In re R.J.M.

266 S.E.2d 114, 164 W. Va. 496, 1980 W. Va. LEXIS 499
CourtWest Virginia Supreme Court
DecidedMarch 25, 1980
DocketNo. 14612
StatusPublished
Cited by1,138 cases

This text of 266 S.E.2d 114 (In re R.J.M.) 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 R.J.M., 266 S.E.2d 114, 164 W. Va. 496, 1980 W. Va. LEXIS 499 (W. Va. 1980).

Opinions

Neely, Chief Justice:

This is an appeal from an order of the Circuit Court of Wood County terminating parental rights. The appellant parents make general assignments about the insufficiency of the evidence and argue that the circuit court should have granted them an improvement period pursuant to W. Va. Code, 49-6-5(a)(4) [1977] and 49-6-5(c) [497]*497[1977]. Since their court appointed attorney did not move for an improvement period pursuant to W. Va. Code, 49-6-2(b) [1977] the appellants allege ineffective assistance of counsel. We disagree and affirm.

R.J.M., the child involved in this proceeding, was born on 8 January 1978. Her mother was 16 years old at the time of R.J.M.’s birth and had left the tenth grade about a year earlier when she was pregnant with her first child Shawn. Shawn was also the subject of a neglect petition at the time of the proceedings under consideration here regarding R.J.M., and while the record does not develop the facts surrounding Shawn’s removal from the home, it is apparent that he had been placed under the supervision of the Department of Welfare. RJ.M.’s father is an unskilled laborer suffering from a nervous condition.

In early March 1978, Gladys Foster, a mother of three and a grandmother, acquainted with the parents in this case because one of her daughters was living with them, noticed that R.J.M. looked ill and hungry. On her next visit, Mrs. Foster brought a jar of baby food and a jar of milk, which she fed to R.J.M. Mrs. Foster noticed no feeding problems or vomiting and in response to Mrs. Foster’s suggestion that R.J.M. looked ill the mother promised to take her daughter to a doctor.

At about the same time, Isodene Alkire, a Department of Welfare homemaker who was working in the subject home, became concerned about R.J.M.’s health. She noticed that the child looked pale and unhealthy and observed that the mother had stopped giving her baby the prescribed formula and was substituting a mixture of Karo syrup, water and milk. When Mrs. Alkire asked the mother if she had discussed this change with her pediatrician she replied that she had not, but had made the change because the baby was spitting up the formula. Mrs. Alkire reported her concern to Larry Lowe of the Department of Welfare Child Protective Services Office who had been working with the parents since December 1977 concerning problems with their older child Shawn. [498]*498On 3 March 1978 both Mrs. Alkire and Mr. Lowe visited the subject home and discussed with the mother the necessity for proper feeding of her child.

On 15 March 1978, Mrs. Alkire came to the subject home and took the mother and R.J.M. to Camden Clark Hospital in Parkersburg where R.J.M. was seen by Dr. Robert Crooks, a pediatrician, who found the baby to be suffering from gastroenteritis, dehydration and “failure to thrive” (malnutrition). R.J.M.’s skin showed the wrinkling and dryness common to undernourished children, a remarkable condition since R.J.M. had been a healthy and normal seven pound eleven ounce baby at birth. R.J.M. had gained only one ounce in the two months since birth. The history given by the mother to Dr. Crooks was that her baby had been healthy until three days earlier when she developed diarrhea, began vomiting, and refused to eat. This was the first time the infant had been seen by a doctor since her birth.

R.J.M. was discharged from the hospital two weeks later, by which time her weight had increased by almost half to ten pounds ten ounces. Mr. Lowe, alerted by hospital staff members to the mother’s apparent unwillingness to participate in a feeding program planned by Dr. Crooks, tried to discuss the matter with the mother before she took R.J.M. home, but found her uncooperative. He explained that the mother appeared not to understand the need for consistent feeding.

Mr. Lowe sought to maintain contact with the family following R.J.M.’s discharge from the hospital and during the next several weeks he made numerous attempts to visit the mother and R.J.M. which were to no avail. Remembering that the mother was to bring R.J.M. for an appointment with Dr. Crooks on 4 April, he went to the doctor’s office to await her arrival. The appointment was never kept and when asked about it the mother explained that she had forgotten. Mr. Lowe waited for the mother again at Dr. Crook’s office on 7 April but again she did not come. On 10 April Mr. Lowe discovered that the parents had moved from their previous address. [499]*499Three days later he located the mother at the home of a relative, in Belpre, Ohio.

