*1 conduct, ures, single any person one statute in a course of or resulting disables in seri- Thus, may impose multiple punishments bodily injury. ous Virginia West Code 61-3-7(b) § violating Jeopardy without the Double serves as an enhancement stat- legislature qualifying Clause if the authorizes it to do ute when the conduct as first de- so”). gree arson also results in bodily inju- serious
ry.
Legislature
that the
Based on our determination
Leg-
that the
Virginia
has made it clear that West
Code
islature
impose
intended to
punish-
enhanced
61-3-7(b),
§
which sets forth the offense of ment with its enactment of the offense of
resulting
bodily injury,
in
arson
serious
acts
resulting
arson
in
bodily injury,
serious
we
regard
as an enhancement statute with
to determine that the trial court committed er-
statutory
conduct that meets the
definition of
ror in dismissing count one of the indictment
degree
Applying
reasoning
first
arson.
against
returned
Mr.
Having
Blackford.
Penwell,
in
we used
Petitioner observes that
concluded that Petitioner has demonstrated
prove
the state can
the elements of the felo
error,
legal
clear
necessary grounds
for
ny
degree
offense of first
arson under West
issuing a
prohibition
writ of
have been met.
61-3-l(a)7
Virginia
§
proving
Code
without
Hoover,
14-15,
See
bodily injury, prove the state must first arson, degree
elements of first but all the resulting bodily
elements of arson in serious
injury required prove degree are not first statutory
arson. This distinction convinces Legislature impose
us that the intended to punishment in specified addition to that In the Interest of JESSICA G. underlying felony degree of first arson No. 35487. felony when act of arson also “causes bodily injury maims, disfig serious which Supreme Appeals Court of ures, any person, or disables but does not Virginia. 61-3-7(b). § result in death.” W.Va.Code 4,May Submitted 2010. 61-3-7(b) By enacting Virginia § Code Legislature intended that Decided June same acts that constitute the offense of arson Concurring Opinion of Justice Workman degree the first under West June 61-3-l(a) § may also constitute the offense resulting bodily injury of arson in serious maims, disfig- felonious conduct at issues prove degree, prove resulting bodily inju-
7. To arson in the first evidence 8. To arson in serious "person must be adduced to show that a ... ry, evidence must be adduced to demonstrate burns, willfully maliciously fire sets to or or "person provisions that a violate[d] burned, aids, counsels, who causes to be or who two, one, three, four, sections five or six of this incites, procures, persuades, entices or solicits 3], [chapter article which article violation burn, any person any dwelling, whether occu- maims, bodily injury disfig- causes serious which vacant, pied, unoccupied any outbuilding, or ures, any person, or disables but does not result property whether the of himself or herself or of death____” 3—7(b). § W.Va.Code 61— (a). § another....” 61—3—1 W.Va.Code *2 Hobbs, WV, Esq., Chapmanville, neglect proceeding Mark against was instituted mother, Appellant, biological Monis G. and Jessica G.’s alleging substance abuse and ne- Cook, Esq., Erica Barker Partain Law Of- glect upon G. The circuit WV, fice, Logan, Guardian ad litem for the *3 receipt petition, granted DHHR tem- Child, G. Minor Jessica porary custody of Jessica G. In a subse- McGraw, Jr., General, Attorney Darrell V. quent hearing, Appellant granted was Charleston, WV, Jackson, Esq., Michael L. pre-adjudicatory improvement period, which General, Charleston, WV, Attorney Assistant successfully completed he custody of Jes- Appellee, Virginia Department sica G. Appellant. was returned to the Health and Human Resources. 7, 2008, April On the DHHR received an- referral, again other alleging substance PER CURIAM: Appellant. abuse investigation An G.,1 “Appellant” Morris hereafter or “fa- into that referral found Appellant ther,” appeals an order of the Circuit Court taking his medication prescribed, but that Logan County which pa- terminated his Kelly G. admitted to extensive substance child, G., rental to the minor Jessica abuse. an neglect peti- abuse and physical legal custody and transferred tion was not Kelly filed because G. had Virginia Department Jessica G. to the West home, moved out of the the Ap- Services, of Health and Human hereafter pellant had full of Jessica G. and the Appellant argues “DHHR.” The that the Appellant informed DHHR that