          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                  January 2013 Term
                                                                   FILED
                                     __________                 June 5, 2013
                                                                released at 3:00 p.m.
                                                                RORY L. PERRY II, CLERK
                                     No.12-0808               SUPREME COURT OF APPEALS
                                     __________                   OF WEST VIRGINIA



                      IN RE: JESSICA M. AND SHAWNTA M.


          ______________________________________________________

                   Appeal from the Circuit Court of Gilmer County
                            Honorable Jack Alsop, Judge
                           Case Nos. 09-JA-2 and 09-JA-3

               REVERSED AND REMANDED WITH DIRECTION
           ____________________________________________________

                              Submitted: May 15, 2013
                                Filed: June 5, 2013


Keisha D. May, Esq.                                   Patrick Morrisey
Ciccarello, Del Giudice & LaFon                       Attorney General
Charleston, West Virginia                             Lee A. Niezgoda, Esq.
Counsel for the Petitioner                            Assistant Attorney General
                                                      White Hall, West Virginia
                                                      Counsel for the Respondent
Michael W. Asbury, Jr. Esq.
Asbury Law Office, PLLC
Clay, West Virginia
Guardian ad litem


The Opinion of the Court was delivered PER CURIAM.
                               SYLLABUS BY THE COURT



              1. “Although conclusions of law reached by a circuit court are subject to de

novo review, when an action, such as an abuse and neglect 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. These findings shall not be set aside by a reviewing court unless clearly

erroneous. A finding is clearly erroneous when, although there is evidence to support the

finding, the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed. However, a reviewing court may not overturn

a finding simply because it would have decided the case differently, and it must affirm a

finding if the circuit court’s account of the evidence is plausible in light of the record viewed

in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177

(1996).



              2. “In the law concerning custody of minor children, no rule is more firmly

established than the right of a natural parent to the custody of his or her infant child is

paramount to that of any other person; it is a fundamental personal liberty protected and

guaranteed by the Due Process Clauses of the West Virginia and United States

Constitutions.” Syl. Pt. 1, In re: Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).



                                                i
              3. “The standard of proof required to support a court order limiting or

terminating parental rights to the custody of minor children is clear, cogent and convincing

proof.” Syl. Pt. 6, In re: Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).



              4. “ ‘ “ ‘A parent has the natural right to the custody of his or her infant child,

and, unless the parent is an unfit person because of misconduct, neglect, immorality,

abandonment, or other dereliction of duty, or has waived such right, or by agreement or

otherwise has permanently transferred, relinquished or surrendered such custody, the right

of the parent to the custody of his or her infant child will be recognized and enforced by the

courts.’ Syllabus, State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d [798] (1969).”

Syl. pt. 2, Hammack v. Wise, 158 W.Va. 343, 211 S.E.2d 118 (1975).’ Syl. Pt. 1, Nancy

Viola R. v. Randolph W., 177 W.Va. 710, 356 S.E.2d 464 (1987).” Syl. Pt. 2, In Interest of

Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).




                                               ii
Per Curiam:

              Petitioner, Lucinda M. (hereinafter “Lucinda” or “mother”), appeals the June

13, 2012, order of the Circuit Court of Gilmer County terminating her parental rights to her

children Jessica M. and Shawnta M.1 The mother maintains that the lower court erred

because the evidence shows both that she successfully complied with and utilized the

services she was provided during the court-authorized improvement period, and made the

changes necessary to assure the safety of her children in her care. Respondent, West

Virginia Department of Health and Human Resources (hereinafter “DHHR”), is joined by

the guardian ad litem2 in arguing that the facts of this case support the termination of the

mother’s rights to satisfy the children’s need for permanency and stability.



              Following a complete examination of the record accompanying the appeal, we

reverse the order of the circuit court and return the matter for development of a reunification

plan consistent with this opinion.




              1
                 Pursuant to Rule 40 of the West Virginia Rules of Appellate Procedure, the
identities of juveniles are protected in Court documents. Initials or descriptive terms are used
instead of full names to promote confidentiality.
              2
               Three different lawyers have served as guardians ad litem for the children
during the course of this case. As explained during oral argument by the guardian
representing the interests of the children in this appeal, he was not directly involved with any
of the proceedings below and his representations as to what occurred during those
proceedings were limited to the contents of the record.

