In re A.B. and J.S. ( 2024 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re A.B. and J.S.
June 7, 2024
released at 3:00 p.m.
C. CASEY FORBES, CLERK
SUPREME COURT OF APPEALS
No. 23-140 (Kanawha County 21-JA-625 and 21-JA-626) OF WEST VIRGINIA
MEMORANDUM DECISION
The petitioner Mother A.S.1 appeals the Circuit Court of Kanawha County’s
February 28, 2023 order terminating her parental rights to A.B.-1 and J.S.2 She asserts that
the circuit court’s errors included determining that she abused and neglected those children
and then terminating her parental rights. Upon our review, a memorandum decision
affirming the circuit court’s order is appropriate. See W. Va. R. App. P. 21(c).
While this appeal arises from an abuse and neglect proceeding initiated by a petition
filed in 2021, a prior abuse and neglect proceeding against the petitioner began in
September 2020. The 2020 proceeding began with a petition alleging that petitioner’s
three- and two-year-old children, A.B.-1 and A.B.-2, were abused and neglected. The
allegations in the 2020 petition included A.B.-2’s extreme malnourishment, domestic
1
The petitioner appears by counsel Benjamin Freeman. The West Virginia
Department of Human Services appears by counsel Attorney General Patrick Morrisey and
Assistant Attorney General Kristen E. Ross. Counsel Sharon K. Childers appears as the
children’s guardian ad litem (“guardian”).
Additionally, pursuant to West Virginia Code § 5F-2-1a, the agency formerly
known as the West Virginia Department of Health and Human Resources was terminated.
It is now three separate agencies—the Department of Health Facilities, the Department of
Health, and the Department of Human Services. See W. Va. Code § 5F-1-2. For purposes
of abuse and neglect appeals, the agency is now the Department of Human Services
(“DHS”).
2
We use initials where necessary to protect the identities of those involved in this
case. See W. Va. R. App. P. 40(e). Additionally, because one of the children and a child
who is not the subject of the abuse and neglect proceeding share the same initials, we will
refer to them as A.B.-1 and A.B.-2, respectively.
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violence between the petitioner and the father of A.B.-1 and A.B.-2, and the petitioner’s
drug use. The petitioner completed an improvement period and received services from the
DHS, and the circuit court dismissed the 2020 petition against the petitioner.
Only three months after that case was dismissed, in October 2021, the petitioner
called 911 claiming that A.B.-2 was in cardiac arrest. When emergency personnel arrived,
they discovered A.B.-2 deceased and already in a state of decomposition with maggots on
her body and skin slippage, along with the bed sheets soiled with bodily fluids. A.B.-1 was
present in the home.
Shortly thereafter, the DHS filed the 2021 abuse and neglect petition. The petition
alleged that A.B.-1 and the petitioner’s older child, J.S., were abused and neglected
children.3 In addition to describing the circumstances surrounding the discovery of
A.B.-2’s death, the petition alleged that the petitioner failed to provide the children with
necessary food, clothing, supervision, housing, and consistent financial support. An
amended petition asserted that the petitioner tested positive for methamphetamine on the
date that A.B.-2 was found deceased, and a second amended petition claimed that alcohol
was found in the deceased child’s system.
During the preliminary hearing, a police officer and a paramedic testified regarding
responding to the 911 call. The paramedic stated that when he arrived at the home, A.B.-2
had no pulse. After removing the child from the dimly lit home to better observe her
condition, emergency personnel realized the child was deceased. The paramedic testified
that A.B.-2 was cold to the touch and stiff, her skin was pale, her eyes were sunken in, and
there were live maggots on her body. He described A.B.-2 as wearing an old, soiled diaper
with dried stool and urine stains and having a feeding tube in the abdominal region. The
police officer explained that when he arrived, the paramedics had already taken the child
to the ambulance and determined she was deceased. He stated that A.B.-1 was present at
the home, and the officer saw the bedroom where responders found A.B.-2. He described
the bed where A.B.-2 was found as soiled with what appeared to be fluids in the outline of
the child’s body and with maggots in the sheets. At the conclusion of the hearing, the court
found probable cause to ratify A.B.-1’s removal from the home. J.S. was already in the
care of her nonabusing father.