he was di- properly circuit court failed to consider the vorcing Kelly G. thirteen-year-old wishes of then daugh- his 2, 2008, July DHHR received another ter, G., terminating Jessica before his referral, informing this time DHHR that the Court, rights. tal In a brief filed with this Appellant had overdosed benzodiapines on ad litem for Jessica G. also opiates, necessitating hospitalization his assigns as error that the circuit court failed placement intensive care and on a ventila- “findings to make of fact toas whether it tor. DHHR filed an neglect peti- abuse and G., considered the wishes of Jessica thir- sought tion and immediate of Jessica teen, regarding G., which granted. parental rights Appellant as re- In his Answer to DHHR’s abuse and ne- 49-6-5(a)(6) quired by glect petition, Appellant admitted to the so, and if why ignored.” such wishes were allegations that his substance abuse had re- record, Having fully argu- considered the neglect G., sulted and moved parties, ments and briefs of the we vacate the for a post-adjudicatory improvement period. terminating circuit court’s order Appel- The record shows over the course of the and remand this matter months, next several the circuit court and proceedings for further consistent with this DHHR provide made substantial efforts to Opinion. Appellant opportunities to treat his Background I. Factual prescription addiction medications.2 Appellant biological The unsuccessful, father of ultimately proved These efforts long Jessica G. and history has of addiction and DHHR moved to Appel- prescription medications. The record Kelly lant’s and G.’s3 and custodial August shows on abuse and practice
1. We follow our traditional
in child
At the time of the institution of the abuse and
matters,
abuse and
as well as other cases
neglect proceeding underlying
appeal,
facts,
involving sensitive
and do not
use
last
Appellant
prescribed pain
continued to be
medi-
See,
parties.
e.g.,
names of the
In the Matter
pain manage-
cation and was under the care of a
D.,
Scottie
185 W.Va.
192 n.
specialist.
ment
215 n.
Kelly
3.The
record indicates that
G. had been
2. The record reflects that the
had been
largely uncooperative during
post-adjudicato-
seriously injured
began
in an accident and
tak-
her,
ry improvement period granted
including
medications,
ing pain
leading to his addiction.
parenting.
capacity for
improved their
hearing was held on
On June
pres-
motion,
willfully
refused and are
They
time neither
have
at which
DHHR’s
develop-
appeared.
cooperate
in the
ently unwilling to
Appellant, nor
family
plan
at the
ease
testified
a reasonable
witness who
ment of
care,
by DHHR. The so-
employed
return to their
social worker
to the child’s
lead
while the
cial worker testified
custody, and control.
inpatient
successfully completed an
had
plans] and for-
had [treatment
We have
early
proceedings,
program
treatment
plans to let them re-
preliminary
mulated
through with his treatment
he failed to follow
they again have
but
habilitate themselves
Appellant to enroll
required the
plan which
unwilling to co-
presently
and are
refused
pro-
post-discharge addiction
in a
hearings
has
operate. Their attendance
*4
gram.
They
not followed
sporadic.
have
been
testified to Jessica
worker also
The social
they
drug
through with their
screens
regarding termination
G.’s statements
they would do which can
promised that
stating:
rights,
“I would
Appellant’s parental
they
that
are
lead to the conclusion
not
child is thirteen and does
note that the
drugs. There is no
continuing to use
termi-
parental rights to be
wish her father’s
daugh-
them loves their
doubt that each of
very strong bond
and that there “is a
nated”
them;
daughter
loves
ter and that
their
that if
and her father” and
between Jessica
daughter yearns for them to
and that their
rights
terminated as
Appellant’s
were
the
they
can be a
up
clean
their act so
[Jessi-
want them
requested, that she “would
family unit.
Appellant]
the
to be able to have
ca G. and
However,
finds
clear and
the Court
contact, just
there is
because
some sort of
that there
convincing evidence in this case
Notwithstanding
significant
a
bond.”
such
condi-
likelihood that the
is no reasonable
Jessica G. and
“significant
the
bond” between
Kelly being addicted to
tions of Morris and
father,
testified that
her
the social worker
substantially
can be
controlled substances
appropriate for
did “not think it would be
she
therefore,
corrected;
grants
the Court
Appellant]
regain
of Jessica.”
