                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



State ex rel. P.T.,                                                  FILED
Petitioner
                                                                February 21, 2013
vs.) No. 12-1489 (Hancock County 11-JA-19)                          released at 3:00 p.m.
                                                                    RORY L. PERRY II, CLERK

                                                                  SUPREME COURT OF APPEALS

                                                                      OF WEST VIRGINIA

The Honorable Ronald E. Wilson,
Judge of the First Judicial Circuit,
and D.F., Respondents


                              MEMORANDUM DECISION

               Allison Adyniec Cowden, Guardian ad Litem for the infant, P.T.,1 petitions this
Court to invoke its original jurisdiction in prohibition. Petitioner seeks a writ of prohibition
to prevent the respondent herein, the Honorable Ronald E. Wilson, Judge of the Circuit Court
of Hancock County, from enforcing two orders. The first order, dated October 18, 2012,
granted the respondent father, D.F., a dispositional improvement period. The second order,
dated December 13, 2012, accepted a dispositional improvement plan for D.F. Petitioner
further asks this Court to remand this matter to the Circuit Court of Hancock County with
directions to enter an order terminating the parental rights of the respondent, D.F. The
Department of Health and Human Resources (“DHHR”), by its attorney, Katherine M. Bond,
Assistant Attorney General, has filed a summary response supporting the issuance of the
requested writ. The respondent, D.F., by his attorney, F. William Brogan, Jr., of the Public
Defender Corporation, has filed a summary response opposing the issuance of the requested
writ.

               Upon our review of the parties’ arguments, the appendix record, and the
pertinent authorities, we grant the requested writ of prohibition. In summary, we conclude
that Judge Wilson erred as a matter of law in failing to consider the best interests of P.T. in
granting a dispositional improvement period to D.F., and we remand this matter to the Circuit


              1
               “We follow our past practice in juvenile and domestic relations cases which
involve sensitive facts and do not utilize the last names of the parties.” State ex rel. West
Virginia 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).

                                               1

Court of Hancock County with directions to enter an order terminating the parental rights of
D.F. Furthermore, because this case presents no new or significant issues of law, we find this
matter to be proper for disposition in a memorandum decision in accordance with Rule 21
of the West Virginia Revised Rules of Appellate Procedure.

              The incident that led to the filing of the underlying abuse and neglect petition
occurred in May 2011, when the subject infant, P.T., was a mere six weeks old. Law
enforcement officers were summoned by the child’s mother, T.S., after she and D.F. had
argued about bruises that T.S. discovered on the child.2 The argument escalated to the point
where T.S. and D.F. were both forcibly pulling at P.T. to gain physical possession of the
child.3 P.T. was transported to the Weirton Medical Center and subsequently was transferred
to the Children’s Hospital of Pittsburgh (“CHP”). A head CT performed at CHP revealed
possible swelling to bilateral temporal and parietal lobes. It was further noted that P.T. had
symmetrical bruises to the thorax which were thought to be consistent with squeezing and
shaking.

               D.F. was arrested, and, after first denying that he had harmed the child, he gave
a written statement to Weirton Police detectives admitting that he did shake the baby to get
him to sleep and that he and P.T.’s mother argued and engaged in a physical struggle over
the child. D.F. ultimately entered a Kennedy plea of guilty to child abuse resulting in injury.4
He was sentenced to serve one to five years of confinement.5


               2
                   The child had been in the care of D.F. prior to the discovery of the bruises.
               3
                T.S. is not a party to this proceeding. Her parental rights to P.T., and to P.T.’s
older half-sister who also was living in the home at the time, were terminated by order dated
June 25, 2012.
               4
               In Syllabus point 1 of Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43
(1987), this Court held:

                       An accused may voluntarily, knowingly and
               understandingly consent to the imposition of a prison sentence
               even though he is unwilling to admit participation in the crime,
               if he intelligently concludes that his interests require a guilty
               plea and the record supports the conclusion that a jury could
               convict him.
               5
                   D.F. was incarcerated in May 2011, and was released approximately one year
                                                                               (continued...)

                                                 2

               Following DHHR’s filing of an abuse and neglect petition, P.T. was removed
from the care and custody of D.F. on or about May 16, 2011.6 In September 2011, the circuit
court ruled that D.F. was an abusing parent and P.T. was an abused child. Also in September
2011, the circuit court, upon request by the Guardian ad Litem and with the agreement of
D.F., ordered a psychological evaluation be performed on D.F. to assess his parental fitness
and ability to remedy parenting deficiencies. The psychological evaluation was conducted
by Michael J. Marshall, Ph.D. (“Dr. Marshall”), while D.F. was incarcerated.

