In re W.L., T.L., and E.L. ( 2018 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re W.L., T.L., and E.L.
March 12, 2018
EDYTHE NASH GAISER, CLERK
No. 17-0828 (Wood County 17-JA-116, 117, and 118) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother A.L., by counsel Ernest M. Douglass, appeals the Circuit Court of
Wood County’s August 30, 2017, order terminating her parental rights to W.L., T.L., and E.L.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Justin M. Raber, filed a response on behalf of the children in support of the circuit
court’s order and a supplemental appendix. On appeal, petitioner argues that the circuit court
erred in (1) failing to consider thirteen-year-old W.L.’s wishes at disposition, (2) denying her
motion for an additional psychological evaluation, (3) denying her motion for an improvement
period, and (4) denying her post-termination visitation with the children.2
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 2017, the DHHR filed an abuse and neglect petition that alleged petitioner
repeatedly physically and emotionally abused W.L. in the presence of the other children.
According to the petition, during an investigation, petitioner admitted to a DHHR worker that, in
December of 2016, she repeatedly slammed W.L. against a wall with her hands around his neck
and punched him in the face, in addition to other physical abuse. Both petitioner and the child
indicated that this was an isolated incident, and petitioner informed the DHHR worker that she
and the child began therapy to address the issue. Based on these facts, the children were
permitted to remain in the home while the DHHR’s investigation continued. The petition further
alleged, however, that approximately two days after the DHHR worker met with petitioner, W.L.
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 does not set forth a specific assignment of error concerning the circuit court’s
termination of her parental rights.
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appeared for school with severe bruising, welts on his face and neck, a black eye that was almost
swollen shut, and numerous abrasions to his head, face, and neck. According to the child,
petitioner beat him and threw him out of the home. The child further disclosed that petitioner
was physically and mentally abusive to him. The child said that, after telling petitioner about his
suicidal ideations, she told him to commit suicide out of the family’s presence. According to the
petition, that same day, DHHR workers again spoke with petitioner, who admitted that she
physically abused the child and made him leave the home because she was angry that he told her
she was a bad mother. Law enforcement investigated the incident and eventually charged
petitioner criminally with child abuse by a parent resulting in injury. The children were removed
from petitioner’s care.
The circuit court held two adjudicatory hearings in May of 2017, during which it heard
testimony from a DHHR employee regarding petitioner’s admissions to physical abuse.3 W.L.
also testified consistently with his prior disclosures concerning petitioner’s extensive physical
and emotional abuse. Petitioner testified that, despite her prior admission, the incident in
December of 2016 did not occur. She further admitted to striking W.L. repeatedly during the
incident in April of 2017, but indicated that the child’s behavior caused this reaction. Ultimately,
the circuit court adjudicated petitioner as an abusing parent based on her physical abuse of W.L.
on multiple occasions in the presence of the other children.
Later that month, petitioner moved for a post-adjudicatory improvement period. Before
ruling on the motion, the circuit court ordered petitioner to undergo a psychological and parental
fitness evaluation. After completing the evaluation in August of 2017, the report indicated that
petitioner took little responsibility for the physical abuse and instead blamed W.L. for causing
her violent actions. In response to a question as to why she was not violent toward the younger
children, petitioner stated that they were “not at that stage yet.” Petitioner scored extremely high
on the “Child Abuse Potential Inventory” and her responses indicated that she exhibited “a
concerning level of abusive traits and characteristics that are endorsed by known abusers.” The
evaluator further noted that “research indicates this assessment produces few false positives and
high scores in this area are predictive of present and future physical child abuse.” The evaluation
also indicated that petitioner admitted to physical violence in her romantic relationships,
resulting in two prior criminal charges of assault against her. Petitioner additionally admitted to a
history of multiple suicide attempts, depression, drug abuse, and having abused marijuana the
day of her evaluation. The evaluator diagnosed petitioner with borderline intellectual functioning
and unspecified personality disorder with borderline and antisocial features. Ultimately, the
evaluator found that all three children were at “grave risk of physical abuse and harm” in
petitioner’s care and that her prognosis for improved parenting was “extremely poor to non-
3
It is unclear from the record whether the DHHR employee testified to petitioner’s
actions at the initial adjudicatory hearing on May 22, 2017, or at an earlier hearing. The circuit
court’s final adjudicatory order following the hearing on May 31, 2017, indicates that it could
have adjudicated petitioner “at the conclusion of the last hearing based simply on the testimony
of . . . a department worker . . . and [petitioner].” The adjudicatory transcript, however, does not
contain any testimony by a DHHR employee. Regardless, the record indicates that the DHHR
employee testified concerning petitioner’s actions, whether such testimony was presented at one
of the adjudicatory hearings or earlier in the proceedings.
