In re I.H., O.H. and R.H. ( 2021 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
April 20, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re I.H., O.H., and R.H.
No. 20-0701 (Berkeley County 19-JA-58, 19-JA-59, and 19-JA-60)
MEMORANDUM DECISION
Petitioner Mother Y.G., by counsel Nancy A. Dalby, appeals the Circuit Court of Berkeley
County’s July 27, 2020, order terminating her parental rights to I.H., O.H., and R.H. 1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley,
filed a response in support of the circuit court’s order and a supplemental appendix. The guardian
ad litem, Mary Binns-Davis (“guardian”), filed a response on behalf of the children also in support
of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in adjudicating
her as an abusing parent and in terminating her parental rights. 2
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
2
Petitioner raises a third assignment of error regarding the circuit court’s decision to not
consider its in camera interview with R.H. in ruling in this case and to withhold the transcript of
that interview from petitioner. Petitioner argues that “it is important to know what was in R.H.’s
forensic interview and what was said . . . by R.H. which may contain exculpatory information.”
However, petitioner provides no basis for this conclusion. The circuit court stated at the
dispositional hearing and in its subsequent order that it did not take the interview into account in
reaching disposition. Additionally, in her brief on appeal, petitioner fails to cite to any legal
authority in support of this assignment of error. Rule 10(c)(7) of the West Virginia Rules of
Appellate Procedure requires that “[t]he brief must contain an argument exhibiting clearly the
points of fact and law presented . . . and citing the authorities relied on, under headings that
correspond with the assignments of error.” (Emphasis added). Additionally, in an Administrative
Order entered December 10, 2012, Re: Filings That Do Not Comply With the Rules of Appellate
Procedure, the Court specifically noted in paragraph two that “[b]riefs that lack citation of
authority [or] fail to structure an argument applying applicable law” are not in compliance with
this Court’s rules. Further, “[b]riefs with arguments that do not contain a citation to legal authority
(continued . . .)
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This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
In April of 2019, the DHHR filed a child abuse and neglect petition against petitioner, the
children’s father, and the children’s stepfather, J.H. The DHHR alleged that petitioner and the
children appeared at a local hospital with law enforcement because J.H. was at the home drunk
and possessed a firearm. The DHHR alleged that petitioner told law enforcement officers that she
wanted someone to take temporary custody of I.H., her fourteen-year-old daughter, so she could
return home to J.H. with her sons, R.H. and O.H. The DHHR alleged that I.H. disclosed to hospital
workers that J.H. was “trying to have sex with her and she [did not] want to.” The DHHR alleged
that petitioner either did not believe the child’s accusations or “d[id] believe but [did not] care.”
The DHHR further alleged that petitioner blamed I.H., did not want the child in her custody, and
was not protective of the child. According to the petition, a Child Protective Services (“CPS”)
worker spoke with a registered nurse at the hospital, who corroborated the child’s statements. The
CPS worker also spoke with a forensic interviewer who confirmed that petitioner cancelled I.H.’s
scheduled forensic interview. Later that month, the CPS worker spoke with I.H., who disclosed
that J.H. “came into her room and touched her privates” on top of her clothing. The child also
disclosed that J.H. showed her a video of petitioner and him engaging in sexual intercourse. I.H.
further disclosed that J.H. asked her if she “wanted to sleep with one of the other orchard workers.”
I.H. also disclosed that on one occasion J.H. told her to “kill her brothers” because they were being
loud and fighting with each other; the child also disclosed that she told petitioner about this
incident. Finally, I.H. reported that she had not spoken to either parent since she returned from the
hospital and that she was “scared to leave her room.”
