*1 613 provided Taylor not be to a thief in by granting an insurer should liable Mr. him permission has person no to use a who permission dealership’s to test-drive ve- his vehicle and who converts it to or her salesperson hicle. Had the requested that use,” own do not the theft we believe ex- Taylor Mr. a valid exhibit driver’s license ception applies to the facts of this case. proof identity as of his proof and as his Johnson, S.W.2d at 594. legally operate entitlement to motor ve- opinion, In Taylor this Court’s the Matits court’s hicle and Mr. had tendered false protect intention to insurer from an operator’s identification or invalid li- liability occurring that arose from a theft cense, argument then Universal’s on this in per- while the insured’s vehicle might issue more In convincing. be this possession, mittee’s by but not a theft opinion, salesperson’s Court’s decision permittee. 166 A.2d See at 349. As the grant permission Taylor to Mr. to test-drive suggested, key Johnson court to acti- by vehicle was motivated his desire to sell vating exception person is “a who has by any a vehicle and on reliance what- permission no to use a vehicle.” 745 personal pro- ever Taylor information Mr. S.W.2d at 594. Consistent our ratio- Certainly may vided. an automobile dealer declaring nale West an “initial steps protect take a number itself permission” jurisdiction, we believe be- from an occurrence such as which Harry cause Green voluntarily did fact suggested, resulted this case. As we keys turn over the to its vehicle to Mr. salesperson can be to re- instructed Taylor, subsequent even a act theft quest proof identity inspection as well as Taylor permission. Mr. does not vitiate that operator’s anof license. Even more obvi- legislature If the of this state wishes to ous, however, that the salesperson can amend the language omnibus found in required accompany potential buyers be 33-6-31(a) W.Va.Code and 17D-4- §§ case, on their Harry test-drives. this 12(b)(2) except coverage under these agents prevent and its did nothing Green facts, However, may it of course do so. transpired the events which and the death language in both omnibus clauses clear- ly party innocent third coverage conditions on use of the in- was the result. vehicle, necessary sured we find it to re- foregoing, hereby Based on the re- we quire coverage permis- based on the initial verse decision Circuit Court of granted by Harry Taylor. sion Green to Mr. County. Marion Taylor’s subsequent acts, Mr. which evi- Reversed. vehicle, dence an intent to steal the have no bearing, opinion, this Court’s the is- permission”
sue coverage an “initial
jurisdiction. Jensen, But see 788 P.2d at (holding wrongful
344-45 intent to de-
prive insured owner of vehicle bars cover- age). S.E.2d argument One final advanced In the B. Interest CARLITA Taylor pro
Universal is that because Mr. Harry salesperson vided the Green with a No. 19899. name, address, occupation, false Supreme Appeals Court of permission granted by the dealer to Mr. Virginia. West Taylor should determined be void. Kemper Neary,
See Federal
Ins. Co. v.
Submitted Feb.
1991.
(1987)
Pa.Super.
(permis
record does not indicate that the personal history
son relied name or on the *4 Baxter, Virginia Legal West
Barbara L. Services, Wheeling, appellant. Palumbo, Gen., Jeffrey K. Atty. Mario J. Gen., Matherly, Atty. Asst. State W.Va.
WORKMAN, Justice: appeals N.1 Justina from order County Circuit Court of Ohio which termi- rights parental daughter, to her nated her B. The circuit court found that the Carlita guilty appellant was of abuse and and that there no reasonable of Carlita and likelihood that the conditions abuse fu- neglect could be corrected the near appellant the cir- ture. contends that terminating court erred in her cuit 1) Department because neither the (hereinafter “D.H.S.”)2 of Human Services specific caseworker as- nor the D.H.S. signed to the case made a reasonable effort reunify required by W.Va. as 2) (1988); assigned 49-6-5 Code § develop a real- D.H.S. caseworker failed to Department now practice of Human Services is in do We adhere our traditional Services, relations and other sensitive cases and mestic do as the Division of Human known parties. use the last names of the See part Department not now a Health W., e.g., Nancy Randolph W.Va. Viola R. v. 178 5F-2- § Human Resources. See W.Va.Code (1987), S.E.2d 465 n. 1 West (1990); (1990); 1(d)(2) 5F-2-l(j) § W.Va.Code C.L., ept. Rea D Human Serv. v. La Ann (1985). § W.Va.Code 9-2-la (1985). W.Va. S.E.2d 632 required plan istic case for the November incident which the 3) (1984); Wheeling appel- W.Va.Code 49-6D-3 Police were called finding appel- investigate erred in circuit court that the lant’s residence to a domestic dispute print lant suffered from erratic red hand behavior and discovered a anger (Robert to the extent such B. outbursts Carlita’s back4 and the incapable exercising behavior made lant both admitted skills; 4) child, proper parenting slapped old, the circuit then thirteen months finding subsequent court argument erred to an between Rob- (3) appellant); abused her children other than be- B. allegations Carlita ert and the (a) cause such evidence relevant to that the had taken the child to proceeding this night early morning and should have ex- late bars (b) cluded, alternative, hours; (4) allegations was not convincing occasionally established clear and evi- would fail to feed Carlita until disagree dence. We contentions Robert B. from work in returned the eve- ning and affirm the order of the patience due to the lack of County. (Once Circuit feeding young Court Ohio Robert B. *5 work, allegedly returned from he would I. FACTS day); feed the for the child first time of the (5) allegations by neighbors they had appellant The mother the of four chil- screaming heard parental rights appellant the at the child dren. Her to her oldest child, Justin, and had the child fall out of heard its crib. were terminated the when approximately years age, child was three appellant The contends that Ms. Lauder- upon appellant’s based the abusive actions petition milt’s to decision termination of apparently toward the child. She him beat rights appellant’s parental the to Carlita back, legs pulled large on the out areas upon premised deteriorating was also the hair, threatened, of his presence the relationship appellant between the and Ms. caseworker, of a to the D.H.S. drown both Laudermilt. Ms. Laudermilt had become child, oldest her second Christo- acquainted appellant’s