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West Virginia APPENDIX A Duties and Responsibilities of Guardian Ad Litems
190 W. Va. 24, 435 S.E.2d 162
Supreme Court Of Appeals Of West Virginia
IN RE: JEFFREY R. L., JUVENILE
No. 21535
Submitted: April 7, 1993
Filed: June 14, 1993
SYLLABUS BY THE COURT
1. "'Termination of
parental rights, the most drastic remedy under the statutory provision covering
the disposition of neglected children, W. Va. Code, 49-6-5 [1977] may
be employed without the use of intervening less restrictive alternatives when
it is found that there is no reasonable likelihood under W. Va. Code,
49-6-5(b) [1977] that conditions of neglect or abuse can be substantially corrected.'
Syllabus Point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980)."
Syllabus point 4, In re Jonathan P., 182 W. Va. 302, 387 S.E.2d 537 (1989).
2. "W. Va. Code, 49-1-3(a) (1984), in part, defines an abused child to
include one whose parent knowingly allows another person to commit the abuse.
Under this standard, termination of parental rights is usually upheld only where
the parent takes no action in the face of knowledge of the abuse or actually
aids or protects the abusing parent." Syl. pt. 3, In re Betty J.W.,
179 W.Va. 605, 371 S.E.2d 326 (1988).
3. Parental rights may be terminated where there is clear and convincing evidence
that the infant child has suffered extensive physical abuse while in the custody
of his or her parents, and there is no reasonable likelihood that the conditions
of abuse can be substantially corrected because the perpetrator of the abuse
has not been identified and the parents, even in the face of knowledge of the
abuse, have taken no action to identify the abuser.
4. "In a proceeding
to terminate parental rights pursuant to W. Va. Code, 49-6-1 to 49-6-10,
as amended, a guardian ad litem, appointed pursuant to W. Va. Code,
49-6-2(a), as amended, must exercise reasonable diligence in carrying out the
responsibility of protecting the rights of the children. This duty includes
exercising the appellate rights of the children, if, in the reasonable judgment
of the guardian ad litem, an appeal is necessary." Syl. pt. 3, In
re Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991).
5. Each child in an abuse and neglect case is entitled to effective representation
of counsel. To further that goal, W. Va. Code, 49-6-2(a) [1992] mandates
that a child has a right to be represented by counsel in every stage of abuse
and neglect proceedings. Furthermore, Rule XIII of the West Virginia Rules
for Trial Courts of Record provides that a guardian ad litem shall
make a full and independent investigation of the facts involved in the proceeding,
and shall make his or her recommendations known to the court. Rules 1.1 and
1.3 of the West Virginia Rules of Professional Conduct, respectively,
require an attorney to provide competent representation to a client, and to
act with reasonable diligence and promptness in representing a client. The Guidelines
for Guardians Ad Litem in Abuse and Neglect cases, which are adopted
in this opinion and attached as Appendix A, are in harmony with the applicable
provisions of the West Virginia Code, the West Virginia Rules for
Trial Courts of Record, and the West Virginia Rules of Professional Conduct,
and provide attorneys who serve as guardians ad litem with direction
as to their duties in representing the best interests of the children for whom
they are appointed.
Jane Moran
Williamson, West Virginia
Guardian ad litem
V. Alan Riley
Keyser, West Virginia
Attorney for the Appellee, Gail L.
Darrell V. McGraw, Jr.
Attorney General
Charlene A. Vaughan
Senior Assistant Attorney General
Charleston, West Virginia
Attorneys for the West Virginia
Department of Health and Human Resources
James E. Smith
Keyser, West Virginia
Guardian ad litem below, Appellee
Cinda L. Scales
Askin, Burke & Schultz
Martinsburg, West Virginia
Attorney for Appellee, Jeffrey L.
Kelley A. Kuhn
Assistant Prosecuting Attorney for Mineral County
Keyser, West Virginia
Amicus Curiae
Mary M. Downey
Facilities Review Panel
Juvenile Justice Committee
Charleston, West Virginia
Amicus Curiae
McHugh, Justice:
Jane Moran, who was appointed as guardian ad litem to represent Jeffrey
R.L. in this appeal, See footnote
1 seeks review of an order of the Circuit Court of Mineral County which
transferred physical custody of Jeffrey R.L. to his mother, Gail L., and directed
the West Virginia Department of Health and Human Resources (hereinafter "DHHR")
to monitor the situation with home visits. The guardian ad litem asserts
that: (1) the circuit court erred in failing to terminate the parental rights
of Jeffrey R.L.'s parents; (2) the circuit court abused its discretion in returning
Jeffrey R.L. to his mother's custody without substantial evidence to support
the ruling; and (3) Jeffrey R.L.'s best interests were not adequately represented
before the circuit court. The Facilities Review Panel, commonly known as the
Juvenile Justice Committee, has filed an amicus curiae brief urging this Court
to adopt guidelines for attorneys who represent children in abuse and neglect
cases to follow in order to ensure effective representation of their clients
in those proceedings.
I
At the outset, we point
out that it is necessary to set forth the facts before us in detail because
of the nature of this proceeding and the decision we make. Gail L. gave birth
to Jeffrey R.L. on May 23, 1991. Jeffrey's birth was a normal vaginal delivery;
however, Jeffrey suffers from hemangioma, an overgrowth of blood vessels on
the back of his neck. He has been receiving treatment from Bilal Itani, M.D.
for his hemangioma and recurring vomiting since his birth. X-rays of Jeffrey
were taken for his medical problems on May 24, 1991 and July 26, 1991. These
x-rays revealed no trauma or fractures. See footnote 2
Gail L. arranged for Jeffrey R.L. to be examined again by Dr. Itani on August
30, 1991, because he was not moving his right arm in the same way he was moving
his left arm. The x-rays taken by Dr. Itani revealed fractures to his skull,
clavicle, ribs, arms and legs. Upon reviewing these x-rays, Dr. Itani arranged
to have Jeffrey R.L. transferred to West Virginia University Hospital for further
evaluation and treatment.
Although Gail L. and her grandparents had asserted that the injuries were the
result of a genetic bone disease, the staff at West Virginia University Hospital
confirmed that Jeffrey R.L. had sustained fifteen fractures to his skull, clavicle,
ribs, arms and legs, which were at various stages of healing, and that these
fractures were not disease-related. The physicians instead diagnosed that Jeffrey
was suffering from battered child syndrome.
Upon receiving the diagnosis from West Virginia University Hospital, Grant Hospital,
where Dr. Itani was employed, filed a report of child abuse with the Child Protective
Services of the DHHR. On September 5, 1991, the DHHR worker assigned to the
case, Barbara Mosier, and State Trooper Scott Goodnight went to Gail L.'s home
to investigate the report of child abuse. Ms. Mosier found that Gail L., her
husband Jeffrey L., See footnote 3her
grandmother and her grandfather were all caretakers of Jeffrey R.L. Gail L.,
who denied knowing the cause of Jeffrey's injuries, suggested that perhaps he
sustained these injuries while rolling around in his crib. Upon examining the
crib, however, Ms. Mosier observed that the inside of the crib was well-padded.
By order dated September 9, 1991, the DHHR was granted emergency custody of
Jeffrey R.L. The DHHR then filed a petition in the circuit court seeking to
have the parental rights to Jeffrey R.L. terminated, and requesting that it
be granted guardianship of him. A preliminary hearing on the petition was held
before the circuit court on September 19, 1991. The DHHR presented two witnesses
at the hearing, Ms. Mosier and William Thomas Corder, M.D., Jeffrey R.L.'s attending
pediatric physician upon discharge from West Virginia University Hospital. The
guardian ad litem before the trial court presented no testimony.