                                               1
                         I. Factual and Procedural Background

              Lucinda is the biological mother of two girls, Jessica and Shawnta. An abuse

and neglect petition was filed on March 19, 2009, by the DHHR against Lucinda and her

husband, Jesse M., the biological father of the children. The petition contained the

allegation that Jessica and Shawnta, then aged three and two respectively, were abused

and/or neglected children due to their exposure to domestic violence and drug use by the

father in the home.



              An adjudicatory hearing was held on May 29, 2009, at which the mother

admitted to being the victim of domestic battery and to not removing the children from a

home where the father used illegal substances in their presence. The father on the other hand

denied all allegations. The circuit court determined the evidence established that the children

were abused and neglected by the parents.



              Soon after the adjudicatory hearing, the father voluntarily relinquished his

parental rights. The court accepted the relinquishment and terminated the father’s parental

rights at a June 29, 2009, dispositional hearing. At a separate dispositional hearing, Lucinda

was granted a six-month post-adjudicatory improvement period, which was extended by

three months. Before the three-month extension expired, DHHR filed a motion to terminate

the mother’s parental rights, to which the guardian ad litem concurred. Following a hearing

in March 2010, the circuit court denied the motion and granted Lucinda a one-year

                                              2
rehabilitation period. The court found that Lucinda was meaningfully engaging in services

and should receive the treatment recommended in her psychological evaluation. The mother

apparently complied with and benefitted from the services provided as it is uncontested that

the mother sought and received unsupervised, overnight supervision with the children in

December 2010, and that the visitation was increased at a March 2011 hearing. When the

court granted the mother additional visitation, it also ordered DHHR to develop a case plan

for unification of the mother with the children. Although the guardian ad litem had

concurred with reunification at an April 2011 status hearing, he moved to temporarily

suspend visitation on May 6, 2011. According to the June 13, 2012, order terminating the

mother’s rights, the guardian’s motion was “based on the fact the West Virginia DHHR

reported sexualized behaviors being exhibited by the Infant Respondents in this matter.” It

appears from the briefs that the court suspended visitation and directed DHHR to conduct

an investigation. DHHR filed an amended motion to terminate the mother’s parental rights

on May 24, 2011, and the matter was set for dispositional hearing.



              The dispositional hearing was held on July 8, 2011. DHHR called three people

to testify: a volunteer who worked at the school where the children attended pre-kindergarten

classes, a man who had lived in a trailer near where the mother had moved, and

the Child Protective Services (hereinafter “CPS”) worker assigned to the case. The mother

also called three witnesses: two workers who provided services to the mother involving



                                             3
parenting, supervised visitation, and transportation, and the therapist who had been

counseling the mother for a year and a half on a regular basis.



                The school volunteer testified that she had discovered Jessica sitting on a

commode in the school’s bathroom closely examining her vagina with the lips of the vagina

spread apart. The volunteer said that she did not ask the child what she was doing or why

she was doing it either when she observed the child or after the child followed her out of the

bathroom The only additional information the volunteer provided was that later the same

day Jessica unexpectedly said during nap time that her mother had warned her “to watch

these two boys that rides bicycles up to our house . . . that they might touch us.”



                The neighbor called by DHHR to testify was unable to place the mother at a

bonfire gathering where attendees were drinking on May 9, 2011. He further denied telling

the CPS worker that he saw her at this event. He said that he really did not know the mother,

but his stepfather who lived in the same neighborhood did. The stepfather did not appear

as a witness.



                Before the CPS worker testified, DHHR moved to have the prior testimony

regarding the observations and interview of a Maureen Runyon at some unspecified hearing

incorporated into the record. The mother’s counsel pointed out that she had objected to the

admission of the Runyon report at a previous hearing at which Ms. Runyon was not in

                                              4
attendance. The court stated, “The Court will take judicial notice of the prior testimony, but

I – I – if you want Ms. Runyon’s testimony in, you’ll have to call Ms. Runyon as a witness.”

It became apparent from the CPS worker’s testimony that Ms. Runyon was the DHHR

employee who interviewed Jessica about the sexualized behaviors the child was exhibiting,

behaviors the CPS worker called masturbation. The CPS worker had no firsthand

information regarding what Jessica had said about her conduct, and the worker further said

that Jessica “did not tell me she learned sexual behaviors from her mother.”