family with the pher.3 Christopher while Justin and both were At the initiation regarding residing of this action Ms. household. Laudermilt Carlita, 22, 1985, ap- the removing born October had been instrumental Justin pellant living B., given was with Robert .Carlita’s from the the home had 27, 1987, reintegrate father. On March Lauder- responsibility attempting Dixie milt, D.H.S., Christopher a caseworker for the filed a into the home. While Lau- Ms. petition appellant’s to have Carlita removed from the dermilt had visited the home petition home. upon Christopher, complete reintegration The was based the with (1) following: alleged March accomplished. During had not been a visit reported incident in which B. January Robert the an- became the had thrown gry five-month-old with Ms. Laudermilt when Ms. Lauder- manner; (2) Carlita a period onto bed a violent milt indicated that the visitation had action, only subject thorough 3. While Carlita is the of this a foster home facilitate medical entirely it is worthwhile to note that both Justin and Although care. it is not clear the from Christopher were from home in us, removed the appears record before it that Daniel was upon appellant’s 1984 based abuse of Justin. custody parents removed of his with from County In Circuit Court Ohio or- necessity their consent due to the for constant Christopher reintegrated dered into the Justin, Christopher, medical attention. Neither By January only daytime home. visita- present nor termi- Daniel is involved in accomplished appel- tion had been between the nation action. Christopher, overnight lant and no visita- tion had been The contends scheduled. D.H.S. testimony According Raymond to the La- integration complete that this lack is due to Rue, Wheeling Police had been summoned cooperate appellant’s refusal with the appellant’s investigate residence to do- D.H.S. during disputes mestic on three occasions No- child, Daniel, appellant’s The fourth born was vember 1986. problems placed with severe medical and was such household attempted sisted the with expired. As Ms. Laudermilt Christopher planning preparing as bud- from the tasks meals and remove arms, Johnston, kicked Laudermilt D.H.S. gets; Ms. worker Gloria filed as- Ms. Laudermilt appel- in the stomach. with the previously who worked jailed charges, and the was lant; Wheeling Ray- sault Police Officer to three hours. When two LaRue, saw red mond the officer who pregnant, she explained that she was lant print At con- hand on Carlita’s back. jail, from and Ms. Laudermilt was released evidence, presentation clusion petition to signed hygiene a mental granted improve- a six-month involuntarily a behavioral committed period 49- pursuant ment to W.Va.Code § center. health 6-2(b) (1984).5 legal custody Physical and given of Carlita was D.H.S. hearing petition for termination A on the permitted. supervised visitation appellant’s parental to Carlita family prepared D.H.S. and submitted April Testimony was held on Laudermilt; Lahita, plan required by 49- case as W.Va.Code from Ms. Bea elicited § plans, as- services worker who had 6D-3.6 Two dated November homemaker 49-6-2(b) provides goals would of distinct for- 5. West Code entail inclusion improvement court mulated within follows: plan period and im- order. article, any proceeding under this provement period then order could be interre- may, prior hear- or custodians to final guide provide lated to a detailed to the achieve- peri- ing, to be allowed an move court-specified goals. ment months to reme- od three twelve in order alleged dy the circumstances or circum- *6 49-6D-3(a) (1986), Virginia 6. West Code § upon proceeding is stances which the based. provides pertinent part, as follows: improvement shall one The court allow such available, (a) period compelling unless circum- the of funds the it finds Within limits thereof, may justify department develop to a denial but of human services shall a stances temporary custody depart- family every family require plan for a the state case wherein agency during improve- person department other been ment or the has referred period. granting being improvement period order such im- after allowed ment An an require (b), provement period depart- provisions shall the under two, subsection section the of (c), prepare to and submit to the court a or subsection section five 49-6- [§ ment 2(b) ], 49-6-5(c) family plan provi- chap- or six of case in accordance with the article this § ter, 49-6D-3], family section article six- for each referred the de- [§ sions of three and added) chapter, (emphasis partment supervision D of this and treatment fol- (1988) 49-6-5(c) lowing ent, by par- also a determination a court a West Code that family provides postdispositional guardian, improvement or in such has custodian neglected period as abused a child.... follows: or plan clearly may disposition organized, The court as an alternative case is to set forth parents identifying family prob- the or an im- allow to provement period custodians realistic method logical steps used not exceed twelve lems and the ing to be in resolv- lessening During period parental problems. Every this the or those fami- months. ly prepared department permanently plan by shall not be terminated the shall require following: parent the to recti- and the court shall contain the (1) measurable, listing specific, fy upon which determina- A the conditions realistic achieved; post- goals tion was based. No more than one such to be (2) may arrangement dispositional improvement period goals be An into an order of granted. may priority; order the child to be court relative, (3) placed listing problems parents, a A of the that ad- with the the state will be goal; department appropriate placement or dressed each other (4) description assigned during period. period specific A of how the At end of abusing hearing shall determine caseworker or caseworkers and the the court hold adequately parent, guardian or whether the conditions have been custodian will achieve goal; improved, and hear- each at the conclusion of such (5) dispositional description departmental ing, A shall make a further order community imple- this resources to be used in in accordance with section. services; guidelines goals menting proposed specific actions and No were included (6) improvement period provid- A entered in list of the services which will be within the order ed; specific present case. While the lack of (7) goals goals certainly targets order Time for the achievement of does order, portions goals; practice a better not invalidate such being August physically aggressive were formulat- toward Robert explained B. Ms. Laudermilt that she and ed.7 telephone Bea Lahita had both received II. OF RESULTS FIRST morning from calls to late hours of the
