In re E.B., D.B., and H.B. ( 2022 )

FILED
March 9, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re E.B., D.B., and H.B.
No. 21-0801 (Randolph County 21-JA-4, 21-JA-5 and 21-JA-6)
MEMORANDUM DECISION
Petitioner Grandfather J.L., by counsel Timothy H. Prentice, appeals the Circuit Court of
Randolph County’s June 25, 2021, order terminating his guardianship and custodial rights to E.B.,
D.B., and H.B. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel Patrick Morrisey and Katica Ribel, filed a response in support of the circuit court’s order.
The guardian ad litem, Melissa T. Roman, filed a response on behalf of the children in support of
the circuit court’s order. On appeal, petitioner argues that the circuit court erred in (1) adjudicating
him as an abusing guardian, (2) denying his request for a post-adjudicatory improvement period,
(3) not permitting counsel to cross-examine the guardian ad litem, and (4) terminating his
guardianship and custodial rights.
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 February of 2021, the DHHR filed an abuse and neglect petition alleging that petitioner
and his wife allowed the children to have contact with their parents, whose parental rights were
terminated in a prior abuse and neglect proceeding due to substance abuse. The DHHR further
alleged that the children’s father was suspected of sexually abusing then four-year-old D.B. and
then six-year-old H.B. According to the petition, D.B.’s vaginal area was red and bruised, and she
had a rash on her groin and on her back. The DHHR further alleged that the children arrived at
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
daycare unclean with matted hair, soiled clothing, and smelling of urine while in petitioner’s
custody. According to the petition, daycare workers often observed bruising and scrapes on the
children and, on one occasion, observed then two-year-old E.B. had a black eye. The black eye
was blamed on being hit with a cell phone. The next month, petitioner waived his preliminary
hearing.
The DHHR filed an amended petition in April of 2021, alleging that the children expressed
fear of being hurt if they returned to petitioner’s home due to their past trauma. The DHHR alleged
that the children conveyed these fears to their new foster parents. Later that month, the circuit court
held an adjudicatory hearing wherein H.B.’s therapist testified that, during therapy sessions in June
of 2019, the child undressed a male and female doll and played with the dolls in a way suggesting
that the dolls were performing sexual acts. The therapist further testified that H.B. disclosed that
she had seen her parents perform similar acts and that her father had done similar acts to her. The
therapist indicated that she shared with the grandmother her concerns that H.B. had been sexually
abused. The therapist shared her professional opinion that exposing a child to a sexual offender,
regardless of whether the contact was supervised, was detrimental to the child’s best interest. Next,
a Child Protective Services (“CPS”) worker testified that she also previously informed the
grandmother about concerns that H.B. was being sexually abused by the father. The worker further
testified that she had warned the grandparents that if they allowed the parents to have further
contact with the children, the children could be removed from their home. The worker indicated
that petitioner also failed to observe supervised visitation rules during the prior abuse and neglect
proceeding, prior to the termination of the parents’ parental rights. A special education teacher and
owner of the children’s daycare testified that she noticed significant regression in the children’s
potty training in December of 2020. The teacher testified that D.B. would wet herself and played
with dolls in a sexual manner. The teacher indicated that she observed severe redness and bruising
on D.B.’s genital area and, after concluding it was inconsistent with a diaper rash, reported the
incident to law enforcement. Finally, a second CPS worker testified she also observed D.B.’s
genital area and noticed redness and bruising on the child’s inner thigh and buttocks. The worker
recalled that H.B. disclosed to her that the children had contact with their parents every day while
in petitioner’s care. The worker indicated that D.B. eventually disclosed to her that the father had
hurt her and that petitioner had told her “not to talk to people like [the worker].” The worker stated
that when she questioned the grandmother regarding D.B.’s redness and bruising, the grandmother
denied any such observations and believed it to be caused by the child falling off of a bar stool.
After hearing the evidence, the circuit court found that petitioner failed to protect the
children from contact with their parents, resulting in abuse and further mental trauma to the
children. The court further found that petitioner admitted knowing that the father was alleged to
have sexually abused H.B. and D.B. and was further advised by the guardian and a CPS worker
not to allow any contact between the children and the father. Despite his knowledge of the
prohibition, the court found that petitioner allowed the parents to have contact with the children.