              The CPS worker also expressed concern with the mother’s choice of people

with whom she associated. The mother’s husband3 had been abusive and her chosen

boyfriend also was inclined to violence. The CPS worker admitted that the mother had told

him she stopped seeing the boyfriend. The CPS worker also was concerned that even though

the mother followed the multidisciplinary team’s advice to move to a different residence, he

faulted the mother for choosing a new home without taking advantage of the assistance

available from DHHR. He admitted the assistance from DHHR was not a court ordered

requirement for relocation, and went on to testify that when he visited the home once the

mother relocated, he completed a report saying it was a safe, proper and adequate home. He

explained that he now had reservations with the new home because it was near the residence

of at least one relative of the mother’s former boyfriend. However, on cross-examination


              3
              From general discussions during the dispositional hearing it was established
that the mother had at some point divorced the husband.

                                              5
the CPS worker said he had no evidence that the mother relied on anyone in the former

boyfriend’s family to find the new home, that she actually knew of any relationship between

the former boyfriend and her neighbor, or that the boyfriend had been to the new home or

knew where the mother had relocated. In response to the court’s inquiry of how far away

the boyfriend lived, the CPS worker said he lived in another county that would be a thirty-

five to forty minute drive from where the mother had moved.



             The CPS worker also faulted the location of the new home being situated in

the same neighborhood as a man who was a registered sex offender. Jessica had told the

CPS worker that she had seen a man standing at the edge of the mother’s yard – which was

explained to be a field – staring in the direction of the children. A man matching the

description the child had given was located by the CPS worker. The worker said he believed

the man was or had been a registered sex offender; no proof of this status was produced.



             Although repeatedly expressing his concern that the mother was not always

truthful with him, the CPS worker said that the mother had been successful in parenting

classes and therapy sessions and had complied with everything that DHHR had asked of her.

He did admit on cross-examination that he had no evidence that the mother harmed her

children in any way.




                                            6
              Two service providers contracted by DHHR to provide services to the mother

during the improvement period were called by the mother to testify. They each had worked

individually with the family. One worker supervised visitations between the mother and the

children and provided parenting classes to the mother. Regarding the visitations, the worker

said that the children were excited to see their mother and the mother interacted with them

appropriately. She testified that the mother did well with the parenting classes and became

adept at applying the learned skills to new or changing scenarios. In addition to supervising

visitations and teaching parenting skills, the other worker offered training on adult life skills

and safety plans for the home. She testified that the mother always participated in the

instruction and cooperated in making improvements as suggested.



              The final witness the mother called to testify was the therapist who had treated

her for a year and a half. The therapist said that he had both counseled the mother and had

the opportunity to watch her interact with Jessica and Shawnta.              Asked about his

observations of the children with the mother, the therapist said “[t]he children were very

caring toward their mother. They were not in the least bit intimidated. They were not afraid.

They were . . . were very huggy, feely, touchy. She was constantly making sure that they

were taken care of . . . . She was the epitome of – of a domestic figure.” The therapist also

said that the mother had complied with everything that he had requested of her during the

sessions. He observed that the mother has come to the realization “that she doesn’t

necessarily need a man in her life, she’s able to take care of herself . . . . Right now she

                                               7
wants to focus on her children and their well-being and not a relationship nor any type of

interaction with a male.” When asked if the mother needed further counseling, the therapist

said that he was taking a new job elsewhere, but he thought the mother would benefit from

a new therapist who could be an objective third party to discuss any stressors in her life.

However, the therapist made clear during cross examination that the mother was capable of

providing a safe environment for her children by stating, “I’m absolutely certain she can

protect her children.”



              The court inquired of the therapist about whether he was aware of the

allegation that the mother had taught Jessica how to masturbate. The therapist said this issue

had been discussed during the therapy sessions. The mother expressed deep concern with

Jessica’s self-gratifying behavior, and the mother questioned why it was occurring and how

Jessica had learned of these things. In response to a follow-up question, the therapist said

he had not had individual counseling sessions with Jessica.



              When asked by the guardian ad litem whether he would be concerned for the

safety of the children if a child disclosed that her mother taught her to masturbate, the

therapist said he would if he believed the mother had done so. The therapist went on to say

that based upon his interaction with the mother he had no doubt she was telling the truth.

The court proceeded to ask the therapist if a parent’s rights should be terminated if a child’s

disclosure that the parent taught the child to masturbate were true. The therapist said “[i]f

                                              8
the disclosure is true . . . it is a[n] honest to goodness verifiable fact, then, yes, I would have

concerns” which would warrant termination of parental rights.



               The dispositional hearing concluded with the court taking the matter under

advisement.