Despite his many attempts to remain in touch with the family, Mr. Lowe was unable to locate them again until 24 April 1978 when he received a telephone call from Mr. and Mrs. Harry Love of Parkersburg, West Virginia. They informed Mr. Lowe that R.J.M. had been left in their care and was ill and in need of medical attention. R.J.M.’s parents could not be located and Mr. Lowe responded by arranging for the Department of Welfare to be given emergency temporary custody.

Later that same day, Mr. Lowe received a telephone call from the mother. She declined to divulge her whereabouts, but explained that the purpose of her call was to inform Mr. Lowe and the Department of Welfare that R.J.M. was in Ohio. She expressed dismay when Mr. Lowe informed her that her daughter was in the custody of the Department of Welfare and in a foster home. That same day R.J.M. was seen by Dr. Crooks who discovered that she was not ill but weighed only ten pounds five ounces, a lose of five ounces since her discharge from the hospital less than one month earlier.

Mr. Lowe tried eleven times during the following weeks to contact the parents in order to discuss R.J.M. with them, all to no avail. On 12 May 1978 he filed a neglect petition on behalf of R.J.M. and at the preliminary hearing the circuit court found probable cause to believe that the allegations in the petition were correct and ordered custody to continue in the Department of Welfare. At the close of the preliminary hearing counsel for the parents expressed his intention to move for an improvement period. The court scheduled a hearing on the motion, but at the hearing the motion was withdrawn without explanation and psychiatric examinations of both parents requested instead.

The adjudicatory hearing, held on 9 June 1978, resulted in a termination of the parental rights of the appellants. The court found by clear and convincing proof that RJ.M.’s illness, malnutrition and abandonment [500]*500were the result of her parents’ refusal to care and provide for the child and that there was

... no reasonable liklihood [sic] that the conditions of neglect or abuse can be substantially corrected in the near future as are necessary for the welfare of the child in that the parents have refused and not responded to or followed through with a reasonable rehabilitative effort of social, medical and other rehabilitative agencies designed to reduce and prevent the neglect of the child evidenced by the continuation of substantial and repeated acts of neglect after efforts were made by the West Virginia Department of Welfare, by the nurses at the hospital and by various other such agencies to supply the needed assistance to the family to avoid the neglect.
...

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re T.S and B.S.
West Virginia Supreme Court, 2018
In re S.W., S.T., and D.W.-B
West Virginia Supreme Court, 2018
In re S.S.
West Virginia Supreme Court, 2018
In re S.J., A.J.-1, and A.J.-2
West Virginia Supreme Court, 2018
In re R.S. and L.A.
West Virginia Supreme Court, 2018
In re A.C.-1
West Virginia Supreme Court, 2018
In re T.W.-1
West Virginia Supreme Court, 2018
In re T.D. and K.C.
West Virginia Supreme Court, 2018
In re N.S., H.S., B.S., A.S., and J.S.
West Virginia Supreme Court, 2018
In re L.R. and G.R.
West Virginia Supreme Court, 2018
In re K.M., H.T., and S.D.
West Virginia Supreme Court, 2018
In re K.M., D.M., M.H. and R.M.
West Virginia Supreme Court, 2018
In re H.W.-1 and H.W.-2
West Virginia Supreme Court, 2018
In re H.L., F.L. and P.L.
West Virginia Supreme Court, 2018
In re G.G.
West Virginia Supreme Court, 2018
In re E.W.
West Virginia Supreme Court, 2018
In re E.S., W.S.-1, A.S.-1, A.S.-2, and A.S.-3
West Virginia Supreme Court, 2018
In re C.H. and G.H.
West Virginia Supreme Court, 2018
In re C.A.
West Virginia Supreme Court, 2018
In re B.F., M.J., and Z.J.
West Virginia Supreme Court, 2018

Cite This Page — Counsel Stack

Bluebook (online)
266 S.E.2d 114, 164 W. Va. 496, 1980 W. Va. LEXIS 499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rjm-wva-1980.