not error. writing, require party apply, for an im- 49-6-12(c) assignment While our final resolution provement period. See W.Va.Code require whether the error does not us consider ("The may grant improvement period periods precise duration of the disposition pursu- as a not to exceed six months appropriate, awarded was see text at 540 S.E.2d [§ 49-6-5] ant to section five of this article when 555, infra, speak at we nevertheless wish to brief- writing respondent [t]he ... moves in order, ly on this matter. its improvement period....”); W.Va.R.P. for Child variously im- 17(c)(1) ("An circuit court characterized the Neglect applica- Proceed. Abuse & provement periods awarded to the for an be motion tion to the court which, order shall (1) year post-adjudicatory trial, both as a “one during hearing *9 unless made improvement period” respondent and as "the writing, particu- shall be made in larity shall state with therefor, grounds mother’s] six [and father’s and shall set forth the statutory improvement period.” sought. requirement month As a re- relief The of writ- or order contradictory language, ing it difficult sult of this if the motion is made in a written is fulfilled motion.”). just long hearing to how the circuit court in- ascertain notice of the on the Because periods parents’ improvement improvement peri- tended each of the our ultimate resolution event, last, i.e., any year. ruling the circuit to however, six months or one od issue concludes that court's that, erroneous, clearly on was see text at 540 S.E.2d at we remind the circuit court 334 (1987).”). also 181 See W.Va.Code assignment in this of error S.E.2d At issue 49-6-2(b) (indicating (Repl.Vol.1999) § grant court to an authority of a circuit
is the that, any proceeding brought pursuant facing parents “[i]n period to improvement article, may provisions of this the court rights, and the to the parental of their termination grant any respondent improvement period an alter the commence ability to further court’s article”); provisions of this Typi accord with the improvement period. an ment of such Neglect R.P. for Abuse & Pro- W.Va. Child period the context cally, improvement an 17(c) (explaining proper form of mo- ceed. proceedings is viewed neglect of abuse neglect proceedings). in child parent to tions abuse miscreant for the opportunity anas periods Among types improvement so as to correct the modify behavior his/her petitioning par- may to the be available with which abuse conditions of and/or that serve as an alternative charged. goal of an ent are those “The has been he/she neglect proceed- disposition of an reuni abuse period is to facilitate the improvement ing “dispositional [hereinafter whenever that reunifica fication of families improvement periods period”],17 such as the interests of the children tion is in the best Amy M. at issue herein:18 ex rel. v. involved.” State Kauf 251, 258, man, 470 S.E.2d 196 W.Va. may disposi- court as an alternative (1996). Syl. pts. 3 ex State See also an tion allow the or custodians Dep’t v. Virginia Human Servs. rel. West improvement period not to exceed six M., Cheryl 177 W.Va. During period court shall months. .Code, 49-6- (Syl. pt. 3: “Under W.Va require parent rectify to the conditions 2(b) (1984), improvement period an when upon which the determination was based. authorized, order shall then the placed child to be The court order the of Human require Department Services parents, person found family plan pursuant prepare a case tempo- proper person a fit and (1984).”; W.Va.Code, Syl. pt. 5: 49-6D-3 during period. rary care of the child family plan case as set purpose of the “The At end of the the court shall 49-6D-3(a) Va.Code, (1984), is to out W. hearing to hold a determine whether the organized, clearly an realistic meth set forth improved, adequately conditions have been family problems and the identifying od of hearing, and at conclusion of such shall resolving logical steps to used in or less in ac- make a further order ening problems.”). these cordance with this section. 49-6-5(c). § Accord W.Va. R.P. W.Va.Code such, As one who faces the termi Neglect 38. for Child Abuse & Proceed. during parental rights may, nation of his/her Thus, discretion, may, a circuit court in its neglect pro pendency of an abuse and grant abusing/neglecting parent an im- presiding an ceeding, move the court for provement period finally it before decides pursuant improvement period to W.Va.Code rights should be whether his/her c(l)). 49-6-12(a(l), b(l), pt. Syl. Accord ultimately terminated. Kaufman, Diva P. v. State ex rel. (“ (1997) W.Va.Code, periods regulat- Improvement are further 49- 6-2(b) ed, (1984), and in dura- permits both in their allowance their move tion, by Virginia Legislature, which improvement period which shall the West court for implement- compelling responsibility has the court finds assumed the be allowed unless guidelines for child justify Syl. ing Pt. circumstances to denial.’ proceedings generally. W.Va.Code Virginia Dep’t Human See State ex rel. West 49-6-1, M., seq. et W.Va.Code 49-6-12 Cheryl Servs. v. 49-6-12; See, 49-6-5(c), e.g., §§ infra, not further consider this we need however, do, Neglect for Child Abuse & Proceed. caution the circuit W.Va.R.P. matter. We 17(c), court, remand, pay allegiance 38. to the on strict procedural requirements im- for the issuance of statutory See 19. provement periods prescribed note infra therefor, guidelines any such should it deem that supra improvement periods 18. See note 13. are warranted this case. *10 (1996) Further, (Repl.Vol.1999), per- main respondent the statute circumstances. the taining improvement periods, contains var- shall change demonstrate due to that circumstances, ious criteria to be considered a circuit respondent likely the is determining propriety court of such fully participate improvement pe- given dispositional relief in a For im- riod; case.