The court held two adjudicatory hearings. During testimony from the forensic
pathologist who conducted the autopsy of A.B.-2’s body, the court admitted the autopsy
report into evidence with no objection. According to the pathologist’s testimony and
autopsy report, the child had a history of medical issues and hospitalizations, beginning
with “in-utero maternal exposure to poly-substance abuse,” meaning she was born drug-
affected. The pathologist testified that A.B.-2 died due to “failure to thrive . . . caused by
3
J.S., born before A.B.-1 and A.B.-2, lived with her nonabusing father, and was not
named in the original 2020 abuse and neglect petition.
2
congenital and born defects,” including hypothyroidism, which was caused by
underdevelopment and malformation of the brain. The child also had an inappropriately
formed larynx, which caused issues with swallowing and eating, resulting in a gastric
feeding tube. Further, the pathologist explained that physicians diagnosed A.B.-2 with
occasional malnutrition and dehydration her entire life. Importantly, the pathologist
testified that a toxicology report revealed alcohol in A.B.-2’s system, which was introduced
from outside her body and not caused by any fermentation after death. According to the
pathologist and the autopsy report, the presence of alcohol in A.B.-2’s system was a
“significant contributing condition” to the child’s death. A police detective who responded
to the scene then testified. He told the court about the appearance of A.B.-2 in the
ambulance and described what he found in the home, then told the court that the petitioner
tested positive for methamphetamine and marijuana on the day the child was found
deceased. Finally, the DHS called a child forensic interviewer to testify regarding an
interview she conducted with A.B.-1. According to the interviewer, A.B.-1 described
instances in which the petitioner left A.B.-2 alone. A.B.-1 said, “[w]hen mommy and me
stayed away at nighttime, sissy would freak out when she was awake” and that A.B.-2
hated being alone. When describing where they would go, A.B.-1 said they would go to
“mawmaw’s and pawpaw’s” and no one would stay with A.B.-2. When the forensic
interviewer asked A.B.-1 what the petitioner would do if A.B.-2 was crying, A.B.-1 said
the petitioner would put things in A.B.-2’s mouth, including a pacifier, tissues, and a shoe.
The petitioner also testified, explaining that she did not feel responsible for what
happened to A.B.-2. On the day emergency personnel responded after she called 911, the
petitioner stated that A.B.-1 was downstairs watching cartoons and that they had been sick
with COVID-19. The petitioner explained that A.B.-2 was upstairs, and the last time she
checked on A.B.-2—three hours before she called 911—A.B.-2 was asleep. She told the
court that when she went upstairs, A.B.-2 had passed away. The petitioner denied anything
being wrong with the child when she last checked and could not explain the maggots found
on the child’s body or the state of decay. The petitioner denied harming the child or ever
leaving her alone and further denied that A.B.-2 was born drug-affected, although she
admitted to having substance abuse issues in the past. The petitioner denied using
methamphetamine but admitted to smoking marijuana regularly and on the day her child’s
death was discovered. Regarding alcohol being found in the child’s system, the petitioner
suggested that it could have been from contaminated formula and insisted she did not give
the child alcohol. In regard to the earlier abuse and neglect proceeding, she asserted that
A.B.-1 and A.B.-2 were returned to her care in February 2021, although the dismissal
occurred in July 2021. The petitioner further testified that she had not seen J.S. in about
five years.
At the conclusion of the testimony, the court found that the petitioner’s testimony
was not credible and also that the children were abused and neglected. Therefore, the court
adjudicated the petitioner as an abusing and neglecting parent and A.B.-1 and J.S. as abused
and neglected children. In the adjudicatory order, the court made specific findings
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regarding the circumstances of A.B.-2’s death and A.B.-1’s presence at the home while
A.B.-2 decayed and petitioner’s positive drug screens. The court also found that the
petitioner “had not had contact with [J.S.] for years and she has not provided any type of
support, financial or in-kind[,] during this time.”