Dr. Corder testified that Jeffrey R.L. was examined by a pediatric neurologist,
a genetics expert, an orthopedist and an ophthalmologist. Dr. Corder testified
that all of the experts consulted, with the exception of the ophthalmologist
who only ruled out osteogenesis imperfecta, See footnote 4 concluded that Jeffrey R.L. was suffering
from battered child syndrome. See footnote 5 Dr. Corder testified
that it would be impossible for Jeffrey R.L. to have sustained all of his fractures
from rolling around in his crib, that great force would be necessary to cause
fractures of the ribs, and that the other fractures he sustained were "consistent
with a twisting, torsion, shaking of limbs[.]"See footnote 6 Dr. Corder also testified that when he first
saw Jeffrey R.L. he thought the child was blind because most three-month-old
children enjoy looking at faces and Jeffrey R.L. did not look at his face.
See footnote 7 After a few days of interacting with the
nurses, however, Dr. Corder testified that Jeffrey R.L. "started regarding
faces[.]"
Ms. Mosier testified at the hearing that she became involved in the case following
a referral from Grant Memorial Hospital. Ms. Mosier testified that she spoke
with the physicians at West Virginia University Hospital who told her that they
believed Jeffrey R.L. suffered from battered child syndrome. Ms. Mosier testified
that she then spoke to both of the parents who stated that the child could have
a bone disease that caused the fractures, that he could have hurt himself rolling
around in his crib, or that he could have sustained the fractures during his
delivery. See footnote 8 Ms. Mosier
examined the child's crib and found it to be well-padded on the inside. Ms.
Mosier then found out through the hospital that Jeffrey R.L. did not have a
genetic bone disease, and that he had a normal delivery.
At the conclusion of the preliminary hearing, the court found probable cause
to believe Jeffrey R.L. was an abused or neglected child, and concluded that
temporary custody should be awarded to the DHHR. The court ordered controlled
visitation and directed that the parents undergo psychological evaluations.
Both parents were evaluated by Gregory Trainor, M.A., in October of 1991. With
respect to Jeffrey R.L.'s father, Mr. Trainor reported that Jeffrey L. acknowledged
that he experienced black-outs, but denied any recent violent behavior.
See footnote 9 Mr. Trainor found that his "dissociative
experiences are particularly disturbing and may represent some brief psychotic
episodes." Mr. Trainor recommended that Jeffrey L. undergo a psychiatric
evaluation to determine whether he needed medication.
With respect to Jeffrey
R.L.'s mother, Mr. Trainor believed that she had "at least some serious
inattention difficulties" and that she was quite dependent on others.
See footnote 10 Mr. Trainor suggested that her
denial of problems indicates that she would not be "a very good candidate
for counseling." See footnote
11 Mr. Trainer opined that it was "difficult to comprehend that this
situation could have continued as long as it did in ones own home without some
realization that there was some serious difficulty." Mr. Trainor further
opined that "[t]he implication here is that [Gail L.] may be quite wrapped
up in her own world and not ... able to focus resources on the care of this
child." Mr. Trainor believed that it was very important to identify who
caused Jeffrey R.L.'s injuries, and that Gail L.'s "apparent lack of serious
motivation to uncover this does not augur well with this goal."
An adjudication hearing was held on November 20, 1991, in response to the DHHR
petition to have Jeffrey R.L. found to be an abused child. Both parents admitted
at the hearing that some trauma to their child had occurred, but neither one
of them admitted to harming the child or identified the abuser. The court found
that Jeffrey R.L. was an abused child, granted the parents an improvement period
and ordered custody to remain with DHHR during the improvement period. DHHR
was also ordered to develop a treatment plan for the parents to complete during
the improvement period.
A hearing was held in January of 1992, at which time Mr. Trainor testified that
he did not believe Gail L. was active in her child's abuse and that Gail L.'s
grandfather had stated that Jeffrey L. confessed to abusing the child. See footnote 12 Mr. Trainor also
stated that he would not be opposed to visitation between Gail L. and Jeffrey
R.L. in her grandparents' home. The circuit court then entered an order continuing
visitation twice a week, and ordered that if a treatment plan was not signed
by the parties by February 10, 1992, then the parties would have to appear before
the court for another hearing.
The parties appeared before the circuit court again on March 20, 1992 and March
25, 1992, to consider Gail L.'s challenge to the amended treatment plan and
to consider further progress in this matter. At the hearing, the DHHR pointed
out that Gail L. continued to refuse to sign the treatment plan because she
asserted that it failed to address future visitations with the child nor did
it provide for ultimately returning the child to his home.
At the hearing held on March 25, 1992, the court heard testimony from several
witnesses. Vickie House, a family services specialist with Telamon Corporation,
and Bobbie Harman, a case manager at Burlington Children's Placing Agency, testified
at the hearing that Gail L.'s parenting skills had improved, and that they did
not believe she would cause Jeffrey R.L. any harm. Ms. Harman, however, testified
that she believed they still needed to identify who caused Jeffrey R.L.'s injuries.
Ms. Mosier also testified at the March 25, 1992 hearing. Ms. Mosier stated that
she believed it was the position of DHHR that unsupervised visitation between
Jeffrey and his mother would not occur until the abuser was identified. Ms.
Mosier testified that the initial treatment plan had to be modified because
Gail L. and her husband, Jeffrey L., were getting a divorce and that it would
effect the course of treatment. Ms. Mosier testified that Jeffrey L. had admitted
that he has blackouts, and has attempted to hurt himself. Ms. Mosier stated
that he acknowledged he needed treatment. Ms. Mosier testified that she had
no "hard core evidence" that Jeffrey L. caused his son's injuries.
However, Ms. Mosier clarified in her testimony that the statement made by Gail
L.'s grandfather that Jeffrey L. confessed to Ms. Mosier that he had battered
his son was not true. Ms. Mosier also testified that she had not had any problems
in working with Jeffrey L. Ms. Mosier acknowledged that neither Gail L. nor
Jeffrey L. had yet completed all of the Telamon program nor had they completed
all of the required counseling.
Jerry Borror, assistant supervisor for the DHHR, testified at the March 25,
1992 hearing that if the DHHR does not know who the perpetrator of the abuse
is then they believe the child would be at risk to be placed back into the home.
Unless the DHHR is satisfied that the perpetrator is identified, Mr. Borror
testified that they would move to have the parental rights terminated. Mr. Borror
testified that despite what Ms. House and Ms. Harman stated, he believed Gail
L.'s parental rights should be terminated. Mr. Borror stated that he had no
evidence that either Gail L. or Jeffrey L. caused Jeffrey R.L.'s injuries.
At the conclusion of the hearing on March 25, 1992, the circuit court found
that neither of the case plans developed by the DHHR were adequate and required
the DHHR to present an amended treatment plan. The court further ordered that
after Gail L.'s next counseling session with Mr. Trainor, she would be allowed
an unsupervised weekend visitation with her son at her grandparents' house.
The court stated that if the first unsupervised visitation was favorable, then
another unsupervised weekend would be allowed at Gail L.'s home without her
grandparents.