IMPROVEMENT night during previous six months in
PERIOD had complained which Robert B. that the fighting locking with him or hearing improve- A on success of the him out of the house. Ms. Lahita ex- period ment held on November pressed opinion relationship that Ms. Laudermilt testified for the parties significantly between the had not explained D.H.S. and that had she improved and that it would be in the family during and her involved Carlita best interest of the child to return to the improvement period original- which was at home that time. At the conclusion ly granted April Lauder- Ms. hearing, the lower court stated that due explained milt there daytime had been updated the lack of psychological reports the child visitation between and her as a evaluations basis to determine per to three two times month. Ms. Lauder- whether Carlita would safe in home experienced milt stated that the D.H.S. had environment, improvement period difficulty during no the home visitation would be extended for an six additional explained that the and Robert B. months. taken playground had Carlita birthday hosted party for her. With An evaluation and Rob- regard gradual reintegration back into ert B. was conducted social worker Lau- Ms. custody, Laudermilt stated Taylor, report rie and a dated December prior visits had been two to 1987, was Taylor submitted. Ms. found three hours and suggested duration B. Robert lacked a subsequent visitation be to six increased understanding legal clear ramifica- eight hours present with D.H.S. workers placement tions Carlita’s and that the percent to 60 time. Ms. Laudermilt appellant and B. Robert associated her testified that Carlita “takes a while to placement ongoing with the personality *7 up appellant make to and Robert [the B.] problems appellant between the and Ms. it and will be an hour before she will even Taylor Laudermilt. Ms. the found togo play, them and with especially Rob- bitter, and angry, lant Robert B. to be and ert.” custody disillusioned about the situation.
Ms. also physical Taylor’s Laudermilt discussed The thrust report of Ms. was that arguments parties’ confrontations adequate raising and between the the was home for B., appellant appellant and they possessed Robert with the children and that all neces- (8) assignment abusing parenting An proper tasks to the or workers for skills and meals custodian, neglecting parent, guardian 90% of the to time. 25, 1988, caseworkers, August plan provided the caseworker to the follow- and other assessment; ing goal participants planning criteria process; for in the and (9) Anger to designation Justina needs attend of her A of when how 95% and often meetings only Group Control medically and miss if performed. tasks will be by proven a doctor’s note. 20, 1987, plan provided November the go therapy 2. Justina and Robert to sessions following goal criteria for assessment: Mary with Lou Petrisko 95% of the time. 1) go through Justina Robert to and should North- 3. Justina & Robert will follow with homemaking parenting suggestions given ern Panhandle Behavioral Health Center 2-3 and per by positive parenting Depart, go times month to learn WV Human Ser. and workers therapist. meetings skills 90% of visits to scheduled with scheduled Outreach 95% of the 2) ready Robert for Justina and home time. positive up waiting visits and have with Car- 4. Justina & Robert will be for interactions Christopher, sugges- prepare lita 95% of meals the time. & follow 3) appropriate prepare Depart, Justina and Robert tions of WV of Human Services staff meals for Carlita. 95% of the time. 4) suggestions family pa- Justina Robert 5. Court and follow will reunite or terminate Department West rental of Human Services’ after months on intervention. safety jeopardy explosions, Ms. was Home visitation Carlita’s sary furniture. Dr. Ma- notice, in the home. and while she remained Taylor as to time was varied 5, report, ceiko’s second dated October the problems no were encountered with and July upon was based visit neighbors. Taylor not- couple or Ms. with appellant B. Dr. Ma- with the and Robert relationship and adversarial ed conflict anger poor impulse control ceiko noted and Laudermilt, Ms. appellant between quick- appellant. He stated that she recognized relationship such made that ly quite irritable cooperative varied from difficult, appropriate work with the interview, during the that had difficul- she change case- suggested of D.H.S. stress, ty dealing and that her frustra- with workers. very tion tolerance was low. level Hewitt, psychologist, also Dr. Charles Robert B. and evaluated the III. OF RESULTS SECOND reports D.H.S. submitted several IMPROVEMENT with fam- Dr. Hewitt had been involved PERIOD proceedings held ily through termination previously hearing marking and had eval- A the conclusion of the on behalf of Justin improvement period reported second was scheduled parties. uated the He nonappear- June 1988. Due functioning in the borderline was appellant, hearing con- ance of average range indication of low with some July July tinued 1988.9 At functioning, cognitive stressed that she but hearing, again Laudermilt testi- Ms. Dr. mentally retarded. Hewitt coop- regarding fied lack of personality noted serious difficulties suf- apparent inability control her eration fered with noticeable abu- Specifically, Lau- emotional outbursts. Ms. insensitivity. He also stated siveness and dermilt testified her children loves but provided counselling during with problems personality has which interfere regarding necessary home visitation care ability manage their difficult for Carlita. Ms. Laudermilt stated that the recognized He the adversarial behavior. until approximately home visits continued relationship and Ms. between things December “when became more such Laudermilt and stated that conflict appellant. Lau- anxious ...” Ms. attempts may interfere with D.H.S. to as- screaming dermilt described “more and hol- family. Dr. recommended sist Hewitt during lering appellant] home visits. [The continuing use homemaker services Bobby evenings was with [Robert B.] suggested that an effort be made fight physically and would assault *8 reintegrate Christopher and Carlita into the explained him.” Ms. Laudermilt also that household. appellant par- the participate