According to the petition, the CPS worker also spoke to R.H., who claimed that I.H. was
lying and fabricating accusations against J.H. The child further disclosed that J.H. was “going to
kill [I.H.] because of how she is acting,” and did not want I.H. in the home. The CPS worker then
spoke with petitioner, who stated that she did not believe I.H. because “everyone is saying that
nothing is going on.” Petitioner further claimed that she believed the child “at first” but then stated
that I.H. dressed inappropriately, “with her breasts showing, sit[ting] with her legs open, and ben[t]
over so [J.H.] could see her breasts.”, The DHHR also alleged that the CPS worker spoke with
J.H., who denied all of I.H.’s allegations. After the petition was filed, petitioner waived her
preliminary hearing and the circuit court ratified the removal of the children from her custody.
to support the argument presented and do not ‘contain appropriate and specific citations to the
record on appeal . . .’ as required by rule 10(c)(7)” are not in compliance with this Court’s rules.
Here, petitioner’s brief regarding this assignment of error is inadequate as it fails to comply with
West Virginia Rule of Appellate Procedure 10(c)(7) and our December 10, 2012, administrative
order. Accordingly, the Court will not address this assignment of error on appeal.
2
In May of 2019, the CPS worker observed a forensic interview with I.H. The child
recounted details of J.H. and petitioner drinking alcohol together before J.H. came into her room
and touched her inappropriately. The CPS worker noted that I.H. said petitioner was asleep when
the abuse occurred and that J.H. asked her if she was a virgin, told her he wanted to murder the
child’s paternal grandmother, and that he had killed people before. The child stated that she was
afraid of J.H. and would lock herself in her bedroom when petitioner and J.H. consumed alcohol.
The circuit court held an adjudicatory hearing in October of 2019. At the hearing, petitioner
testified that, during a family argument in April of 2019, I.H. told her that petitioner touched her
genitals. Petitioner said the family argument began with a debate about whether J.H. told the child
to kill her brothers. Petitioner testified that she initially believed I.H. and began to hit J.H. before
R.H. called the police, and that she ultimately took I.H. to a local hospital. However, petitioner
testified that she no longer believed I.H.’s allegations against J.H., saying that the child would
refer to J.H. as “papa” and “daddy” and would hug him. Petitioner also testified that I.H. would
show J.H. her breasts. Specifically, petitioner testified that I.H. showed her breasts to J.H. when
they were playing marbles on one occasion. Petitioner testified that, when she left the game to
check on some food, I.H. allegedly lowered her blouse in front of J.H. Petitioner admitted that she
did not witness the alleged incident but that J.H. informed her of it. On cross-examination,
petitioner acknowledged that she never witnessed I.H. expose her breasts to anyone. Petitioner
also testified that she told J.H. to “be careful with [I.H.], she [is] going to get you in trouble.”
Petitioner further testified that she did not believe I.H.’s allegations because the child inquired
what would happen to the parents if sexual abuse occurred.
Next, a CPS caseworker testified to many of the allegations in the petition. The caseworker
testified that she began her investigation after receiving a referral of alleged sexual abuse when
I.H. was at the hospital. According to the CPS worker, petitioner informed her that I.H. would
spend the night in a hotel room after leaving the hospital, but that petitioner did not inform her that
I.H. would be left alone in the hotel room. The CPS worker then testified that she had arranged for
I.H. to participate in a forensic interview in Winchester, Virginia, where they had a facilitator who
could speak Spanish, I.H.’s first language. The CPS worker testified that petitioner cancelled the
interview on the scheduled date, claiming that I.H. did not want to participate. The CPS worker
further testified that during a subsequent interview with I.H., the child did not know about the
scheduled forensic interview and said that, if she had known about it, she would have wanted to
participate. After the forensic interview was cancelled, the CPS worker testified that she
interviewed the child at her school, using a Spanish teacher as an interpreter, and with law
enforcement present. The CPS worker testified that I.H. told her that J.H. came into her room and
touched her genitals over her clothing. The CPS worker further testified that the child said J.H.
showed her a video of him and petitioner engaging in sexual intercourse and asked her if she
wanted to have sex with another orchard worker. Finally, the CPS worker testified that she
witnessed I.H. make similar allegations in a subsequently scheduled forensic interview that she
witnessed.