In April of 1992, Jeffrey R.L. was hospitalized so that he could undergo surgery
for his hemangioma, and therefore the unsupervised weekend visitation could
not occur. The records from Jeffrey R.L.'s hospital stay indicate that he experienced
stress because of a conflict between Gail L. and his foster mother over his
feeding and care. In a letter dated April 7, 1992, the prosecuting attorney
advised the circuit court that a social worker from the hospital contacted Beverly
Hill, Jeffrey R.L.'s foster care worker, to inform her that Jeffrey does not
eat well for Gail L. and that he became dehydrated during his hospital stay.
The physicians at the hospital, therefore, directed the foster mother to be
present while Gail L. was visiting her son.
By letter dated April 13, 1992, Mr. Trainor advised the circuit court that,
based on the incidents that occurred during Jeffrey R.L.'s hospital stay, he
did not believe that the previously planned weekend visit with Gail L. and her
grandparents was appropriate at that time. Mr. Trainor explained that
[t]here have been interactions observed, between Gail and her grandparents, that suggest that Gail's care of the baby in their presence is a rather tension producing affair. The anxiety seems to be telegraphed to the baby, resulting in a decrease in his desire to take his formula. The weekend visitations . . . should not occur at the present time, pending stabilization in his condition.
Another hearing concerning
visitation was held on August 11, 1992. Trooper Goodnight, Gail L. and Beverly
Hill, Jeffrey R.L.'s foster care worker, testified. Trooper Goodnight testified
that he interviewed Harry Braithwaite, who made a statement regarding an incident
he observed between Gail L. and Jeffrey L. while they were with Jeffrey R.L.
in front of the "fire hall" in July of 1991. Mr. Braithwaite told
Trooper Goodnight that when Jeffrey L. told Gail L. that the baby's diaper needed
changing, Gail L. responded that she "ain't cleaning the damned kid."
Trooper Goodnight also testified that he interviewed Charles Lee Riggleman,
Jr., regarding his visit with Gail L. and Jeffrey L. at their trailer in August
of 1991. Mr. Riggleman told the trooper that he went with Jeffrey L. to get
the baby from Gail L.'s grandmother's house. When they went into the house to
get Jeffrey R.L., Mr. Riggleman told Trooper Goodnight that Gail L.'s grandmother
picked up Jeffrey R.L. by the right arm above the elbow and that Jeffrey "screamed"
when she did this. Mr. Riggleman also told Trooper Goodnight that he saw Gail
L. squeeze her son's chest in front of the fire hall when his diaper needed
to be changed again a few minutes after it had been changed before, and that
the baby cried as though he were in pain. Trooper Goodnight also testified that
when he interviewed Jeffrey L., he believed that he was telling the truth. He
further testified that when he interviewed Gail L., he had the impression that
"something just wasn't right."
Gail L. was questioned at the hearing about an argument she had with her grandfather.
Gail L. testified that she and her grandfather were arguing over the remote
control to the television and that he hit her in the nose. Gail L. went to the
Burlington Fire Department where the rescue team is located to have someone
look at her nose because she thought it was broken. Gail L. admitted that she
told the EMT, Karen Davy, that she could not call the police because her grandfather
told her if she called them, he would have her placed in jail.
Ms. Hill, the foster care worker, testified that in observing Gail L. with her
son, she seemed "a little nervous" and "uncomfortable" in
handing him but that it was understandable in light of the fact that several
people were watching her. She testified that both parents had been fulfilling
the requirements of the case plan. At the conclusion of the hearing, the circuit
court concluded that there was not sufficient evidence to terminate the parental
rights of Gail L. and Jeffrey L., and directed them to schedule an appointment
with Thomas Stein, Ed. D., for an evaluation. See footnote 13
In a progress summary dated August 11, 1992, Mr. Trainor reported that he had
made no progress with Gail L. in determining who abused Jeffrey R.L. Mr. Trainor
reported that, although Gail L. had made progress on her treatment plan and
was attempting to gain more independence from her grandparents, his work with
her
"has been made difficult
by the fact that no one has acknowledged involvement in [Jeffrey R.L.'s] abuse
and that that problem has never been directly analyzed and dealt with."
In a letter dated September 28, 1992, Vickie House of the Telamon Corporation
stated that although Gail L. and Jeffrey L. had adequately completed their parenting
classes, she could not recommend that Jeffrey R.L. be returned to the home until
the person who inflicted the abuse is identified.
By letter dated October 29, 1992, the Juvenile Justice Committee was contacted
by Dr. Itani, who requested assistance in protecting Jeffrey R.L., and advised
them of the proposed unrestricted visitation allowed by the circuit court's
order in January, 1992. Dr. Itani wrote that he felt "the child's welfare
has not been addressed adequately thus far." Dr. Itani believed that there
was strong mother-child bonding between Jeffrey R.L. and his foster mother,
and that he called her "mommy."
In response to a request by Gail L., a status hearing was held on December 9,
1992. The circuit court denied the motion of the guardian ad litem for
a stay of the proceedings until he could determine from the investigating officer,
Dr. Itani and the foster mother their respective positions in this case. The
circuit court then ordered that physical custody of Jeffrey R.L. be returned
to his mother. The guardian ad litem did not request a stay of execution
nor did he initiate an appeal with this Court. The matter has been appealed
to this Court by a newly appointed guardian ad litem, Jane Moran, on
behalf of Jeffrey R.L.
II
The first issue we shall
address is whether the circuit court erred in failing to terminate the parental
rights of Jeffrey R.L.'s parents, and whether the circuit court abused its discretion
by returning custody of Jeffrey R.L. to his mother without sufficient evidence
to support the ruling. The guardian ad litem asserts that the conditions
giving rise to the abusive behavior cannot be substantially corrected when the
perpetrator of the abuse has not been identified, and that the best interests
of the child preclude returning his custody to either parent. Gail L. contends
that: (1) there is insufficient evidence in the record to support termination
of her parental rights; (2) there is no evidence that she was the abuser; and
(3) she has fulfilled all of the requirements placed upon her by the circuit
court and the DHHR. The DHHR contends that Jeffrey R.L. should not have been
returned to his mother's custody until the perpetrator of the abuse had been
identified and a determination of Gail L.'s ability to provide a safe environment
for her son has been made.
In the Court's analysis of child abuse and neglect cases, we must take into
consideration the rights and interests of all of the parties in reaching an
ultimate resolution of the issues before us. 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. Thus, as an initial matter, we emphasize that the
health, safety, and welfare of Jeffrey R.L. must be our primary concern in analyzing
the facts and issues before us.
We shall begin our discussion by reviewing the rights of the natural parents
to the custody of their children. Relying on the Supreme Court of the United
States' decision in Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208,
31 L. Ed. 2d 551 (1972), we acknowledged the constitutional right of the natural
parents to the custody of their children in syllabus point 1 of In re Willis,
157 W. Va. 225, 207 S.E.2d 129 (1973):
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.
While this Court has repeatedly
recognized the constitutionally-protected right of the natural parent to the
custody of his or her minor children, we have also emphasized that such right
is not absolute. In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991);
In re Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991); Nancy Viola
R. v. Randolph W., 177 W. Va. 710, 356 S.E.2d 464 (1987); In re Darla
B., 175 W. Va. 137, 331 S.E.2d 868 (1985); In re Willis, supra.
We explained the limits of the natural parent's right to custody of his or her
minor children in In re Willis: "[T]his Court, early in the history
of this State, recognized that the right of the natural parent to the custody
of his child is not absolute; it is limited and qualified by the fitness
of the parent to honor the trust of the guardianship and custody of the child.
