                            STATE OF WEST VIRGINIA

                       IN THE SUPREME COURT OF APPEALS

                                                                              FILED
                                                                            May 27, 2014
                                                                           released at 3:00 p.m.
                                                                           RORY L. PERRY II, CLERK
                                                                         SUPREME COURT OF APPEALS
In Re: C.J., M.M., and M.M.                                                  OF WEST VIRGINIA



No. 13-1091 (Raleigh County 11-JA-202, 11-JA-203, and 11-JA-204)


                              MEMORANDUM DECISION

               The joint petitioners herein, the guardian ad litem (hereinafter “Guardian”) for
the minor children and the intervening third-party care giver (hereinafter “Intervenor”),
appeal from an order entered September 24, 2013, by the Circuit Court of Raleigh County.
By that order, the circuit court returned physical and legal custody of the minor children, C.J.;
M.M.; and M.M.,1 to their mother pursuant to a gradual transition plan. In their joint appeal
to this Court, the Guardian and the Intervenor argue that the circuit court failed to consider
the best interests of the children, and, in doing so, disregarded expert testimony and failed
to consider the lack of a bond between the children and their mother. Likewise, the
Department of Health and Human Resources (hereinafter “DHHR”) submits that the lower
court failed to consider the best interests of the children. Based on the parties’ briefs,2 the
appendix record designated for our consideration, and the pertinent authorities, we find that
the circuit court erred. We reverse the rulings made by the lower court regarding the children
at issue herein and, further, remand this case for entry of an order in accordance with this


              1
              “We follow our past practice in juvenile . . . cases which involve sensitive
facts and do not utilize the . . . names of the parties.” State ex rel. W. Va. Dep’t of Human
Servs. v. Cheryl M., 177 W. Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987) (citations
omitted).
              2
                On March 25, 2014, this Court ordered the mother to file a responsive brief
on or before April 25, 2014. Further, the order provided that “[c]ounsel for the respondent
T.M., David S. Hart, is reminded that failure to file a brief may result in sanctions being
imposed.” Contrary to this Court’s instructions and Rule 38(f) of the Rules of Appellate
Procedure, which provides: “No documents shall be filed less than forty-eight hours prior to
a scheduled argument in a proceeding unless specifically requested by the Court[,]” no brief
was filed until counsel for T.M. attempted to file a brief on May 7, 2014, immediately prior
to oral arguments. Counsel appeared for oral argument and this Court, in its discretion,
allowed T.M.’s counsel to be heard.
decision. This case presents no new or significant questions of law, and, furthermore,
satisfies the “limited circumstance” requirement of Rule 21(d) for the Court to issue a
memorandum decision rather than an opinion in this case.

               While the underlying abuse and neglect proceeding concerned four children,
this appeal involves only three of the children: C.J., M.M., and M.M.3 This case commenced
on September 28, 2011, with the DHHR’s filing of a petition alleging that the children were
abused by their mother, T.M. (hereinafter “Mother”). The petition resulted from an incident
in which Mother was arrested for driving under the influence of alcohol (hereinafter “DUI”)
with the eldest child present in the vehicle. Upon her arrest, Mother failed to identify a
substitute caretaker for the eldest child; thus, Child Protective Services (hereinafter “CPS”)
was contacted, and the child was placed in foster care. Mother was incarcerated and charged
with DUI, second offense; child endangerment; a child seat belt violation; and obstructing
a police officer.

               It was learned that Mother had three other children, all younger than the child
who was with her at the time of her DUI arrest. The DHHR filed an amended abuse and
neglect petition alleging that Mother had abandoned the three children who were not present
at the time of her arrest. CPS also began an investigation into the other children’s
whereabouts and eventually learned that the twins, M.M. and M.M., were living with an
unrelated third-party care giver, who is the co-petitioning Intervenor in this appeal. Another
child, C.J., was discovered residing with yet a different, unrelated, third-party care giver.4

             Thereafter, on December 1, 2011, the circuit court held an adjudicatory hearing
during which Mother stipulated to neglecting the children by abusing alcohol and was
granted a post-adjudicatory improvement period. After successfully completing the
improvement period, Mother was reunited with the eldest child who was present in the car
when she was arrested for DUI. The matter as to the other three children was scheduled for
disposition.

              The dispositional hearings were held on October 26, 2012; January 10, 2013;
April 26, 2013; and July 8, 2013. According to the dispositional order, “[t]he record reflects

               3
              The eldest child, also with the initials M.M., was returned to Mother’s custody
after the DHHR dismissed the child abuse and neglect case pertaining to M.M. Accordingly,
the eldest M.M. is not subject to this appeal.
               4
               C.J.’s third-party care giver did not appeal the circuit court’s disposition order;
however, the Guardian and the DHHR argue that the disposition of the three children, which
includes C.J., was in error.

