In re R.R., M.R., B.H., T.H., and E.H. ( 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 R.R., M.R., B.H., T.H., and E.H.
No. 21-0867 (Webster County 20-JA-39, 20-JA-40, 20-JA-41, 20-JA-42, and 20-JA-43)
MEMORANDUM DECISION
Petitioner Mother T.C.-H., by counsel Daniel K. Armstrong, appeals the Circuit Court of
Webster County’s September 21, 2021, order returning R.R., M.R., B.H., T.H., and E.H. to her
care and dismissing the matter. 1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Patrick Morrisey and Katherine A. Campbell, filed a response in support
of the circuit court’s order. The guardian ad litem (“guardian”), Mary Elizabeth Snead, filed a
response on behalf of the children also in support of the circuit court’s order. Petitioner filed a
reply. On appeal, petitioner argues that the circuit court erred in (1) adjudicating her as an abusing
parent, (2) finding that imminent danger existed to remove the children and that there were no
reasonable alternatives to removal of the children from the home, and (3) in finding that the DHHR
made reasonable efforts to avoid the removal of the children.
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.
The DHHR filed a child abuse and neglect petition in August of 2020 alleging that
petitioner and the father of B.H., T.H., and E.H. emotionally and physically abused the children.
The DHHR alleged it received a referral earlier that month that petitioner’s eldest child, A.H., who
has reached the age of majority and is not at issue in this appeal, filed an emancipation petition in
Webster County. After receiving the petition, the circuit court ordered the DHHR to conduct an
investigation into the matter based upon the contents of the emancipation petition. At the time of
the filing of the emancipation petition, the father contacted the Webster County Sheriff and
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).
1
inquired as to whether he could require A.H. to return home if she was reported as a runaway child.
The petition detailed several instances of emotional and physical abuse, as set forth more fully
below.
Later that month, the circuit court held a hearing on the filing of the petition during which
the DHHR presented testimony consistent with the allegations in the petition. A Child Protective
Services (“CPS”) worker testified that she had substantiated abuse in the parents’ home but filed
a non-emergency petition given that there were no physical altercations between petitioner and the
father and that most of the incidents in their home were verbal arguments. Rather, many issues in
the home stemmed from a deterioration in petitioner’s relationship with A.H. Specifically, the
worker testified that A.H. was residing with her maternal step-grandmother, S.R., as a result of the
tension between the parents and A.H. The worker noted that the father had threatened A.H. when
S.R. accompanied her to the parents’ home to retrieve some of her personal items. Specifically,
the worker noted that the father threatened to ram his fist down A.H.’s throat. The worker also
noted an incident where A.H. was holding a cigarette in a picture on social media. Upon seeing
the picture, the worker explained that the father mistook the cigarette for marijuana and grabbed
A.H. by her face, shook her, and the child’s head hit the back of the porch door.
The worker further detailed another incident surrounding the father’s threats to kill the
family dog. During that incident, petitioner pushed A.H., A.H. drew back her first to strike
petitioner during the incident, and petitioner drew back her fist in defense. The worker stated that
neither A.H. nor petitioner hit each other during the incident. The worker also testified that the
children reported they mostly fended for themselves when it came to food access inside the home.
The worker testified that she believed that services placed in the home would be appropriate in the
case since the children were not afraid of petitioner nor the father. However, under further
questioning by the circuit court and prosecutor, the worker admitted that she did not believe that
A.H. would be safe in the parents’ home. The worker also noted that A.H. stated she was afraid of
returning to the parents’ home because of potential retribution against her from the parents due to
the CPS investigation and petition. As a result, the circuit court found that the children were in
imminent danger, found that providing services was insufficient to provide for the children’s
safety, and removed the children from the home.
The circuit court held a preliminary hearing in September of 2020 during which the CPS
worker again testified. The worker stated that she interviewed the children and relayed a number
of incidents that occurred in the parents’ home. In addition to the prior incidents, the worker
testified that on one occasion, the father damaged one of the children’s video game consoles. The
worker also detailed an incident at a local pool where M.R. uttered a curse word, and the parents
instructed him to leave the pool. The worker stated that the child was then forced to sit for four
hours in direct sunlight as punishment. However, the worker admitted that the nature of M.R.’s
punishment was disputed during her interviews. The court further questioned the CPS worker.
The Court: And isn’t it true that prior to this [c]ourt entering the order of removal,
we had an evidentiary hearing and you testified that you thought it was unsafe for
[A.H.] to return to the home?