157 W. Va. at 237-38, 207 S.E.2d at 137 (emphasis added).
This Court has also identified the interests of the State where the issue of
guardianship and custody of minor children is raised. We have recognized that
the State, in its role of parens patriae, "is the ultimate protector
of the rights of minors[,]" and "has a substantial interest in providing
for their health, safety, and welfare, and may properly step in and do so when
necessary." In re Betty J.W., 179 W. Va. 605, 608, 371 S.E.2d 326,
329 (1988). While the State's parens patriae interests may favor preservation
of the natural family bonds rather than severance of those bonds, "[t]he
countervailing State interest in curtailing child abuse is also great."
Id. We have, therefore, observed that "[i]n cases of suspected abuse
or neglect, the State has a clear interest in protecting the child and may,
if necessary, separate abusive or neglectful parents from their children."
Id. Thus, a parent's right to custody of his or her children may be called
into question by the State when there is evidence establishing that those children
have been subject to abuse and neglect.
W. Va. Code, 49-1-3(a)(1) [1992] defines an "[a]bused child"
as "a child whose health or welfare is harmed or threatened by: (1) A parent,
guardian or custodian who knowingly or intentionally inflicts, attempts to inflict,
or knowingly allows another person to inflict, physical injury, or mental or
emotional injury, upon the child or another child in the home[.]" This
Court has recognized, in syllabus point 3 of In re Betty J.W., supra,
that a parent who "takes no action in the face of knowledge of the abuse"
to the child can have his or her parental rights terminated:
W. Va. Code, 49-1-3(a) (1984), in part, defines an abused child to include one whose parent knowingly allows another person to commit the abuse. Under this standard, termination of parental rights is usually upheld only where the parent takes no action in the face of knowledge of the abuse or actually aids or protects the abusing parent.
A parent's rights to custody of his or her child may also be terminated where there is no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected:
'Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, W. Va. Code, 49-6-5 [1977] may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under W. Va. Code, 49-6-5(b) [1977] that conditions of neglect or abuse can be substantially corrected.' Syllabus Point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).
Syllabus point 4, In re Jonathan P., 182 W. Va. 302, 387 S.E.2d 537 (1989). Such termination of parental rights is even more appropriate in cases where the welfare of a child less than three years of age is seriously threatened and there is no reasonably likelihood that the conditions of abuse can be substantially corrected, as we recognized in syllabus point 1 of In re Darla B., 175 W. Va. 137, 331 S.E.2d 868 (1985):
'As a general rule the least restrictive alternative regarding parental rights to custody of a child under W. Va. Code, 49-6-5 [1977] will be employed; however, courts are not required to exhaust every speculative possibility of parental improvement before terminating parental rights 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.' Syl. pt. 1, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980).
Finally, the evidence upon
which parental rights may be terminated must be clear and convincing. W.
Va. Code, 49-6-2(c) [1992]; Nancy Viola R. v. Randolph W., 177 W.
Va. at 715-16, 356 S.E.2d at 469-70 (citing cases).
Relying upon the well-established principles stated above, we shall now review
the facts before us in the present case. To begin with, during the first three
months of his life, Jeffrey R.L. was in the care of his mother, father and maternal
grandparents. At the helpless age of approximately three months, Jeffrey R.L.
was brought to the hospital when his maternal grandparents showed Gail L. that
he was not moving his right arm in the same manner he was moving his left.
See footnote 14 X-rays revealed that Jeffrey R.L.
suffered fifteen fractures to his skull, clavicle, ribs, arms and legs. See footnote 15 It is undisputed
that Jeffrey R.L. suffered these extensive injuries as a result of physical
abuse, and the physicians diagnosed him as suffering from battered child syndrome.
Yet, his mother, Gail L., gave several possible explanations for the injuries
to Jeffrey R.L. She stated that he could have suffered these injuries while
he was rolling around in his crib. However, the crib was found by the social
worker to be well-padded. Gail L. also stated that his injuries could be the
result of a genetic bone disease from which her grandfather suffered.
See footnote 16 Yet, after several tests were performed
at West Virginia University Hospital, there was no indication that Jeffrey R.L.
suffered from any bone disease. Furthermore, Gail L. offered the explanation
that Jeffrey R.L. suffered his injuries during birth, despite the fact that
the evidence in the record reveals Gail L. experienced a normal vaginal delivery.
None of the evidence in the record supports any of Gail L.'s explanations of
Jeffrey R.L.'s injuries. See footnote 17
Although Gail L. admitted to the circuit court at the hearing held on November
20, 1991, that some trauma had occurred to Jeffrey R.L., absent from the record
is any evidence which would indicate that Gail L. made any attempts to identify
her child's abuser. In fact, as previously noted in this opinion, Mr. Trainor,
in his psychological report dated October 3, 1991, found that Gail L. showed
"no emotionality about the loss of her child or apparent concern over [his]
injuries except for some resentment over the way they had been treated by the
physicians and by the Department of Human Services." He also observed that
Gail had an "apparent lack of serious motivation to uncover" Jeffrey
R.L.'s abuser. Although her grandfather had alleged that Jeffrey R.L.'s father
had confessed to him and to a social worker that he had abused Jeffrey R.L.,
that allegation appears to be without foundation. See footnote 18
Even in the face of knowledge of her son's abuse, there is no indication in
the record that Gail L. made any attempts to identify her son's abuser. At the
time Jeffrey R.L. suffered these extreme injuries, he was under his mother's
care and the care of those individuals with whom she entrusted him. Gail L.
is aware of those individuals who cared for her child during the first three
months of his life when he was subject to physical abuse; yet, she has never
attempted to identify his abuser. Nearly two and one-half years have passed
since Jeffrey R.L. suffered his injuries. By failing to even attempt to identify
his abuser during this two and one-half-year period, Gail L. has not shown that
she is fully committed to the welfare of her child. See footnote 19
Establishing the identity of the person or persons who inflicted these injuries
on Jeffrey R.L. is crucial to his health, safety and welfare. Ms. Mosier, Mr.
Trainor, Ms. Harman, Mr. Borror and Ms. House have all stated that Jeffrey R.L.
should not be returned to either parent until the perpetrator of his abuse has
been identified. Yet, despite the fact that the perpetrator has not been identified,
the circuit court returned custody of Jeffrey R.L. to his mother. We find that
the circuit court clearly erred in returning Jeffrey R.L. to his mother before
the perpetrator who inflicted such extensive physical abuse on this helpless
infant has been identified.
There is no reasonable likelihood that the conditions of abuse can be substantially
corrected because the perpetrator of Jeffrey R.L.'s physical abuse has not been
identified. Jeffrey R.L., due to his young age and physical condition, needs
consistent close interaction with fully committed adults. Jeffrey R.L.'s health,
safety and welfare would be seriously threatened if he were to be placed back
into the environment where he suffered extensive physical injuries when his
abuser has not been identified. Therefore, because it appears that Jeffrey R.L.'s
abuser will never be identified, this Court will not place him back into the
environment where he suffered his abuse.
We find that: (1) continuation in Jeffrey R.L.'s home is not in his best interests
because his abuser has not been identified; (2) reunification between Jeffrey
R.L. and his parents is not in his best interests because his parents have not
identified his abuser; and (3) the state department made reasonable efforts
to reunify the family, drafted a treatment plan Gail L. refused to sign, arranged
for Gail L. and Jeffrey L. to complete a parental training program, and monitored
the case. See W. Va. Code, 49-6-5 [1992]. Rather than prolong
these proceedings, we believe there is clear and convincing evidence before
us to warrant terminating parental rights. Thus, this Court believes that in
order to safeguard Jeffrey R.L.'s well being, Gail L.'s parental rights to Jeffrey
R.L. should be terminated.
