In re A.L. ( 2022 )

FILED
May 12, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re A.L.
No. 21-0938 (Kanawha County 20-JA-36)
MEMORANDUM DECISION
Petitioners Maternal Grandparents T.C. and V.C., by counsel Alan L. Pritt, appeal the
Circuit Court of Kanawha County’s October 19, 2021, order reunifying A.L. with the father. 1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick
Morrisey and Mindy M. Parsley, filed a response in support of the circuit court’s order. The
guardian ad litem, Sharon K. Childers, filed a response on behalf of the child in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in failing to adjudicate
the father and in denying them visitation.
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 January of 2020, the DHHR filed an abuse and neglect petition against the mother
alleging that she had a history of abusing illicit substances and that she and A.L. had been missing
since November of 2019 after residing at petitioners’ home since December of 2015. 2 The DHHR
alleged that petitioners filed a missing person report in January of 2020 and that when the Kanawha
County Sheriff’s Department investigated, A.L.’s peer at school disclosed that then-six-year-old
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
In December of 2019, petitioners filed a petition for guardianship and immediate custody
of A.L. in the family court. However, the matter was removed to circuit court for the initiation of
the instant child abuse and neglect case.
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A.L. told her that the father punched her in the stomach on at least one occasion. Finally, the
DHHR alleged that the parents failed to provide A.L. with the necessary food, clothing,
supervision, and housing at times since her birth by failing to provide the child with financial
support during at least some periods of A.L.’s life.
Around March of 2020, the mother returned to West Virginia and authorities removed the
child and placed her in foster care. That same month, the circuit court held a review hearing and
heard arguments on petitioners’ motion to intervene. The DHHR informed the court that it intended
to amend the petition to add petitioners as party respondents. As such, the court provisionally
granted petitioners’ motion to intervene and allowed them to attend the proceedings. The court
also ordered the parents and petitioners to submit to parental fitness evaluations.
In May of 2020, the psychologists released their forensic psychological evaluations, which
noted that A.L. participated in a Child Advocacy Center (“CAC”) interview in November of 2019.
During her CAC interview, the child disclosed instances of abuses such as being locked in a room
with no lights, whipped for spilling milk, and hit with a pan by the father. The child further
disclosed that the father pulled down her pants and scratched her genitals. It was after this CAC
interview that the mother fled West Virginia with A.L. to New Jersey. Once in New Jersey, the
Department of Child and Families completed an assessment on the mother and child, which
indicated that the mother claimed to be involved in human trafficking and that A.L. had been
sexually abused by petitioners and the father. The mother also claimed that her life was in danger
and that human traffickers had drugged her with Valium. The mother further admitted to
occasionally using methamphetamine since 2017. According to the evaluation, A.L. disclosed to
a doctor performing an evaluation in New Jersey that she missed her friends at school in West
Virginia. A.L. also informed the evaluator that her father hit her on several different occasions.
Next, the psychologists conducted their own interview with A.L. According to this
evaluation, A.L. struggled to provide linear, detailed accounts of the events she alleged occurred.
In one instance, she claimed to have been sexually abused at an event where there were a number
of other people gathered. When asked why the others did not see the abuse, she said the perpetrator
told them to “[l]ook over there,” while pointing in another direction, fooling the people into
looking away while the abuse occurred. A.L. also appeared hyper focused on a news interview
with her father after she was reported missing. According to the evaluation, the foster mother said
A.L. repeatedly asked her to show her the video, and it appeared that she had never seen the video
but talked about it as though she had. After interviewing her at length and conducting a full
evaluation, the examiners concluded that A.L. was likely no longer able to discern what actually
occurred from what she had been told by the mother.
