West Virginia Record

Wednesday, January 22, 2020

Justices terminate rights for parents of six children, rules lower court erred in granting improvement period

State Court

By Kyla Asbury | Jan 13, 2020


CHARLESTON – The West Virginia Supreme Court of Appeals granted a writ of prohibition in an appeal involving six children who were abused by their parents.

The petitioners, the West Virginia Department of Health and Human Resources (DHHR) and Erica Brannon Gunn, guardian ad litem of the minor children A.N.B., N.B.B., J.S.B., B.K.B., E.G.B., and A.D.M. were seeking an order prohibiting Roan Circuit Court from granting a post-adjudicatory improvement period to respondent parents, R.B. and T.B.

The petitioners asserted that Roane Circuit Court erred in granting the improvement period by failing to consider the best interests of the children, according to the Supreme Court opinion.

The respondents maintain that they have demonstrated that they are likely to fully participate in an improvement period and the grant of such an improvement period does not jeopardize the children’s best interests, the opinion states.

"After careful review of the parties’ briefs and oral arguments, the appendix record, and the applicable law, we find that the Circuit Court committed a clear legal error in misapprehending the evidence, failing to consider probative evidence, and failing to consider the best interests of the children," the opinion states. "We therefore grant the writ of prohibition and remand this case to the Circuit Court for entry of an order terminating respondents’ custodial and parental rights."

Justice Margaret Workman authored the majority opinion. Justice John Hutchison did not participate in the decision.

The DHHR filed an abuse and neglect petition and requested emergency custody due to the threat of imminent danger for five adopted children and one foster child on Jan. 12, 2018.

The Circuit Court denied the respondents' individual motions for supervised visitation based on an in-camera testimony of the children, all of who the court deemed credible.

The children testified T.B. would drag them by their hair as a form of discipline and that she had locked at least two of them inside their room each night and would smack them if they got out of bed.

The children also testified that once they were locked in their rooms they would urinate on themselves if they had to use the bathroom throughout the night. They also testified T.B. would hit them with a belt or a metal spatula and threatened to snap their necks.

The children testified T.B. ripped their clothes off and made them stand naked in the kitchen and held one of their heads underwater in a bathtub to make her "pay attention."

"Significantly, the children further testified that T.B. instructed them not to talk to certain administrators and teachers at their school about what was going on in the home, instructed them on what to say and what not to say to CPS workers, and told them that CPS would not believe adopted children if their accounts differed from the parents’ accounts," the opinion states.

The children also testified that R.B. would drink alcohol every night and constantly fought with T.B. and frightened the children. They claimed they were subjected to food deprivation and "spartan living conditions."

Of the six children, most said they did not want visitation with their parents or to return to the home.

When the parents testified they essentially denied any wrongdoing and on Sept. 5, 2018, the court entered an order adjudicating the respondents as abusive. However, on Nov. 1, 2018, the Circuit Court issued an order granting the respondents a six-month post-adjudicatory improvement period. The writ of prohibition then followed.

Workman wrote that recognizing that the child protective services resources are spread thin, the court has refrained from frequent vocal criticism of the DHHR’s failures.

"Generally, the decision to grant or deny an improvement period is an act within the discretion of the Circuit Court," Workman wrote. "However, a discretionary act is certainly not immune from the extraordinary remedy of a writ of prohibition. In particular, our mandate that abuse and neglect matters be predominated by the best interests of the child grants this court more than adequate procedural and substantive authority to review such matters."

The Supreme Court has not hesitated to grant extraordinary relief when the Circuit Court has "so misapprehended the evidence or law in its allowance of an improvement period such that it has jeopardized a child’s well-being, best interests, or right to permanency."

Workman wrote that the crux of the case is whether the respondents demonstrated by clear and convincing evidence that they are likely to fully participate in an improvement period and that such improvement period is likely to remediate the issues of abuse which led to their adjudication. She said the court must determine whether the improvement period jeopardizes the best interests of the children.

Workman said it was clear the Circuit Court failed to consider probative evidence and the informed recommendations of DHHR and the guardian ad litem, misapprehended the evidence of the respondents’ “acknowledgment” of their wrongdoing, and ultimately failed altogether to consider the best interests of the children in granting an improvement period.

"While the Circuit Court’s order is certainly replete with citations to our ample body of law and devotedly tracks the language of the statute regarding improvement periods, we find that it fails on its face to fully evaluate and consider what may be some of the most compelling evidence in the case and is devoid of any analysis of the children’s best interests," Margaret wrote.

The Supreme Court directed the Circuit Court to enter an order terminating the respondents' parental and custodial rights.

West Virginia Supreme Court of Appeals case number 19-0331

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