               On July 29, 2011, the mother filed a motion requesting an evidentiary hearing

in order to present new evidence that became available after the dispositional hearing. The

evidentiary hearing was held on March 7, 2012.4 The testimony offered at the hearing came

from five people the mother called to testify. One person was a woman who had supervised

visitation with the family on July 15, 2011; another was the new therapist the mother began

seeing in August 2011; and three were involved in arranging and completing a

neuropsychological evaluation of the mother to determine her cognitive abilities.



               The worker who had provided supervised visitation services to this family

from March 2011 to July 15, 2011, testified that she routinely made reports to the CPS

worker after each visitation. Referring to her report of a July 15, 2011, visitation, the worker

said that Jessica had come to the worker out of a swimming pool where she had been with



               4
               The delay in holding the requested evidentiary hearing appears to be due to
the guardian ad litem not submitting a written response requested by the court until February
2, 2012.

                                                9
the mother and Shawnta. The worker said that Jessica was upset and essentially recanted the

alleged initial statement about her mother teaching her about masturbation.



              The new therapist who testified had only seen the mother a few times since

assuming the case, but she said she had been familiar with the case prior to working directly

with the mother and agreed with the former therapist’s assessment. She further stated in

response to questioning that she never saw anything in the mother’s character during the

counseling sessions that would indicate the mother was attempting to conceal, deceive, lie

or be dishonest about anything. When questioned by the guardian ad litem as to whether it

would surprise the therapist to learn that the mother had a history of making poor decisions

regarding the care of her children she said, “It would now . . . . [even though] [i]t would not

surprise me in the past.”



              Dr. Marc Warren Haut, a professor and clinical neuropsychologist at West

Virginia University, testified about the results of the mother’s neuropsychological

evaluation. He said that the referral that was received asked for a determination of: (1) the

extent of any brain problems the mother may have due to epilepsy and to a brain injury she

had as an infant; and (2) whether these problems would have continuing effects on her

psychological functioning. The doctor said the referral was made so that appropriate therapy

could be provided. Dr. Haut said the conclusion he reached was that the mother had minor

deficits due to her history of brain trauma but “her deficits were really pretty mild” and “she

                                              10
was doing very well from a psychological standpoint also.” He went on to say that from the

perspective of her thinking skills there was “no deficit that would preclude her from raising

her children.”



                 At the conclusion of the testimony the court once again took the matter under

advisement. On June 13, 2012, an order terminating the mother’s parental rights was issued.

With apparent reliance on the CPS worker’s testimony at the dispositional hearing, the court

determined that the mother “is a neglectful parent, as she has failed to provide a fit, apt, and

suitable home and establish an appropriate environment for the infant children in this

matter.” The order reflects the court’s findings that: the mother participated in rehabilitative

services but failed to benefit from them in ways that would protect the children; Jessica was

never called as a witness to recant “to the Court the assertion she made that her mother

taught her about masturbation;” that there is no reasonable likelihood that the conditions of

abuse and neglect can be substantially corrected in the future; and that termination of

parental rights would be in the children’s best interests. It is from this order of termination

that the mother appeals.



                                   II. Standard of Review

                 A compound standard of review is applied in appeals resulting from abuse and

neglect proceedings. In re Emily, 208 W.Va. 325, 332, 540 S.E.2d 542, 549 (2000). That



                                               11
compound standard is summarized in syllabus point one of In Interest of Tiffany Marie S.,

196 W.Va. 223, 470 S.E.2d 177 (1996), in the following manner:

                       Although conclusions of law reached by a circuit court
               are subject to de novo review, when an action, such as an abuse
               and neglect 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. These findings
               shall not be set aside by a reviewing court unless clearly
               erroneous. A finding is clearly erroneous when, although there
               is evidence to support the finding, the reviewing court on the
               entire evidence is left with the definite and firm conviction that
               a mistake has been committed. However, a reviewing court
               may not overturn a finding simply because it would have
               decided the case differently, and it must affirm a finding if the
               circuit court’s account of the evidence is plausible in light of the
               record viewed in its entirety.

It is with these considerations in mind that we consider the matter before us.