provement periods,19 provides: the statute (5)The granting order (c) may grant improve- The court period require department shall pre- period not to ment exceed six months as a pare and submit to court an individual- disposition pursuant to section five 49- [§ family plan ized case accordance of this 6-5] article when: provisions three, of section article six-d (1) respondent writing The moves in for chapter. [§ of this 49-6D-3] improvement period; 49-6-12(c).20 § W.Va.Code While delineat- demonstrates, respondent ing a six-month dispositional duration for evidence, convincing clear and that the re- improvement periods,21 per- this section also spondent likely fully participate in the mits a dispositional circuit court to extend a improvement period and the court further improvement period for an additional three record, finding, makes a on the of the months, if the circumstances of an individual improvement period; terms of the case warrant such an extension: granting improve- the order (g) any A improve- extend (A) period, ment the court orders that a period granted pursuant ment to subsee- hearing be held to review the matter with- (c) ... tion[ ] this section for a sixty days granting of the im- not to exceed three months when the court (B) provement period, or orders that a finds respondent substantially that the has hearing be held to review the matter with- complied improve- with the terms of the ninety days granting of the im- period; ment that the continuation of the provement period department and that the improvement period substantially will not report respondent’s submit a as to the impair ability department of the progress improvement period in the within child; permanently place the and that such sixty days granting of the order the im- extension is otherwise consistent with the provement period; best interest of the child.22 proceed- Since initiation of the
ing, respondent (footnote added). has previously 49-6-12(g) § W.Va.Code granted any improvement period been Upon the conclusion of a im- respondent provement thereof, period, demonstrates since extension improvement period, the initial respon- required the circuit court is to conduct a final experienced dent has change dispositional hearing sixty days substantial within of the brevity, discretionary 19. For the sake of and to maintain con- 22.This three-month extension is sistency legal question with the at issue in this applicable post-adjudicatory improvement also to appeal, applicable our discussion of the law will periods. § 49-6-12(g). See W.Va.Code See also primarily upon dispositional improvement focus H., In re Jamie Nicole however, periods. analysis, In the context of this (1999) ("Pursuant Virgi- to West we also will include references to the standards (1998), 49-6-12(g) nia Code before a circuit governing pre- post-adjudicatory improve- grant post-adjudica- court can an extension of a periods, authority ment to the extent that such tory improvement period, the court must first * available. substantially find that the has com- plied improvement period; with the terms of the employed 20. A pre-and similar method is for improvement period that the continuation of the post-adjudicatory improvement periods. See substantially impair ability would not 49-6-12(a, b). W.Va.Code Department of Health and Human Resources to Comparable imposed pre- child; time limits are permanently place the and that such ex- post-adjudicatory improvement periods. See tension is otherwise with the consistent best in- 49-6-12(a, b) (establishing three child.”). terest of the pre- month and six month time frames for post-adjudicatory improvement periods, respec- tively). *11 336 compelling period’s stitutes circumstances sufficient
improvement
cessation. See W.Va.
49-6-12(k);
49-6-2(d),
justify
improvement peri-
§§
denial of an
W.Va.R.P.
Code
2,
Maynard,
Neglect
Syl. pt.
Abuse
Proceed. 38. But
od.”
v.
185
for Child
&
James M.
(1991).
6—12(j)
(instructing
648,
Finally,
that
408
a
see W.Va.Code
W.Va.
S.E.2d 400
49—
only
hearing may
dispositional improvement
continued
not
such a
be
is
avail-
cause”).
“good
parent
finding
a
able
“where
to a
would
when
lines,
lief
subject
and/or
“[C]ourts
an
ordinarily will
however,
the award of an
jeopardize the best
neglect is not
child,
Even with these detailed
are
a
not
parent
parent requesting
not
required
period.
unconditionally
be accommodated.
improvement period
charged
interests of the
to exhaust ev
For
with abuse
example,
such re
entitled
guide
Darla
that
and, pursuant
(1985).
denial thereof.”
[1977]
substantially
[1980], ‘compelling
made
the conditions
that there is ‘no
B.,
pursuant
175
corrected
W.Va.
to W.
to W.
Syl.
of
circumstances’
neglect
pt.
