In re: K.F.-1 ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re K.F.-1 FILED
December 10, 2020
No. 20-0428 (Webster County 19-JA-9) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father P.F., by counsel Steven B. Nanners, appeals the Circuit Court of Webster
County’s April 7, 2020, order terminating his parental rights to K.F.-1. 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. The guardian ad litem, Mary Elizabeth Snead, filed
a response on behalf of the child also in support of the circuit court’s order. On appeal, petitioner
argues that the circuit court erred in terminating his parental rights without granting him an
improvement period.
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 May of 2019, the DHHR filed a child abuse and neglect petition against petitioner after
his two-month-old twin children, K.F.-1 and K.F.-2, were hospitalized due to rib fractures they
sustained. The DHHR alleged that petitioner reported that he left K.F.-2 on a bed and went to the
kitchen for a few moments. When he returned to the bedroom, K.F.-2 was unresponsive. Petitioner
performed cardiopulmonary resuscitation (“CPR”) on the child, and K.F.-2 was eventually
transported to a hospital in Webster County, West Virginia. Shortly thereafter, K.F.-2 was flown
to Ruby Memorial Hospital in Morgantown, West Virginia. K.F.-1 was also admitted to the
hospital with injuries. The parents admitted that the children “had rolled off the bed approximately
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). Additionally, because K.F.-1 shares initials with her brother, who
died during the proceedings below, we will refer to them as K.F.-1 and K.F.-2, respectively,
throughout this memorandum decision.
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three weeks to a month ago.” The mother also claimed that K.F.-1 “slipped off her lap” and fell to
the floor while she was feeding her. Petitioner admitted to abusing methamphetamine and
marijuana while the children were in his care.
Upon investigating the matter, a Child Protective Services (“CPS”) worker spoke to K.F.-
1’s treating physician, Dr. Christine Kelley. Dr. Kelley informed the CPS worker that the children
could not yet roll over and, thus, could not have rolled off a bed as described by the parents. Dr.
Kelley reported that K.F.-1 was having trouble breathing and was undergoing an “abusive trauma
workup.” The worker also spoke to K.F.-2’s treating physician, Dr. Wail Ali. Dr. Ali reported that
K.F.-2 had multiple bilateral rib fractures that were the result of either nonaccidental trauma or
improper CPR measures, but that a final diagnosis could not yet be made due to the child’s unstable
medical condition. Dr. Ali stated that K.F.-2 did not appear to have any brain activity, was on life
support, and that his prognosis for survival was “not good.”
The circuit court held a preliminary hearing later in May of 2019. The DHHR advised the
circuit court that K.F.-2 passed away following the petition’s filing. 2 Thereafter, the parents
waived their preliminary hearing.
The circuit court held an adjudicatory hearing over the course of two days in October of
2019 and December of 2019. The DHHR presented the testimony of several doctors, the medical
examiner, a law enforcement officer, and a DHHR worker. The doctors’ testimony established that
K.F.-2 did not have any genetic disorders contributing to his broken ribs, and they opined that his
injuries were nonaccidental. The testimony also established that K.F.-1’s injuries were
nonaccidental. Additionally, the doctors opined that the children’s rib fractures were inconsistent
with the explanations provided by the parents. The medical examiner, however, testified that she
could not determine whether K.F.-2’s rib fractures were nonaccidental. The medical examiner also
remarked that the rib fractures were at least one week old and were in the process of healing.
A law enforcement officer testified regarding his investigation into the children’s injuries.
The officer stated that he interviewed the parents and that both denied knowing how the injuries
occurred. The parents did admit, however, to abusing drugs while the children were in their care.
The officer also testified that he found drug paraphernalia in a garbage can during a search of the
parents’ home.
By order entered on January 23, 2020, the circuit court found that K.F.-1’s injuries were
nonaccidental and inconsistent with the parent’s explanations. 3 The circuit court also found that
the parents admitted to abusing controlled substances while the children were in their care.
Accordingly, the circuit court adjudicated the parents as abusing parents.
2
Testimony at the adjudicatory hearing established that K.F.-2’s cause of death was
bronchopneumonia. The medical experts opined that the child’s broken ribs were not the cause of
his death but could have contributed to it.