After hearing the evidence, the circuit court found that I.H.’s disclosures were “remarkably
consistent and credible.” The circuit court further found that J.H.’s denial of the sexual abuse
allegations was not credible and there was no credible motive on the part of I.H. to fabricate her
disclosures. The circuit court also found that petitioner’s inability to demonstrate appropriate
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protective measures toward I.H. was troubling given the credible allegations. Specifically, the
circuit court found petitioner’s decision to leave I.H. alone in a hotel room overnight after their
hospital visit demonstrated neglect and a failure to properly supervise the child. The circuit court
also found it concerning that petitioner warned J.H. “to be careful” around the child but did not
address any of her perceived concerns about I.H.’s behaviors. Finally, the circuit court found that
petitioner’s testimony was not credible and that she neglected the children by failing to protect I.H.
from J.H. Accordingly, the circuit court found that J.H. sexually abused I.H., that petitioner failed
to protect I.H., and that petitioner’s alcohol abuse impacted her ability to care for the children. As
such, the circuit court adjudicated petitioner as an abusing and neglecting parent. The circuit court
also found that the DHHR was not required to make reasonable efforts to preserve the family unit
based upon its finding that J.H. had sexually abused I.H., which constituted aggravated
circumstances pursuant to West Virginia Code § 49-4-602(d)(2)(E).
In June of 2020, the circuit court held a dispositional hearing wherein the DHHR and the
guardian moved to terminate petitioner’s parental rights. The DHHR also moved to terminate the
biological father’s parental rights based on his lack of participation in the proceedings. The DHHR
argued that the father was living outside of the country and had no communication with the
children or the DHHR throughout the proceedings. Next, the DHHR put on evidence as to
petitioner’s failure to protect the children and the resulting mental and emotional harm.
Specifically, a CPS caseworker testified that there were no services that the DHHR could provide
to petitioner to remedy the conditions of abuse and neglect. The caseworker testified that petitioner
lacked a “maternal instinct to protect [her] offspring” and was not aware of any services that could
teach that to petitioner. The caseworker further testified that she had spoken with the children, and
they made it clear to her they did not want to live with petitioner. Petitioner did not testify at the
hearing, but petitioner’s counsel acknowledged that petitioner still had “difficulty accepting what
has occurred in this case.” After considering the evidence, the circuit court terminated petitioner’s
parental rights to I.H., O.H., and R.H. In support, the circuit court found that petitioner failed to
acknowledge the conditions of abuse and neglect of the children. Based on this evidence, the circuit
court concluded that there was no reasonable likelihood that the conditions of abuse and neglect
could be substantially corrected in the near future and that termination of petitioner’s parental
rights was necessary for the children’s welfare. Petitioner now appeals the July 27, 2020,
dispositional order. 3
The Court has previously established the following standard of review in cases such as this:
“Although conclusions of law reached by a circuit court are subject to de
novo review, when an action, such as an abuse and neglect case, is tried upon the
facts without a jury, the circuit court shall make a determination based upon the
evidence and shall make findings of fact and conclusions of law as to whether such
child is abused or neglected. These findings shall not be set aside by a reviewing
court unless clearly erroneous. A finding is clearly erroneous when, although there
3
The children’s father’s parental rights were also terminated below. J.H.’s custodial rights
to the children were also terminated. The permanency plan for O.H. and R.H. is adoption by their
foster family. I.H.’s permanency plan is adoption after she is discharged from a specialized facility.
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is evidence to support the finding, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed. However,
a reviewing court may not overturn a finding simply because it would have decided
the case differently, and it must affirm a finding if the circuit court’s account of the
evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
On appeal, petitioner argues that the circuit court erred in finding by clear and convincing
evidence that she abused and neglected the children. Petitioner argues that the circuit court made
several erroneous findings about her knowledge of J.H.’s sexual abuse of I.H. Furthermore,
petitioner contends that it was reasonable for her not to believe I.H.’s claims because of I.H.’s
behavior. Finally, petitioner claims that the circuit court failed to consider that petitioner protected
the children from their biological father and erred in finding that she abused alcohol. We disagree
and find that petitioner is entitled to no relief.