2
existent.” Petitioner then moved to have an evaluation performed by a psychologist of her
choice. The circuit court denied this motion, but permitted petitioner to have another
psychologist review the evaluation.
Prior to the dispositional hearing in August of 2017, petitioner failed to produce an expert
witness on the issue of her psychological evaluation. She further declined to examine the
psychologist that performed her evaluation. Petitioner testified that she completed five
counseling sessions, an intake for anger management services, and inquired about parenting
classes the day before the dispositional hearing. However, petitioner provided no records or
testimony from providers to corroborate these assertions. Further, petitioner continued to blame
W.L. for the abuse inflicted and specifically requested that only her two youngest children be
returned to her custody. Ultimately, the circuit court denied petitioner’s motion for a post-
adjudicatory improvement period and terminated her parental rights. The circuit court further
denied petitioner post-termination visitation with the children.4 It is from the dispositional order
that petitioner appeals.
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). Upon our review, the Court finds
no error in the proceedings below.
Petitioner first alleges that the circuit court erred in failing to take thirteen-year-old
W.L.’s wishes into consideration prior to disposition. This assignment of error, however, is
entirely disingenuous and without merit, as petitioner specifically testified at the dispositional
hearing that W.L. made his wishes known to the circuit court. According to the record, petitioner
testified that W.L. “wrote a letter to the [j]udge saying he does not want to come back home[.]”
4
The non-abusing father of W.L., T.L., and E.L. retained his parental rights below.
According to respondents, T.L. and E.L. are currently in the father’s custody. Respondents
further indicate that W.L. remains in the legal and physical custody of the DHHR due to his need
for continued mental health treatment. Accordingly, W.L.’s permanency plan is dependent on his
treatment needs and best interests in light of his mental health.
3
Moreover, the record further shows that the guardian submitted a report to the circuit court prior
to disposition that indicated, under a heading styled “CHILD’S EXPRESSED WISHES[,]” that
W.L. “does not want to return to [petitioner’s] custody and would offer her rights be terminated.”
Accordingly, there is no support in the record for petitioner’s argument that the circuit court’s
finding that “[t]he [c]ourt [has] taken into consideration the wishes of the children regarding
termination of parental rights” is erroneous. Thus, we find no error.
Next, petitioner argues that the circuit court erred in denying her motion for an additional
psychological evaluation.5 According to petitioner, she was entitled to a second evaluation
because the evaluation in question “made two factual assumptions that had not been proven
and/or were incomplete.” The first of these allegedly inaccurate assumptions was that the
incident from December of 2016 actually occurred. Petitioner argues that “the lower court never
specifically found that incident to have occurred” and, further, that she specifically denied the
incident during her testimony. We find no merit to this argument. The evaluation included
consideration of all the facts of the case, which not only included the circuit court’s adjudicatory
findings, but also the information contained in the DHHR’s petition, which asserted that
petitioner admitted to the abuse in December of 2016 and W.L. corroborated the same.
Moreover, the evaluation specifically reflects petitioner’s later recanting of her actions during the
December of 2016 incident. Accordingly, it is clear that the evaluation includes a full and fair
representation of the facts of the case through adjudication. As such, petitioner is entitled to no
relief upon these allegations.
Petitioner additionally argues that the evaluation mischaracterized her response to W.L.’s
suicidal ideation. According to petitioner, the evaluation “mischaracterized this incident as
though [she] was condoning [W.L.’s] suicide and coldly dismissed him from the home when, in
fact, she prevented it and he left of his own volition.” Petitioner further alleges that she had to
protect the younger children “from seeing such a thing” and later confirmed that W.L. was safe
at his grandmother’s home. Again, we do not find that this allegation is sufficient to warrant an
additional evaluation, especially given the fact that petitioner’s testimony concerning this
incident at the adjudicatory hearing corroborates the version of events as set forth in the
evaluation. According to the adjudicatory transcript, the following exchange occurred with
petitioner:
Q. Okay. You also testified about some - - that [W.L.] indicated to
you that he was having some suicidal thoughts and wanted to kill himself - -
A. Yes.
5
Petitioner repeatedly references her request for an “independent” evaluation. However,
she provides no evidence that the evaluator in question was biased or in any way failed to
maintain an independent posture during the proceedings, beyond her general assertion that “Saar
[Psychological Group, PLLC] is routinely hired by and paid by the [DHHR].” Moreover, she
provides no legal authority that would permit a parent in abuse and neglect proceedings to
choose a specific evaluator in such situations. Accordingly, we decline to address her allegations
that she was entitled to an “independent” evaluation, given the total lack of evidence and
authority for such a claim.
4
Q. - - is that correct? And you stated that you told him not to do it in
front of you?