137,
Va.Code,
reasonable
in
Va.Code, 49-6-2(b)
3,
the near
W.Va.Code these parties’ ap- to the contentions instant rectives, adopted comparable this Court has granting Tracy In Amos peal. its order and language Virginia Rule 2 of the West dispositional periods, improvement Rules of for Child Abuse and Ne- Procedure delayed un- court thereof commencement Proceedings, provides, glect which in rele- til Amos’ “release from incarceration” part: vant successfully completed a Tracy until “has liberally These rules shall be construed long-term inpatient treat- substance abuse safe, stable, permanent to achieve secure however, ruling, program. This has ment” neglected chil- homes abused and/or applicable law. governing no basis in the litigants. to all dren fairness These Legislature has various While the created applied not to rules are enforced types periods has estab- improvement endanger or manner which will harm therefor, specific lished time limits nowhere designed These are to accom- child. rules provided delayed implementa- has it plish following purposes: 49-6-2(b, §§ tion thereof. W.Va.Code See (a) fair, d), 49-6-5(c), fact, very provide timely and In To efficient 49-6-12. disposition involving suspected con- delayed improvement period cases nature negleet[ legislative purpose and] child abuse tradicts the established
expediting proceedings children) sub- safeguard of the the welfare (d) unnecessary delays To reduce 49-6-2(d); ject W.Va.Code thereto. See strengthened proceedings through court B., George Glen In re management.... court case 518 S.E.2d vein, repeatedly same have held in we neglect proceed- our case law abuse Moreover, of the under the circumstances expediently ings should be resolved as as ease, implementation delayed present safeguard being possible in order to the well improvement periods respondent parents’ young at heart children of such because, by the particularly problematic proceedings. delay is very ruling, court’s terms of the “ By basing cases must be indefinite. commencement ‘Child among speculative as recognized being highest as date such a condition completion Unjusti- Tracy’s of a substance priority for the courts’ attention. successful program, the circuit procedural delays wreak havoc on a abuse treatment fied stability accom- development, security.’ presupposes that she will be able to child’s short-term, B., what has been Syl. part, plish, Pt. In re she Carlita (1991).” unwilling the ten and one-half Sylla- to do for W.Va. preceding (Repl.Vol.1999), months the circuit court’s order.23 6-2 49- Furthermore, language employed by (Repl.Vol.1999), 6-6 and W.Va.Code granting (Repl.Vol.1999). circuit court in fa- 49-6-12 delayed improvement ambig- ther delayed improvement As the uous. it not defined what Because has con- periods clearly at herein issue violate the incarceration,” stitutes Amos’ “release statutory judi- mandates contravene the it is as to unclear whether pertaining improvement pe- cial decisions *13 period upon shall his commence release to a riods, of the circuit the decision court award- confinement, “half-way or home house” ing delayed respondent parents each of the improvement period his whether is further dispositional period hereby is delayed until his ultimate release from feder- reversed. March, event, custody al in In for potential upon each of the dates which Amos’ Rights B. of Termination Parental start, improvement period could one natural- assignment error, In its second of will, fact, ly must that he assume requests DHHR this Court to reverse eligible upon for release those dates certain24 denying circuit court’s order its motion to any good and that he will not have lost time parental rights terminate of and Amos credited to his sentence. One must also Tracy. support argument, To suppose that Amos will be able to assimilate Amos, DHHR contends that as a result his of society, year sojourn back into a four after incarceration, technically has his abandoned socially therefrom due to own his deviant imprisonment infant his pre- children that behavior, degree to such a as to be deter- providing vents him from for their and care proper mined a fit and caretaker for his support. abandonment can Because consti- plethora children. As a result neglect pursuant applicable tute to the statu- surrounding very difficulties idea of de- law, see W.Va.Code tory § 49-l-3(g)(l)(B) layed improvement periods, not to mention (1998) (Repl.Vol.1998),25the DHHR main- logistical impossibilities of implementing effectively tains that Amos’ incarceration the same and the innocent neglect amounts to so as to warrant unquestionably children which will be tram- Likewise, parental rights. termination of his made, attempt if meled such an we con- Tracy neglected the DHHR that avers has that clude the circuit court’s granting order Emily by abandoned and A.J. virtue such respondent parents relief to the was in ongoing her problems substance abuse error. inability unwillingness her provide and/or Accordingly, we hold that the com support. the children’s care and dispositional improvement mencement of a period contentions, begin Responding eases must to these Amos no Tracy later than date of the dispute they have ever aban- hearing granting improvement period. doned their so as to children warrant that, pertinent We hold at all Tracy further times termination rights. of their thereto, dispositional improvement period satisfy contends that conduct her does not governed by eligibility the time limits and six-month abandonment con- requirements by 48-4-3c(a)(2) (1997) provided W.Va.Code 49- tained in W.Va.Code brief, appellate respon- 23.In phrase counsel for the 24. Even the "dates certain” is somewhat “Tracy dent mother has indicated that B. entered precise of a misnomer in this context as the dates drug facility Parkersburg, a Virginia, treatment West upon anticipates which Amos to be released have DHHR, shortly with the assistance of repeatedly vague been communicated in the granting improve- after the Circuit of her Court’s particular years, terms of months and rather period, writing ment this the date and as of precise day than reference