At the conclusion of the adjudicatory hearing, the court shall make a determination
based upon the evidence and shall make findings of fact and conclusions of law as
to whether such child is abused or neglected . . . . The findings must be based upon
conditions existing at the time of the filing of the petition and proven by clear and
convincing evidence.
In re F.S., 233 W. Va. 538, 544, 759 S.E.2d 769, 775 (2014). This Court has explained that “‘clear
and convincing’ is the measure or degree of proof that will produce in the mind of the factfinder a
firm belief or conviction as to the allegations sought to be established.” Id. at 546, 759 S.E.2d at
777 (citation omitted). However, “the clear and convincing standard is ‘intermediate, being more
than a mere preponderance, but not to the extent of such certainty as is required beyond a
reasonable doubt as in criminal cases.’” Id. (citation omitted). Further, West Virginia Code § 49-
1-201 defines “abused child” as
[a] child whose health or welfare is being harmed or threatened by . . . [a] parent .
. . 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.
(Emphasis added).
Here, the circuit court found that petitioner was aware that I.H. had been sexually abused
by J.H. based upon I.H.’s “remarkably consistent and credible” disclosures. On appeal, petitioner’s
arguments in support of this assignment of error are all predicated on her assertions that the circuit
court erroneously weighed the evidence in question. However, the rulings to which petitioner cites
all come down to the issue of credibility, and as this Court has long held, “[a] reviewing court
cannot assess witness credibility through a record. The trier of fact is uniquely situated to make
such determinations and this Court is not in a position to, and will not, second guess such
determinations.” Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997).
5
First, petitioner attacks I.H.’s credibility and points to I.H.’s behavior and J.H.’s testimony
that I.H. had made similar abuse allegations toward J.H.’s father and uncle. However, the record
shows that the circuit court reviewed this testimony as well as I.H.’s interviews and found the
child’s allegations to be credible. Furthermore, the CPS worker testified that I.H.’s interviews had
no “red flags” and were consistent. The CPS worker also expressed concerns that petitioner
cancelled the forensic interview, scheduled with a Spanish interpreter, and blamed the child. The
CPS worker went on to testify that I.H.’s responses during her interview at the school were
consistent with the allegations in the petition. Petitioner also attacks the circuit court’s finding that
she abused alcohol, acknowledging that she might “drink seven or eight beers on a Saturday,” but
denying that she passed out on the night that I.H. was sexually abused. Again, while petitioner
argues that there was “no other testimony,” beyond I.H.’s testimony, that she abused drugs or
alcohol, she ignores the fact that the circuit court resolved this credibility determination against
her. As for petitioner’s testimony that she did not believe any sexual abuse occurred in the home,
the circuit court found her testimony incredible given that, at times, petitioner indicated that she
did believe I.H. As outlined above, petitioner admitted that the child disclosed the abuse to her in
April of 2019, but testified she no longer believed I.H. after considering I.H.’s behavior. Petitioner
also testified that I.H. exposed her breasts to J.H. yet acknowledged that she never witnessed I.H.
expose her breasts to anyone. Petitioner also acknowledged that she warned J.H. to “be careful
with [I.H.], she [is] going to get you in trouble.” Therefore, even if we accept petitioner’s claim
that she did not believe I.H.’s sexual abuse allegations, petitioner effectively admitted that she was
concerned about I.H.’s behaviors but failed to address those perceived concerns with her.
Petitioner also cancelled the Virginia-based forensic interview scheduled for I.H., and then claimed
the child no longer wanted to participate as the reason for the cancellation. However, I.H. told the
CPS worker that she never knew about that interview and would have wanted to participate if she
had known about it. Finally, petitioner completely disregarded I.H.’s disclosures during her
interviews with the CPS worker and a forensic worker that gave detailed accounts of her sexual
abuse. Those revelations were identical to those I.H. disclosed to petitioner. In light of the above
evidence, the circuit court properly found that I.H. was sexually abused in the home and that
petitioner was aware of said abuse and ignored it. Accordingly, we find no error in the circuit
court’s adjudication of petitioner.