3
Because the medical examiner testified that she was unable to determine whether K.F.-2’s
injuries were nonaccidental, the circuit court declined to make findings regarding his injuries.
2
The circuit court held a dispositional hearing in March of 2020. A CPS worker testified
that the parents were participating in parenting classes, attending supervised visits with K.F.-1,
and submitting to drug screens. According to the CPS worker, the parents were compliant with the
services and did not submit any screens positive for drugs. However, the parents never identified
how K.F.-1 or K.F.-2 were injured. The CPS worker reported that the DHHR recommended
termination of the parents’ parental rights based on their failure to report the abuser and she opined
that there were no services that could be provided that would guarantee the safety of the child
absent knowing who committed the abuse.
A pediatrician and a physician’s assistant who attended to the children a few days before
their hospitalization testified that they did not notice the rib fractures at the time of the
appointment. They further testified that the children were appropriately nourished and groomed,
and they had no concerns at the time of the appointments. Petitioner testified and requested a post-
adjudicatory improvement period. Petitioner stated that he was participating in parenting classes
and supervised visits and submitted no positive drug screens. However, petitioner stated that he
did not know how K.F.-1 and K.F.-2 sustained their injuries.
By order entered on April 7, 2020, the circuit court terminated petitioner’s parental rights
to K.F.-1 and denied his motion for a post-adjudicatory improvement period. In support, the circuit
court found that petitioner abused methamphetamine for at least five months prior to K.F.-2’s
death, including while the newborn children were in the home. The circuit court additionally found
that the DHHR was not required to provide reasonable efforts because the children were the
victims of assault resulting in serious bodily injury while in petitioner’s care and that he failed to
identify how the children’s injuries occurred. Resultantly, 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
K.F.-1’s welfare. Petitioner appeals the April 7, 2020, dispositional order. 4
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
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).
4
The mother’s parental rights were also terminated below. The permanency plan for K.F.-
1 is adoption by her foster family.
3
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 terminating his parental rights
without first granting him an improvement period. Petitioner contends that he complied with all
services offered by the DHHR, including parenting classes, supervised visitations, and random
drug screens. Petitioner states that after his initial positive drug screen, he tested negative for drugs
for the entirety of the proceedings. Petitioner also claims that there was no evidence introduced
that he caused, or knew who caused, the injuries of K.F.-1 and K.F.-2. Petitioner points out that
the medical examiner testified that she could not ascertain whether K.F.-2’s rib fractures were the
result of nonaccidental trauma. According to petitioner, it was error for the circuit court to deny
him an improvement period when the DHHR failed to prove that K.F.-2’s injuries were intentional
and nonaccidental. Petitioner likens his case to In re S.J., No. 18-0243, 2018 WL 6119793 (W.
Va. Nov. 21, 2018)(memorandum decision), wherein this Court vacated the termination of the
mother’s parental rights and remanded with instructions to grant her an improvement period even
though she initially refused to admit how her children were injured or who perpetrated the abuse
against them. In contrast, petitioner distinguishes his case from In re Jeffrey R.L., in which we held
[p]arental rights may be terminated where there is clear and convincing
evidence that the infant child has suffered extensive physical abuse while in the
custody of his or her parents, and there is no reasonable likelihood that the
conditions of abuse can be substantially corrected because the perpetrator of the
abuse has not been identified and the parents, even in the face of knowledge of the
abuse, have taken no action to identify the abuser.
190 W. Va. 24, 435 S.E.2d 162 (1993), syl. pt. 3. Petitioner contends that in In re Jeffrey R.L., the
DHHR was able to prove that the injures to the children were nonaccidental, unlike the case at bar.
Based on these circumstances, petitioner avers that he should have been granted an improvement
period prior to the termination of his parental rights.
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[.]”).
We have also held that a parent’s “entitlement to an improvement period is conditioned upon the
ability of the [parent] to demonstrate ‘by clear and convincing evidence that the respondent is
likely to fully participate in the improvement period.’” In re Charity H., 215 W. Va. 208, 215, 599
S.E.2d 631, 638 (2004) (quoting W. Va. Code § 49-6-12(b) (1996)).