to a of such Brief, facility.” she remains said While years. months and efforts, Tracy’s we commend we have no infor- us, apart mation before tary from her counsel’s soli- supra pertinent 25. See note representation, demonstrating text that the re- fact, has, spondent 49-l-3(g)(l)(B) complied (Repl.Vol. mother with the 1998). by "successfully circuit court’s condition com- pletfing]” program. this treatment Likewise, entity charged is the (Repl.Vol.1999).26 Amos contends weighing credibility of did not abandon his children be- witnesses ren- that he incarcerated, part, dering findings he was he entrust- of fact. In cause when Emily W., and A.J. to their mother’s care. ed re Travis addition, (“[W]hen action, respondent parents assert such as an abuse governing case, statutes upon neither facts without a is tried ju- neglect proceedings nor this Court’s jury, court shall make a determi- the circuit interpreting risprudence the same include upon nation and shall based the evidence incarceration as a factor which the ter- findings fact of law make and conclusions parent’s parental rights may mination of neglect- child is as to whether such abused they urge Accordingly, based. that the findings shall not aside ed. These be set not, fact that a is incarcerated does reviewing clearly court unless errone- se, per warrant of the im- the termination (internal quotations ous....” citations See, parent’s parental rights. e.g., prisoned omitted)). Court, therefore, cannot This set *14 724, Adoption Maynor, N.C.App. In re 38 factual determinations of aside a circuit court’s (1978); M. Hon. Jean John- clearly findings such are erroneous. unless Flowers, son & Christa N. You Can Never appeal, present- Id. In the instant the record Again: Legislature Home The Florida Go appellate not ed for our consideration does Statutory Adds Incarceration to the List of adequately contain essential information nec- Grounds Termination Parental for of essary to circuit for this Court review the (1998). Rights, 25 335 Fi- Fla.St.U.L.Rev. clearly rulings court’s under a erroneous if, nally, Tracy apart from contends that the Conspicuously from the standard. absent incarceration, fact of his Amos is entitled to appellate transcripts of the record are the participate improvement period in an and/or hearings proceedings various un- held the parental rights, retain his then her missing derlying appeal. Also from the because, rights should not be terminated presented are record for our consideration court, the words of the circuit “when a reu- chil- the reasoned recommendations plan adopted parent, nification is toas one disposition guardian dren's ad litem as to the parent’s parental termination of the other Emily’s most with and A.J.’s wel- consistent rights normally purpose.” serves no interests, only of and the indication fare best solitary in the circuit which is a reference Although allegations the of abuse reflecting that court’s order neglect lodged by against the DHHR the seeking is termi- “the Guardian Ad Litem respondent parents warrant careful consider nation of the mother’s ation, year- and a final resolution to these only.”27 pieces of of vital infor- Both these long proceedings imperative, and-a-half is we mation omitted from the record have been firm are left with the conviction that the final despite presented our consideration our for disposition of this abuse and case is par- decided, oft-repeated clear and admonitions appropriately more in the first in stance, respon- appearing before this Court are by circuit for ties the court. Our reasons First, designating appellate record28 sible for the this conclusion are two-fold. duty-bound provide neglect proceedings, guardians of and that are context 48-4-3c(a) uninterrupted (Repl.Vol. act continues 26.W.Va.Code failure 1999), immediately preceding body which is contained in the of statutes six months adoption petition. filing governing adoptions, provides, pertinent part: added). (Emphasis (a) age Abandonment of a child over the presumed when the birth six months shall be guardian’s appel- 27. Neither can we refer to the parent: insight late brief for as to his recommendations financially support Fails to the child filed in this case. as no such brief has been parent; within the means of the birth T., Ray Syl. pt. Fails to visit or otherwise communicate 206 W.Va. 28. See In re Michael ("The responsibility where the with the child when he or she knows S.E.2d 315 525 resides, financially par- physically designating child able the record is on burden ties, doing by appellate prevented review must be limited to do and is not so so present- person agency having appear which in the record or authorized those issues Provided, Court.”). custody That ed to this care or of the child: 340 time, charged present tribunal with deter- at the we conclude that it is
guidance to the ehild(ren)’s subject proper ultimate to vacate the court’s insofar as mining the order it DHHR’s motion denied the termination fate.29 permit and to remand this case to the circuit Second, preceding decided as we merits, reconsider, on the III.A., section, supra Section see DHHR’s motion Tra to terminate Amos’ and granting parties delayed court erred cy’s parental rights. Syl. pt. In re See as such a construct improvement period does T., Ray Michael 206 525 W.Va. S.E.2d statutory jurispru- in either exist ‘ “(“ appellate jur ‘In 315 the exercise of its por- From of this State. those law dential isdiction, nonjuris- will not Court decide at that we do have our the record tions of questions dictional which not consid were however, proceeding, instant disposal in the ered and decided court from which very likely circuit court was it that the seems Syllabus appeal has been taken.’ Point allegations the DHHR’s torn between Hitt, 103[, Mowery v. W.Va. S.E.2d hand, neglect, on the one (1971).” v. 334] Cat Shackleford parenting improve skills Amos’ efforts (1978).’ lett, 568, 244 S.E.2d 327 relationship his chil- and continue his Syllabus point v. Frederick Voelker Busi dren, hand. we do not on the other While Co., Properties ness workings profess to know the innermost (1995).”). County, particu- of Mercer the Circuit Court larly light appellate spite fact that the of our conclusion that the circuit completely hearing better-equipped devoid of court is tribunal to ren- record *15 case, reflecting transcripts disposition the lower court’s rea- an initial of this der the rulings, parties’ arguments incorporate we soning for its nonetheless find nevertheless likely quite that circuit court important legal it is the several issues instructive to that parents delayed im- granted the the court’s ultimate decision on re- First, considering in provement periods respondent parents lieu of the mand. assert incarceration, se, DHHR’s per of the motion to terminate that not warrant merits does rights. parental parent’s In that we their have the termination of an incarcerated attempted parental rights. the circuit court’s cir- of thwarted With statement law, disposition a final of this applicable readily agree.30 of case it has cumvention we As 29. See provide whom ble Virginia Rules sional West litem with direction as to senting as ness which Guardians thermore, her recommendations and to act with reasonable involved in the provides West full and a stage tation Code, 49-6-2(a) 1.1 and 1 .3 of West right Appendix provide provisions neglect in Virginia Virginia of abuse and they Conduct, are Syl. pt. of counsel. To further that representing to be the best interests of attorneys that independent Rule XIII Ad adopted competent representation are case is entitled to effective A, Rules Litem Abuse and of the West for 5, Rules represented proceeding, appointed.”). are respectively, require [1992] guardian (1993) ("Each In re Trial Courts who in this a client. The [current for known harmony Jeffrey Professional investigation mandates that a child Virginia serve Trial Virginia ad diligence their opinion and shall make R.L., to proceedings. litem Rule See also child in an Courts counsel the children as with the duties Record, Rules Code, Neglect Guidelines 190 W.Va. guardians Conduct, shal( court. Rules 21.01] and attached of the facts goal, an to a of Syl. represen- of Profes- in the West attorney prompt- applica- make a and the Record repre- client, cases, abuse W.Va. pt. every Fur- has 24, for for ad or 30. We relieved of his nent tion of the tend that a parental rights James also W.Va.R.P. sponsibilities ment, ceed. continue until such child has a the guardian sonable ty duty permanent proceeding to guardian Code, 400 cease until W.Va.Code, children, Amos. placement (1991) includes protecting 52(g) (directing 49-6-2(a), and the M. disagree, diligence ad ad v. neglect proceedings such time as the child is home.”); to terminate parent Maynard, 191, litem, applicable ("The if, litem, of a child’s 49-6-1 to exercising their responsibilities guardian in has been for is entitled to however, as in the reasonable an facing appointed pursuant guardian Child Abuse & amended, carrying rights responsive appeal S.E.2d 214 law advanced parental rights pursuant 49-6-10, achieved”). ad litem should not be guardian with the characteriza- termination of his/her of the children. This “[t]he out the ad litem's role in appellate rights 3, must exercise provide until such necessary.”). permanent place- does not briefs, In re Scottie judgment 648, as duties and re- (1991) ("In ad litem shall Neglect responsibili- amended, placed 408 S.E.2d they tire court by Tracy to W.Va. actually perma- con- Pro- in a rea- See D., a Indeed, noted, duly Legislature as- ap has our numerous been cases body plying Legislature’s establishing regard, task of of law sumed the edicts govern neglect proceedings. we also abuse have been reluctant to find that 49-6-1, incarceration, se, seq. per § et Within this See W.Va.Code warrants the termi however, statutory authority, Legislature imprisoned nation of parent’s parental an See, R., necessary rights. e.g., it to base the Tammy has deemed State v. parental rights termination of individual’s W.Va. 577 n. 578 n. & 580 n. solely upon fact of incarceration. 633 n. 634 n. & 636 n. 13 his/her b).31 curiam) 49-6-5(a, (per (limiting appellate See W.Va.Code review future, substantially demonstrating extenuating with information cir- corrected the near prevented necessary cumstances which have from when for the welfare of the child....” him/her children) 6—5(a)(6). caring subject supporting phrase for and The 49— proceedings. to such See W.Va. termination "no reasonable likelihood that conditions 48-4-3c(d) (allowing parent Code birth substantially or can correct- presumption pro- overcome abandonment that, ed” shall mean based the evidence viding opportunity "shall have the he/she court, abusing before the adult or adults to the the existence of com- demonstrate inadequate capacity have demonstrated an pelling preventing circumstances said problems neglect, solve the of abuse or on their supporting, visiting communi- or otherwise help. own or with Such conditions shall be Provided, cating with the child: That in no event following deemed to exist in the circum- provide compelling incarceration stances, which shall not be exclusive: resulting circumstance if the crime in the incar- abusing parent parents The or have ha- rape ceration involved a conceived”). the child which was alcohol, bitually abused or are addicted to con- Furthermore, respondent par- drugs, trolled substances or to the extent that ents indicate that the circumstances under proper parenting seriously skills have been im- parent may explain which a failure to his/her paired person persons and such have not support specifically care for or do child his/her responded through to or followed the recom- arising not include incarceration from a sexual appropriate mended and treatment which during subject crime which the child was con- improved capacity adequate could have for point, ceived. Id. To this all of these statements parental functioning; accurately per- reflect law of this State-as it abusing parent have will- pur- tains to termination of *16 fully presently unwilling not, refused or are to co- adoption. poses however, points of These of law do operate development in the of a reasonable govern