                                        III. Discussion

               The thrust of the argument made by the mother through her counsel in this

appeal is that the evidence relied upon by the circuit court to terminate the mother’s parental

rights did not rise to the requisite level of proof required to terminate her legal and protected

right to parent Jessica and Shawnta. The mother’s counsel maintains that the primary reason

set forth in the order for terminating the mother’s parental rights is that Jessica was not called

to testify at the evidentiary hearing to recant a statement that was not introduced as evidence

in this case. She asserts that the evidence DHHR presented did not demonstrate or prove that


                                               12
the mother nor anyone else inappropriately touched Jessica and/or Shawnta, or that the

mother provided inadequate care for her daughters. She points out that the only witness who

provided unfavorable testimony about her efforts and progress was the CPS worker, which

failed to rise to the level of clear and convincing proof that is required for termination of

parental rights.



               DHHR maintains the correctness of the decision to terminate the mother’s

parental rights. The agency maintains that the evidence showed the mother participated but

did not fully avail herself of the services provided during her improvement period and failed

to make the changes necessary to assure the safety of the children in her care. The guardian

ad litem maintains that deference should be afforded to the circuit court’s decision to

terminate the mother’s parental rights. He argues that the evidence in the appendix record

sufficiently demonstrates that the mother could not reasonably correct the conditions leading

to the filing of the original petition.



               This Court has long recognized a constitutional dimension to a parent’s right

to the custody of his or her minor children. In syllabus point one of In re: Willis, 157 W.

Va. 225, 207 S.E.2d 129 (1973), we stated:

                      In the law concerning custody of minor children, no rule
               is more firmly established than the right of a natural parent to
               the custody of his or her infant child is paramount to that of any
               other person; it is a fundamental personal liberty protected and


                                              13
              guaranteed by the Due Process Clauses of the West Virginia and
              United States Constitutions.

The right is not absolute in that it can be limited or terminated by the State if a parent is

proven unfit through proceedings affording the parent due process of law. Syl. Pt. 5, Id.

Statutorily, termination is proper only when “there is no reasonable likelihood that the

conditions of neglect or abuse can be substantially corrected in the near future and[] when

necessary for the welfare of the child . . .” W. Va. Code § 49-6-5(a)(6). The phrase “no

reasonable likelihood that conditions of neglect or abuse can be substantially corrected” is

later defined in the statute as meaning “based upon the evidence before the court, the abusing

adult or adults have demonstrated an inadequate capacity to solve the problems of abuse or

neglect on their own or with help.” W. Va. Code § 49-6-5(b).



              Given the significance of parental rights, a heightened level of evidentiary

proof is necessary to warrant termination. “The standard of proof required to support a court

order limiting or terminating parental rights to the custody of minor children is clear, cogent

and convincing proof.” Syl. Pt. 6, In re: Willis.



              In terminating the mother’s parental rights in the present case the lower court

made the following findings and conclusion:

                     1. The Court finds that dismissing the petition is totally
              inappropriate, in that the circumstances out [of] which this
              petition arises, still exist and to dismiss the petition would
              greatly endanger the health, safety and welfare of the children.

                                              14
        2. The Court finds that referring the children, the abusing
parent, or other family members to a community agency for
needed assistance and dismissing the petition is not appropriate
in that the Respondent Mother, has participated but has failed
to benefit from services, including counseling or other
rehabilitative services which would result in the reasonable
steps necessary to cooperate with the Petitioner [DHHR] to
attempt to remedy the problems out of which this petition arose.
Therefore, the Respondent Mother is unable, in a meaningful
way, to properly engage and benefit from counseling or other
rehabilitative services that would protect the children from being
exposed to the abuse in the future.

       3. The Court finds that returning the children to the
home under the supervision of the state department is
inappropriate, in that the Respondent Mother has failed to
benefit from intensive services that specifically address her poor
decision making ability and ability to make informed decisions
regarding the children. Therefore, even with supervision from
the state department, the children would not be adequately
protected.

        4. The Court finds that to order terms of supervision
calculated to assist the children and any abusing parent which
prescribe the manner of supervision is inappropriate, in that such
disposition does not rehabilitate the parent so as to achieve a
goal of return of the children, in that the Respondent Mother has
failed to take reasonably necessary steps to protect the children
in the future from the acts of abuse that led to the filing of this
petition. Further, the Respondent Mother has failed to
adequately address her poor decision making skills and ability
to protect the children, even after counseling and services to
address these issues.

       5. The Court finds that the granting of custody of the
children to the temporary custody of the state department, a
licensed child welfare agency, or suitable person, who may be
appointed guardian, is inappropriate, in that there is no
reasonable likelihood that the conditions of neglect, out of
which this petition arose, will be substantially corrected in the

                                15
             foreseeable future. Therefore, the temporary placement in the
             state department is contrary to the best interest of the children
             and would only further delay the ultimate disposition of
             termination of parental rights in this matter.

