stating that family case plan “is designed to foreclose a natural parent from being placed in an amorphous improvement period where there are no detailed standards by which the improvement steps can be measured. It also provides a meaningful blueprint that the [DHHR] can monitor and which will also give the court specific information to determine whether the terms of the improvement period were met.”
How later courts described this case
- stating that family case plan “is designed to foreclose a natural parent from being placed in an amorphous improvement period where there are no detailed standards by which the improvement steps can be measured. It also provides a meaningful blueprint that the [DHHR] can monitor and which will also give the court specific information to determine whether the terms of the improvement period were met.”
- holding that a parent may move for and be granted an improvement period “unless the court finds compelling circumstances to justify a denial”
- "The purpose of the family case plan as set out in W. Va. Code, 49-6D-3(a) (1984) [now W. Va. Code § 49-4-604 (a
- Syl. pt. 3: "Under W.Va .Code, 49-6-2(b) (1984), when an improvement period is authorized, then the court by order shall require the Department of Human Services to prepare a family case plan pursuant to W.Va.Code, 49-6D-3 (1984)."; Syl. pt. 5: "The purpose of the family case plan as set out in W. Va.Code, 49-6D-3(a) (1984), is to clearly set forth an organized, realistic method of identifying family problems and the logical steps to be used in resolving or lessening these problems."
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in State Ex Rel. Virginia M. v. Virgil Eugene S.
177 W. Va. 688 , 356 S.E.2d 181 (1987), superseded by statute on other grounds as stated in State ex rel. Virginia M. v. Virgil Eugene S. II, 197 W. Va. 456 , 461 n.9, 475 S.E.2d 548
The opinion
NEELY, Justice
dissenting:
I dissent because the record in this case conclusively demonstrates that the appellant is incapable of improvement and the child’s welfare will be jeopardized by a return of custody to the natural mother.
The record before us discloses a plethora of pertinent facts not discussed in the majority’s opinion. Cheryl has an older daughter by a previous liaison, Danielle, who currently lives with her maternal grandparents in Maine. Cheryl was forced to relinquish her custodial rights to Danielle when the Maine Department of Human Services intervened after discovering that Cheryl had left Danielle with a male babysitter who had given Danielle gonorrhea. On 22 April 1984, Cheryl was observed in Wardensville, West Virginia pushing Amanda in her carriage up and down the streets of Wardensville in the rain. This apparently continued for approximately a half an hour, while Amanda was scantily clad and wrapped in a soaking wet blanket. That evening, Cheryl and Mark, Amanda’s biological father, entered a local bar and grill and sat down to eat dinner. Amanda, meanwhile, was left outside the bar and grill, unattended. Mark and Cheryl retrieved Amanda only upon the protests of fellow patrons.
After leaving Wardensville at the request of Mark, Cheryl and Amanda spent approximately a week in Maryland. When Mark did not come to Maryland with provisions he had promised, Cheryl returned with Amanda to Wardensville. When Cheryl located Mark, she proceeded to assault him verbally and physically. Cheryl was so intent on avenging herself against Mark that, within the space of one hour, she dropped Amanda three times. Moreover, witnesses testified that Cheryl continued to assault Mark even after Amanda had made it clear through her screams of pain that she required attention.
*697 Mark’s parental rights have been terminated, and he pays no child support. Cheryl does not currently have a job, has evidenced an inability to hold a job in the past, and has been resistant to attempts to help her find steady employment consistent with the responsibilities of a single parent. Moreover, Cheryl appears to be unable to maintain her own residénce. She now lives with her boyfriend in his mobile home. 1 Dr. Stein, with whom Cheryl has had several counseling sessions, testified that Cheryl “has a very pronounced pattern of putting her own needs for romantic relationships in a superior position to the needs of the child.” Dr. Stein states that he has “very serious reservations that the interest of the child would be best served by returning custody to the biological mother.”
Dr. Life, Amanda’s pediatrician, testified that, when Amanda was first placed in foster care, she appeared malnourished. Dr. Life testified that Amanda’s physical and emotional health have improved greatly since Amanda has been placed with foster parents, but that Amanda continues to suffer physiological setbacks and emotional problems following her weekly visits with Cheryl.
Testimony elicited at the hearings indicated that Cheryl was generally inattentive to Amanda’s safety, clothing, nourishment, and sanitary needs. Cheryl has apparently been generally uncooperative with, and unpleasant toward, departmental caseworkers who have been attempting to help her improve her parenting skills. Moreover, Cheryl’s personal life is and has been for some time in considerable disorder. She has children by two different men (Amanda out of wedlock), and has been deserted by and since divorced Amanda’s father. Moreover, Cheryl reportedly attempted suicide in the summer of 1985.
In Syl. pt. 1 of In re R.J.M., 164 W.Va. 496 , 266 S.E.2d 114 (1980), we held:
As a general rule the least restrictive alternative regarding parental rights to custody of a child under W.Va.Code, 49-6-5 [1977] will be employed; however, courts are not required to exhaust every speculative possibility of parental improvement before terminating parental rights where it appears that the welfare of the child will be seriously threatened, and that is particularly applicable to children under the age of three years who are more susceptible to illness, need consistent close interaction with fully committed adults, and are likely to have their emotional and physical development retarded by numerous placements.
See also In Interest of Darla B., 175 W.Va. 137 , 331 S.E.2d 868 (1985). The majority correctly notes that, as a matter of technical doctrine, the doctrine of “the best interest of the child” is not applicable to this case. However, that academic observation does not imply that the interest of Amanda should be a matter of utter indifference to this Court. In determining whether “compelling circumstances” exist under W.Va.Code, 49-6-2(b) [1984], we must, as R.J.M. suggests, weigh the probability that a child will suffer irreparable physical or psychological harm against the speculative possibility that a natural parent with an established record of chronic neglect and abuse may some day bring his or her behavior within the acceptable tolerances of parenting conduct. After all, “it must be remembered that we are not * * * [dealing with] a piece of property, but rather with a feeling, vulnerable, and sorely put upon little human being.” Lemley v. Barr, 176 W.Va. 378 , 343 S.E.2d 101 (1986).
The Department of Human Services, Dr. Stein, Dr. Life, the guardian ad litem for the child, and even Amanda’s natural father believe that Amanda’s interest would be ill-served by being returned to Cheryl. On the record before it, the trial court had ample evidence upon which it could find that there was “no reasonable likelihood that the conditions of neglect or abuse can *698 be substantially corrected in the near future.” W.Va.Code, 49-6-5(a)(6) [1984]. Although no family case plan was prepared by the Department of Human Services, department workers had been working with Cheryl for close to one year before her parental rights were terminated. During that time Cheryl showed little promise of improvement. It makes little sense for this Court to reverse the determination of the trial court and order the Department to prepare a family case plan when Amanda appears to be happy and thriving with her foster parents (who want to adopt her), and Cheryl has already amply demonstrated a marked inability to mend her ways. I would therefore hold that this case presents “compelling circumstances to justify a denial” within the meaning of W Va. Code, 49-6-2(b) [1984], and would affirm the trial court.
I am authorized to say that BROTHERTON, J., joins in this dissent.
. At oral argument it was represented that Cheryl and her boyfriend are now married. However, there has been no evidence presented about Cheryl's new husband's employment, income or character. The character of this man and the quality of the home he would provide for Amanda are certainly issues to which the trial court should devote close scrutiny in its further proceedings.