During the dispositional hearing in February 2023, which the petitioner’s counsel
attended, but the petitioner did not, the DHS and guardian ad litem supported termination
of the petitioner’s parental rights. A CPS worker testified that the petitioner received
services in the prior abuse and neglect case and that A.B.-2’s death occurred not very long
after the children were returned to her custody. The court then found that there was no
reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected in the near future and that the best interests of the children required termination
of the petitioner’s parental rights.4 The petitioner now appeals.
On appeal from a final order in an abuse and neglect proceeding, this Court reviews
the circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl.
pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). The petitioner claims that the
circuit court clearly erred by finding that she abused and neglected her children and by
subsequently terminating her parental rights. She primarily argues that the court’s
determination regarding abuse and neglect, and later termination, should not have been
based on A.B.-2’s death, as the DHS failed to prove the petitioner caused the death. She
further contends that the petition, as amended, did not allege that she failed to visit J.S. and
she asserts that termination was not the least restrictive alternative. Finally, the petitioner
argues that the court denied her services regarding her substance abuse issues.
We find no error in the circuit court’s determination that A.B.-1 and J.S. are abused
and/or neglected children. The court’s findings “[a]t the conclusion of the adjudicatory
hearing” must include whether a child is abused or neglected and whether the respondent
parent is abusing or neglecting. W. Va. Code § 49-4-601(i). These findings must also “be
based upon conditions existing at the time of the filing of the petition and proven by clear
and convincing evidence.” Id. The petitioner argues that because the DHS did not prove
she caused A.B.-2’s death, she cannot be found to have abused and neglected her other
children. However, the DHS presented ample evidence of the circumstances surrounding
the death of A.B.-2, and this testimony directly relates to the adjudication of A.B.-1 as an
abused and neglected child, as he was present at the home before and during the discovery
of A.B.-2’s death. Regarding A.B.-2, the court heard testimony of investigating officers, a
paramedic, and a forensic pathologist. These witnesses explained how the child was born
drug-affected due to the petitioner’s substance abuse and how the petitioner continued to
use methamphetamine, as she tested positive for methamphetamine on the day the child’s
4
The father of A.B.-1 had his parental rights terminated, and the permanency plan
for this child is adoption in his current placement. The father of J.S. is nonabusing, and the
permanency plan for this child is to remain in her father’s custody.
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death was discovered, while she purportedly cared for A.B.-1. Furthermore, a prior abuse
and neglect case began after a pediatrician recognized A.B.-2’s extreme malnourishment.
Then, only three months after A.B.-1 and A.B.-2 were returned to the petitioner’s custody,
A.B.-2 was found deceased. The evidence established that, among the many issues that
contributed to her death, the child was dehydrated and had alcohol in her system that was
not the result of fermentation after death. Also, emergency personnel found A.B.-2
decomposing, with maggots on her body, demonstrating that the child had been deceased
for some time before they were called, and A.B.-2’s deceased body was located in the home
with A.B.-1. Thus, A.B.-1 lived in the home where his sister had alcohol in her system
upon her death, and she lay dead so long she was decomposing, all of which constitutes
direct evidence of the abuse and neglect of A.B.-1. The court further did not err in finding
A.B.-1 to be abused due to the petitioner’s abuse of A.B.-2, another child residing in the
home, which puts him at a risk of harm. See Syl. pt. 2, In re Christina L., 194 W. Va. 446,
460 S.E.2d 692 (1995) (“Where there is clear and convincing evidence that a child has
suffered physical and/or sexual abuse while in the custody of his or her parent(s), guardian,
or custodian, another child residing in the home when the abuse took place who is not a
direct victim of the physical and/or sexual abuse but is at risk of being abused is an abused
child under [West Virginia Code § 49-1-201].”); see also W. Va. Code § 49-1-201(including in the definition of abused child “a child whose health or welfare is being
harmed or threatened by . . . [a] parent . . . who knowingly or intentionally inflicts [or]
attempts to inflict . . . physical injury or mental or emotional injury, upon the child or
another child in the home” (emphasis added)).
