In the Interest of Jessica G.

697 S.E.2d 53, 226 W. Va. 17
CourtWest Virginia Supreme Court
DecidedJune 24, 2010
Docket35487
StatusPublished
Cited by14 cases

This text of 697 S.E.2d 53 (In the Interest of Jessica G.) 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 the Interest of Jessica G., 697 S.E.2d 53, 226 W. Va. 17 (W. Va. 2010).

Opinions

PER CURIAM:

Morris G.,1 hereafter “Appellant” or “father,” appeals an order of the Circuit Court of Logan County which terminated his parental rights to the minor child, Jessica G., and transferred physical and legal custody of Jessica G. to the West Virginia Department of Health and Human Services, hereafter “DHHR.” The Appellant argues that the circuit court failed to properly consider the wishes of his then thirteen-year-old daughter, Jessica G., before terminating his parental rights. In a brief filed with this Court, the guardian ad litem for Jessica G. also assigns as error that the circuit court failed to make “findings of fact as to whether it considered the wishes of Jessica G., age thirteen, regarding the permanent termination of the parental rights of the Appellant as required by West Virginia Code 49-6-5(a)(6) and if so, why such wishes were ignored.”

Having fully considered the record, arguments and briefs of the parties, we vacate the circuit court’s order terminating the Appellant’s parental rights and remand this matter for further proceedings consistent with this Opinion.

I. Factual Background

The Appellant is the biological father of Jessica G. and has a long history of addiction to prescription medications. The record shows that on August 10, 2007, an abuse and neglect proceeding was instituted against the Appellant and Jessica G.’s biological mother, Kelly G., alleging substance abuse and neglect of Jessica G. The circuit court, upon receipt of the petition, granted DHHR temporary custody of Jessica G. In a subsequent hearing, the Appellant was granted a pre-adjudicatory improvement period, which he successfully completed and custody of Jessica G. was returned to the Appellant.

On April 7, 2008, the DHHR received another referral, again alleging substance abuse by the Appellant. An investigation into that referral found the Appellant to be taking his medication as prescribed, but that Kelly G. admitted to extensive substance abuse. However, an abuse and neglect petition was not filed because Kelly G. had moved out of the Appellant’s home, the Appellant had full custody of Jessica G. and the Appellant informed DHHR that he was divorcing Kelly G.

On July 2, 2008, DHHR received another referral, this time informing DHHR that the Appellant had overdosed on benzodiapines and opiates, necessitating his hospitalization in intensive care and placement on a ventilator. DHHR filed an abuse and neglect petition and sought immediate custody of Jessica G., which the circuit court granted.

In his Answer to DHHR’s abuse and neglect petition, the Appellant admitted to the allegations that his substance abuse had resulted in the neglect of Jessica G., and moved for a post-adjudicatory improvement period. The record shows that over the course of the next several months, the circuit court and DHHR made substantial efforts to provide the Appellant with opportunities to treat his addiction to prescription medications.2 These efforts ultimately proved unsuccessful, and DHHR moved to terminate the Appellant’s and Kelly G.’s3 parental and custodial rights.

[20]*20On June 5, 2009, a hearing was held on DHHR’s motion, at which time neither the Appellant, nor Kelly G., appeared. The only witness who testified at the hearing was a social worker employed by DHHR. The social worker testified that while the Appellant had successfully completed an inpatient treatment program early in the proceedings, he failed to follow through with his treatment plan which required the Appellant to enroll in a post-discharge addiction treatment program.

The social worker also testified to Jessica G.’s statements regarding termination of the Appellant’s parental rights, stating: “I would note that the child is thirteen and does not wish her father’s parental rights to be terminated” and that there “is a very strong bond between Jessica and her father” and that if the Appellant’s rights were terminated as requested, that she “would want them [Jessica G. and the Appellant] to be able to have some sort of contact, just because there is such a significant bond.” Notwithstanding the “significant bond” between Jessica G. and her father, the social worker testified that she did “not think it would be appropriate for [the Appellant] to regain custody of Jessica.”

Following the social worker’s testimony, and argument of counsel for the parties, the circuit court granted DHHR’s motion to terminate the Appellant’s parental rights.4 In terminating the Appellant’s parental rights, the circuit court made the following findings from the bench:

... [in] Jessica’s best interest we all have hoped that Kelly and Morris would deal with their substance abuse issues. Early on it was recognized and recommended that they avail themselves voluntarily of inpatient treatment programs to help them get clean so that we could work keeping them clean so that they could properly parent their teenage daughter.
The [DHHR] did not object to post-adjudicatory improvement period for either parent. However, the parents have failed to respond or follow through with recommended treatment which would have improved their capacity for parenting. They have willfully refused and are presently unwilling to cooperate in the development of a reasonable family ease plan to lead to the child’s return to their care, custody, and control.
We have had [treatment plans] and formulated preliminary plans to let them rehabilitate themselves but they again have refused and are presently unwilling to cooperate. Their attendance at hearings has been sporadic. They have not followed through with their drug screens as they promised that they would do which can only lead to the conclusion that they are continuing to use drugs. There is no doubt that each of them loves their daughter and that their daughter loves them; and that their daughter yearns for them to clean up their act so that they can be a family unit.
However, the Court finds by clear and convincing evidence in this case that there is no reasonable likelihood that the conditions of Morris and Kelly being addicted to controlled substances can be substantially corrected; and therefore, the Court grants the petition to [t]erminate both the parental and custodial rights of each of the biological parents.

After terminating the Appellant’s parental and custodial rights, the circuit court did note the testimony that established the strong bond between Jessica G. and the Appellant, and ordered the Appellant be provided post-termination visitation with Jessica G., under such conditions as deemed appropriate by the DHHR.

II. Standard of Review

We set forth our standard of review in abuse and neglect cases in Syllabus Point 1 of In the Interest of: Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996), which states as follows:

Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and [21]*21neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected.

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In the Interest of Jessica G.
697 S.E.2d 53 (West Virginia Supreme Court, 2010)

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Bluebook (online)
697 S.E.2d 53, 226 W. Va. 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-jessica-g-wva-2010.