               In October 2011, prior to D.F.’s release from incarceration, he filed a motion
requesting a post-adjudicatory improvement period. In his motion, D.F. asserted that “he
never has, and never would, intentionally harm his son, [P.T.].” The Guardian ad Litem and
DHHR both expressed their hesitation to agree with an improvement period. When the
psychological evaluation subsequently was completed, Dr. Marshall concluded that D.F. “did
not possess the minimal parenting competency that is sufficient to protect the safety and well­
being of his child . . . [and] lacks the ability to remedy his parenting deficiencies and be safe
around children.” The circuit court observed that Dr. Marshall’s

              opinion was based upon a number of factors including [D.F.’s]
              own history of being abused, his dysfunctional family
              background, his history of abusing children, poor impulse
              control and violence, his history of dysfunctional adult
              relationships, poor stress management skills, substance abuse,
              his lack of appropriate parenting skills, and his substantial
              mental health problems that have not yet been remedied despite
              the opportunity for comprehensive mental health care and
              addictions treatment over the last twenty (20) years.

             D.F. was released from incarceration in May 2012. A dispositional hearing
regarding D.F. was held in September 2012. At the hearing, DHHR presented the testimony
of Dr. Marshall regarding his psychological evaluation of D.F.7 In addition, DHHR


              5
               (...continued)
later in May 2012.
              6
               P.T. is currently in a foster home where his half-sister, who is approximately
two years his senior, also is placed. This is his second placement.
              7
                  The circuit court expressed a “diminished opinion” of Dr. Marshall’s
                                                                         (continued...)

                                               3

presented the testimony of a DHHR caseworker who stated that DHHR recommended
termination of D.F.’s parental rights based upon the severity of the injury to P.T., D.F.’s prior
criminal history,8 and Dr. Marshall’s evaluation. The only testimony presented on behalf of
D.F. was his own.

               Following the dispositional hearing, the circuit court entered an order dated
October 18, 2012, wherein the recommendations of the DHHR that D.F.’s parental rights be
terminated were rejected. Instead, the circuit court ordered that D.F. be granted an
improvement period, and that a Multi-Disciplinary Team (“MDT”) meeting be promptly held
and an improvement plan submitted to the court.9 In reaching its conclusions, the circuit
court focused on D.F.’s history and circumstances. Although the court observed that the
infant, P.T., had been in foster care since his removal, a period of about sixteen months,10 the
circuit court failed to discuss P.T.’s best interests other than to state:




              7
               (...continued)
conclusions. The circuit court opined that “[m]any of [Dr. Marshall’s] findings to support
his opinions concerning [D.F.] were based upon a number of factors that were found to be
of limited significance to the conclusions he reached about [D.F.].”
              8
                According to the circuit court’s order of October 18, 2012, D.F.’s extensive
criminal history includes: a domestic violence conviction in 1996, a sexual assault conviction
in 1997, a contributing to the delinquency of a minor conviction in 1997, and an unlawful
assault conviction in 1999. The circuit court opined that, with the exception of the charges
involving P.T., D.F.’s criminal acts occurred when he was very young and while he was
abusing alcohol and drugs. Notably, however, according to reports included in the appendix
record, it appears that the sexual assault conviction referred to by the circuit court was for
statutory rape, and the unlawful assault conviction in 1999 was an assault on a minor. The
conviction for assault on a minor resulted from D.F. using a cigarette to burn the eleven-year­
old son of his then girlfriend, an offense for which he spent two and one-half years in prison.
With regard to D.F.’s substance abuse, Dr. Marshall noted that D.F. began abusing drugs and
alcohol at age fourteen. Dr. Marshall opined that D.F. is at a high risk of relapse because he
has not received adequate substance abuse treatment.
              9
              Legal and physical custody of P.T. was ordered to remain with the DHHR
until permanency is achieved.
              10
                P.T. has now been in foster care for nearly twenty-one months and, during
that time, has had only one visit with his father.

                                               4

                     It is at this time unnecessary for the welfare of the child
              to terminate [D.F.’s] parental rights to [P.T.]. The court
              acknowledges that [P.T.] is a child of tender years and needs a
              permanent, stable home. The court also understands that
              granting an improvement period would delay this process.
              However the Court also recognizes West Virginia law that “‘In
              the law concerning custody of minor children, no rule is more
              firmly established than that 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.’ Syllabus Point 1, In Re Willis, 157
              W. Va. 225, 207 S.E.2d 129 (1973).” Syllabus point 1, In
              Interest of Betty J.W., 179 W. Va. 605, 371 S.E.2d 326 (1988).