In summary, we hold that parental rights may be terminated where there is clear
and convincing evidence that the infant child has suffered extensive physical
abuse while in the custody of his or her parents, and there is no reasonable
likelihood that the conditions of abuse can be substantially corrected because
the perpetrator of the abuse has not been identified and the parents, even in
the face of knowledge of the abuse, have taken no action to identify the abuser.
Accordingly, the parental rights of Gail L. and Jeffrey L. to their son, Jeffrey
R.L., are hereby terminated. See footnote 20 The guardian ad litem shall continue
to represent Jeffrey R.L. until he is adopted or placed into a permanent home.
If the guardian ad litem is unable to continue representing Jeffrey R.L.,
another guardian ad litem will be appointed.
III
By the very nature of the
painful issues involved, abuse and neglect cases are troublesome to this Court.
Despite our efforts to give the highest priority to child abuse and neglect
cases, we have yet to find viable solutions to all of the problems which arise
in these cases. As a result, we continue to explore stronger approaches to facilitate
the fair and expeditious handling of child abuse and neglect cases.
The Juvenile Justice Committee has brought to this Court's attention the problems
which commonly arise with the representation of children by guardians ad
litem in abuse and neglect proceedings. Quite often children do not get
adequate representation because the guardians ad litem have not been
given proper direction as to their role in representing the child in abuse and
neglect proceedings. Thus, to further our goal of protecting the interests of
children who suffer from abuse and neglect, the Juvenile Justice Committee has
proposed that this Court adopt guidelines for guardians ad litem to follow
in order to provide children in abuse and neglect proceedings with adequate
representation.
In suggesting the guidelines, the Juvenile Justice Committee represents that
it has relied upon our state Code, Rules of Professional Conduct,
Rules of Civil Procedure for Trial Courts of Record and case law. The
Juvenile Justice Committee has also consulted other sources such as: (1) the
Department Advisory Committee of the Fourth Department Law Guardian Program
in New York, Guidelines for Law Guardians/Abuse and Neglect Proceedings;
(2) the National Association of Counsel for Children, Guidelines for Guardians
Ad Litem in Abuse and Neglect Cases; and (3) the New York State Bar Association's
study, Jane Knitzer & Merrill Sobie, Law Guardians in New York State:
A Study of the Legal Representation of Children (1984).
As a brief background, we believe that two studies which were performed, one
in North Carolina See footnote 21
and the other in New York, See footnote
22 to evaluate programs that provide children with attorneys in protection
proceedings, illustrate why there is concern about the performance of guardians
ad litem in child abuse and neglect cases. Robert F. Kelly & Sarah
H. Ramsey, Monitoring Attorney Performance and Evaluating Program Outcomes:
A Case Study of Attorneys For Abused and Neglected Children, 40 Rutgers
L. Rev. 1217, 1231 (1988). First, the North Carolina study found, among other
things, that experienced attorneys who knew how to represent their child clients
and worked hard, spoke with their clients, and involved themselves in the negotiating
and fact-finding, had a beneficial influence in the outcome of the case. However,
the North Carolina study found that these experienced, hard-working attorneys
were in the minority. See footnote
23 Kelly & Ramsey, 40 Rutgers L. Rev. at 1239. Among the findings of
the New York study were that law guardians are uncertain about what is expected
of them and that they "feel that they need assistance in their work, in
particular, regular briefings on case law and legislation, and access to independent
social work and mental health professionals." Kelly & Ramsey, supra
at 1246. The results of both studies lead to the conclusion that there should
be "greater accountability in the performance of individual attorneys,
. . . systematic and continuing evaluations of program outcomes, and . . . enhanced
efforts geared toward implementing and testing new approaches to representing
children in protection proceedings." Kelly & Ramsey, supra at
1250 (footnote omitted).
More recently, the Colorado Bar Association Family Law Section and Juvenile
Law Forum established a Joint Guardian Ad Litem Standards Committee for the
purpose of developing proposed standards for guardians ad litem because
of increasing dissatisfaction with the inadequate representation of children
and the lack of direction given to the guardians ad litem.
See footnote 24 Marie Walton & Donna Schmalberger,
Standards of Practice for Guardians ad Litem, 12 ABA Juv. & Ch. Wel'f
L. Rptr. pp. 13-16 (March 1993). The goals and requirements of the standards
adopted by Colorado's Joint Guardian Ad Litem Committee substantially reflect
those of the guidelines proposed in other jurisdictions. Those goals and requirements
are succinctly stated under the "Guardian ad Litem Mission Statement"
included at the beginning of the standards, where the Committee summarized the
role of the guardian ad litem and outlined the categories under which
the standards are set forth: See footnote 25
The guardian ad litem [GAL] plays an important role in legal outcomes affecting
children . . . . The GAL should take an active role in presenting evidence regarding
the child's well-being. Therefore, it is appropriate to describe generally the
rights and responsibilities of the attorney who assumes this office. The GAL
does not necessarily represent a child's desires but should formulate an independent
position regarding relevant issues. To safeguard a child's well being, a GAL
must render recommendations.
1. Attorney of Record: The GAL assumes a pivotal professional role in litigation. As an attorney of record in the case, the GAL is entitled to be treated professionally with respect and courtesy.
2. Litigation: The GAL shall have the right to and should actively participate and be included in all aspects of litigation including, but not limited to, discovery, motions practice, settlement negotiations, court appearances, jury selection, presentation of evidence and appeals.
3. Education: GAL practice is unique and complex and, as such, requires special education, training and experience with regard to the needs of children.
4. Investigation: The GAL shall conduct a thorough and independent investigation. The GAL shall meet with the child. Relevant evidence should be developed and presented to the court. The GAL may conduct interview[s] with other relevant persons and review exhibits as the GAL deems appropriate. Other parties should fully cooperate with the GAL as the investigation is conducted.
5. Recommendations: The GAL should render informed and independent recommendations which serve the child's best interests. The child's wishes should be considered by the GAL, but need not be adopted by the GAL unless doing so serves the child's best interests.
6. Compensation: The GAL shall be entitled to reasonable compensation for services rendered. The court, in recognition of the important role of the GAL, shall encourage timely payment of the fees and costs to the GAL.
All of the guidelines we
have reviewed attempt to provide guardians ad litem with comprehensive
standards, like those in Colorado, so that there is little question as to the
attorney's responsibilities in representing children. To begin with, the guidelines
issued by the Departmental Advisory Committee of the Fourth Department Law Guardian
Program set forth the role of the guardian, and set forth the guardian's responsibilities
prior to the guardian's initial appearance, prior to and during the fact-finding
hearing, at the predispositional and dispositional hearing, and after disposition.
Next, the guidelines suggested by the National Association of Counsel for Children
provide standards for an independent investigation by the guardian ad litem,
preparation for hearings, and "helpful hints" to assist guardians
ad litem. The standards developed as part of the New York study, Knitzer
& Sobie, supra, set forth guidelines to be followed by the guardian
ad litem prior to and during the fact-finding hearing, prior to and during
the dispositional hearing, and after disposition.