Although the petitioner’s self-serving testimony at adjudication was that she did not
cause A.B.-2’s death and did not use methamphetamine, she admitted to smoking
marijuana on the day the child’s deceased body was found and that she did not check on
A.B.-2 for three hours. The court specifically noted the lack of credibility in the petitioner’s
testimony, and because the circuit court is better situated to measure witness credibility,
we do not “second guess such determinations.” Michael D.C. v. Wanda L.C., 201 W. Va.
381, 388, 497 S.E.2d 531, 538 (1997).
Regarding the court’s adjudication of J.S. as an abused and neglected child, to the
extent that the petitioner raises a passing issue of notice in her brief, the petition was legally
sufficient to allow her to respond to the DHS’s allegations that she had abused and
neglected J.S. The allegations in the petition, which included claims that that the
petitioner’s conduct resulted in a failure to provide the children with necessary food,
clothing, supervision, housing, and, at times, financial support, provided ample notice and
were “sufficiently specific” to inform the petitioner of the petition’s basis, allowing her “a
reasonable opportunity to prepare a rebuttal.” See Syl. pt. 1, State v. Scritchfield, 167
W. Va. 683, 280 S.E.2d 315 (1981) (“If the allegations of fact in a child neglect petition
are sufficiently specific to inform the custodian of the infants of the basis upon which the
petition is brought, and thus afford a reasonable opportunity to prepare a rebuttal, the child
neglect petition is legally sufficient.”).
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The petitioner further argues that the circuit court erred in adjudicating J.S. as an
abused and neglected child because J.S. was not in the petitioner’s custody at the time of
the filing of the petition. Still, the fact that a child lives outside of a parent’s home at the
time a petition is filed does not preclude a finding, if such finding is supported by the
evidence, that the child is abused or neglected. See Syl. pt. 3, in part, In re B.V., 248 W. Va.
29, 886 S.E.2d 364 (2023) (noting that a child’s placement in a legal guardianship “does
not preclude a circuit court from exercising subject matter jurisdiction in adjudicating
whatever rights a respondent to that petition may still have to that child, provided that the
child meets the definition of an ‘abused child’ or ‘neglected child’ as defined in West
Virginia Code § 49-1-201 (2018) so as to confer that jurisdiction”). A “neglected child” is
defined as a child “[w]hose physical or mental health is harmed or threatened by a present
refusal, failure or inability of the child’s parent . . . to supply the child with necessary food,
clothing, shelter, supervision, medical care, or education[.]” W. Va. Code § 49-1-201.
Furthermore, “abandonment” means “any conduct that demonstrates the settled purpose to
forego the duties and parental responsibilities to the child.” Id. Here, although J.S. was not
in the petitioner’s care or custody at the time the DHS’s petition was filed, the court found
that petitioner neither had any contact with the child in several years, nor had she provided
any type of support during that time. Pursuant to her own admissions during her testimony,
the petitioner had not seen J.S. about five years. Furthermore, during the proceedings, J.S.’s
father proffered that while he was granted child support, the petitioner never provided it.
By “not asserting [her] parental rights, [p]etitioner demonstrated a settled purpose to forgo
[her] responsibilities and duties” to J.S. In re C.M.-1, 247 W. Va. 744, 749, 885 S.E.2d
875, 880 (2023). When a non-custodial parent fails to “‘show interest in the child’s welfare
and provide financial and emotional support for the child,’” that failure is “‘strong evidence
of abandonment.’” Id. (quoting In re R.R., No. 17-0930, 2018 WL 1251845, at *3 (W. Va.
March 12, 2018) (memorandum decision)). Based on the evidence before it, the circuit
court did not err in determining that J.S. was a neglected child, and we find no error in the
court’s adjudicatory decision regarding J.S.