neglect proceedings abuse and family plan designed case to lead to the child's underlying appeal. such as the one the instant care, control; custody 1, Londeree, return to their Syl. pt. 146 See Parkins v. W.Va. (3) 1051, abusing parent parents (1962) ("In The or have not die construc- responded enactment, through to or followed with a legislative rea- tion of a the intention of determined, family plan legislature any sonable case or other rehabilitative is to be not from social, medical, section, sentence, single part, provision, phrase efforts of mental health or word, agencies designed general other rehabilitative to re- or but rather from a consideration Rather, entirety.”). prevent neglect duce or child, the abuse or of the act or statute in its of by neglect governed by proceedings abuse and are as evidenced continuation or in- body statutory separate of law contained in substantial diminution of which conditions 49-1-1, health, seq., concerning et "Child W.Va.Code threatened the welfare or life of the (a)(8) (1998) child; Welfare.” See W.Va.Code 49-1-1 (4) (Repl.Vol.1998) (enumerating goals abusing parent parents of "Child The or have statutes, child; including "[pjrovide Welfare” abandoned the early (5) problems abusing parent parents identification of the of children The or have re- families, respond appropriately and their peatedly seriously injured physical- or the child prevent with measures and services to abuse and ly emotionally, sexually or or have abused or added)). neglect” (emphasis child, See also W.Va.Code sexually degree exploited the and the of (a)(8) (1999) (same). (Repl.Vol.1999) § 49-1-1 family potential and the stress for further Accordingly, explaining why termination of neglect great preclude abuse and are so as to rights generally solely parental cannot be based mitigate the use of resources to or resolve incarceration, upon parent’s we will refer to family problems abusing parent or assist the or pertinent concerning authorities abuse and parents fulfilling responsibilities their to the neglect governing proceedings instead of those child; or adoption process. (6) abusing parent or have in- illness, curred emotional mental illness or deficiency statutory applicable mental or 31. The law authorizes the of such duration nature as rights "[u]pon parent parent’s parental parents incapable termination of a to render such finding exercising proper parenting that there is no reasonable likelihood skills or sufficient- ly improving adequacy that the or abuse can be of such skills. conditions 342 of one or having been convicted declining reason of placement and child’s issue of Syl. pt. charges of criminal offenses.” more incarceration mother’s- whether consider Flowers, 2, Acton v. 154 W.Va. ex rel. State to warrant so as to abandonment amounted added). 209, (emphasis 742 174 S.E.2d rights); West parental of her termination Re- Health & Human Dep’t Virginia Thus, while an individual’s incar C., 197 Wright v. Brenda ex rel. sources may determining criterion ceration 475 S.E.2d
W.Va.
parental
should be
whether his/her
curiam)
JJ.,
(Cleckley
Albright,
con-
(per
terminated,
factors and circumstances
other
majority’s
to ad-
(recognizing
failure
curring)
remedy
impacting
ability to
condi
his/her
upon
incarceration
impact of mother’s
dress
neglect should also
tions of abuse and
pa-
her
terminate
court’s decision
circuit
making
disposition.33
when
such a
considered
Randolph
Nancy Viola R. v.
rights);
rental
H.,
See, e.g.,
Nicole
205 W.Va.
In re Jamie
W.,
712 n.
356 S.E.2d
(1999) (af
176, 180-81, 517 S.E.2d
45-46
(1987) (“not[ing] that counsel for the
466 n.
refusing to ex
firming circuit court’s order
Randolph
pro-
W.’s
urges
appellant
improvement period based
tend mother’s
-willfulaban-
constitutes
longed incarceration
inability
children
to care for her
her
that,
determining
of his child”
donment
employment and suitable
lack of
her
ease,
“[bjecause
holding
we
resulted,
in this
of our
part,
housing,
presumably
which
issue,
the abandonment
during
not address
repeated
need
incarcerations
from her
far-reaching implications for
Nancy
proceedings);
which has
Vio
may
R.,
713-15,
who
be incarcerated
at
parent
guardian
356 S.E.2d
177 W.Va. at
la
patient
paren
or becomes
penal
(basing
in a
institution
of father’s
467-69
termination
institution”).
Instead,
degree
have cau-
we
conviction of first
rights upon
a mental
tal
his
mother;
acknowledged
prolonged
inci-
tiously
that while certain
child’s
his
murder of his
therefor;
certainly
history
imprisonment
are more
his
of incarceration
dences
abuse;
history of
consid-
and his
egregious than others and should be
of habitual alcohol
his child’s moth
contemplating
violence towards
when
the termination
domestic
ered
er).
judice,
example,
sub
rights,32
natural
For
the case
“[a]
incarcera
paren-
consider Amos’
not forfeit his or her
infant child does
parental rights
deciding
custody
merely
tion
whether
right
of the child
tal
to the
49-6~5(b).
neglect proceedings
regarding
out of
inmates);
v.
other
M.A.P.
fear of retaliation
W.,
2, Nancy
Randolph
Viola R. v.
See
Families,
Department
739 So.2d
Children &
("A
con-
356 S.E.2d
curiam) (affirm
(Fla.Dist.Ct.App.1999) (per
degree murder of a child’s mother
viction of first
parental rights
ing
based
of mother’s
termination
*17
by
prolonged
the father's
incarcer-
his father and
factors, including
upon
her substance
various
penal
are
for that conviction
ation in a
significant
institution
history,
problems,
to
criminal
failure
in ascertain-
factors to be considered
pay
sup
employment
child
maintain stable
or
determining
ing
and in
wheth-
the father’s fitness
S.H.P.,
incarceration);
Ga.
port,
In re
243
rights
parental
should be terminat-
er the father’s
ed.”).
720,
2,
(determining
Syl.
App.
S.E.2d 161
pt.
v. Elmer
534
Kenneth B.
See also
49,
S.,
Jimmy
accompany
aggravating
399
192
S.E.2d
that
circumstances must
curiam) (same).
(per
provide grounds for termination
incarceration to
rights);
parent's parental
In re
of incarcerated
approach
consistent with
33. We note that this
is
173,
G.,
N.Y.S.2d
267 A.D.2d
700
Maurice Jamel
by
practice
a number of our sister
the
followed
(mem.)