                                                2

a wide array of testimony as to [Mother’s] parental involvement with her four (4) biological
children.” It is undisputed that Mother was the sole caretaker for her oldest child whose
custody was returned to her. However, the testimony revealed that Mother had limited
contact with her other three children.

               C.J.’s care giver testified that she met Mother through a mutual friend, who had
asked her if she would care for C.J. The care giver agreed, and Mother placed C.J. in the
third-party’s care when he was about eight months old.5 According to the testimony, Mother
would sometimes take C.J. for overnight visits, usually once or twice each month, and she
would occasionally visit the child or call to check on C.J. However, it was undisputed that
the third-party care giver was the sole provider for the child and that Mother had never
provided formula, diapers, or any clothing. Moreover, it was stated that C.J. refers to the
third-party care giver as “mommy” and that the child does not have a parent-child
relationship with Mother.

              At the time Mother placed C.J. with the third-party care giver, Mother was
pregnant with twins: M.M. and M.M. The Intervenor alleged that Mother agreed to let her
adopt the twins prior to their birth; however, Mother disputed this contention. The Intervenor
claimed that she has had custody of the children since they were three weeks old, while
evidence from Mother and maternal grandmother indicated that Mother cared for the twins
until they were at least three months old. Regardless of the exact time period when the twins
came to be in the Intervenor’s care,6 the testimony showed that the twins recognize the
intervenor as their mother and recognize the intervenor’s fiancé as their father.

                While both the third-party care giver and the Intervenor contended that they
perceived that the placement of the children in their care was to be permanent, Mother
testified that the agreements with these women to care for her children were intended to be
only temporary. The circuit court’s decision to return the children to Mother’s custody relied
heavily on a temporary custody agreement that was executed in 2009 between Mother and
the Intervenor. The purported intent of the custody agreement was to allow the Intervenor
to seek medical care on behalf of the twins. The agreement specifically stated that it was
“not intended to take away from [Mother] legal custody of [the twins], jointly or
individually.” The circuit court found that, “from the plain language of the temporary


              5
               At the time of the final dispositional hearing, C.J. had been residing with the
third-party care giver for over four and one-half years.
              6
               The twins had resided with the Intervenor for at least three years when the
dispositional hearings took place.

                                              3

custody agreement, [Mother] signed a document that clearly contemplated a temporary
arrangement with [the Intervenor], one that could be revoked at any time . . . .”

              During the pendency of the abuse and neglect proceedings, the DHHR was
vested with legal and physical custody of the children. The children’s physical placements
remained with the third-party care giver and the Intervenor. The mother exercised visitation
with the children once per week from November 3, 2011, through March 28, 2012. The
DHHR, however, suspended the visitation due to concerns regarding a lack of bonding
between the children and Mother. Visitation was resumed on May 18, 2012, after it was
determined that the visitation had been discontinued arbitrarily.

                While Mother raised concerns regarding whether appropriate care was being
provided to the children by their care givers, the DHHR inspected both the third-party care
giver’s home and the home of the Intervenor and found them to be appropriate placements.
Mother, during the abuse and neglect proceedings, requested the return of all of her children
to her care. It was noted by the circuit court that the abuse and neglect petition had been filed
as a result of Mother’s DUI. The circuit court found that, since the arrest, Mother
“successfully completed an improvement period; passed random drug and alcohol testing;
and had her child, [M.M., the eldest child who was in the car when she was arrested],
returned to her care and custody.” The DHHR argued below that, while the eldest child was
properly returned to Mother at the end of the improvement period, the other three children
had been abandoned by Mother prior to the filing of the petition and, consequently, should
not be returned to her care. Upon considering all of the evidence, the circuit court found that
Mother “did not legally abandon the children[.]” Importantly, the lower court’s order further
determined that Mother “successfully completed the essential components of a post­
adjudicatory improvement period as to the children . . . . The court finds that legal and
physical custody of the aforementioned children must therefore be returned to [Mother].”
The trial court ordered that the children be transitioned to Mother’s custody on a gradual
basis.7

              Generally, “‘[t]his Court reviews the circuit court’s final order and ultimate
disposition under an abuse of discretion standard. We review challenges to findings of fact
under a clearly erroneous standard; conclusions of law are reviewed de novo.’ Syl. Pt. 4,
Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996).” Syl. pt. 1, Napoleon S. v.
Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005). Specifically, in considering the proper


              7
                 During the pendency of this appeal, C.J. continued to reside with his third-
party care giver, and M.M. and M.M. stayed with the Intervenor. The biological fathers’
rights to all of the children have been terminated and are not subject to this appeal.

