In Re Daniel D.

562 S.E.2d 147, 211 W. Va. 79
CourtWest Virginia Supreme Court
DecidedMarch 15, 2002
Docket29965
StatusPublished
Cited by169 cases

This text of 562 S.E.2d 147 (In Re Daniel D.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Daniel D., 562 S.E.2d 147, 211 W. Va. 79 (W. Va. 2002).

Opinions

ALBRIGHT, J.

This is an appeal by Daniel D.1 (hereinafter “Appellant”) from an order of the Circuit Court of Marion County terminating his parental rights to two children, Daniel D., Jr., and Samantha D. The Appellant contends that the lower court erred in terminating his parental rights and by violating his due process rights. Having thoroughly reviewed the briefs, record, and arguments of counsel, we reverse the termination of the Appellant’s [82]*82parental rights and remand with directions to permit the Appellant to participate in one additional improvement period designed to facilitate therapeutic evaluation and treatment, if desired by the Appellant, and to consider what post-termination visitation, if any, is appropriate in the event that termination of parental rights is imposed.

I. Facts and Procedural History

On October 24, 1999, the maternal grandmother of Daniel D., then age two, and Samantha D., then age four, contacted the West Virginia Child Abuse Hotline, reporting that Samantha D. had informed her that the Appellant, Samantha’s father, had put his penis in her mouth several times. The allegations were investigated by the West Virginia Department of Health and Human Resources (hereinafter “DHHR”)2 and a petition for abuse and neglect was filed on December 30, 1999.3

A preliminary hearing was conducted before the lower court on January 18, 2000. Samantha testified regarding the abuse, explaining the details of the sexual actions and reciting explicit descriptions of her father’s actions. Psychologist Terry Laurita testified that she had evaluated Samantha and had confirmed that she had been sexually abused by her father. Ms. Laurita also testified concerning the inappropriate sexual knowledge Samantha possessed for her age. On February 23, 2000, the lower court conducted an adjudicatory hearing at which the Appellant continued to exercise his right to remain silent. Ms. Laurita opined that the Appellant would be incapable of providing the children with the support they needed if no admission of the abuse was made. She further opined that any contact between the Appellant and Samantha would send an unhealthy message to the child. At the conclusion of the adjudicatory hearing, the lower court found that the Appellant had sexually abused Samantha, denied visitation to the Appellant, granted him a three-month improvement period, and suggested a psychological evaluation and assessment of his parenting skills.

During the improvement period, the Appellant underwent psychological evaluations by licensed psychologist Ronald D. Pearse. The Appellant denied the allegations of sexual abuse during- these evaluations. Subsequent to the April 2000 testing,4 the evaluator recommended that the Appellant have no unsupervised visitation with the children and concluded as follows:

Mr. [D.] continues to deny the sexual abuse charges. However, records indicate an evaluation was completed of his daughter indicating a fairly clear-cut case of sexual abuse. Keeping the safety of his children in mind, it is not recommended that Mi’. [D.] have any unsupervised visits. He is not a good candidate for treatment at this time due to his inability to admit to any sexual molestation that occurred.

On May 31, 2000, the lower court granted the Appellant a ninety-day extension of his improvement period and denied his request for visitation. On June 13, 2000, the Appellant was indicted for first degree sexual assault; sexual abuse by a parent, guardian, or custodian; and incest. Due to the pending criminal charges, the Appellant continued to exercise his right to remain silent during further meetings associated with the abuse and neglect proceedings. On August 28, 2000, the lower court denied the Appellant’s request for an additional ninety-day improvement period and denied his request for visitation with the children.

The lower court conducted a dispositional hearing on November 28, 2000, at which Ms. [83]*83Laurita testified that Samantha had consistently identified the Appellant as her abuser. Ms. Laurita further testified that it was essential that the Appellant participate in therapy and that in order to obtain treatment as a sexual offender, it was imperative that the Appellant admit to the abuse and request treatment. Despite the fact that the court had provided the Appellant with improvement periods, he had not admitted the abuse and had not begun treatment or counseling. Ms. Melissa Pickens of DHHR testified that despite the offer of reasonable services to the Appellant, he had not availed himself of such services and had made no attempt to seek treatment. Ms. Pickens explained that due to the Appellant’s denial that abuse had occurred, the DHHR did not know of any services which could be provided to assist the Appellant or reunify the family. Ms. Pickens further opined that the Appellant had not utilized his improvement periods and that reunification was not in the best interests of the children.

The lower court terminated the Appellant’s parental rights to Samantha and Daniel by orders dated February 5, 2001. The lower court order reiterated the prior evidence, testimony, and evaluations and concluded that there was no reasonable likelihood that the conditions of abuse could be substantially corrected in the near future. The court noted that “[c]ourts 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....”5 The court further recognized that it was compelled to review the degree to which the Appellant had attempted to attain goals in the improvement period and whether sufficient improvement had been made. The court explained that “[i]n the difficult balance which must be fashioned between the rights of the parent and the welfare of the child,” the child’s rights prevail.

The Appellant appeals the determination of the lower court, maintaining that his due process rights were violated by the lower court’s reliance upon his denial of the abuse and unwillingness to undergo treatment as a basis for the termination of parental rights.

II. Standard of Review

This case raises issues of constitutional rights and statutory interpretation. This Court indicated in Phillip Leon M. v. Greenbrier County Board of Education, 199 W.Va. 400, 484 S.E.2d 909 (1996), that “[b]ecause interpretations of the West Virginia Constitution, along with interpretations of statutes and rules, are primarily questions of law, we apply a de novo review.” Id. at 404, 484 S.E.2d at 913. In syllabus point one of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995), we also explained: ‘Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we^ apply a de novo standard of review.”

III. The Hobson’s Choice6

The Appellant raises an issue concerning the classic dilemma confronted by the individual encountering charges in both civil and criminal contexts.

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Bluebook (online)
562 S.E.2d 147, 211 W. Va. 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-daniel-d-wva-2002.