[the
petition
both the
[t]erminate
testimony,
Following the social worker’s
tal and custodial
of each
parties,
for the
argument
of counsel
biological parents.
granted DHHR’s motion to ter-
circuit court
terminating
Appellant’s parental
After
rights.4 In
Appellant’s parental
minate the
did
rights,
and custodial
rights,
terminating
Appellant’s parental
testimony that
note the
established
findings
the circuit court made
Ap-
strong
Jessica G. and the
bond between
from the bench:
provid-
be
pellant, and ordered
interest we all have
...
Jessica’s best
[in]
Jessica
post-termination
ed
visitation with
hoped
Kelly and Morris would deal
appropriate
conditions as deemed
under such
Early
abuse issues.
with their substance
by the DHHR.
recognized
it was
and recommended
on
they
voluntarily of in-
avail themselves
II.
of Review
Standard
help them
patient
programs
treatment
of review
set forth our standard
We
get
keeping
clean
that we could work
so
neglect
Syllabus
Point
in abuse and
cases
they
properly
could
them clean so that
Tiffany Marie
1 of In the Interest of:
parent
teenage daughter.
their
(1996), which
at a later date and show he willing was III. Discussion provide for Jessica G.’sneeds. guardian ad litem further The record before us demonstrates disposition another alternative that the court Appellant that the prescription is addicted to could have considered was to “bifurcate the underlying medications and that the action parental rights Appellant of the ... and ter-
was instituted
Appellant’s
the
hav-
rights
minate his custodial
only.” The
ing
resulting
overdosed —the overdose
in the
guardian ad litem reasons that such a bifur-
Appellant’s being placed in intensive care
cation would have
Appellant]
[the
“allowed
dispute by
and on a ventilator. There is no
parental
retain
rights
his
to Jessica G. and to
parties
the
that several efforts were under-
clear,
honor the wishes of Jessica G.” To be
by
taken DHHR
during
and the circuit
ad litem does not
guardian
the
argue
below,
pendency
provide
of the action
Jessica G. should
custody
be returned to the
opportunity
an
to obtain treat-
of the
appeal
as
result of this
and
ment for his addiction.
specifically
position
Appel-
takes the
that the
lant should not have
until his addic-
Appellant participated
While the
tion
inis
remission.
plans,
it is clear that he did so
varying degrees
ultimately
of effort and
The record is clear that
the circuit
failed to overcome his addiction. This failure
by
court was made aware
Appellant,
resulted
a recommendation DHHR that
ad litem that Jessi
DHHR and the
Appellant’s parental rights
be terminat-
ca G. did not
parental
want her father’s
agreed
ed. The circuit court
with DHHR’s
rights terminated and that Jessica G. had a
recommendation and
Appel-
terminated the
“significant
grant
bond” with her
In
father.
on the basis that the
ing post-termination visitation
Appel
to the
Appellant’s
incapable
lant,
addiction rendered him
the circuit
acknowledged
court
this
of providing
W.Va.Code,
necessary parental
care and
bond.
under
49-6-
5(a)(6)
supervision
[2006]5,
of Jessica G.
the circuit court should have
W.Va.Code,
6—5(a)(6)[2006] states,
child,
parental,
rele-
fare of the
custo-
49—
part,
vant
as follows:
rights
guardianship
responsibili-
dial and
and
Upon
finding
abusing parent
ties of the
and
there
commit the child
is no reasonable
permanent
likelihood that
to the
sole
conditions of
of the nonabus-
one, or,
not,
substantially
ing parent,
abuse can be
corrected in the
if there be
to either
and,
near
permanent guardianship
department
future
when
for the wel-
appears
from the record that
Where
wishes before termi-
Jessica G.’s
considered
Rules of
process established
rights:
nating
Appellant’s
Neglect
Child Abuse and
Procedure for
provision
Notwithstanding any other
statutes for the
Proceedings and related
article,
give
court shall
consider-
adju-
involving children
disposition of cases
a child fourteen
the wishes of
ation to
neglected
be abused or
has been
dicated to
or otherwise
age or older
years of
frustrated,
substantially disregarded or
determined
age
discretion as
vacat-
resulting
disposition
order of
will be
termi-
regarding
compliance
ed and the case remanded
(Emphasis
add-
nation of
entry
appropri-
of an
process
with that
and
ed).