The court further found that the father participated in a drug screen at a prior hearing that was
positive for methamphetamine. The court also found that petitioner failed to provide the children
with proper hygiene and care and neglected to seek medical attention for D.B.’s severe redness
and bruising on her genital area.
2
In June of 2021, the circuit court held a dispositional hearing, wherein petitioner moved
for an improvement period while the DHHR opposed petitioner’s motion and moved for the
termination of petitioner’s guardianship and custodial rights. In support of his motion, petitioner
testified that he realized after the adjudicatory hearing that the children’s parents still have a
substance abuse problem and that he accepted responsibility for allowing the children to be around
them. However, a CPS worker testified that the DHHR was opposing petitioner’s motion for an
improvement period because petitioner failed to protect the children from sexual abuse. The
worker also testified that the children expressed their wishes not to return to petitioner’s home.
Finally, petitioner’s counsel attempted to call the guardian ad litem as a witness, which the court
denied. In denying petitioner’s motion, the court explained that the Rules of Procedure for Child
Abuse and Neglect Proceedings preclude the guardian from testifying as to the contents of her
report and recommendations.
At the conclusion of the hearing, the circuit court denied petitioner’s motion for an
improvement period. In light of the evidence presented at the dispositional hearing, the circuit
court found that there was “no doubt in the [c]ourt’s mind that” petitioner loved the children. The
court also found that petitioner loved the children’s parents, which affected his objectivity.
However, the court found that petitioner had refused to accept that the children were sexually
abused or that the children’s parents continued to abuse controlled substances, despite clear
evidence of both circumstances. As a result, the court found that petitioner was not likely to
substantially correct the deficiencies that led to the filing of the petition because petitioner had not
truly and fully accepted responsibility for his role in the abuse and neglect of the children. Based
upon this evidence, the circuit court found that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected in the near future and that it was
in the best interests of the children to terminate petitioner’s guardianship and custodial rights. 2 The
circuit court entered an order reflecting its decision on June 25, 2021. Petitioner appeals from this
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
The parents’ parental rights were terminated during a prior abuse and neglect proceeding.
2
According to the parties, the permanency plan for the children is adoption in their current foster
home.
3
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).
First, petitioner argues that the circuit court erred in adjudicating him as an abusing
guardian and custodian. According to petitioner, he was under the impression that he was permitted
to allow contact with the children’s parents if they were sober and he supervised any visitation. He
contends that he did not know the parents were continuing to abuse controlled substances.
Petitioner further argues that there was no evidence to support the contention that the children had
a lack of hygiene and medical care or were subject to excessive corporal punishment, other than
uncorroborated testimony. As such, petitioner argues there was insufficient evidence to adjudicate
him as an abusing guardian and custodian. We disagree.
We have previously held as follows:
At 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 such child is abused or neglected . . . . The findings must be based upon
conditions existing at the time of the filing of the petition and proven by clear and
convincing evidence.
In re F.S., 233 W. Va. 538, 544, 759 S.E.2d 769, 775 (2014). This Court has explained that “‘clear
and convincing’ is the measure or degree of proof that will produce in the mind of the factfinder a
firm belief or conviction as to the allegations sought to be established.” Id. at 546, 759 S.E.2d at
777 (citation omitted). However, “the clear and convincing standard is ‘intermediate, being more
than a mere preponderance, but not to the extent of such certainty as is required beyond a
reasonable doubt as in criminal cases.’” Id. (citation omitted).
Having reviewed the record, we find that sufficient evidence existed to adjudicate
petitioner as an abusing and neglecting guardian of the children. On appeal, petitioner’s arguments
in support of this assignment of error are all predicated on his assertions that the circuit court
erroneously weighed the evidence in question. However, the rulings to which petitioner cites all
come down to the issue of credibility, and as this Court has long held, “[a] reviewing court cannot
assess witness credibility through a record. The trier of fact is uniquely situated to make such
determinations and this Court is not in a position to, and will not, second guess such
determinations.” Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997).