declined Maceiko, Dr. psychologist, Dennis J. also through Hewitt, enting classes Dr. offered appellant and re- evaluated the submitted Maceiko, Dr. or Northern Be- Panhandle April ports dated 1986 and October 1988.8 Health havioral Center. Ms. Laudermilt report, In his Maceiko found that first Dr. that approximately testified March appellant very had a low the frustration accompanied appellant moth- she the to a easily agitated. and He un- level was felt organized group ers’ for children and fami- allowing appellant services, the to have ly appellant comfortable but the dur- that left custody Christopher ing or also of Justin and the session and refused to return for that, felt due intense future sessions. appears proceedings actually psy- 8. It that Dr. Maceiko submitted his but left before the chological reports absence, on behalf of the and began. upon hearing D.H.S. Based her the report that Dr. Hewett submitted his behalf on July was continued to Even at that appellant and Robert B. 26, 1988, July hearing, the did not proceeded appear, and the court in her absence. apparently present prior beginning proceedings the on June typical January attempting
Ms. home a homemaker Laudermilt described 1985 as consisting physical cooking very budgeting visits as little or to teach them skills. experi- between and the that reported verbal contact the child Ms. Lahita she had parents. problems Most contact which accom- enced or Rob- with plished calling night had initiated B. at or twice been D.H.S. ert her late once complaints than parents. fighting workers rather With a week with with regard cooperation suggestions with of one another. Ms. Lahita also testified that D.H.S., attempted counselling Ms. she had to schedule Laudermilt testified that B., for the she had “seen a decline in Robert but that they participate. had Lahi- appellant’s] part for that refused Ms. the fact there [the ta further stated that had cooperation is no there.” Ms. Laudermilt refused to had provided examples take medication which been attempts of several at prescribed anger.10 control parents overslept visitation had where up or had late watching television the Wharton, Jamie an outreach worker at night appear before and failed to Home, the Florence testi- Crittenton also explained scheduled Ms. visits. Laudermilt 1, 1988, August regard- fied at the hearing prior had sufficient notice ing her parties. with the involvement ap- scheduled visits and still failed to parties D.H.S. referred the to the Florence pear. Ms. Laudermilt testified that parent- Crittenton Home assistance in only visited her children with ing skills, teaching in- basic skills such as January through July twice from teraction, diapering, feeding, tempera- visitation, regard 1988. With Ms. Lau- taking. ture Wharton Ms. testified that explained: dermilt attempted the workers home two to visits go 9:30, at Whenever we 9:00 o’clock per three times month for such instruction. [sic] they Although would be out of When it parties cooperated bed. afternoon, was in say immediately like 1:00 after workers Daniel’s birth to there, [sic], they o’clock prob- would be and receive assistance with his medical home, usually prior that was the times where Tina lems to his removal from the cooperation would significantly become irrational start decreased there- screaming hollering Bobby January or through August at after. From myself attempt kids or or the other worker all workers continued to vis- us, provide and the children be taken parties would itation with the order to services, point, from the at and Bobby frequently home homemaker but found supervise would walk with us to the no one at home.
car to take kids to the car. At August the conclusion of the hearing, what precipitated When asked court that it lower indicated outbursts, explained reading Ms. lant’s Laudermilt would render a decision after inconsequential psychological it be small or could files evaluations. things (e.g. could be the that Carli- The court also for each “it fact ordered counsel cereal, argument stating party ta would not eat the rest of her submit a written angry, respective disposition becoming positions she would start and as their as to things go on, *9 would of the matter. The court further stated continued she be- angry.”) come the be taken ad- more matter would under filing pending of ar- visement written present remaining Due of to lack time to guments. 26, 1988, during July witnesses hear- 1989, 1, 30, ing, August January was On court matter continued to lower 1988, 1, During August hearing, terminating appel- 1988. entered an order began parental rights to Carlita. The court Bea Lahita testified that she work- lant’s ing guilty in with the and Robert B. found that was prescribed anger on 10. had been an refused take the medication control medication ern a Dr. Mendoza at North- a consistent basis. Center, Behavioral Health but Panhandle 622 upon in there an infant 1984 based neglect of Carlita and that abuse It took of his Justin. lant’s abuse brother that the condi- likelihood no reasonable was 20, 1987, for the lower until November neglect sub- could be tions of abuse reinte- that he should be court to determine in the near future.11 stantially corrected The last visit be- grated into the home. failed
The court held that
parents occurred
Christopher and his
tween
plan, had
comply
with
1989,
requests
and no
for visita-
March
participate
visita-
appropriately
failed to
that time. Chris-
tion were received after
tion,
erratic behavior and
suffered from
foster
present
his
topher has resided with
history
had a
anger,
outbursts
A
present.
family from March 1987 to
to her infant chil-
causing physical abuse
disposition has
hearing
Christopher’s
on
delay
producing
tran-
dren. Due to a
16,
August
1991. This
been scheduled
extended for
scripts,
appeal period was
in foster care for al-
child has now been
months
order dated
an additional four
years
no real resolution
most seven
25, 1989, and the final order
September
his future.
appeals was
from
now
which
are
protracted procedural histories
Such
24,
peti-
January
1990. The
re-entered on
phenomenon in child
far too common a
3,
appeal
filed on October
tion for
was
cases,
as well as other
abuse and
1990,
re-entry
eight months after the
over
custody matters. Several cases with
This
ac-
of the termination order.
Court
similar
which we have dealt have involved
1990,
5,
cepted
appeal
on December
periods
any
of time without
real
extended
5,
February
argument
expedited oral
resolution for the child.