                    6. The Court is of the opinion and so finds that there is
             no reasonable likelihood that the conditions of abuse and neglect
             can be substantially corrected in the future, in that the
             Respondent Mother has failed to benefit from intensive services
             and remedy the actions which led to the filing of this petition.
             Further, the best interest and welfare of the children requires
             permanent termination of the parental rights of the Respondent
             Mother in this case.


                                   III. CONCLUSION

                     It is ADJUDGED and ORDERED that based on the
             above reasons there is no less restrictive alternative than
             termination of Respondent Mother’s parental rights. The Court
             finds the evidence adduced at the evidentiary hearing on March
             7, 2012, provided no evidence that there is a reasonable
             likelihood that the conditions out of which this abuse and
             neglect petition arose will be corrected within the reasonably
             foreseeable future. Respondent Mother in this case has
             provided no credible evidence that she can and will make
             properly informed decisions regarding the children’s welfare
             and best interest. The Court has given the Respondent Mother
             in this case numerous opportunities and the Respondent Mother
             has failed to meet the requirements to get her children returned
             to her. The Court finds the termination of Respondent Mother’s
             parental rights is in the best interest of the two children involved
             in this matter. . . .

Emphasis added. These determinations do not reflect the specific factual basis relied upon

by the circuit court, nor does the record in this case supply justification for the

determinations.




                                             16
              DHHR aptly summarized the circuit court’s findings supporting termination

as: (1) the mother participated but did not fully avail herself of the services provided during

her improvement period; and (2) the mother failed to make the changes necessary to assure

the safety of the children. It appears the only service to which the mother did not “fully avail

herself” was taking DHHR up on its offer to help her find a place to live. Testimony

established that the mother cooperated with the services which were provided to her, and was

compliant and successful throughout the rehabilitation period. The professionals providing

services to the mother indicated that she could successfully and safely parent her children.

They also witnessed interactions between the children and the mother and found them to be

positive and welcome interactions. Only the CPS worker expressed reservations with the

mother’s judgment and ability to parent or to tell the truth.



              If evidence existed to support any of the suspicions the CPS worker voiced

during his testimony, DHHR was sorely remiss in producing that evidence and making it part

of the record. One of the most glaring examples of unsubstantiated evidence surrounds

Jessica’s sexualized behaviors. It appears that the circuit court gave improper emphasis to

DHHR’s unsubstantiated allegation that the mother taught the child how to masturbate. The

only quote from the dispositional hearing transcript contained in the order of termination was

that of the CPS worker responding to questions of the prosecutor representing DHHR, which

reads in pertinent part as follows:



                                              17
              THE WITNESS: In light of history, what has happened even
              since January, she consistently appears to gravitate towards
              people of character that she’s been warned to stay away from.
              Her judgment, in my mind, is in question. I can – I question
              whether she can adequately protect these kids in the event that
              –
                     I look at this child’s behavior, and the most recent
              behaviors with – with –

              MR. HOUGH: This child being?

              THE WITNESS: Jessica. I’m sorry.

              MR. HOUGH: Okay.

              THE WITNESS: With – with the masturbation, and . . .

Further, there is the factual finding in the order stating:

              22. The Infant Respondent, Jessica [], never recanted to the
              Court the assertion she made that her mother taught her about
              masturbation. No party ever called her as a witness.


              The allegation that Jessica made statements about the mother teaching her self-

gratifying behaviors was never corroborated by the testimony of the child or by the DHHR

worker – Maureen Runyon – who purportedly conducted a forensic interview with the child

and wrote a report. As noted earlier, the transcript of the disposition hearing reflects that Ms.

Runyon was not present and also had not attended an earlier hearing. Moreover, the circuit

court stated at the dispositional hearing: “[I]f you want Ms. Runyon’s testimony in, you’ll

have to call Ms. Runyon as a witness.” Even during oral argument before this Court, no one

was able to identify how or when evidence of the child’s alleged statements in this regard

were actually made a part of the record. There is simply no documentary or testimonial

                                               18
evidence in the record which verifies this allegation. Furthermore, the CPS worker who did

testify said he had no firsthand information regarding what Jessica had said about her

“sexualized behaviors,” and the worker further said that Jessica had not told him that she

learned sexual behaviors from her mother. Thus any reference this CPS worker made during

his testimony about Jessica’s sexual behaviors was hearsay. As to the trial court’s concern

with the child not being called to recant the “assertion,” recantation presupposes that a

statement is made in the first place. Again, no assertion or statement of the child is in the

record.