While the standards recommended in the case before us by the Juvenile Justice
Committee conform with the standards discussed above, it is also important to
ascertain whether these rules are in accord with applicable rules of practice
and case law in West Virginia. In West Virginia, the role of guardian ad
litem is generally stated in Rule XIII of the West Virginia Trial Court
Rules for Trial Courts of Record, which provides, in pertinent part:
In any proceeding in which a guardian ad litem is appointed, such guardian ad litem shall be selected independently of any nomination by the parties or counsel.
Any guardian ad litem shall make a full and independent investigation of the facts involved in the proceeding; and either by his testimony made of record, or by full and complete answer therein, make known to the court his [or her] recommendations, concerning the action sought in the proceedings unless otherwise ordered or instructed by the court.
Although this Court has not previously adopted guidelines for guardians ad litem, we have addressed a child's right to independent counsel in child abuse and neglect cases in State v. Scritchfield, 167 W. Va. 683, 280 S.E.2d 315 (1981),See footnote 26 and the role of guardians ad litem in child abuse and neglect cases in In re Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991). We recognized in In re Scottie D., that the guardian ad litem is responsible for securing the infant's rights, and that "[s]ecuring the infant's rights includes taking an assertive role and, if in the judgment of the guardian ad litem, a case so warrants, prosecuting an appeal." 185 W. Va. at 198, 406 S.E.2d at 221. We summarized the guardian ad litem's role in child abuse and neglect cases in syllabus point 3 of In re Scottie D.:
In a proceeding to terminate parental rights pursuant to W. Va. Code, 49-6-1 to 49-6-10, as amended, a guardian ad litem, appointed pursuant to W. Va. Code, 49-6-2(a), as amended, must exercise reasonable diligence in carrying out the responsibility of protecting the rights of the children. This duty includes exercising the appellate rights of the children, if, in the reasonable judgment of the guardian ad litem, an appeal is necessary.
We further elaborated in syllabus point 5 of James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991), that
"[t]he guardian ad litem's role in abuse and neglect proceedings does not actually cease until such time as the child is placed in a permanent home."
Finally, the proposed guidelines
encompass some of the basic principles found under our Rules of Professional
Conduct. Specifically, Rule 1.1 requires an attorney to "provide competent
representation to a client" which "requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the representation."
Furthermore, Rule 1.3 requires a lawyer to "act with reasonable diligence
and promptness in representing a client." We believe the guidelines proposed
for guardians ad litem essentially reflect these basic rules of practice
by which each attorney is bound.
In summary, each child in an abuse and neglect case is entitled to effective
representation of counsel. To further that goal, W. Va. Code, 49-6-2(a)
[1992] mandates that a child has a right to be represented by counsel in every
stage of abuse and neglect proceedings. Furthermore, Rule XIII of the provides that a guardian ad
litem shall make a full and independent investigation of the facts involved
in the proceeding, and shall make his or her recommendations known to the court.
Rules 1.1 and 1.3 of the West Virginia Rules of Professional Conduct0;/u>,
respectively, require an attorney to provide competent representation to a client,
and to act with reasonable diligence and promptness in representing a client.
The Guidelines for Guardians Ad Litem in Abuse and Neglect cases, which
are adopted in this opinion and attached as Appendix A, are in harmony with
the applicable provisions of the West Virginia Code, the West Virginia
Rules for Trial Courts of Record, and the West Virginia Rules of Professional
Conduct, and provide attorneys who serve as guardians ad litem with
direction as to their duties in representing the best interests of the children
for whom they are appointed. Therefore, this Court adopts these guidelines,
effective within sixty days of the date of this opinion, to further ensure the
adequate representation of children in abuse and neglect cases by court-appointed
guardians ad litem. See footnote 27 By adopting the proposed guidelines in
this case, we are providing guardians ad litem with fairly comprehensive
standards which they can follow so that they may conduct an independent investigation
of the case and present the child's position to the court. The guardians ad
litem may use their discretion in acting under the guidelines because the
applicability of each of the guidelines is dependent upon the facts of each
case.
In addition to the guidelines adopted herein, we believe attorneys who act as
guardians ad litem should participate in special continuing legal education
relating to the representation. The attorneys in this State are required under
Chapter VII, section 5.2 of the Constitution, By-Laws and Rules and Regulations
of the West Virginia State Bar to satisfy the following requirements:
¶ 5.2. After the above two year phase-in period, each active member of the state bar shall complete a minimum of twenty-four hours of continuing legal education, as approved by these rules or accredited by the Commission, every two fiscal years. At least three of such twenty-four hours shall be taken in courses on legal ethics or office management. On or before July 31, 1990, and every other July 31 thereafter, each attorney must file a report of completion of such activities. The commission recommends that such report be completed on Form C --- Certification of Completion of Approved MCLE Activity.
Furthermore, W. Va. Code, 49-6-2(a) [1992] provides that attorneys who represent children in abuse and neglect proceedings should complete a minimum of three hours of continuing legal education on representation of children in child abuse and neglect cases per year. Those three hours are merely included in the 24 hours of continuing legal education already required by the West Virginia State Bar. W. Va. Code, 49-6-2(a) [1992] further provides that "where no attorney who has completed this training is available for such appointment, the court shall appoint a competent attorney with demonstrated knowledge of child welfare law to represent the child."
We believe that, because the practice of guardians ad litem is rather unique, and at times complex, guardians ad litem need specialized education and training to fulfill their responsibilities. While this Court, rather than the legislature, controls the practice of law in this State, See footnote 28 we find that the three hour per year requirement of specialized continuing legal education under W. Va. Code, 49-6-2 [1992] is in accord with what this Court intends to be the practice for guardians ad litem. Therefore, we find that a minimum of three hours of continuing legal education per year, relating to representation of children, for guardians ad litem to complete is necessary to ensure the effective representation of children.
IV
Thus, for the reasons stated herein, we reverse the order of the Circuit Court of Mineral County returning custody of Jeffrey R.L. to his mother, Gail L., and terminate the parental rights of Gail L. and Jeffrey L. Furthermore, we adopt the Guidelines for Guardians Ad Litem in Abuse and Neglect Cases, set forth in Appendix A, within sixty days of the date of this opinion.
Reversed.
APPENDIX A
GUIDELINES FOR GUARDIANS AD LITEM IN ABUSE AND NEGLECT CASES
Initial Stages of Representation
1. Notify promptly the child and any caretaker of the child of the appointment
of counsel and the means by which counsel can be contacted.
2. Contact the caseworker and review the caseworker's file and all relevant
information.
3. Contact and interview persons such as older children, caseworkers, and caretakers
who may have information with respect to the child and obtain names and addresses
of hospital personnel, physicians, teachers, law enforcement, and other persons
who may have pertinent information regarding the child and interview them.
4. Absent extraordinary circumstances and the child is three or under:
a. If the child is in the care of someone other than the respondent(s), conduct
interviews with the child's caretakers concerning the type of services the child
is now receiving and the type of services the child needs and visit the child
in the caretaker's home, making observations of the child or
b. If the child is in the care of the respondent(s), request from the respondent(s)'
attorney interviews with the respondent(s) concerning the child's care and the
type of services the child needs and visit the child in his/her home, making
observations of the child. If refused, ask for assistance of the court.
5. Absent extraordinary
circumstances and the client is over three:
a. If the child is in the care of someone other than respondent(s), conduct
interviews with the child's caretakers concerning the type of services the child
is now receiving and the type of services the child needs.
b. If the child is in the care of someone other than the respondent(s), conduct
interviews with the child in a manner and environment appropriate to the child's
age and maturity to obtain facts concerning the alleged abuse or neglect and
to determine the child's wishes and needs regarding temporary visitation and/or
placement.
c. If the child is in the care of the respondent(s), request from the respondent(s)'
attorney interviews with the child out of the presence of the respondent(s)
in a manner and environment appropriate to the child's age and maturity. It
is essential that the guardian ad litem understand that the interview
is for the purpose of gathering information not influencing information. If
refused, ask the assistance of the court.