              In compliance with the circuit court’s order of October 18, 2012, the Guardian
ad Litem tendered to the court a dispositional improvement plan for D.F. By order entered
December 13, 2012, the circuit court accepted the plan, and ordered D.F. to comply with the
same. On December 26, 2012, the Guardian ad Litem filed the instant petition seeking a writ
of prohibition requiring the circuit court to vacate its orders of October 18, 2012, and
December 13, 2012, and further asking this Court to remand this matter with directions to
enter an order terminating the parental rights of the respondent, D.F. By order of January 9,
2013, this Court granted a rule to show cause, and ordered that this matter be expedited.

               This case is before the Court on a petition for writ of prohibition in which the
petitioner argues that the circuit court exceeded its legitimate powers. Accordingly, we apply
the standard set out in Syllabus point 4 of State ex rel. Hoover v. Berger, 199 W. Va. 12, 483
S.E.2d 12 (1996).

               The petitioner presents two arguments in support of the requested writ of
prohibition: (1) that the circuit court misapplied W. Va. Code § 49-6-12(l) when it granted
the respondent, D.F., a dispositional improvement period;11 and (2) that the circuit court
failed to consider the child’s best interests when it granted D.F. a dispositional improvement


              11
                The addition of subsection (l) to W. Va. Code § 49-6-12 became effective on
June 7, 2012. The events leading to this abuse and neglect case occurred in May 2011, which
is prior to the effective date of the relied upon provision. Insofar as the parties to this
proceeding have failed to present to this Court any argument regarding the retroactive
application of this statute, we decline to address this issue.

                                              5

period, especially when the improvement period is likely to be an exercise in futility. We
resolve this case on the circuit court’s failure to consider P.T.’s best interests.

              When considering the competing rights and interests of parents and children
in termination proceedings, it is the children’s rights that predominate:

                      Despite the importance of a parent’s parental rights, in
              cases involving the relinquishment or termination of parental
              rights, the paramount concern remains the best interests of the
              children involved therein. “Although parents have substantial
              rights that must be protected, the primary goal . . . must be the
              health and welfare of the children.”

In re Cesar L., 221 W. Va. 249, 258, 654 S.E.2d 373, 382 (2007) (quoting Syl. pt. 3, in part,
In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996)). See also In re Amber Leigh J., 216
W. Va. 266, 272, 607 S.E.2d 372, 378 (2004) (per curiam) (“Of course, [in abuse and neglect
cases] the best interests of the child are paramount.” (internal quotations and citation
omitted)); State ex rel. Roy Allen S. v. Stone, 196 W. Va. 624, 638, 474 S.E.2d 554, 568
(1996) (“Although a parent has a protectable interest in a child, a parent’s rights are not
absolute: the welfare of the child is the paramount consideration to which all of the factors,
including common law preferential rights of the parents, must be deferred or subordinated.”
(internal quotations and citations omitted)); Syl. pt. 7, In re Brian D., 194 W. Va. 623, 461
S.E.2d 129 (1995) (“Cases involving children must be decided not just in the context of
competing sets of adults’ rights, but also with a regard for the rights of the child(ren).”); In
re Jeffrey R.L., 190 W. Va. 24, 32, 435 S.E.2d 162, 170 (1993) (“Although the rights of the
natural parents to the custody of their child and the interests of the State as parens patriae
merit significant consideration by this Court, the best interests of the child are paramount.”);
Michael K.T. v. Tina L.T., 182 W. Va. 399, 405, 387 S.E.2d 866, 872 (1989) (“[T]he best
interests of the child is the polar star by which decisions must be made which affect
children.” (citation omitted)).

              In the instant case, the circuit court failed to adequately consider P.T.’s best
interests when deciding to grant the respondent, D.F., a dispositional improvement period.
P.T. was only six weeks old at the time D.F.’s abusive actions necessitated P.T.’s
hospitalization and subsequent removal from the home of his biological parents. Since that
time, a period that now amounts to nearly twenty-one months, P.T. has seen his father only
once. This circumstance is due to D.F.’s incarceration related to his abuse of P.T. and his
consequential unavailability to participate meaningfully in these proceedings prior to the
dispositional stage.


                                               6

                      As we said in In re Carlita B., 185 W. Va. 613, 623, 408
              S.E.2d 365, 375 (1991), the early, most formative years of a
              child’s life are crucial to his or her development. There would
              be no adequate remedy at law for these children were they
              permitted to continue in this abyss of uncertainty. We have
              repeatedly emphasized that children have a right to resolution of
              their life situations, to a basic level of nurturance, protection,
              and security, and to a permanent placement.

State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 257-58, 470 S.E.2d 205, 211-12 (1996).