dispositional
ate
order.
us, the circuit court
In the case before
reviewing the circuit court’s
After
wishes,
have considered Jessica G.’s
should
Appellant’s parental and cus-
terminating the
W.Va.Code, 49-6-5(a)(6), before
pursuant
well as a review of the
rights,
todial
Appellant’s parental and cus-
terminating the
dispositional hearing, we
transcript of the
According-
rights
todial
and failed to do so.
adequately
circuit court failed to
find that the
termi-
ly, we vacate the circuit court’s order
G.’s, who was thirteen
explain why Jessica
nating
dispositional
the time of the
years old at
proceedings.
remand this matter for further
(and
old),
years
now fourteen
remand, the circuit court shall consider
discretion,” Id.,
of an
not “otherwise
placement
Jessica G.’swishes
whether
why
into
her wishes were not factored
birthday
eighteenth
home until her
a foster
pa-
whether termination
might
serve the interest of this child.
be-
rights, and the concomitant bond
rental
findings
specifically set forth
Those
shall be
father, might be
tween Jessica G. and her
order.6
the court’s
contrary
Jessica G.’s best interests and
*6
well-being.
particularly
We are
Conclusion
emotional
IV.
complete
any
of
with the
absence
concerned
herein, the order
For the reasons set forth
hearing by
testimony
dispositional
at the
Logan County
of the Circuit Court of
is
provider
mental health care
as to
licensed
matter remanded for fur-
vacated and this
consequences to
possible psychological
Opin-
this
proceedings
ther
consistent with
by terminating
Jessica G.
her father’s
ion.
tal
Remanded.7
Vacated and
B.,
5,
Syllabus
re
In
Point
In
Edward
(2001)
621,
held
Justice WORKMAN concurs and reserves
210
23 WORKMAN, Justice, provisions concurring: according to the Virginia West 49-6-5(a), § Code required courts are (Filed 24, 2010) June permanency plan place have a written in separately that noth- emphasize I write each neglected. child found to be abused or majority opinion, ing in nor permanency plan provides Id. A for the child 49-6-5(a)(6) (2009), § should Virginia Code parent to a parents returned or both or imply that the wishes of a be misconstrued adoption. If none of options these older, years is fourteen or who child who or available then the child is to long-term enter age is of an discretion as determined care; however, foster Adoption “[u]nder the must control a court’s decision on Act, long-term Safe Families foster care to terminate whether is the choice of last resort.” Black’s Law 49-6-5(a)(6) § provides (9th ed.2009). Dictionary 1254 The ultimate “[njotwithstanding any provision other of this squarely decision remains within the circuit article, give the court shall consideration discretion; however, court’s the best inter- age years the wishes of child fourteen paramount ests of the child remains the con- older or otherwise of an of discretion as sideration. per- regarding determined parental rights.” manent added).
(Emphasis the statute a court requires
While wishes, such a child’s it is not
to consider continuously
dispositive. This Court has major involving
held that a factor in eases is the
children
children’s best interest. See
H.,
Syl.
part,
Charity
Pt.
In Re
215
that “the Court is authorized to exercise a
*7
low, Appellant
discretion conducive to the
interest of
best
Dep’t
the child.” Hammond v.
Pub. As-
Reese, Jr.,
Kenneth E.
Doddridge County,
sistance
142 W.Va.
Below, Appellee
216,
345,
v.
aWhile consideration for the child’swishes
consider,
permanency
is a factor
also
Commissioner, Division Of Motor
stability are other
In In
factors to consider.
Vehicles, Respondent Below,
respondent
argued
Re Katie
mother
Appellant.
long term
“that
foster care ...
[was]
Nos.
34971.
young
option
[her]
ehildren[.]”
G. from to the cuit court ion vacates the circuit court’s June G. remain in full force and effect. prior order. All of the cir- orders