A. Yes, ma’am.
Further, the child’s testimony additionally supports the fact that petitioner disregarded his
expressed intention to commit suicide. According to W.L., after he told petitioner that he
intended to commit suicide, she told him to “take it somewhere else” because she couldn’t “stand
watching my son die in front of my eyes.” W.L. also testified that, following this altercation,
petitioner told him to “get out of the house[.]” Moreover, the evaluation indicates that petitioner
admitted that she told the child to commit suicide outside the view of the family because she
“didn’t want him to do it in front of me and his siblings.” Accordingly, we find that the
evidentiary record more than supports the evaluator’s conclusions regarding “the significant
callousness [petitioner] evidenced regarding her comments to [W.L.] regarding not committing
suicide in front of her, to go somewhere else.”
Further, petitioner notes that the circuit court erred in relying heavily on the evaluation
when it included the following language: “The interpretations of psychological tests presented in
this report represent hypotheses and should not be used in isolation from other relevant
information . . . . Test results are probabilistic in nature and should be interpreted cautiously and
in conjunction with other data.” However, petitioner ignores the fact that the circuit court did not
consider this report in isolation, but instead considered it in conjunction with the entirety of the
record below. Moreover, we disagree with petitioner’s assertion that her due process rights were
denied “by being prevented from obtaining an independent evaluation.” The record clearly
shows that the circuit court permitted petitioner to obtain an expert witness to testify to the
results of the evaluation or otherwise examine the evaluator concerning any alleged errors
contained therein. Despite a continuance to achieve these ends, petitioner, thereafter, chose not to
explore either option. Accordingly, it is clear that petitioner had an opportunity to present her
own evidence regarding the evaluation or otherwise question the evaluation’s accuracy, but
chose not to do so. For these reasons, we find no error in this regard.
Next, petitioner argues that the circuit court erred in denying her motion for a post-
adjudicatory improvement period because she established that she was likely to fully comply
with the terms and conditions thereof. According to petitioner, she was honest about the
incidents of abuse and openly admitted to her anger problem, thereby acknowledging the abuse.
She further argues that she proactively addressed the issues by initiating her own services to
remedy them. We do not find these arguments compelling.
Pursuant to West Virginia Code § 49-4-610(2)(B), a circuit court may grant an
improvement period when the parent “demonstrates, by clear and convincing evidence, that the
[parent] is likely to fully participate in the improvement period[.]” However, we have also noted
that the decision to grant or deny an improvement period rests in the sound discretion of the
circuit court. See In re: M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia
law allows the circuit court discretion in deciding whether to grant a parent an improvement
period”); Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (“It is within the
court’s discretion to grant an improvement period within the applicable statutory requirements”).
While petitioner argues that she satisfied the burden to obtain an improvement period, she
5
ignores the fact that the psychological evaluation specifically listed her prognosis for improved
parenting as “extremely poor to non-existent.” This was based on the fact that petitioner
continued to blame W.L. for her violent acts, which she continued to do at the dispositional
hearing. Specifically, at disposition, the following exchange took place with petitioner:
Q. Are you blaming your actions on the fact that [W.L.] said that you
were a bad mother, and that was the reason you reacted the way you did?
A. Yes.
Based on this testimony, it is clear that petitioner continued to blame W.L. for the extensive
physical abuse she perpetrated against him.
We have 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 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) (quoting In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Because petitioner failed to acknowledge the
abuse, it is clear that an improvement period would have been inappropriate. As such, we find no
error in the circuit court’s denial of petitioner’s motion for a post-adjudicatory improvement
period.
Finally, petitioner argues that the circuit court erred in denying her request for post-
termination visitation because the evidence established that visitation with the younger children
went well during the proceedings and they shared a strong bond. We disagree. We have
previously held that
“[w]hen parental rights are terminated due to neglect or abuse, the circuit
court may nevertheless in appropriate cases consider whether continued visitation
or other contact with the abusing parent is in the best interest of the child. Among
other things, the circuit court should consider whether a close emotional bond has
been established between parent and child and the child’s wishes, if he or she is of
appropriate maturity to make such request. The evidence must indicate that such
visitation or continued contact would not be detrimental to the child’s well being
and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
446, 460 S.E.2d 692 (1995).
Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002). Here, the record indicated
that petitioner should not have continued contact with the children because it would not be in
their best interests. This is especially true given the fact that petitioner failed to accept
responsibility for her physical abuse of W.L. and indicated that, when the younger children
6
reached a certain age, such physical abuse would be appropriate for them as well. This ultimately
led the evaluator to conclude that all three children were at “grave risk of physical abuse and
harm” from petitioner. Accordingly, we find no error in the circuit court’s denial of post-
termination visitation.
Lastly, this Court reminds the circuit court of its duty to establish permanency for the
children. Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings
requires:
At 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 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
children 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 Procedures 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 W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4-
604(b)(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 can not 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
August 30, 2017, order is hereby affirmed.
Affirmed.
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ISSUED: March 12, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
8