In June of 2020, the DHHR filed an amended petition naming petitioners as guardians of
A.L. but making no allegations of abuse and neglect against them 3. By August of 2020, the circuit
court held an adjudicatory hearing wherein it determined that the mother lacked the capacity to
stipulate to abusing and neglecting the child, citing ongoing concerns with the mother’s mental
health issues. The court also ordered therapeutic reunification services between the child,
3
It is unclear why the DHHR named petitioners as guardians as they never obtained
guardianship of the child.
2
petitioners, and the father, and ordered the parties to follow the recommendations of the child’s
therapist.
In November and December of 2020, the circuit court held adjudicatory hearings, during
which a psychologist testified that she interviewed A.L. and diagnosed her with trauma and
stressor-related disorders. The psychologist explained that A.L. was affected behaviorally and
emotionally by being removed from her home by the mother, taken out of state, and not
understanding what was happening. The psychologist further testified that A.L. seemed confused
and that the mother likely coached the child to report allegations of abuse. According to the
psychologist, this coaching affected A.L.’s ability to distinguish between fantasy and reality.
Finally, another psychologist testified that she interviewed the mother and opined that she
exhibited paranoia-based thinking, as well as a recent history of substance abuse and erratic
behaviors. The psychologist further testified that the mother’s credibility and mental well-being
were in significant doubt. At the December of 2020 hearing, petitioners moved to be considered
placement of the child if the child’s permanency plan of reunification with the father failed. The
court granted this motion and petitioners were added as a concurrent permanency plan home.
The following month in January of 2021, the circuit court held an adjudicatory hearing
wherein the DHHR put on evidence that the mother left West Virginia with A.L. for several
months, moving from shelter to shelter, and that during one move, the child was sexually assaulted
in a shelter bathroom while in the mother’s care. In light of the evidence presented over several
adjudicatory hearings, the circuit court found that the mother was an abusing and neglectful parent
based upon her “severe mental health issues that impacted her ability to parent and caused severe
emotional trauma to the [] child.” Pertinent to this appeal, although the father was initially named
a respondent parent in the petition, the DHHR put forward no evidence against him, and the court
did not adjudicate him as an abusing parent.
The circuit court held multiple dispositional hearings in March and April of 2021. The
court ultimately terminated the mother’s parental rights by its April 15, 2021, dispositional order.
The Court affirmed the termination of the mother’s parental rights in In re A.L., No. 21-0369, 2021
WL 5178518 (W. Va. Nov. 8, 2021)(memorandum decision). In March of 2021, the court
increased A.L.’s visits with petitioners and the father.
In June of 2021, the court held a permanent placement review hearing. The court granted
the DHHR and the guardian discretion to increase visitations with petitioners and the father, in
light of the child’s therapist’s recommendations. Petitioners moved for immediate custody of the
child, but the court held the motion in abeyance to allow A.L. to further develop in reunification
therapy.
The circuit court held two permanent placement review hearings in September of 2021.
The court admitted the DHHR’s summaries and the child’s therapy reports. Prior to the hearing,
the guardian submitted a memorandum recommending that A.L. be reunified with the father based
upon the fact that, although he had previously been awarded equal custody of A.L. in family court,
the mother alienated him by filing multiple baseless domestic violence protective orders and
fleeing from state to state with A.L. The guardian noted that there were no allegations against
petitioner and that he was not adjudicated as an abusing parent. Regarding petitioners, the guardian
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expressed concerns with petitioner grandfather’s “open disdain” of the father, and believed they
exhibited controlling behavior when they moved to prevent A.L. from going on a Disney World
vacation with the foster family.