                                               4

placement for children, we are reminded that “[q]uestions relating to . . . custody of the
children are within the sound discretion of the court and its action with respect to such
matters will not be disturbed on appeal unless it clearly appears that such discretion has been
abused.” Syl., in part, Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977). Mindful
of these applicable standards, we will consider the parties’ arguments.

               On appeal to this Court, the Guardian and the Intervenor jointly assert that the
circuit court erred in returning the custody of the three children to Mother. The DHHR
concurs with the contention that the circuit court erred. The focus of the arguments to this
Court is that the circuit court failed to consider the children’s best interests.

              It is conceded that Mother successfully completed her post-dispositional
improvement period. Indeed, she regained custody of the child who was in her physical
custody at the time of her DUI arrest. However, there is a discrepancy between the
interaction Mother had with her oldest child, who was under her daily care, and the limited
contact she had with her three younger children, who she had placed with third-party care
givers. These three younger children are the children at issue before this Court.

               The circuit court focused on Mother’s successful completion of her
improvement period to find that it must, therefore, return the custody of the three younger
children to her. While we applaud Mother’s correction of her substance abuse issues, our
review is not limited to Mother’s success or failure with respect to the offered services. As
we have stated, “[a]lthough parents have substantial rights that must be protected, the
primary goal in cases involving abuse and neglect, as in all family law matters, must be the
health and welfare of the children.” Syl. pt. 3, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589
(1996). Moreover, this Court has instructed that,

                      [a]t the conclusion of the improvement period, the court
              shall review the performance of the parents in attempting to
              attain the goals of the improvement period and shall, in the
              court’s discretion, determine whether the conditions of the
              improvement period have been satisfied and whether sufficient
              improvement has been made in the context of all the
              circumstances of the case to justify the return of the child.

Syl. pt. 6, In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991) (emphasis
added). Significantly, when recently confronted with this issue, this Court reiterated that
“[i]n making the final disposition in a child abuse and neglect proceeding, the level of a
parent’s compliance with the terms and conditions of an improvement period is just one
factor to be considered. The controlling standard that governs any dispositional decision

                                              5

remains the best interests of the child.” Syl. pt. 4, In re B.H., __ W. Va. __, __ S.E.2d __
(No. 13-0342 Feb. 5, 2014).

                In the present case, the three younger children were in a decidedly different
position than the older child. The older child had been in Mother’s physical custody prior
to the filing of the abuse and neglect petition and had formed a bond with her. Conversely,
the three younger children were not under the care of Mother at the time of the filing of the
petition. The expert testimony established that Mother had not bonded with her three
youngest children. Specifically, the psychologist determined that it was not in the children’s
best interests to be returned to their biological mother. According to the expert’s opinion,
the children’s care givers were their psychological parents, and the children should remain
in their care. Moreover, the psychologist opined that the lack of bonding severely impacted
Mother’s ability to parent the children.

               In reviewing the record before us, it is clear that the circuit court focused on
Mother’s successful improvement period to find that it must return custody of the younger
children to Mother. The circuit court elevated Mother’s successful improvement period over
the best interests of the children and, consequently, disregarded the polar star by which it was
to be guided. As such, the circuit court’s decision to return the children to Mother
completely disregarded the conclusive expert opinion and ignored the vast testimony
regarding the children’s lack of a bond with Mother and their apparent distress in visitation
situations with her.

              For the foregoing reasons, the Circuit Court of Raleigh County’s September
24, 2013, disposition order is reversed, and this case is remanded for entry of an order
consistent with this Court’s opinion.

                                                                    Reversed and Remanded.


ISSUED: May 27, 2014

CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTED IN BY:
Justice Menis E. Ketchum

                                               6

Justice Ketchum, dissenting:


              I believe the circuit judge was correct in ordering the reunification of the

mother with her children after the mother’s successful completion of her improvement

period. The mother did everything requested by the court in her quest to retain her children.

Moreover, the order directs that reunification is conditional upon oversight and reporting by

a multidisciplinary team.



              The court held multiple hearings and personally observed each witness.

Thereafter, the court prepared an excellent 42-page order analyzing the facts. The order

contains detailed conclusions of law relating to the court’s factual findings. It is clear the

circuit judge did not abuse his discretion in returning the children to their mother.



              Therefore, I dissent.




                                              7