              The CPS worker also failed to corroborate other allegations he made, and

DHHR did not introduce supporting evidence to substantiate the CPS worker’s allegations.

For example, neither the former boyfriend nor anyone from the former boyfriend’s family

testified at the dispositional hearing to validate the CPS worker’s expressed suspicion that

the mother was intending to resume a relationship with the former male companion and thus

expose the children once again to a violent male figure. The testimony of the mother’s

therapist refuted the CPS worker’s unsubstantiated concern by representing that the mother

had come to the realization that she did not need men in her life in order to succeed. The

therapist also said that the mother expressed her desire to be reunited with the children as her

top priority, far outweighing her need for male companionship. Also, no documentation was

in the record that confirmed the CPS worker’s contention that a “registered sex offender”

lived in the neighborhood and would be a threat to the children, or that there was anyone else

                                              19
in the neighborhood who posed a direct threat to the children. Rather than complimenting

or supporting the mother’s efforts to become self-reliant for the sake of her children, the CPS

worker criticized the mother when she showed initiative to make changes in her life by

faulting her for locating a place to stay without depending on DHHR to do it for her. The

CPS worker stated that there was no requirement that DHHR be involved in locating a

suitable home. Furthermore, he said that he found the new home to be safe and adequate

when he inspected it after the mother had moved.



              Based upon our extensive review of the evidence contained in the record

before us, we fail to see that neglect and parental unfitness have been established by clear,

cogent and convincing evidence. Thus the order terminating the mother’s parental rights to

Jessica and Shawnta must be reversed on clear error grounds.



              The evidence admitted at the dispositional hearing demonstrated that the

mother visited and interacted well with her children, kept her therapy appointments, attended

and was engaged in the parenting classes and appeared at all court hearings in order to be

reunited with her children. Moreover, the continuing bond and affection between the mother

and children was consistently observed during supervised visitations. Furthermore, the

therapist who worked with the mother for a year and half testified that he believed the

mother had gained a better understanding of her self-worth, and the importance of what she

needed to do to be reunited with her children. As such, the evidence demonstrates that the

                                              20
conditions of abuse and neglect have been substantially corrected and the family should be

reunited. This result is in keeping with this Court’s long-standing recognition that,

               “ ‘ “ ‘[a] parent has the natural right to the custody of his or her
              infant child, and, unless the parent is an unfit person because of
              misconduct, neglect, immorality, abandonment, or other
              dereliction of duty, or has waived such right, or by agreement
              or otherwise has permanently transferred, relinquished or
              surrendered such custody, the right of the parent to the custody
              of his or her infant child will be recognized and enforced by the
              courts.’ Syllabus, State ex rel. Kiger v. Hancock, 153 W.Va.
              404, 168 S.E.2d [798] (1969).” Syl. pt. 2, Hammack v. Wise,
              158 W.Va. 343, 211 S.E.2d 118 (1975).’ Syl. Pt. 1, Nancy
              Viola R. v. Randolph W., 177 W.Va. 710, 356 S.E.2d 464
              (1987).”

Syl. Pt. 2, In Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).



              It became clear during oral argument that the mother was not granted visitation

pending the appeal, so a period of adjustment is needed for the children to be removed from

their foster home placement and reunited with their mother. Therefore, a gradual change in

permanent custodians needs to occur. With the goal of providing the least disruptive

transitional process for the children’s return to their mother, upon remand the circuit court

should enter all orders necessary to afford a smooth reunification of the family. The concrete

reunification plan over which the circuit court retains oversight should include the provision

by DHHR of all necessary and appropriate counseling services for the mother and the

children. See In re George Glen B., Jr., 207 W. Va. 346, 532 S.E.2d 64 (2000) (recognizing




                                               21
the circuit court’s continued responsibility in overseeing the implementation of reunification

plans).



                                      IV. Conclusion

              For the foregoing reasons, the June 13, 2012, order of the Circuit Court of

Gilmer County terminating the parental rights of Lucinda M. is reversed, and the case is

remanded for entry of orders consistent with this opinion.



                                                    Reversed and remanded with direction.




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