At the hearings, petitioners, the child’s therapist, and the father testified. Notably, in
petitioners’ closing arguments, they acknowledged that there were no allegations against the father
in the petition. Upon the close of evidence, the court found that the father had been deemed a
nonoffending parent during the proceedings and “was never adjudicated as an abusive and
neglectful parent.” The court noted that the father participated in all court-ordered requirements
such as his parental fitness evaluation and reunification therapy. With the support of A.L.’s
therapist, the father earned increased visits and eventually obtained unsupervised overnight visits
with A.L. The court further found that the father had been prevented from playing an active role
in the child’s life due to the terminated mother and petitioners’ interference and alienation. The
court found the father’s testimony credible and that he had A.L.’s best interest in mind. The court
also noted that A.L. had siblings with the father with whom she had developed bonds. Regarding
petitioners, the court noted that it had reviewed a prior child abuse and neglect involving petitioners
wherein they relinquished their parental rights to a previously adopted child in 2018 but testified
that they had not done so. The court was very concerned by this testimony and petitioners’ child
abuse and neglect history. Finally, the court found that petitioners had never been deemed legal
guardians in any prior family court proceeding, clearly showed animosity for the father, and would
likely continue to support the mother. The court also noted that the child’s therapist testified that
petitioners’ apparent disapproval of the father caused the child severe anxiety and emotional
distress, and she experienced increased confusion and anxiety after visits with petitioners.
Ultimately, the court returned full legal and physical custody of A.L. to the father and granted him
sole discretion as to any visitation between the child and petitioners. Petitioners appeal the October
19, 2021, final order.
The Court has previously established the following standard of review:
“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
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, petitioners argue that the circuit court erred in failing to adjudicate the father.
Petitioners cite Rule 27 of the Rules of Procedure for Child Abuse and Neglect Proceedings, which
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requires that “[a]t the conclusion of the adjudicatory hearing, the court shall make findings of fact
and conclusions of law, in writing or on the record, as to whether the child is abused and/or
neglected in accordance with W. Va. Code § 49-4-601(i).” According to petitioners, the petition
stated that a child at A.L.’s school disclosed that A.L. told her that the father punched her in the
stomach. Additionally, petitioners state that the petition included general allegations of neglect
against both parents. Petitioners also mention domestic violence protective orders that the mother
obtained against the father but were not included in the petition. Petitioners contend that these
allegations of abuse and neglect were never addressed by the court.
To begin, the record shows that during petitioners’ closing arguments at the final
permanency review hearing, they twice mentioned that the father was “nonoffending” or had no
allegations against him. Following petitioners’ closing arguments, the guardian likewise stated that
the father had no allegations against him. Finally, the prosecuting attorney also stated during his
closing remarks that the father was nonoffending and had no allegations against him. Notably,
petitioners do not cite to anywhere in the record where they objected to the adjudication of the
mother only, or otherwise attempted to raise allegations against the father below. When reviewing
the record as a whole, it is apparent that the mother—who was found to have severe untreated
mental health issues—had coached A.L. and had created false allegations of abuse not only against
the father but against petitioners as well as she claimed that they had sexually abused her for years
and had attempted to sell her into human trafficking. Further, evidence presented at the final
permanency review hearing supported a finding that petitioners purposefully interfered with the
father’s ability to visit and parent A.L. prior to the petition’s filing. In light of petitioners’ apparent
acquiescence to the DHHR’s refusal to pursue adjudication of the father on unsubstantiated claims,
petitioners’ argument on appeal is disingenuous at best and conveniently ignores the entire record
of this lengthy case.
Lastly, petitioners argue that the circuit court erred in denying them visitation. To begin,
the circuit court did not deny petitioners visitation. Rather, they were granted visitation but at the
sole discretion of the father. See In re H.M., No. 20-0577, 2021 WL 5150060, at *4 (W. Va. Nov.
5, 2021)(memorandum decision) (“We note that petitioners’ argument is disingenuous, at best,
because it wholly misrepresents the record. The circuit court did not deny petitioners visitation
with the child. Indeed, the circuit court ordered that petitioners could enjoy visitation with the child
at the [adoptive] grandparents’ discretion.”). Because petitioners were not denied visitation, as they
allege on appeal, they necessarily cannot be entitled to relief.