                For nearly twenty-one months, P.T.’s future has remained uncertain. To
require him to now wait another six months, or more, while his father attempts to develop
parenting skills that, at the time of his psychological evaluation, were almost wholly absent,
is certainly not in P.T.’s best interests. See In re Cesar L., 221 W. Va. 249, 258, 654 S.E.2d
373, 382 (“Ensuring finality for these children is vital to safeguarding their best interests so
that they may have permanency and not be continually shuttled from placement to placement.
See Syl. pt. 1, in part, In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991) (‘Child abuse
and neglect cases must be recognized as being among the highest priority for the courts’
attention. Unjustified procedural delays wreak havoc on a child’s development, stability and
security.’).”). This is especially so when the likelihood appears slim that D.F. would
ultimately be successful in meeting this extreme challenge.12 See Syl. pt. 1, in part, In re


              12
                  With regard to the likelihood of D.F.’s ability to remedy the conditions of
abuse and neglect, we note a significant number of factors working against his ultimate
success: (1) his extreme parenting deficiencies (he scored in the bottom ten percent of the
statistical data on the Parental Awareness Skills Survey); (2) his numerous risk factors, which
include, but are not limited to, a history of being himself abused, his past abuse of a child
other than P.T., a history of prior substance abuse for which he has not received proper
professional treatment, and a history of violence and poor anger management; and (3) his
various mental health concerns. We additionally observe D.F.’s failure throughout these
abuse and neglect proceedings to acknowledge and accept responsibility for the harm he
caused his son (e.g., D.F.’s Kennedy plea, through which he avoided admitting his guilt, and
his motion requesting a post-adjudicatory improvement period, in which he asserted that “he
never has, and never would, intentionally harm his son, [P.T.].”). This court previously has
concluded that a problem must be acknowledged in order to be remedied. See West Virginia
Dep’t of Health & Human Res. ex rel. Wright v. Doris S., 197 W. Va. 489, 498, 475 S.E.2d
865, 874 (1996) (“[I]n order to remedy the abuse and/or neglect problem, the problem must
                                                                                  (continued...)

                                               7

R.J.M., 164 W .Va. 496, 266 S.E.2d 114 (1980) (“[C]ourts are not required to exhaust every
speculative possibility of parental improvement . . . where it appears that the welfare of the
child will be seriously threatened, and this is particularly applicable to children under the age
of three years who are more susceptible to illness, need consistent close interaction with fully
committed adults, and are likely to have their emotional and physical development retarded
by numerous placements.”).

               We further note that, while absolutely no emotional bond has been established
between P.T. and D.F., there is a blood relative with whom P.T. does share a close emotional
bond: his older half-sister, also of tender years, who shares his current foster placement.13
Insofar as P.T.’s sister is unrelated to D.F., an attempt to reunify P.T. and D.F. necessarily
would result in separating P.T. from the only meaningful familial relationship he has ever
known. Such a separation would most certainly not be in P.T.’s best interests. Cf. James M.
v. Maynard, 185 W. Va. 648, 658, 408 S.E.2d 400, 410 (1991) (“Because sibling
relationships often become more meaningful for brothers and sisters when they are
permanently separated from their mothers and fathers, there is a growing judicial recognition
of sibling rights in other jurisdictions.”). P.T. has “a right to resolution of [his] life
situation[], to a basic level of nurturance, protection, and security, and to a permanent
placement.” State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 257-58, 470 S.E.2d 205, 211­
12. The circuit court erroneously failed to adequately consider P.T.’s best interests and
ignored P.T.’s most basic rights by unreasonably delaying his permanency.

               For the reasons set out above, we find that the circuit court of Hancock County
erred by failing to give proper consideration to the best interests of P.T. when that court
granted the respondent father, D.F., a dispositional improvement period and approved an
improvement plan to implement the same. Because the best interests of P.T., a child of
extremely tender age, do not support a further delay in his reaching permanency based upon
the remote chance that D.F. might be able to develop adequate parenting skills, we grant the
requested writ of prohibition. Additionally, because the denial of a dispositional


              12
                 (...continued)
first be acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator of said
abuse and neglect, results in making the problem untreatable and in making an improvement
period an exercise in futility at the child’s expense.”).
              13
                Because of the strong bond between P.T. and his half-sister, her permanency
also has been delayed by these proceedings in the hope that these two children ultimately will
find permanency together.

                                               8

improvement period forecloses the possibility of reunification between D.F. and P.T., we
remand this case with instructions to enter an order terminating the parental rights of D.F.


                                                                             Writ Granted.

ISSUED: February 21, 2013

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

DISSENTING:
Justice Menis E. Ketchum




                                             9

