WV Supreme Court Kept Busy with Webster County Child Abuse & Neglect Cases

Pictured in the Court chambers are the members of the West
Virginia Supreme Court of Appeals. The five justices include:
(seated front row from left) Justice Robin Jean Davis, Chief
Justice Menis E. Ketchum and Justice Brent D. Benjamin
(standing from left) Justice Margaret L. Workman, and
Justice Thomas E. McHugh.

This Fall, the West Virginia Supreme Court of Appeals has been busy deciding appeals of five different Webster County child abuse and neglect cases, upholding the Circuit Judge's rulings in all five cases.

Because of the sensitive nature of these cases, the Supreme Court does not reveal the names of the parties involved.

The first two cases, decided November 19, 2012, are actually appeals by two parties (a husband and wife) involved in the same proceeding. This abuse and neglect proceeding began when the biological mother of a child was stopped by police in a traffic stop with the child in the vehicle and was found to have drugs and drug trafficking paraphernalia in the vehicle. This mother previously lost her parental rights to four other biological children she had.

When the child in this case was first born, this biological mother allowed a husband and wife in Florida to take care of the child for about a year. When this abuse and neglect case was filed about eight months after the child returned to the biological mother in West Virginia, the husband and wife asked to intervene, claiming they acted as "psychological parents" to the child (meaning that they assumed the roles of father and mother to the child and the child recognized them as such for a significant period of time). The Circuit Court allowed the husband and wife to intervene in the case.

The Circuit Court allowed the husband and wife visitation with the child but both became involved in drug abuse. "Testimony showed that although petitioner and her husband had once acted as psychological parents to the child, the bond was broken between them." The Circuit Court then terminated the "psychological parent" rights of the husband and wife, and they each then appealed to the West Virginia Supreme Court of Appeals. The Supreme Court upheld the termination.

Cowen attorney Howard Blyler acted as the Guardian ad Litem for the child in this case, and he argued that the husband and wife did nothing to keep their bond with the child in the eight months since the child was back in West Virginia. Blyler supported terminating any rights that the husband and wife may have had. The Supreme Court agreed, stating that even if the husband and wife were psychological parents in the past, they failed to keep in any contact with the child, and any bond was broken. The Court also noted the drug abuse problems and the separation of the husband and wife which occurred since the case began.

The full opinions of these two related cases can be found at the following links:

http://www.courtswv.gov/supreme-court/memo-decisions/fall2012/12-0629memo.pdf
http://www.courtswv.gov/supreme-court/memo-decisions/fall2012/12-0612memo.pdf

The third case upheld by the Supreme Court, also decided November 19, 2012, involved the termination of a mother's rights to her two children. The abuse and neglect case began when the mother and father of the children engaged in domestic violence in the presence of the children and both were involved in substance abuse. The Circuit Court gave both parents "improvement periods." The Circuit Judge then terminated the mother's parental rights when she failed to comply with the terms set out in the improvement period, stating that "there was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected."

Howard Blyler also acted as the children's Guardian in this case. He argued that the mother failed to comply with various terms of the improvement period, continued to associate herself with her abusive husband even when counseled not to do so, failed to allow Child Protective Services to view her home, and continued to be involved in drug and alcohol abuse. The Supreme Court agreed with this reasoning in upholding the termination of the mother's rights. "Courts are not required to exhaust every speculative possibility of parental improvement . . . where it appears that the welfare of the children will be seriously threatened," the Supreme Court said.

The full opinion of this third case can be found at this link:

http://www.courtswv.gov/supreme-court/memo-decisions/fall2012/12-0598memo.pdf

In the fourth case, decided October 22, 2012, the mother of a child appealed the Circuit Judge's ruling that she was "an abusive and neglectful parent." Her parental rights were not terminated, and she was granted a one year post-dispositional improvement period.

Entrance to the WV Supreme Court of
Appeals at the Capitol building in
Charleston, West Virginia.

Webster Springs attorney Joyce Morton served as the child's Guardian in this case. She argued that the mother did abuse and/or neglect the child. Morton said that the mother was neglectful by failing to provide a suitable home, failing to supervise her child, permitting the child to live with a known drug and alcohol user (the mother’s boyfriend), and by making inappropriate decisions for the child, and that the mother’s addiction to drugs and alcohol affected her ability to parent.

"Upon a review of the record, this Court does not find the adjudication of Petitioner Mother to be clearly erroneous. She admitted to using drugs the night the child was removed, and admitted to taking a prescription medication that was not hers. Although one positive drug screen was later determined to be a false positive, petitioner’s assessment showed that she was at risk for further drug abuse. Importantly, the adjudication of Petitioner Mother as abusive and neglectful was based on many factors, and was not limited to her drug use. Therefore, we find no error in the circuit court’s adjudication order," the Supreme Court concluded.

The full opinion of this fourth case can be found at this link: http://www.courtswv.gov/supreme-court/memo-decisions/fall2012/12-0031memo.pdf

The fifth case, decided September 24, 2012, involves the termination of a father's custodial rights to a child. This case began with the child's half-sister was born with drugs in her system. The mother had been abusing drugs during the pregnancy. The mother agreed to allow the child and the half-sister to be placed with the maternal grandparents.

When the abuse and neglect case was filed against the mother, the father was incarcerated. He had a lengthy criminal history, including convictions for malicious wounding and for distributing cocaine.  He abused drugs and alcohol, and was found to be in possession of morphine without a prescription while out on home confinement.

"The circuit court found that based on a consideration of all the factors, termination of Petitioner Father’s custodial rights to the child would be in the child’s best interest to timely achieve permanency. However, the circuit court left Petitioner Father the opportunity to later move for post-termination visitation upon his release from incarceration." The child's Guardian, Joyce Morton, supported the termination of custodial rights. The Supreme Court found no error in the Circuit Court's decision.

The full opinion of this fifth case can be found at this link:
http://www.courtswv.gov/supreme-court/memo-decisions/fall2012/12-0581memo.pdf