1991.
opinion
In our recent
in In the Matter of
191,
D.,
185 W.Va.
406 S.E.2d
Scottie
DELAY
IV. PROCEDURAL
(1991),
original allegation
of abuse and
addressing the merits of this
Before
11,
February
neglect was filed on
case,
long
examine the
and tortured
we
matter,
Following proceedings in the
an
endured.
procedural history this matter has
17, 1989,
March
con-
order was entered on
petition
parental rights
terminate
appellee
cluding that the
had not abused
27, 1987. The
this case was filed on March
Thus,
order,
his children.
the final
from
hearing
first
on the matter was held on
taken,
appeal
not entered
which
was
was
23, 1987,
April
wherein
years
neglect pro-
after the
until over four
hearing
period
granted; another
ceeding was initiated.
10, 1987, wherein the
held on November
In
v.
Department
Human Services
improvement period was extended six
330,
C.L.,
Rea Ann
175 W.Va.
La
reports
or-
psychological
months and
were
(1985), a child
in 1980 was
S.E.2d 632
born
updated;
hearings were
dered
additional
relinquished by her
voluntarily
mother
1988,
August
July
held on
shortly after birth and resided in foster
finally
parental rights
were
terminated
years pending final
care for four
resolution
problems in
January
1989. Due to
subsequent attempt
to revoke the re-
acquiring
transcript,
appealable
the final
linquishment
parental rights.
recog-
We
year
re-entered almost a
later on
order was
Ann,
“[cjhild custody
nized in La Rea
Thus,
prior to the
January
even
certainly
promptly.
be decided
cases
should
Court,
appeal to this
Carlita remained
Regardless
responsible
for the
of who
years during the
for almost three
limbo
case,
delay in this
the child is the unfortu-
stages
young
life.
most formative
at 337 n.
nate victim.” Id.
W.Va.
n. 8.
priority
rights may be terminated
parent’s
that a
on a
delays wreak havoc
procedural
fied
reason-
finding that
there is no
“[u]pon a
security.
development, stability and
child’s
the conditions of ne-
likelihood that
able
that all
in order to assure
Consequently,
substantially correct-
glect
can be
or abuse
goals
actively pursuing
entities are
future,
necessary
and when
ed in the near
statutes,
neglect
child abuse and
the welfare of
child....”
for
Director of this Court
Administrative
the clerks of
hereby
to work with
directed
contends
develop systems to mon-
circuit court to
effort
failed to make
reasonable
D.H.S.
progress of child ne-
the status and
itor
reunify
family, pursuant
to W.Va.
courts.
cases
in the
glect and abuse
49-6-5,
develop
failed to
a real
Code
§
system
file
or an
simple
tickler
Whether
plan
required by
family case
as
W.Va.
istic
computerized case moni-
to a
enhancement
appellant request
49-6D-3.13 The
Code §
systematic
toring system, some means
improve
granted a six-month
ed and was
cases
and abuse
review of
period,
ment
in accordance with W.Va.Code
Otherwise, the statu-
must be established.
49-6-2(b).
granted
later
a sec
She was
§
govern
process-
tory time frames that
their
improvement period. As we
ond six-month
mandatory,
re-
ing
periodic status
and the
State ex rel.
syllabus point
stated in
3
must
filed with the court are
ports that
be
Virginia Dept.
Human Serv. v.
West
safeguards
easily overlooked.
If such
too
M.,
688,
Cheryl
181
177 W.Va.
356 S.E.2d
meaningless by a failure or
rendered
are
W.Va.Code, 49-6-2(b)
(1987), “[u]nder
cases, neglected and
inability to monitor
(1984),
improvement period
is au
when
may
children
become lost
abused
thorized,
re
by
then the court
order shall
them.
very system designed to rescue
Department
Human
quire the
Services
prepare
family
plan pursuant
case
TERMINATION
V. THE PROCESS OF
W.Va.Code,
(1984).”
plans
49-6D-3
Such
determining the
The standard for
prepared
for the
and filed
were
custody of
parent
fitness of a
to maintain
case. The
with the circuit court
this
recently
syllabus
reiterated in
his child was
purpose
plan
“is to clear
W,
Randolph
Nancy
R. v.
Viola
point
1 of
organized,
ly set forth an
realistic method
(1987)
(quot
356
464
177 W.Va.
S.E.2d
logi
identifying family problems
and the
Wise,
Hammack v.
ing Syl. Pt.
resolving
or lessen
steps
cal
to be used
(1975)).
We
S.E.2d
W.Va.