Nonetheless, we further find that petitioners’ argument that the guardian’s investigation
and recommendation for permanent placement was deficient lacks merit. Petitioners rely on
Appendix A of the Rules of Procedure for Child Abuse and Neglect Proceedings containing
guidelines for appointed guardians. Petitioners cite section six, which states that a guardian shall
conduct an independent investigation of the facts of the case and
a. When appropriate, conduct in-home visits during which the [guardian] can
observe the respective living environments of the child’s parents or caretakers and
their interaction with the child.
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b. When appropriate, interview caregivers, caseworkers, therapists, school
personnel, medical providers, relatives, siblings, and/or other individuals that have
pertinent information regarding the child.
c. Ascertain the child’s wishes when possible.
According to petitioners, the guardian failed to conduct an in-home visit with them, interview
them, or otherwise watch their interactions with A.L. Confusingly, petitioners argue that the
guardian did not object to their increased visits or receiving reunification services, but also argue
that the “guardian appeared more concerned about the minor child maintaining a relationship with
the foster family rather than [the] grandparents.” Petitioners claim that these failures impacted the
circuit court’s final order.
Again, petitioners ignore several pertinent facts. Throughout the entirety of this case, A.L.
was placed with a foster family, with whom any in-home visits would have been conducted.
Secondly, there was ample evidence provided by the child’s therapist concerning how visits with
petitioners and visits with the father were impacting A.L. Additionally, as parties to this case,
petitioners testified at the permanency review hearings. Considering that the guardian stayed in
touch with A.L.’s foster family and her therapist, reviewed all records from prior family court
proceedings involving the child, attended all hearings and multidisciplinary team meetings, and
subsequently filed a memorandum with recommendations, one can hardly argue that the guardian’s
performance and investigation was wanting. Contrary to petitioners placing blame upon the
guardian for their lack of structured visitation with A.L., the guardian recommended that they
receive regular visitation with A.L. if she were reunified with the father. Only after the prosecuting
attorney argued that petitioners had a history of interfering with the father’s relationship with A.L.
and that they had an open disdain for the father that negatively impacted A.L.’s emotional state,
did the court rule that the father would have sole discretion with all visitations. As such, petitioners
ignore the plethora of reasons given by the parties and the court for granting the father sole
discretion in visitation and their blame against the guardian is misplaced.
Petitioners also cite authorities regarding post-termination visitation. However, these
authorities are inapplicable as petitioners are not parents whose parental rights were terminated. 4
Petitioners were never legal custodians or guardians of the child, and as such, had no such rights
to terminate. Rather, petitioners stand only as grandparents and in this scenario, with a child being
reunified with a fit parent, the parent’s “fundamental right . . . to make decisions concerning the
care, custody, and control of their children” will not be disturbed. Troxel v. Granville, 530 U.S.
57, 66, (2000)(citations omitted.) Furthermore, this Court previously held as follows:
A parent has the natural right to the custody of his or her infant child, unless the
parent is an unfit person because of misconduct, neglect, immorality, abandonment,
4
We note that petitioners’ reliance on anything other than the grandparent visitation statute
is an attempt to obtain visitation by means that cannot entitle them to relief. See Syl. Pt. 3, In re
Visitation of A.P., 231 W. Va. 38, 743 S.E.2d 346 (2013) (“The Grandparent Visitation Act, W.Va.
Code § 48-10-101 et seq. [2001], is the exclusive means through which a grandparent may seek
visitation with a grandchild.”).
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or other dereliction of duty, or has waived such right, or by agreement or otherwise
has transferred, relinquished or surrendered such custody, the right of the parent to
the custody of his or her infant child will be recognized and enforced by the courts.
Syl., Whiteman v. Robinson, 145 W. Va. 685, 116 S.E.2d 691 (1960). As the evidence below
established that the father was a fit parent and that it was in A.L.’s best interest to be reunified with
him, we find no error in the circuit court’s final order, and petitioners are entitled to no relief.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 19, 2021, order is hereby affirmed.
Affirmed.
ISSUED: May 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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