In re K.B.-R. and L.R. ( 2021 )

STATE OF WEST VIRGINIA FILED
SUPREME COURT OF APPEALS March 16, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re K.B.-R. and L.R.
No. 20-0734 (Marshall County 19-JA-55 and 19-JA-56)
MEMORANDUM DECISION
Petitioner Mother S.R., by counsel Sherrilyn Farkas VanTassel, appeals the Circuit Court
of Marshall County’s August 21, 2020, order finding that the children were not abused or neglected
by respondent father and dismissing the petition.1 The West Virginia Department of Health and
Human Resources (“DHHR”), by counsel S.L. Evans, filed a response in support of the circuit
court’s order. The guardian ad litem, Thomas E. White, filed a response on the children’s behalf
in support of the circuit court’s order. Respondent Father B.B., by counsel Mark D. Panepinto,
filed a response in support of the circuit court’s order. Petitioner filed a reply. On appeal, petitioner
argues that the circuit court erred in finding that the children were not abused and neglected and
in immediately restoring the parties’ shared custody plan following the dismissal of the petition.
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 that the circuit court below erred in failing to make sufficient findings
of fact and conclusions of law necessary for meaningful appellate review. Accordingly, this case
satisfies the “limited circumstances” requirement of Rule 21(d) of the West Virginia Rules of
Appellate Procedure, and a memorandum decision is appropriate to resolve the issues presented.
In December of 2019, the DHHR filed a child abuse and neglect petition alleging that
petitioner witnessed L.R. deleting photographs from L.R.’s personal cellular device. Upon
investigation, petitioner observed several nude photographs of K.B.-R. on the device. L.R. then
made allegations that respondent father condoned the images and had sexually abused her (L.R.).
According to the petition, L.R. provided further details of the sexual abuse during a forensic
interview, and K.B.-R. asserted that she witnessed the respondent father touching L.R.
inappropriately. Respondent Father waived his preliminary hearing, and the children remained in
the custody of petitioner.
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
Following some procedural delays, the circuit court began hearing evidence relevant to
adjudication in July of 2020. In summary, the circuit court heard testimony from the children, in
camera; the investigating Child Protective Services (“CPS”) worker; a CPS supervisor; a law
enforcement officer who conducted a criminal investigation of the allegations; the children’s
paternal grandmother; petitioner; the children’s forensic interviewer; the children’s therapist; and
a witness qualified as an expert in trauma-informed care, interviewing techniques for child sexual
assault and exploitation, and impact of trauma on victims and collaterals. The circuit court also
viewed the children’s forensic interviews in their entirety. Following arguments from counsel, the
circuit court found, on the record, that “no party in this action ha[d] shown by clear and convincing
evidence anything that is sufficient to substantiate a finding of abuse or neglect.” The circuit court
dismissed the child abuse and neglect petition and reinstated the parties’ original custody
arrangement. The circuit court’s August 21, 2020, order reflects this single evidentiary finding as
well, simply concluding as follows:
Upon consideration of the matters presented, exhibits filed, testimony of
witnesses, and argument of counsel, this Court FINDS and CONCLUDES, in the
best interest of the children that:
There has not been any substantiation of abuse and/or neglect by any party.
The Court further FINDS that the Department has made reasonable efforts
to achieve permanency.
Petitioner now appeals the circuit court’s adjudicatory order.
The Court has previously held:
“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 argues that the circuit court’s ultimate conclusion is against the
weight of the evidence presented below. Without rendering any judgment on this assignment of
error or petitioner’s other arguments, we find it necessary to remand this proceeding for the entry
of an order with findings of fact and conclusions of law to support the circuit court’s conclusion.
2
West Virginia Code § 49-4-601(i) requires that “[a]t 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 the child is abused or neglected.” See also R. 27, W. Va.
R. of P. for Child Abuse and Neglect Proc. (requiring findings of fact and conclusions of law at
the conclusion of the adjudicatory hearing). The circuit court’s order “must be sufficient to indicate
the factual and legal basis for the [court]’s ultimate conclusion so as to facilitate a meaningful
review of the issues presented.” Province v. Province, 196 W. Va. 473, 483, 473 S.E.2d 894, 904
(1996). “Dismissal orders . . . should contain findings of fact which are sufficient to provide clear
notice to all parties and the reviewing court as to the rationale applied by the lower court. We
cannot perform our function when the lower court simply states its ruling in an order.” P.T.P., IV,
ex rel. P.T.P., III, v. Bd. of Educ. of the Cty. of Jefferson, 200 W. Va. 61, 65, 488 S.E.2d 61, 65
(1997). Finally,
“[w]here it appears from the record that the process established by the Rules
of Procedure for Child Abuse and Neglect Proceedings and related statutes for the
disposition of cases involving children [alleged] to be abused or neglected has been
substantially disregarded or frustrated, the resulting order . . . will be vacated and
the case remanded for compliance with that process and entry of an appropriate . .
. order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620(2001).
Syl. Pt. 3, In re Emily G., 224 W. Va. 390, 686 S.E.2d 41 (2009). Here, the circuit court’s failure
to set forth any findings of fact in support of its conclusion constitutes a substantial disregard or
frustration of the statute governing adjudication, and, as such, vacation is necessary for compliance
with the process set forth in the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings and so that this Court may conduct a meaningful appellate review.
Accordingly, because the circuit court failed to make adequate findings of fact to enable
sufficient appellate review, we vacate the circuit court’s August 21, 2020, adjudicatory order and
remand the matter with instructions to forthwith issue a new order containing the findings of fact
and conclusions of law necessary to establish whether the children were abused and/or neglected.
The Clerk is hereby directed to issue the mandate contemporaneously herewith.
Vacated and Remanded.
ISSUED: March 16, 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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