First, petitioner argues that he believed that the children were allowed to have contact with
their parents during the proceedings, despite the fact that their parental rights had been terminated.
However, this is contrary to the majority of the evidence presented at the adjudicatory hearing. At
various points throughout the proceedings, multiple CPS workers, a special education teacher, and
the children’s therapist testified as to the grandparents’ actions. Specifically, the children’s
therapist and a CPS worker testified at the adjudicatory hearing that the children were likely
sexually abused by the children’s father and that they both had warned the grandmother of the
4
possible abuse. The therapist further testified at the adjudicatory hearing that H.B. disclosed that
she had seen her parents perform sexual acts and that her father had done similar acts to her. While
petitioner argues that he thought supervised contact with the children was permitted, the therapist
also shared her professional opinion that exposing a child to a sexual offender, regardless of
whether the contact was supervised, was detrimental to the child’s best interest. Further, a CPS
worker testified that she warned the grandparents that if they allowed the parents to have further
contact with the children, the children could be removed from their home. This clearly contradicts
petitioner’s claims that he thought the parents were allowed contact with the children.
Next, petitioner claims there was insufficient evidence to conclude that he did not provide
proper hygienic or medical care to the children. Petitioner notes that the evidence largely stemmed
from the testimony of a single daycare worker. Petitioner contends that no other testimony was
presented demonstrating a lack of the children’s proper hygiene and that the daycare worker’s
testimony alone cannot be considered “clear and convincing evidence” of abuse and neglect of the
children. Petitioner also argues that the “only evidence presented about lack of medical care”
stemmed from redness and bruising on D.B.’s genital area. While petitioner argues that there was
“no other testimony,” beyond the daycare worker’s testimony, he ignores the fact that the circuit
court resolved this credibility determination against him. Further,
“[West Virginia Code § 49-4-601(i)], requires the [DHHR], in a child abuse or
neglect case, to prove ‘conditions existing at the time of the filing of the petition . .
. by clear and convincing [evidence].’ The statute, however, does not specify any
particular manner or mode of testimony or evidence by which the [DHHR] is
obligated to meet this burden.” Syllabus Point 1, In Interest of S.C., 168 W.Va. 366,
284 S.E.2d 867 (1981).
Syl. Pt. 1, In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176 (1997) (citations omitted).
The daycare worker—who is also a special education teacher and the owner of the
children’s daycare—testified that she noticed significant regression in the children’s potty training.
The worker testified that D.B. would wet herself and played with dolls in a sexual manner. The
worker further indicated that she observed severe redness and bruising on D.B.’s genital area and
reported the incident to law enforcement. Petitioner contends that evidence of redness and bruising
on the child’s genitals is insufficient evidence because the worker admitted that it could have been
caused by a diaper rash. However, petitioner ignores the worker’s testimony that she did not think
the bruising was consistent with a diaper rash. While petitioner is correct in his assertion that the
child was not observed by a sexual assault nurse examiner, a CPS worker testified that she also
observed D.B.’s genital area and noticed redness and bruising on the child’s inner thigh and
buttocks. In light of the above evidence, the circuit court properly found that the children were at
risk of sexual abuse from their father and that petitioner was aware of said abuse, ignored it, and
allowed the children to have continued contact with the father suspected of committing the sexual
abuse. The circuit court also properly found that the children demonstrated poor hygiene and were
at continued risk of harm in petitioner’s care. Accordingly, we find no error in the circuit court’s
adjudication of petitioner.
5
Next, petitioner argues that the circuit court erred in denying him a post-adjudicatory
improvement period. In support of his assertion, petitioner argues that he was unaware that the
children were not permitted contact with the parents but would prevent any future contact.
Petitioner also claims that he accepted responsibility for “not exerting more of an effort to ensure
that the parents were not using controlled substances.” We find petitioner’s arguments unavailing.