2
CPS Worker: I did say [A.H.], your Honor, and I also recall stating that I didn’t
believe it would be physical but verbally or emotionally it would. And that’s why,
originally, I wanted to put parenting and counseling services in to try to preserve
the family.
The Court: Well, isn’t it also true that [A.H.] has expressed to you, and expressed
in her petition, fear for other children in the home, and the safety of those children?
CPS Worker: She did.
The worker later testified upon questioning by the court that A.H. was fearful regarding her return
to the home. However, none of the other children had expressed any fear about returning to the
parents’ home.
Next, petitioner testified on her own behalf at the preliminary hearing. She claimed that
during the family dog incident she never shoved A.H. but that she and the child simply ran into
each other by accident. Petitioner also explained the pool incident with M.R. and denied that he
was forced to sit in the direct sunlight for four hours as punishment. Rather, petitioner explained
that M.R. sat under the shade of trees for twenty to thirty minutes after being made to exit the pool.
Petitioner acknowledged that the father damaged the children’s video game console during an
incident but stated that he only broke the item’s cover and that the system was still operational.
After considering the evidence at the preliminary hearing, the court found that the children
were in imminent danger. The court found that if there was risk of danger to one child inside the
home, then all of the children in the home were at risk. The court further ordered that the parents
participate in psychological evaluations.
The circuit court held an adjudicatory hearing in November of 2020 during which the
parents stipulated to many of the allegations set forth in the child abuse and neglect petition. The
court questioned petitioner as to the nature of her stipulation and found that she stipulated
voluntarily, and without any promise of anything in return for her admissions. The court found
that by entering her admissions, petitioner “understands that there will be no hearing of any kind
regarding the factual allegations in the [p]etition” and that “she cannot later challenge the factual
basis for the [p]etition or any adjudication of abuse and neglect made by th[e] [c]ourt upon said
facts, even on appeal.” As a result, the court accepted petitioner’s stipulation and adjudicated her
and the father as abusing parents. Later that month, the parents filed a joint motion for post-
adjudicatory improvement periods, which the court eventually granted.
Following adjudication, the proceedings continued for several months, during which time
petitioner was successful in her post-adjudicatory improvement period. The court held a final
dispositional hearing in August of 2021 during which it interviewed the children and noted that
the children “had lots of issues.” The court found that therapy was greatly helping the children but
that the children still had concerns with the parents. Nevertheless, it adopted a parenting plan
proposed by the DHHR which returned the children to petitioner’s custody. The court then
3
dismissed the case as permanency for the children had been achieved. 2 It is from the September
21, 2021, final permanency hearing order and order dismissing the case 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).
On appeal, petitioner alleges several errors regarding her adjudication. However, petitioner
stipulated to her adjudication and, thus, is not entitled to challenge the sufficiency of her
adjudication on appeal. We have previously held that “[a] litigant may not silently acquiesce to an
alleged error, or actively contribute to such error, and then raise that error as a reason for reversal
on appeal.” Syl. Pt. 1, Maples v. W. Va. Dep’t of Com., Div. of Parks & Recreation, 197 W. Va.
318, 319, 475 S.E.2d 410, 411 (1996). The record in this matter is clear that petitioner voluntarily
stipulated to the adjudication against her. Moreover, petitioner did not object to her adjudication
as an abusing parent. We have long held that, “when nonjurisdictional questions have not been
decided at the trial court level and are then first raised before this Court, they will not be considered
on appeal.” Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704
n. 20 (1999).” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650,
653 (2009). In fact, the record shows that the court inquired of petitioner as to her understanding
of the admissions and understanding of the consequences of said admissions. Petitioner answered
the court’s inquiry in the affirmative. Based on the evidence presented below, the court found that
petitioner made her admissions “voluntarily and freely” and understood the consequences of said
admissions, including the inability to challenge her adjudication on appeal. Accordingly, we find
that the circuit court did not err in adjudicating petitioner as an abusing parent.
Further, petitioner argues that the circuit court erred in finding probable cause that the
children were in imminent danger and that there were no reasonable alternatives to their removal.
According to petitioner, there were no allegations or testimony of any imminent danger to the
physical wellbeing of the children. Petitioner contends that the record is “conspicuously absent of
any allegations” regarding any incidents that would threaten the health, life, or safety of the
children in the home. Petitioner acknowledges that a DHHR worker testified as to a few, separate
2
The father also retained custody of the children pursuant to the final permanency hearing
order. As such, the children have achieved permanency in the parents’ care.