M.,
problems.” Cheryl
ing
these
following:
stated
(quoting
at
At the peri conclusion of the mendations for treatment of the *13 od, performance the court shall review the specifically which were not included the parents attempting of the Maceiko, instance, to attain the plan. case Dr. for rec- goals improvement period shall, of the 10, 1986, in April report ommended his that discretion, in the court’s appellant determine whether the psychotherapy receive improvement period the conditions of the chemotherapy for control of her violent impulses.16 been satisfied and whether sufficient He appel- also stated that the improvement has been made in the context good lant would not abe candidate for all the circumstances of the parenting groups case to “simply because the justify the return of the child. many problems that she has to contend intellectual, poor control, impulse with— explained As we West management problem, stress etc.” Dept. F., Peggy Human Serv. v. 184 60, 64, Hewitt, (1990), however, W.Va. explained S.E.2d it Dr. in his possible 30, 1988, is for an April report individual to show “com “psychotherapy pliance specific aspects with counselling of the case per se is not likely to be plan” failing improve while “to ... appellant].” useful to Dr. Hewitt fur- [the] [the overall attitude approach parent to ther noted that the conflict between the Thus, ing.” judgment regarding appellant the suc and Ms. seriously Laudermilt in- improvement period cess of an is within the terfered with development the of a mean- court’s regardless discretion ingful plan whether or attempt to reintegrate to the completed not the individual sugges has all children back into the household. Dr. Hew- goals tions or set forth in family case itt further April recommended in his plans. 1988, report that meaningful attempts be made reintegrate Christopher to
The period granted Carli- to ta into permit the household and parent allow the home- opportunity an to reme- maker dy services to continue. existing problems. plan The case simply provides approach an solving appellant The argues D.H.S., them. As is clear language from the formulating family plans, ignored case statute, goal ... the ultimate is res- suggestions psychologists. of the De- environment, toration of a family stable spite opinion Dr. Maceiko’s not simply meeting requirements good lant was not a parenting candidate for plan. the case groups, instance, plan required the case 184 W.Va. at appellant S.E.2d at 464. anger attend group control meetings, parental group classes, play ther- present case, In the family two case apy, and parenting assistance classes. plans, dated November and Au gust 1988, were formulated Upon to assist plans review of the reports and the appellant. The contends that psychologists, we fail to any discern plans were unrealistic and that unfairness in family plans. They case plans success of the dependent upon were appropriate realistic and in their at- Laudermilt, Ms. with whom tempts particular to address the needs of maintained an relationship. adverse family. The Reports by psycholo- rendered appellant bases her contention that gists certainly are of assistance to a court plans were unrealistic on the fact that the in determining the psychological capacity psychologists matter, two involved in this of an individual to raise a child and of Maceiko, Dr. Hewitt and Dr. made recom- assistance to the D.H.S. in formulating the obligation, court bears an turvy, ling, at the they initiation of an receiving to assure are counsel- improvement period, tutoring, any facilitate communica- other services needed to amongst parties tion provide stability so that there is no them with as much and conti- expected nuity mistake as to possible what is under the circumstances. addition, department. and the the court earlier, should ascertain that someone is communicat- 16. As mentioned has indeed ing they with the children prescribed anger medication, to assure have some control grasp why topsy- their lives have turned so but refused to take it on a consistent basis. employed attempt uncooperative relationship tactics to be be- remedy problems. family the familial tween the and Ms. Laudermilt however, plans, required impossible case are not rendered it for the particular fully comply improvement period reflect the recommendations of a with psychologist every plans. detail. the issue On case con- instance, psychotherapy, reports tends that the D.H.S. should have removed of Dr. Maceiko and Dr. Hewitt differed Ms. Laudermilt from the regard potential efficacy apparent as it became that an adversarial *14 Thus, appellant. such treatment for the relationship developing was between Ms. family plan perfect formulation of a appellant. case Laudermilt and the appel- congruity reports with both would argues have lant further that the D.H.S.’s fail- been difficult. attempt remedy hostility ure to to the mistrust existed which between the Furthermore, appellant’s we find the ar- lant and Ms. Laudermilt constituted a lack gument that the success of family the case of “reasonable effort.” The plans dependent upon Ms. Laudermilt stresses that the D.H.S. failed to make to be meritless. Ms. Laudermilt was not reassignment such even after it was recom- only the providing individual assistance to by mended Taylor.17 Dr. Hewitt and Ms. appellant. Lahita, Beatrice a D.H.S. services, providing worker home agree deteriorating was also We that the relation- involved in the framework ship of assistance to between the and Ms. Lauder- appellant. Therapists complete at Northern Pan- milt cooperation rendered unlike- handle ly. together Behavioral Health Center and work- The D.H.S. with all other enti- ers from the Florence Crittenton Home ties involved in a child abuse and attempting provide were also involved in case must always bear mind its obli- gation parenting provide cooperative, a encourag- education and skills. All of ing, supportive personnel designed these social work environment ap- found the to foster the pellant extremely par- eventual reconciliation of very difficult and not ent and child. an receptive accepting Such environment is im- assistance. portant only because it is what the law executing improvement In plan requires, but also because—in the event plans, case the D.H.S. is also inadequate and termination obligated to make efforts to reasonable eventually sought must be record can —the reunify family, and the “court shall support better a conclusion that all reason- by depart- consider efforts made D.H.S., by able efforts were made provide ment to remedial and reunification helping personnel, other and the court. parent.” services to the W.Va.Code 49- certainly We believe once a D.H.S. 5(a)(6).Furthermore, the court’s order is 6— relationship caseworker and client’s deteri- specifically state “whether or not the degree orates to the evidenced in the department state made a reasonable effort present physical a altercation and prevent placement or that the emer- subsequent charges assault and involun- gency situation made such efforts unrea- commitment, tary has an D.H.S. obli- impossible” sonable or and “whether or not gation changing assigned to consider work- department the state made a reasonable if possible, parameters ers at all within the reunify family including effort a agency’s