This Court has held that an individual “charged with abuse and/or neglect is not
unconditionally entitled to an improvement period.” In re Emily, 208 W. Va. 325, 336, 540 S.E.2d
542, 553 (2000). West Virginia Code § 49-4-610(2)(B) provides that the circuit court may grant a
post-adjudicatory improvement period when the parent or custodian “demonstrates, by clear and
convincing evidence, that the[y are] likely to fully participate in the improvement period.” “This
Court has explained that ‘an improvement period in the context of abuse and neglect proceedings
is viewed as an opportunity for the . . . [guardian] to modify his/her behavior so as to correct the
conditions of abuse and/or neglect with which he/she has been charged.’” In re Kaitlyn P., 225 W.
Va. 123, 126, 690 S.E.2d 131, 134 (2010) (citation omitted). However, the circuit court has
discretion to deny an improvement period when no improvement is likely. See In re Tonjia M.,
212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002). Further, 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) (citation omitted).
Contrary to petitioner’s argument, we see no error in the circuit court’s determination that
petitioner was not likely to fully participate in an improvement period. The circuit court found that
petitioner failed to acknowledge or take any responsibility for the conditions that led to the abuse
and neglect of the children. While petitioner argues that he proved he was likely to participate in
an improvement period by stating he would prevent any future contact between the parents and
the children and accepting responsibility for his mistakes, he failed to do so until the final
dispositional hearing. Throughout the proceedings, CPS caseworkers testified to petitioner’s lack
of candor and acknowledgement of wrongdoing. Specifically, petitioner allowed the parents to
have contact with the children despite repeated warnings that allowing such contact could result
in the termination of his guardianship rights. As such, there is ample evidence that petitioner’s
repeated failures to acknowledge the conditions of abuse and neglect resulted in his inability to
establish that he was likely to fully participate in an improvement period. Given this evidence, we
find no error in the circuit court’s decision to deny petitioner a post-dispositional improvement
period.
Next, petitioner raises an argument regarding the circuit court’s decision to not allow his
counsel to cross-examine the guardian ad litem. Petitioner argues that by denying him that
6
opportunity, his ability to present his case was prejudiced. However, in his brief on appeal,
petitioner fails to cite to any legal authority in support of this assignment of error. Rule 10(c)(7)
of the West Virginia Rules of Appellate Procedure requires that “[t]he brief must contain an
argument exhibiting clearly the points of fact and law presented . . . and citing the authorities
relied on, under headings that correspond with the assignments of error.” (Emphasis added).
Additionally, in an Administrative Order entered December 10, 2012, Re: Filings That Do Not
Comply With the Rules of Appellate Procedure, the Court specifically noted in paragraph two that
“[b]riefs that lack citation of authority [or] fail to structure an argument applying applicable law”
are not in compliance with this Court’s rules. Further, “[b]riefs with arguments that do not contain
a citation to legal authority to support the argument presented and do not ‘contain appropriate and
specific citations to the record on appeal . . .’ as required by rule 10(c)(7)” are not in compliance
with this Court’s rules. Here, petitioner’s brief regarding this assignment of error is inadequate as
it fails to comply with West Virginia Rule of Appellate Procedure 10(c)(7) and our December 10,
2012, administrative order. Accordingly, the Court will not address this assignment of error on
appeal.
Lastly, petitioner takes issue with the timeframe from adjudication to termination, arguing
that he should have been given additional time and an opportunity to demonstrate that he could
correct the conditions of abuse and neglect. However, we have previously held that “[c]ourts are
not required to exhaust every speculative possibility of parental improvement . . . where it appears
that the welfare of the child will be seriously threatened.” Cecil T., 228 W. Va. at 91, 717 S.E.2d
at 875, Syl. Pt. 4, in part (citation omitted). Further, we have held that
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [West Virginia
Code § 49-4-604] may be employed without the use of intervening less restrictive
alternatives when it is found that there is no reasonable likelihood under [West
Virginia Code § 49-4-604(d)] that conditions of neglect or abuse can be
substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d
114 (1980).
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). As such, we find no error in the
termination of petitioner’s guardianship and custodial rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its June
25, 2021, order is hereby affirmed.
Affirmed.
ISSUED: March 9, 2022
CONCURRED IN BY:
7
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice Alan D. Moats sitting by temporary assignment
8