6. Provide to the child, his or her parents, and any caretaker notice of the
petition and all subsequent motions.
7. Maintain contact with the child throughout the case and assure that s/he
is receiving counseling, tutoring, or any other services needed to provide as
much stability and continuity as possible under the circumstances.
Preparation for and Representation at
Adjudicatory and Dispositional Hearing
8. Pursue the discovery
of evidence, formal and informal.
9. File timely and appropriate written motions such as motions for status conference,
prompt hearing, evidentiary purpose, psychological examination, home study,
and development and neurological study.
10. Evaluate any available improvement periods and actively assist in the formulation
of an improvement period, where appropriate, and service plans.
11. Monitor the status of the child and progress of the parent(s) in satisfying
the conditions of the improvement period by requiring monthly updates or status
reports from agencies involved with the family.
12. Participate in any discussions regarding the proposed testimony of the child
and, if it is determined that the child's testimony is necessary, strongly advocate
for the testimony to be taken in a legally acceptable and emotionally neutral
setting.
13. Maintain adequate records of documents filed in the case and of conversations
with the client and potential witnesses.
14. Ensure that the child is not exposed to excessive interviews with the potential
dangers inherent therein. Before multiple physical or psychological examinations
are conducted, the requesting party must present to the judge evidence of a
compelling need or reason considering: (1) the nature of the examination requested
and the intrusiveness; (2) the victim's age; (3) the resulting physical and/or
emotional effects of the examination on the victim; (4) the probative value
of the examination to the issue before the court; (5) the remoteness in time
of the examination; and (6) the evidence already available for the defendant's
use.
15. Ensure that a child who is court ordered to be interviewed by a psychologist
or psychiatrist is interviewed in the presence of the guardian ad litem
attorney unless the court, after consulting the child's guardian ad litem,
believes that the interview is best conducted without the guardian ad litem.
16. Subpoena witnesses for hearings or otherwise prepare testimony or cross-examination
of witnesses and ensure that relevant material is introduced.
17. Review any predispositional report prepared for the court prior to the dispositional
hearing and be prepared to submit another if the report is not consistent with
all other appropriate evidence.
18. Apprise the court of the child's wishes.
19. Explain to the child, in terms the child can understand, the disposition.
20. Advocate a gradual transition period, in a manner intended to foster emotional
adjustment whenever a child is to be removed from the custody of anyone with
whom s/he has formed an important attachment.
21. Ensure that the court
considers whether continued association with siblings in other placements is
in the child's best interests and an appropriate order is entitled to preserve
the rights of siblings to continued contact.
22. Ensure that the dispositional order contains provisions that direct the
child protective agency to provide periodic reviews and reports.
Post-Dispositional Representation
23. Inform the child of his/her right to appeal.
24. Exercise the appellate rights of the child, if under the reasonable judgment
of the guardian ad litem, an appeal is necessary.
25. File a motion for modification of the dispositional order if a change of
circumstances occurs for the child which warrants a modification or represent
the child if said motion for modification is filed by any other party.
26. Continue to represent the child until such time as the child is adopted,
placed in a permanent home, or the case is dismissed after an improvement period.
Footnote: 1 We follow our traditional practice in cases involving sensitive facts and use initials to identify the parties rather than their full names. See In re Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991).
Footnote: 2 The x-ray report dated May 24, 1991, found a "[n]ormal newborn chest." The x-ray report dated July 26, 1991, stated that "[t]he organs, soft tissues, and bones appear normal as visualized. There is no evidence of fecal retention or bowel dilatation."
Footnote: 3 Jeffrey L. has represented to this Court that "he desires to remain mute" on the issue of whether the circuit court erred in returning Jeffrey R.L. to his mother, and requests that this Court decide this issue based upon the best interests of the child and the evidence presented to the circuit court.
Footnote: 4 The ophthalmologist was consulted because a symptom of osteogenesis imperfecta, a congenital bone disease causing the bones to fracture easily, is a thin cornea. Jeffrey R.L.'s cornea, however, showed normal thickness.
Footnote: 5 Dr. Corder testified that he placed a "ninety-six hour hold" on Jeffrey R.L. until the courts could decide where to place the child because he felt that "it would not be appropriate to send him . . . back into the environment where he had sustained the injuries."
Footnote: 6 Dr. Corder further testified that he went over Jeffrey R.L.'s x-rays with the radiologist, and that they were able to determine that the fractures were at different stages of healing. While there was a question raised as to when the various fractures were inflicted, the record shows that x-rays taken of Jeffrey R.L. on May 24, 1991, and July 26, 1991, revealed no fractures. Thus, it appears that these fractures were sustained between July 26, 1991, and the date Jeffrey R.L. was examined by Dr. Itani on August 30, 1991.
Footnote: 7 Dr. Corder gave the following response when asked whether there were any other indications that Jeffrey's development was not normal up until this point:
A. Several people had noted something that concerned me from a developmental aspect. When a child, well when you examine a child of three months of age, they like to look at a face. In fact if I were examining a child, if this microphone was a child and a three month old I wouldn't hold up a toy. They wouldn't regard that at all. What they like is to look at a face. And the way you look at the extraocular movements would be to actually get down and have a child close to your face. They just love to look at faces. When I walked into the room the first time he didn't regard me at all, no regard at all, and at first I thought the child was blind so I checked him for light reflexes. It was like literally walking up to someone who is staring a hole through you and that concerned me. Several other people had also found that too. Over the next couple of days and, you know, I noticed when the nurses were feeding him and so forth he started regarding faces, following them and so forth. You know, he had much more normal appearance in interaction.
Footnote: 8 In reports submitted by Gregory Trainor, M.A., another explanation given by his parents for Jeffrey R.L.'s injuries was that he had rolled off his father's chest while he was sleeping with him and that his father may have rolled over onto him.
Footnote: 9 Mr. Trainor also reported that Jeffrey L. told him he usually takes his anger out on himself and that Jeffrey L. described an incident where Gail L. was physically abusive to him:
[Jeffrey L.] reported that he tends to take his anger out on himself, particularly hitting his head on things. He reported the last time he did this was three months ago after an argument with his wife where he struck his head against the wall with enough force to put a hole in it. He reported an incident again with his wife where she had kicked him in the groin and scratched him and he responded by holding her by the wrists so as to obtain her attention to try to talk this disagreement out. She had complained that he was hurting her when doing this. He acknowledged that his 'wife has a temper on her.'
Footnote: 10 Mr. Trainor also observed that Gail L. showed "no emotionality about the loss of her child or apparent concern over [his] injuries except for some resentment over the way they felt they had been treated by the physicians and by the Department of Human Services."
Footnote: 11 Gail L. also related to Mr. Trainor some "physical struggles" she had with her husband. Mr. Trainor reported that:
[Jeffrey L.] will grab her by the wrists rather forcefully and keep her from going off to herself. She reported his grabbing her hard enough to leave bruises. She also said he will sit on her to restrain her. These actions were reported to keep her from walking away. She reports that these interactions occur as a result of her being upset with him. She felt that his feelings get hurt rather easily. She reported that he has never struck her but does engage in some self injurious behavior himself.