obligations. of the resources and description of what efforts were made or However, recognize steady we ero- that such efforts were due to unreasonable protective sion of child services resources specific circumstances.” Id. has created an enormous unmet need and appellant’s argument earnestly hope Legislature The thrust of the and D.H.S. regard to lack of effort is address this crisis.18 reasonable will clear, legal however, 17. The also contends that the D.H.S. status of each of her children. It is provide legal repre- failed to make a reasonable effort to appellant did have thorough understanding throughout proceedings. with a sentation these visiting level of interest degree parent’s “rea A ascertaining the In during an out-of-home or her child D.H.S., with his how made effort” sonable signifi- extremely an improvement period is ever, also consider we must circuit court to review. cant factor for the response her proceedings role consistently demonstrates parent A who by the D.H.S. efforts made obviously has far to with his desire variety of case other provided with being nurturant and potential for more she could therapists on whom workers interest parent than one whose committed she could have to whom relied and child is erratic. being with his willingness and desire to’ her demonstrated family. From review reunify her Pan- from Northern Outreach workers record, appellant com appears that the it Health Center were handle Behavioral cooperate with the refused to pletely an at- scheduled to visit improvement period. during D.H.S. regarding parenting tempt to educate her D.H.S., instance, to by the attempt *15 homemaking the workers skills. When controlling her vio appellant in assist the appointments, appear would for scheduled swings, the D.H.S. lent mood not the door. appellant would answer appellant appointments for the several on the the workers left notes Even after Behavioral Health Panhandle Northern regarding the sched- door with information Center, community health servic mental appellant re- uling appointments, appellant finally provider. es While participate program. At- fused to evaluation, she refused an initial attended appel- tempts by the D.H.S. to involve subsequent appointments. to return for group also support in a mothers’ lant accompanied Ms. failed. Laudermilt Furthermore, testified Ms. Laudermilt meeting, ap- appellant to the first but often refused to visit her pellant refused to return to additional late for visitation. At children or would be meetings. three and specifically scheduled for visits instance, duration, for hour one-half encouraged The D.H.S. also frequently appear for the appellant would variety other activities participate The would ability one hour late. designed visit to increase her effective- Carlita, stating ly appellant, cancel visitation with for her children. The also care children, however, cooperate with such if she could not see all of her refused that that the lack any attempts. We do not believe to see of them. she did wish case, prioritization 18. In the present interim measures for case had Ms. Laudermilt testified reassignment, suggested response such a but that that she to what he termed been established in it, stating supervisor declined to effect her protective "the crises in child services." The appellant and that she would not he knew the change. response were effectuated in interim measures Furthermore, reality of the situa- steady to a increase in referrals of child abuse that some counties in this state tion is neglect corresponding cases and a reduc- According protective services. almost no child past has tion in staff which occurred over May Services Re- to the port prepared 1991 Child Protective years. ten by Program Specialist for recognized that the de- The interim measures of Social Child Protective Services in Office partment inadequate adequate- resources to Secretary for Miller and Commissioner Services Panepinto, ly the needs of its clients and established a meet Region employs protective I 55 child system setting priorities as to child for which county region, workers for the 16 Re- service neglect reports fully abuse and would be investi- protective gion employs service II 41 child gated up. and followed region, Region county III for workers employs July According to a memorandum dated protective 16 child service workers Team, Management Social Service Region employs county region, IV the 15 King, Program Specialist in Child Protec- Kathie protective for the 13 coun- child ty region. service workers Services, pend- the number of tive indicated that (3,724 1991). ing climbing April as of referrals is January person- In a letter dated backlog yet Many been investi- of that have not working protective the child services nel currently receiving gated. department is Director, field, Harry Burgess, of Social Office approximately reports suspected Virginia Department of Services of the West explained each month. abuse Health and Human Resources cooperation by seriously exhibited child will be threat- entirety in its to the adverse attributable ened. ... relationship between the and Ms. We therefore conclude the Laudermilt. The record reflects the periods plans and the were disregard complete lant’s almost for and adequately developed more imple- than disinterest in the efforts of the D.H.S. to steps mented to assist the mother in the developing her in the control and assist remedy problems gave needed to which necessary regain her skills children. proceedings, rise to these and we find no apathy,
Whether the result of misunder- assignment merit to her of error related standing, ignorance part on the thereto. appellant, the ultimate termination of her parental rights was attributable to her be- any rather lack of havior than to reason- VI. EMOTIONAL INSTABILITY by able effort the D.H.S. also contends that Despite responsibility of the D.H.S. finding, part the lower court erred provide and the court to interventive re- parental its determination her parents, sources and to aid the the rehabili- terminated, should be that she suffered an improvement period tation envisioned emotional illness of such duration or nature anyone accomplish is not a task which can incapable as to exercising render parent. The natural in- *16 proper parenting sufficiently skills or im necessary regain stinct is to do the work proving adequacy of such skills. See custody full of the child. Evidence of that 49-6-5(b)(6).19 appellant W.Va.Code The § energy instinct and the concomitant re- argues only alleged that one incident of quired goal missing to achieve that from abuse, physical print hand the child this case. slap, during caused occurred the one year period during and one-half which the In the difficult balance which must appellant had exclusive care of Carlita. rights