As to termination, we also conclude that the circuit court did not err in terminating
the petitioner’s parental rights. The petitioner contends that the circuit court failed to
require the DHS to provide her with services that could assist with her substance abuse
issues, that the circuit court could have deployed less restrictive dispositional alternatives,
and that the termination of her parental rights was in error. In regard to the petitioner’s
argument that the circuit court erred by denying her substance abuse services, this abuse
and neglect proceeding occurred on the heels of a prior proceeding, with similar issues of
the petitioner’s substance abuse and A.B.-2’s malnourishment, and where services were
provided to remedy these conditions. Before the petitioner regained custody at the
conclusion of the earlier proceeding, she both completed her improvement period and
received services. It is apparent from the record that the circuit court absolved the DHS of
its duty to provide those services in this proceeding consistent with West Virginia Code
§ 49-4-604(c)(7). See In re C.C., No. 19-0322, 2019 WL 6139581, at *5 (W. Va. Nov. 19,
2019) (memorandum decision) (concerning the reoccurrence of deplorable housing
6
conditions). Furthermore, the petitioner’s argument regarding her failure to receive
services is skeletal—only two sentences—and is insufficient to disrupt the circuit court’s
determination below.
Regarding dispositional alternatives, a circuit court may terminate a parent’s
parental rights “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(c)(6)] that
conditions of neglect or abuse can be substantially corrected.” Syl. pt. 2, in part, In re
R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980). The circuit court found that the conditions
which gave rise to the petition in this case could not be substantially corrected. The
evidence before the court supports this finding as to A.B.-1: the 2020 petition arose, in part,
from A.B.-2’s malnourishment and the petitioner’s substance abuse, yet shortly after
A.B.-1 and A.B.-2’s return to the petitioner’s custody after she completed her improvement
period, A.B.-2 died, her body was discovered in a state of decay while A.B.-1 was present,
and the petitioner’s substance abuse continued, which she repeatedly denied. Furthermore,
in regard to J.S., there was no reasonable likelihood that the conditions of neglect or abuse
could be “substantially corrected” when “[t]he abusing parent or parents have abandoned
the child,” like the petitioner abandoned J.S. W. Va. Code § 49-4-604(d)(4).
For the same reasons, the evidence established that the petitioner failed to make any
rehabilitative efforts to reduce or prevent the abuse or neglect of her children. See W. Va.
Code § 49-4-604(d)(3) (setting forth that there is no reasonable likelihood that conditions
of neglect or abuse can be substantially corrected when “[t]he abusing parent or parents
have not responded to or followed through with a reasonable family case plan or other
rehabilitative efforts”). In the prior proceeding, the petitioner completed an improvement
period and her two children were returned to her, yet A.B.-2 died three months after
returning to her custody while the petitioner allowed A.B.-1 to reside in the same home as
his sister’s decaying corpse, and the petitioner screened positive for methamphetamine on
the date her child’s death was discovered.
Furthermore, the circuit court also considered the petitioner’s failure to
acknowledge any wrongdoing. This Court has often noted that “‘to remedy the abuse
and/or neglect problem, the problem must first be acknowledged.’” 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) (per curiam)). The petitioner’s “‘[f]ailure 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.’” Id. (quoting In re Charity H., 215 W. Va. at 217, 599 S.E.2d at 640).
While the petitioner failed to appear for the dispositional hearing, when she testified earlier
in the proceedings, she stated that she did not feel any responsibility for A.B.-2’s death and
denied that she used methamphetamine despite evidence of a positive screen for that drug.
Even on appeal, the petitioner asserts that A.B.-2 died of “natural causes,” a gross
misstatement of the pathologist’s testimony. The pathologist’s testimony was that A.B.-2’s
7
manner of death was “undetermined,” yet indicated that the child received alcohol and was
extremely dehydrated and malnourished. In light of the circumstances in which first
responders found A.B.-2, the very real threat of harm to A.B.-1 demonstrates that
termination was clearly in his best interests, and the court correctly found it proper to
terminate the petitioner’s parental rights, rather than implementing a dispositional
alternative. To the extent that petitioner argues that the DHS failed to prove that she caused
A.B.-2’s death and, in turn, that termination was not justified, her argument ignores the
grim testimony from emergency personnel regarding the circumstances in which they
found A.B.-2 deceased, while A.B.-1 was present and living in the same home, and further
disregards her abandonment of J.S.
Accordingly, for the foregoing reasons, we find no error in the decision of the circuit
court, and its February 28, 2023 order is hereby affirmed.
Affirmed.
ISSUED: June 7, 2024
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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