Finally, petitioner argues that the circuit court erred in terminating her parental rights for
her failure to acknowledge the basic allegations of the children’s abuse and neglect. According to
petitioner, when she expressed her doubts about the allegations of abuse and neglect, her parental
rights were terminated, and she was denied an improvement period because sexual abuse relieves
the DHHR from making reasonable efforts to preserve the family. She further contends that her
parental rights should not have been terminated because “there is no analysis of why termination
of [her] parental rights” was in the best interest of the children. We disagree.
This Court has previously held that:
[i]n order to remedy the abuse and/or neglect problem, the problem must 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
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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.
In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted). Throughout
the proceedings, petitioner continued to deny that J.H. sexually abused I.H. Even after I.H.
informed petitioner of J.H.’s sexual abuse over the course of the proceedings, petitioner continued
to disbelieve I.H. and instead believed J.H. Indeed, after the circuit court adjudicated petitioner as
an abusing parent, petitioner, at the dispositional hearing, continued to deny that I.H. was sexually
abused. In fact, petitioner’s counsel informed the circuit court that petitioner had “difficulty
accepting what has occurred in this case” and had difficulty believing that J.H. could have
perpetrated such abuse. Most importantly, petitioner refused to take any steps to protect I.H. even
when faced with the testimony stemming from I.H.’s disclosures. As such, petitioner wholly failed
to recognize any of the conditions of abuse and neglect at issue in these proceedings.
West Virginia Code § 49-4-604(c)(6) provides that circuit courts are to terminate parental
rights upon finding that there is “no reasonable likelihood that the conditions of neglect or abuse
can be substantially corrected in the near future” and that termination is necessary for the children’s
welfare. West Virginia Code § 49-4-604(d) sets forth that “no reasonable likelihood that the
conditions of neglect or abuse can be substantially corrected in the near future” means that the
abusing parent “ha[s] demonstrated an inadequate capacity to solve the problems of abuse or
neglect on their own or with help.” Here, petitioner’s failure to acknowledge the conditions of
abuse and neglect serves as a significant barrier to parental improvement. Accordingly, the circuit
court correctly determined that there was no reasonable likelihood that petitioner could correct
those conditions in the near future.
Finally, we have held as follows:
“Termination of parental rights, the most drastic remedy under the statutory
provision covering the disposition of neglected children, [West Virginia Code § 49-
4-604] . . . may be employed without the use of intervening less restrictive
alternatives when it is found that there is no reasonable likelihood under [West
Virginia Code § 49-4-604(d)] . . . 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).
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). As the circuit court’s finding is
fully supported by the record on appeal, we find no error in the circuit court’s termination of
petitioner’s parental rights.
Lastly, because permanency has not yet been achieved for one of the children, this Court
reminds the circuit court of its duty to establish permanency for the child. Rule 39(b) of the Rules
of Procedure for Child Abuse and Neglect Proceedings requires that
[a]t least once every three months until permanent placement is achieved as defined
in Rule 6, the court shall conduct a permanent placement review conference,
requiring the multidisciplinary treatment team to attend and report as to progress
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and development in the case, for the purpose of reviewing the progress in the
permanent placement of the child.
Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child
within twelve months of the date of the disposition order. As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules of
Procedure[] for Child Abuse and Neglect Proceedings for permanent placement of
an abused and neglected child following the final dispositional order must be
strictly followed except in the most extraordinary circumstances which are fully
substantiated in the record.
Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 6. Moreover, this Court has stated that
[i]n determining the appropriate permanent out-of-home placement of a child under
[West Virginia Code § 49-4-604(c)(6)], the circuit court shall give priority to
securing a suitable adoptive home for the child and shall consider other placement
alternatives, including permanent foster care, only where the court finds that
adoption would not provide custody, care, commitment, nurturing and discipline
consistent with the child’s best interests or where a suitable adoptive home [cannot]
be found.
Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Finally, “[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.” Syl. Pt. 5, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400
(1991).
For the foregoing reasons, we find no error in the decision of the circuit court, and its July
27, 2020, order is hereby affirmed.
Affirmed.
ISSUED: April 20, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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