Gail L. also gave similar testimony regarding these incidents with her husband at the hearing held on March 25, 1992.
Footnote: 12 Jeffrey L. has denied that he abused his son. Furthermore, in a letter dated October 28, 1992, R. L. Catlett, a polygraph examiner, stated that after testing the grandfather concerning Jeffrey L.'s alleged confession, Mr. Catlett believed the grandfather's allegations were not true. Mr. Catlett also stated that, after testing Gail L. and Jeffrey L., he did not believe that either one of them had caused the child's injuries. We further note, however, that polygraph test results are not admissible in evidence in a criminal trial in this State. Syl. pt. 2, State v. Frazier, 162 W. Va. 602, 252 S.E.2d 39 (1979).
Footnote: 13 Thomas E. Stein, Ed.D., performed a psychological examination of Jeffrey R.L.'s parents and maternal grandparents. He found that Gail L's grandparents had "good knowledge" about appropriate child behavior management strategies. Although he diagnosed Gail L. as suffering from "[r]eactive depression" and "[r]elationship problems," he stated that her prognosis was good. With respect to Jeffrey L., Dr. Stein found that he too suffered from "[r]elationship problems" and found that his prognosis was "[f]air with appropriate intervention."
Footnote: 14 There is nothing in the record which indicates that Gail L. was aware of Jeffrey R.L.'s injuries before her grandparents showed her that he was not moving his right arm. The Court questions how a mother could be oblivious to her son's extreme injuries.
Footnote: 15 As we stated above, Dr. Corder testified that great force would be necessary to fracture Jeffrey R.L.'s ribs, and that the other fractures he sustained were consistent with a "twisting, torsion, shaking of limbs[.]"
Footnote: 16 Dr. Corder testified that the grandfather's medical records made no mention that he suffered from osteogenesis imperfecta.
Footnote: 17 As we have previously noted, polygraph test results are inadmissible in a criminal trial. Curiously, however, Gail L. attached as an exhibit to her brief the report of the polygraph examiner, Mr. Catlett, dated March 4, 1993. In that report, Mr. Catlett stated that "[d]uring the interview, [Gail L.], mother of the infant stated 'she felt the baby was injured at the hospital.'" Gail L.'s statement to the polygraph examiner in March of 1993 suggests that Gail L. continues to offer explanations for Jeffrey R.L.'s fifteen fractures that are inconsistent with the documented medical evidence.
Footnote: 18 As previously noted, n. 12 supra, the reader of the polygraph concluded that the grandfather's statement regarding the alleged confession was not true, and Ms. Mosier testified that Jeffrey L. never stated that he physically abused Jeffrey R.L. Even more troubling to this Court is the fact that Gail L. testified at the March 25, 1992, hearing that she heard Jeffrey L. confess to her grandfather that he abused Jeffrey R.L.; yet, the report of the polygraph examiner, Mr. Catlett, dated March 4, 1993, attached as an exhibit to Gail L.'s brief, states that Gail L. "stated she never actually heard her husband say he injured their infant son."
Footnote: 19 We note that Gail L., who completed her parenting classes, contends she was cooperative with the DHHR. However, she refused to sign the treatment plan.
Footnote: 20 The guardian ad litem before this Court asserts that Jeffrey R.L.'s interests were not adequately represented before the circuit court. She points out that the attorney representing the child did not call any witnesses, did not place any exhibits into evidence, and did not confer with the treating physician or with the foster parents until this petition was filed with this Court. She also asserts that at the hearing in December of 1992, the attorney represented to the circuit court that he had yet to decide whether the child should be placed back with his family. However, because we are terminating parental rights in this case and adopting standards for guardians ad litem to adhere to in the future, we need not further address this issue.
Footnote: 21 See Robert Kelly & Sarah Ramsey, Do Attorneys for Children in Protection Proceedings Make a Difference? -- A Study of the Impact of Representation Under Conditions of High Judicial Intervention, 21 J. Fam. L. 405 (1983).
Footnote: 22 See Jane Knitzer & Merrill Sobie, Law Guardians In New York State--A Study of the Legal Representation of Children (1984).
Footnote: 23 Several useful lessons were learned from the North Carolina study:
That attorneys had little effect overall is understandable if circumstances surrounding the guardian's role are considered. First, there was much confusion about the role of the guardian ad litem . . . . This confusion not only prevented the guardian ad litem from having a clear goal, but it was also a source of confusion to the judge who may have resented, criticized, or ignored a guardian ad litem who was taking on responsibilities that the judge felt were inappropriate . . . . The attorney survey showed that 53% felt that judges expected them to assume an adversarial role in representing their client's position, while 41% felt that judges did not have this expectation, at best an ambivalent situation ... . The condition of ambivalence with respect to the expectations of the attorney was not aided by the fact that guardians typically had received no specialized training relevant to abuse and neglect cases, either during law school or thereafter.
Another, and perhaps more critical, factor in limiting attorney effectiveness was that both guardians and judges seemed to assume that the guardian should play only a minor role. Court records from our sample indicated that attorneys spent a median of only five hours per case. Since this figure includes all court time, the time left for investigation, negotiation, or consultation is negligible. Not surprisingly, guardians indicated that they concurred with the department of social services recommendations in 88% of their cases. Additionally, attorneys usually did not follow their cases after the dispositional hearing to see if treatment plans were being carried out. Attorneys, it appears, were a presence rather than an influence in the court's handling of the cases.
Kelly & Ramsey, 21 J. Fam. L. at 451-52 (footnote omitted).
Footnote: 24 The Colorado Committee's standards are for representation of children generally, and are not limited to child abuse and neglect cases. Furthermore, in some states, such as Minnesota, the guidelines are established for lay people who represent children in a variety of proceedings. See Minnesota Judges Association, Guidelines for Guardians Ad Litem (June 1986). W. Va. Code, 49-6-2(a) [1992] provides children the right to be represented by an attorney, but makes no provision for children to be represented by lay persons.
Footnote: 25 In order to be concise, we are not listing each of the standards provided under the categories. The categories effectively summarize and reflect the purpose of the standards listed under them.
Footnote: 26 See W. Va. Code, 49-6-2(a) [1992].
Footnote: 27 The compensation and expenses for those attorneys who are appointed to represent children in abuse and neglect cases pursuant to W. Va. Code, 49-6-2(a) [1992] fall under the provisions of article 21, chapter 29 of the West Virginia Code. W. Va. Code, 29-21-2(2) [1990] provides, in relevant part, that "Eligible proceedings" include "child abuse and neglect proceedings which may result in a termination of parental rights[.]" An "Eligible client" is defined under W. Va. Code, 29-21-2(1) [1990] as "[a]ny person who meets the requirements established by this article to receive publicly funded legal representation in an eligible proceeding as defined herein[.]"
Thus, abuse and neglect proceedings where parental rights may be terminated are eligible proceedings under the provisions of article 21, chapter 29 of the Code. Moreover, a child in an abuse and neglect proceeding is an eligible client under W. Va. Code, 29-21-2(1) [1990]. Attorneys, therefore, who are appointed to represent children in abuse and neglect proceedings will submit claims for fees and expense reimbursements to the appointing court in accordance with the provisions of article 21, chapter 29 of the West Virginia Code. See W. Va. Code, 29-21-13a [1990].
Footnote: 28"The exclusive authority to define, regulate and control the practice of law in West Virginia is vested in the Supreme Court of Appeals." Syl. pt. 1, State ex rel. Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982).