4
incidents which the circuit court relied on regarding the parents and their eldest child, A.H., but
maintains that the worker stated she did not believe the children were in danger. As such, petitioner
contends that these incidents were insufficient for a factual finding of imminent physical danger
of the children. We find, however, that these arguments do not entitle petitioner to relief.
According to West Virginia Code § 49-4-602(a)(1), the circuit court may order the removal
of a child if it finds that “there exists imminent danger to the physical well-being of the child” and
“[t]here are no reasonably available alternatives to removal of the child, including, but not limited
to, the provision of medical, psychiatric, psychological or homemaking services in the child’s
present custody.” West Virginia Code § 49-1-201 defines “[i]mminent danger to the physical well-
being of the child” to mean “an emergency situation in which the welfare or the life of the child is
threatened.” This provision further delineates the following threatening conditions: nonaccidental
trauma, physical abuse, nutritional and medical neglect, abandonment, substantial emotional
abuse, the sale of a child, alcohol or drug impaired parenting, and “[a]ny other condition that
threatens the health, life or safety of any child in the home.” W. Va. Code § 49-1-201.
Further, pursuant to W. Va. Code § 49-4-602(a)(3),
[i]n a case where there is more than one child in the home, or in the
temporary care, custody or control of the alleged offending parent, the petition shall
so state. Notwithstanding the fact that the allegations of abuse or neglect may
pertain to less than all of those children, each child in the home for whom relief is
sought shall be made a party to the proceeding. Even though the acts of abuse or
neglect alleged in the petition were not directed against a specific child who is
named in the petition, the court shall order the removal of the child, pending final
disposition, if it finds that there exists imminent danger to the physical well-being
of the child and a lack of reasonable available alternatives to removal.
Here, the record shows that a hearing on the abuse and neglect petition took place in August of
2020 during which evidence demonstrated the children were unsafe in the parents’ home.
Moreover, the court again found there was an imminent danger to the children during a contested
preliminary hearing the following month. While petitioner is correct that the DHHR worker
testified initially that she did not believe that the children were in danger, she later clarified that
she thought the parents’ home was unsafe for A.H. The worker stated that she anticipated that the
parents’ home could be “verbally or emotionally” unsafe for the child. Indeed, the instant petition
was filed after A.H. left the parents’ home and filed an emancipation petition, leading to a CPS
investigation. Once the circuit court made a finding of abuse against A.H., pursuant to W. Va.
Code § 49-4-602(a)(3), it “shall order the removal of the child[ren], pending final disposition, if it
finds that there exists imminent danger to the physical well-being of the child.” Petitioner argues
on appeal that A.H. was no longer residing in her residence and, therefore, she was not in imminent
danger in the residence. This argument is refuted by the record. A.H. had been residing with her
grandmother for a few weeks at the time of the abuse and neglect petition. However, the
grandmother did not have legal guardianship or custody of the child, who was still a minor at the
time. Further, the father made inquiries to the Webster County Sheriff about whether law
enforcement officials could mandate A.H. to return to the parents’ home. Indeed, A.H. still had
personal belongings in the parents’ home that she, accompanied by her grandmother, sought to
5
retrieve, further demonstrating that she was still residing in her parents’ house at the time. In light
of the evidence that A.H. was in imminent danger in the parents’ home, we find no error in the
circuit court finding probable cause that all of the children were in imminent danger inside the
home or in its finding that there were no reasonable alternatives to their removal.
Finally, petitioner argues that the circuit court erred in finding that the DHHR made
reasonable efforts to prevent the removal of the children from the home. 3 Petitioner avers that the
circuit court’s finding is undermined by a CPS worker’s testimony during an August of 2020
hearing on the petition wherein she stated that she “ha[d] not put any [services] in yet.” However,
petitioner ignores the circuit court’s finding that simply providing services was insufficient at the
beginning of the proceedings to ensure the safety of the children. Instead, the court found that the
children were in imminent danger in the home and ordered the removal of the children. The court,
having reviewed the facts of the matter, found the children’s removal to be in their best interests.
“‘In a contest involving the custody of an infant[,] the welfare of the child is the polar star by
which the discretion of the court will be guided.’ Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131
W.Va. 302, 47 S.E.2d 221 (1948).” Syl. Pt. 3, In re S.W., 233 W. Va. 91, 755 S.E.2d 8 (2014).
For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 21, 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
3
West Virginia Code § 49-4-602(a)(4)(B) provides, in part, that “[t]he initial order directing
custody . . . shall state: [w]hether or not the department made reasonable efforts to preserve the
family and prevent the placement or that the emergency situation made those efforts unreasonable
or impossible.”
6