In re Michael S.

620 S.E.2d 141, 218 W. Va. 1, 2005 W. Va. LEXIS 97
CourtWest Virginia Supreme Court
DecidedJuly 6, 2005
DocketNo. 32167
StatusPublished

This text of 620 S.E.2d 141 (In re Michael S.) 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 Michael S., 620 S.E.2d 141, 218 W. Va. 1, 2005 W. Va. LEXIS 97 (W. Va. 2005).

Opinion

The Opinion was delivered PER CURIAM.

PER CURIAM.

Tina S. (“Tina”), the intervenor below and the appellant before this Court, appeals a final order of the Circuit Court of Mingo County entered on May 27, 2004, terminating the intervenor status of Tina and thus denying her request to adopt Michael S. Jr. (“Michael Jr.”).

We affirm the circuit court’s ruling terminating Tina’s intervenor status; and we agree with the circuit court that it is in the best interest of the child for the West Virginia Department of Health and Human Resources (“DHHR”) to immediately begin a search for another adoptive placement option for Michael Jr.

I.

This case arises from a referral received on October 25, 2003, by the DHHR about the living conditions, hygiene, and mental health of Michael Jr., a five year old child. The referral alleged that the homes of his biological parents, Brenda E. and Michael Sr. (“Brenda” and “Michael Sr.”), were in deplorable condition; that both parents and child suffered from poor hygiene; that Michael Jr. was not potty trained at age five; and that both parents were substance abusers.

After the DHHR investigated1 the referral, the DHHR filed a child abuse and neglect petition on December 15, 2003, pursuant to W.Va.Code, 49-6-3 [2005] against Brenda and Michael Sr., seeking immediate custody of Michael Jr. ,

At a December 15 hearing, the circuit judge found sufficient evidence to justify immediate removal of Michael Jr. from the custody of his biological parents. Michael Jr. was directly remanded into the DHHR’s custody based on a finding that he was in imminent danger due to aggravated circumstances. Michael Jr. was also appointed a guardian ad litem.to represent and protect his best interest.

On December 17, 2003, a preliminary hearing was convened and the circuit judge held that Michael Jr. should remain in the legal and physical custody of the DHHR.2 The appellant, Tina, who is a friend of Brenda, was given intervenor status at this hearing because she expressed an interest in adopting Michael Jr.

At the hearing Tina was told that she would be required to fill out the necessary paperwork, complete a home study, and undergo a psychological evaluation.

An adjudicatory hearing was held on January 20, 2004. At that hearing the circuit court found that Michael Jr. was a neglected child in accordance with W.Va.Code, 49-6-2(c) [2005]. Tina attended this hearing and was informed of the date for her psychological evaluation.

At a February 23, 2004 dispositional hearing, Brenda and Michael Sr. requested a post-adjudicatory improvement period. The circuit court granted a sixty-day improvement period for Brenda, but denied Michael Sr.’s request. Another dispositional hearing was scheduled for April 21, 2004, at 3:30 p.m.

[3]*3On April 16, 2004, Tina transported Brenda to a supervised visit with Michael Jr. The DHHR caseworker was present at the visit, and reported that there was little interaction between Tina and Michael Jr., and the interaction that did take place showed no signs of an emotional bond between the two.

On April 20, 2004, the day before the scheduled April 21 dispositional hearing, the circuit court changed the time for the April 21 hearing from 3:30 p.m. to 8:30 a.m. Brenda was present for the April 21, 2004 hearing, but Tina did not attend the hearing. Due to the limited record, it is unclear whether Tina informed Brenda of the time change, or if Brenda informed Tina. But it is clear that Tina knew of the hearing and failed to attend. At the hearing, Brenda was granted an extension on her improvement period.

The court held a final dispositional hearing on May 27, 2004. Tina did not attend this hearing in person, but was represented by counsel. Evidence was presented by the DHHR caseworker to the effect that no emotional bond existed between Michael Jr. and Tina; that Tina did not complete a home study or psychological evaluation;3 and that Tina had not had any contact with Michael Jr. in more than a month. Tina also failed to attend a multi-disciplinary treatment team (“MDT”) meeting where DHHR workers who were working on the Michael Jr. case discussed what was in the best interest of Michael Jr.

The circuit court’s order from the May 27 hearing reflected that Brenda voluntarily relinquished her parental rights to Michael Jr. The order also terminated the parental rights of Michael Sr. because of his neglect of Michael Jr. and his non-participation with the healings and services offered. The order also states that, due to Tina’s non-cooperation with the proceedings and her failure to attend visitations or hearings, placement of Michael Jr. with Tina would not be in the best interest of the child. In conclusion the order stated that Michael Jr. should immediately be placed for adoption.

ll.

“In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.” Syllabus Point 2, Walker v. West Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997).

Also, under the abuse of discretion standard, we will not disturb a circuit court’s decision unless the circuit court makes a clear error of judgment or exceeds the bounds of permissible choices in the circumstances. Hensley v. West Virginia Department of Health and Human Resources, 203 W.Va. 456, 461, 508 S.E.2d 616, 621 (1998).

In cases dealing with children this Court has repeatedly stated that the best interest of the child is the polar star upon which decisions should be based. In re Erica C., 214 W.Va. 375, 589 S.E.2d 517 (2003). Determining what is in the child’s best interest is especially important when the child has been abused and neglected by his or her own parents and is currently in limbo as to a permanent home. “Child abuse and neglect cases must be recognized as being among the highest priority for the courts’ attention. Unjustified procedural delays wreak havoc on a child’s development, stability, and security.” Syllabus Point 2, In re Michael Ray T., 206 W.Va. 434, 525 S.E.2d 315 (1999). With the standard of the best interest of the child guiding this decision, we turn to the issue in the instant case: whether the circuit court erred in ruling against placing Michael Jr. in the adoptive custody of Tina, and in dismissing her as an invervenor.

Tina argues that her dismissal as an inter-venor and possible adoptive parent of Michael Jr. was improper because she was not given any notice of a time change for a dispositional hearing, and that the lack of notice caused her to miss the April 21 hear[4]*4ing. Thus, Tina argues, she was prevented from presenting “her side of the story” as to why she would be an appropriate candidate to adopt Michael Jr.

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Related

Hensley v. West Virginia Department of Health & Human Resources
508 S.E.2d 616 (West Virginia Supreme Court, 1998)
In Re Michael Ray T.
525 S.E.2d 315 (West Virginia Supreme Court, 1999)
In Re Erica C.
589 S.E.2d 517 (West Virginia Supreme Court, 2003)
Walker v. West Virginia Ethics Commission.
492 S.E.2d 167 (West Virginia Supreme Court, 1997)

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Bluebook (online)
620 S.E.2d 141, 218 W. Va. 1, 2005 W. Va. LEXIS 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-michael-s-wva-2005.