(finding abandonment suffi
452
D.O.G.,
See,
parte
e.g.,
jurisdictions.
Ex
770
parental rights where incar
cient to terminate
(Ala.2000) (certiorari denied without
So.2d 597
with
failed to communicate
his
cerated father
C.J.,
(recognizing
dissenting)
opinion) (Hooper,
C.H.,
agency); In re
and social services
children
rights
parental
were terminated
that father's
(basing
(Tex.App.2000)
to
decision
343 terminated, Amy Kaufman, should the court also rel. be but must State ex M. v. 260, 205, (1996). his 251, evaluate. additional evidence relevant 214 470 S.E.2d children, ability parent his such as his parental ‘When are terminated abuse;
history allegations of of substance the abuse, due to or the circuit court Tracy; past his towards domestic violence may appropriate nevertheless in cases con- participation parenting during his in classes continued or sider whether visitation other incarceration; regular his his visits with and abusing parent with contact is the telephone during calls to his children his Among best interest of child. other imprisonment; frequent inquiries his toas things, the circuit court should consider being the health of his and well children whether close emotional bond has been during proceedings; and additional these parent established between and child and information court in- which the lower deems wishes, appro- structive to its decision. the child’s if he she is of priate maturity request. to make such Next, respondent parents contend that that evidence must indicate such visi- parental rights Amos’ not should be termi- tation contact not continued would be strong nated because he has a emotional being detrimental child’s well fostered, Emily large bond with A.J. part, regular be in by Syl- would the child’s best visits his children interest.” during 5, L., his incarceration.34 From the record labus Point re In Christina 194 ease, apparent it precise (1995). that this 446, 460 692 W.Va. S.E.2d finally factual has not issue been resolved S., Syl. pt. In re 198 Katie W.Va. 479 reports by the circuit court psy- (1996). Syl. pt. S.E.2d 589 also See In re chologist evaluating variously children G., Jonathan 198 482 898 W.Va. indicate that there does and there not does (1996) (“A right child has to continued bond, that, exist if such a such emotional association with individuals with whom he exist, they equally ties do experi- are not bond, Likewise, including has formed close emotional enced both can children. we parents, provided appellate find no indication in foster that a record determination guardian ad on litem’s views whether is made such continued contact is child.”). continued visitation between children and repeat best interests We our youngsters’ their would father best admonition, however, that in visitation mat- would, fact, interests or whether it ters, ehild(ren) best interests are issue, detrimental to them. this factual On Carter, paramount. Syl. pt. Carter v. then, we defer the circuit court’s initial (1996). W.Va. 470 S.E.2d evaluation of the evidence. See Lastly, if W., Tracy that Amos re Travis contends W.Va. S.E.2d 669 . permitted rights, Once to retain his properly the lower has considered information, Instead, findings it use hers need be terminated. she disposition instruct its final of this ease vis-a- merely claims that Court can “[t]he Circuit of, any, parental vis if the extent contact to not order custodial allow the Amos will be entitled to retain. contact with children involved to have parent,” and that non-eustodial allowance words, In other if the circuit *18 parental rights would enable the collection of court that a deems there exists sufficient parent. support child from the non-eustodial respondent emotional bond fa between the discussed, previously have the circuit As we children, ther and his but also that concludes appropriate court is the tribunal to more terminated, parental rights his should that be instance, decide, in the first whether the grant post-termination tribunal Amos should, parents’ rights A.J., parental Emily provided visitation with and such fact, However, in wish to we a in terminated. relationship continued is the children’s by of unreasonably clarify points implicated best few law interests and “would not a permanent placement.” Tracy’s point. interfere this with their contentions on supra parties represent per 34. The Amos visits the twice See note 12. that with children month. dispositions avail- possible all First, argument consider of the advanced the see neglect proceedings, appreciate fails in and respect in to able abuse Tracy this 49-6-5, rights parental § of is the circumstances fact that the termination W.Va.Code all-or-nothing proposition. parental rights The stat is not an which termination under terminations, governing W.Va.Code 49-6- statutorily required, see ute W.Va.Code 49-6-5, par of one permits the termination (Repl.Vol.1999).35 5b rights leaving the parental rights while ent’s intact, completely if nonabusing parent of the IV. so warrant. The circuit circumstances authorized, CONCLUSION [u]pon finding that is no reason- a there reasons, that foregoing we reverse For the of ne- that the conditions able likelihood September order portion substantially can correct- glect or abuse County award- of Mercer Circuit Court future, necessary and when ed the near delayed Tracy ing Amos and child, [to] of the welfare terminate periods. vacate We further parental, guardianship custodial or motion of the DHHR’s circuit court’s denial responsibilities of the abus- and/or paren- respondent parents’ terminate the to ing parent to [to] commit the child permit this to rights, tal and remand case custody nonabusing permanent sole motion and court to reconsider one, not, or, if to either parent, there be if disposition a final these abuse render permanent guardianship depart- of the proceedings. agency. ment or a licensed child welfare Reversed, Vacated, part, and part, 49-6-5(a)(6) added). (emphasis Remanded. token, par- By simply one because same proper to be a fit and ent has been found ARCHER, Justice, concurring: ST child not automati- caretaker for does his/her cally child’s other to retain entitle the 2000) (Filed July parental rights if conduct has his/her his/her say to I am I write troubled endangered the child such conditions