Having reviewed the record, we find that the circuit court did not err in denying petitioner’s
request for a post-adjudicatory improvement period. We acknowledge that petitioner complied
with parenting classes, supervised visitation, and random drug screens. However, at no time during
the proceedings below did petitioner provide a satisfactory explanation for the rib fractures K.F.-
1 and K.F.-2 sustained while in his care. Petitioner’s claims that he does not know how the
children’s injuries occurred are not credible in light of the substantial medical testimony that the
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injuries were the result of nonaccidental trauma and the parents’ own statements that they primarily
cared for the children. This Court has found 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) (citation omitted). Based on
petitioner’s failure to demonstrate his likelihood of fully participating in an improvement period
and his failure to acknowledge the issues of abuse, we find no error in the circuit court’s denial of
his motion for a post-adjudicatory improvement period.
Moreover, although petitioner likens his case to In re S.J., the cases are distinguishable. In
that case, the children were rendered unconscious due to the absorption or consumption of
synthetic marijuana. In the beginning of that case, the mother denied knowledge of how the
children were rendered unconscious, and later, how they were exposed to synthetic marijuana. In
re S.J., No. 18-0243, 2018 WL 6119793, at *1. However, at the adjudicatory and dispositional
hearings, the mother acknowledged that her marijuana use led to the children’s medical condition.
Despite these clear admissions on the record, the CPS worker testified that the mother failed to
accept responsibility for her actions, and the circuit court found that the mother denied that the
children were exposed to marijuana. Id. at *2. On appeal, we found that the circuit court’s findings
were erroneous in light of our review of the record and the evidence presented below and held that
the mother “accepted responsibility for her actions, complied with every service offered to her,
and had a strong bond with the children, all of which lends itself to the conclusion that she was
likely to fully participate in an improvement period and should have been granted one.” Id. at *3.
In the present case, petitioner has never provided an explanation as to what or who caused the
injuries to K.F.-1 and K.F.-2. despite admitting he and the mother primarily cared for the children
and he observed no one else handle the children or roughhouse with them. Moreover, the children
were two months old when they were hospitalized and K.F.-1 was removed from his care, and
there is no evidence of any established bond between petitioner and the child. Accordingly, we
find no merit in petitioner’s attempt to compare his case to In re S.J.
We likewise readily dispose of petitioner’s claim that his case is distinguishable from In re
Jeffrey R.L. While petitioner claims that the DHHR in the instant case did not prove that the injuries
were nonaccidental, unlike in In re Jeffrey R.L., we note that his argument is largely prefaced on
the injuries sustained to K.F.-2. It is true that the circuit court found that the DHHR had not met
its burden of proving that the injuries sustained by K.F.-2 were nonaccidental. However, the circuit
court found that the uncontroverted evidence established that the injuries sustained by K.F.-1 were
nonaccidental, and petitioner failed to offer any explanation as to her injuries. Further, as noted
above, petitioner admitted that he and the mother primarily cared for the children and he did not
identify the perpetrator of the abuse. As such, we find no merit in these claims.
The evidence as set forth above likewise supports the termination of petitioner’s parental
rights. West Virginia Code § 49-4-604(c)(6) provides that circuit courts are to terminate parental
5
rights upon findings 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 child’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.” Below, the doctors testified that the explanations of the injuries
given by the parents, such as falling from a bed, were unlikely given the children’s prematurity,
age, and the heights of the beds and chairs in the home, and the circuit court found that the evidence
regarding the nonaccidental nature of K.F.-1’s injuries was uncontradicted. As noted above,
petitioner continually denied knowledge of K.F.-1’s injuries or the perpetrator of the abuse in the
face of medical testimony that the injuries were due to nonaccidental trauma and his own
admission that the children were cared for primarily by him and K.F.-1’s mother. As provided
above, a circuit court may terminate a parent’s parental rights when they refuse to identify the
perpetrator of physical abuse. In re Jeffrey R.L., 190 W. Va. at 25-26, 435 S.E.2d at 163-64, syl.
pt. 3. Without an acknowledgement of the conditions or perpetrator of the abuse, the circuit court
correctly determined that there was no reasonable likelihood that the conditions would be
substantially corrected in the near future. Accordingly, we find no error in the circuit court’s order
terminating petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its April
7, 2020, order is hereby affirmed.
Affirmed.
ISSUED: December 10, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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