be fashioned between the appellant The further contends that child, parent and the welfare of the we reports Dr. of Maceiko and Dr. Hewitt do consistently emphasized para have prove, by convincing clear and evi controlling mount and factor must be the dence, that she suffers an emotional illness parental rights child’s welfare. “[A]ll of such nature or duration as to render her matters,” stressed, custody child we have incapable exercising proper parenting “are subordinate to the interests of the sufficiently improving adequa skills or M., innocent child.” David 182 W.Va. at cy of such skills. Syllabus point 385 S.E.2d at R.J.M., In re 164 W.Va. S.E.2d Dr. Maceiko indicated in his October (1980), part, following: states the 1988, report that Carlita should not be re- appel- turned due to the general As a rule the least restrictive psychological lant’s unstable emotional parental regarding rights alternative custody 6-5 [1977] of a child under will be employed; W.Va. Code, however, 49- condition, gence. Dr. exacerbated Hewitt, however, her limited intelli- recommended report in his final that be reinte- Carlita required every courts are not to exhaust grated into the household. The speculative im- possibility provement encourages rely heavily upon us to more terminating parental before report argues appears where it that the welfare of Dr. Hewitt and illness, 49-6-5(b) provides parents West have incurred mental § Code emotional " determining deficiency criteria for mental such duration when there is ‘no rea- illness or or neglect parent sonable likelihood that conditions of nature as to render such or in- ” exercising parenting substantially capable proper abuse can be corrected.’ Pursu- skills or 49-6-5(b)(6), sufficiently improving adequacy ant to such conditions shall be of such abusing parent deemed to exist skills." when "[t]he thorough and ACTS report Hewitt’s is more VII. PREVIOUS ABUSIVE
Dr. TOWARD OTHER report of Dr. Ma- than the exhaustive CHILDREN ceiko.20 the cir contends that evidence reflects that admitting cuit erred in court evidence which swings violent mood suffers prior allegations involving chil of abuse verbal and manifested themselves both Throughout than dren other Carlita. physical abuse. The kicked workers, proceedings, the social service stomach, worker in the was incar- D.H.S. having prior with the worked even mother, assaulting own cerated for her birth, regard to to Carlita’s testified with Carlita on a when child was threw bed appellant’s treatment of Justin Carlita, age, slapped months of caus- five appel Christopher. regard With ing print, a red hand when the that her acts to lant’s contention violent allegedly hit age, thirteen months of has ward her other children are irrelevant to B. on several occasions and has neglect regard Robert proceedings the abuse Carlita, ing disagree proposi we a turbulent domestic with the such situation acts of tion that abuse and toward frequent calls to law enforcement authori- other children are inadmissible. necessary. also re- ties are The record several instances in flects which regarding ap- We find that evidence unwillingness demonstrated her previous lant pellant’s ap- abuse of Justin broad, propriately introduced to therapy seek treatment or condi- serve the purpose legitimate providing the court tion. understanding appellant’s with an explained April Hewitt in his Dr. home environment and of 1988, report suffers propensity neglect- toward abusive and/or personality from “serious difficulties with ful treatment children. We further find insensitivity.” abusiveness noticeable that introduction of nature evidence this *17 5, 1988, Dr. report, In October Maceiko his parental in a is termination case not impulse anger, poor noted 404(b).21 of While violative W.Va.R.Evid. control, stress, difficulty dealing and a that recognize probative we value of frustration Based low tolerance level. may, point, such at be sub- evidence some upon reports testimony these and the con- stantially outweighed by preju- its unfair record, impact, balancing dicial that is within tained we cannot conclude court, sound of the discretion trial its finding the lower court in that that erred only upon decision will reversed a clear suffers from an emotional discretion. abuse of of such render her disorder nature as to incapable exercising proper parenting of therefore prior We hold that acts or sufficiently improving adequa- skills violence, abuse, physical of or emotional cy such skills. other of abuse toward children are relevant in 404(b) prepared report three-page typically Maceiko 20. Dr. on While W.Va.R.Evid. has not 10, 1986, report April two-page context, and a on Octo- juris- employed in the been civil several 5, ber 1988. Dr. Hewitt examined dictions, subsequently as detail in discussed in 24, 1986, July June and December section, have this encountered situations in report thirty-five His entire consists guardians parents which or abuse or accused of pages. 404(b) neglect raised Rule have issue. by permit- Those courts have resolved the issue 404(b), to W.Va.R.Evid. "[e]vidence Pursuant crimes, ting wrongs, of other or acts to evidence crimes, wrongs, of other or acts is admissi- purposes for other be admissible as referred prove person ble to the character of a in order motive, 404(b) proof oppor- in Rule "such as conformity show that he acted in therewith.” to However, intent, knowledge, tunity, preparation, plan, 404(b) specifically al- W.Va.R.Evid. identity, or absence of mistake or A accident.” prior lows evidence of bad admitted "for acts motive, approach permissive taken to- purposes, rather has been proof oppor- other tunity, such as 404(b) intent, challenged knowledge, preparation, plan, ward evidence under Rule identity, neglect child abuse or absence of mistake accident.” within the context.
631
2
pertinent part
syllabus part
rights proceed-
In
parental
a termination
L.,
W.Va.
183
State v. Edward Charles
ing,
not violative of W.Va.R.Evid.
are
case,
(1990),a criminal
633 evidence, 404(b) I regard dispo- point out that to future Rule would County. Ohio With are siblings, parental rights and her the record cases sition of Carlita termination any enjoys Consequently, whether only by judge. is unclear as to Carlita heard siblings, continued association with possibility not the same of unfair there is Justin, Christopher, sylla- Daniel. 404(b) prejudice as when Rule evidence M., 4 In re No. 19948 point bus James crimes, wrongs, paraded other or acts are 648, (1991), 408 400 we 185 W.Va. S.E.2d in jury before the a criminal case. Certain- following: explained the consequences as se- ly, penal are not parental rights vere in a termination In cases where there is a termination Therefore, gen- case. rights, court as in a criminal parental the circuit balancing asso- test 403 of the consider whether continued eral under Rule should siblings Evidence, placements in Rules of which ciation with other West interests, 404(b)evidence, in and such applies is the child’s best to Rule see State v. if child’s Hanna, continued association is in such 180 W.Va. 378 S.E.2d interests, (1989), should enter an best court less strict. preserve order to
appropriate siblings to continued contact. encourage the D.H.S. to
Consequently, we any temporary permanent
work with or adoption in- placements
foster families custody siblings in the of these
volved contin-
endeavor to facilitate the children’s
another.
ued association
one
Point 8 of the
which states: abuse, violence, physical
“Prior acts of children emotional abuse other toward relevant a termination of
are violative of
rights proceeding, are not 404(b), re- *20 a decision
W.Va.R.Evid.
garding admissibility thereof shall be trial
within the sound discretion
court.” set out
In addition reasons the use of
majority’s opinion justifying