opinion. implications majority’s of the future expected are not to and/or remanding mat- I do with concur While improve. Id. court, I as to to the circuit am uncertain ter Additionally, to retain her message sending. we are is, rights, Tracy must demonstrate that she great judge in this to The circuit case went fact, Emily properly to able care very trou- lengths protect of a the welfare Amos, respect A.J. As we noted with addict; drug family. mother is The bled circum circuit court must consider all the allegedly to the father committed crime influencing Tracy’s abili parenting stances in and out family.” “feed mother decision, rendering including such a ties rehab; is stuck in a federal the father A.J.; Emily her occasional visits with year. in the until And prison the end problems; her substance abuse her mainte middle, growing up young two children are of, maintain, inability nance or her suit very quickly. steady employment; able home and her disappearance January, until Au case the looking at the facts in this gust, 1999. judge could the situation did the best he presented appears court. It Finally, rendering disposition as final matter, wrapped up in addiction urge mother is so her we the circuit court judicial by the earlier of the date of the first 35. With enumerated factor of the re- the first *19 subjected quired particularly finding to children] criteria [were] termination we are that the sixty days not neglect as we have been able to discern date concerned or or the which is abuse Emily appellate from the record whether from the [were] removed children] after A.J. home[.] 49-6-5b(a)(l) (1998) (Repl.Vol. fifteen of ha[ve] been in foster care for 1999). twenty-two most recent months as determined it cannot any parental rights. But chil- terminate provide not care that she does factor, as this case demonstrates.1 father, however, regret be the sole to seems The dren. a' struggling to maintain and is his actions delay not a circuit court should While regularly children. He relationship with the improvement period, the drag parent’s out a prison visiting in a with the children visits right judge stripped not of the trial should be them, talks, room, inquires plays with in that ad- fashion a solution these eases to that, Beyond there well-being. their about of a the ultimate best interests dresses from the confines of much he can do isn’t waiting if for a dad to it means child—even except days. prison count the prison a stint. conclude brief returning agree majority’s I with the in judge placed the children The circuit disposi- court for final this case to the circuit custody Department of Health legal of the agree not that we should (“DHHR”), tion. But I do pro- but and Human Resources judge. to circuit The dictate thé outcome pe- both with vided judge in has a circuit this case demonstrated riod, begin to he is with the father’s after protect of both strong to the interests desire prison. released parents. father has children and the The Legislature have re- This Court and the repeatedly willing and able to indicated he is bring urged DHHR to peatedly only a parent impediment is his children —his conclusion, and I quick to a eases If cir- relatively sentence. short federal exactly prison agree this. But how a with parenting ar- judge believes that cuit con- a one—fits into the sentence —even brief rangement a chance for the benefit deserves by parent cept of of children a abandonment children, this Court should not second of the considered this Court. has never been arbitrarily say guess judge and other- clean, sharp advocating a DHHR is The wise. voluntarily commit- rule: Because the father neglect proceedings goal of abuse and The crime, voluntarily “abandoned” the ted a he physical protect to children from severe chil- Because he abandoned the children. trauma, every provide and to and emotional dren, portion he fits within the abandonment may stability. long-term While we child statutes, and should of the abuse and provide every child with the not able to be parental rights terminated. The have his bread, cookie-cutter childhood perfect, white incarceration, basically argues DHHR experi- sitcom-like suburban replete with requires parent’s rights to raise ipso facto, ences, a solu- system must fashion automatically to terminated. their children be children, protection for provides tion Legislature guide- has broad The crafted adult- opportunity to reach with reasonable circuit courts for the DHHR and for the lines good physical and safely and in as hood deciding, whether to terminate to follow op- And this practicable. as mental health However, “parental rights” parent. of a may permitting a father portunity include guidelines “criminal in- nowhere these for a crime who has been incarcerated carceration” mentioned. parent his children. continue to majority’s opinion rejects I that the majority opinion rightly am troubled The giving to the par- might as direction premise that of a be read DHHR’s incarceration par- simply terminate both circuit court to should call for an automatic termination ent major- hope I that the agree. rights. would parental rights. And I ents’ carefully judge again will exam- parent’s might this case ity that a incarceration states and the the children deciding ine the interests of. a factor to consider whether be child, again action he parents, and take whatever custody of a and even DHHR can take entirely in the best interests determining deems a factor whether license, should, hereafter, hunting fishing attorneys gun, get but a defen- 1. Criminal defense circumstances, also, holding may if have clients of the this case warn their dant now some they young By pleading guilty to have children. and lose their terminated their crime, only giving up a defendant right child. his vote, freedom, maybe right his own a *20 children, repeating if it even means ruling rights that the father’s
court’s
terminated. Termination only
parents should be the answer when have
other alternatives failed. caution, I concur.
With
I am authorized to state Justice joins in this
McGRAW concurrence. PHILIPPI,
CITY OF Plaintiff
Below, Appellee,
v.
Tammy WEAVER, S. Defendant
Below, Appellant.
No. 27259.
Supreme Appeals Court of Virginia.
of West
Submitted June 2000. July 2000.
Decided
Dissenting Opinion of Justice
McGraw Dec.