In re R.W.

FILED
January 12, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re R.W.
No. 21-0525 (Braxton County 21-JA-9)
MEMORANDUM DECISION
Petitioner Mother D.H., by counsel Daniel K. Armstrong, appeals the Circuit Court of
Braxton County’s June 2, 2021, order adjudicating her as an abusive and neglectful parent in regard
to R.W. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Patrick Morrisey and Lee Niezgoda, filed a response in support of the circuit court’s order. The
guardian ad litem, Julia R. Callaghan, filed a response on behalf of the child in support of the
circuit court’s order and a supplemental appendix. On appeal, petitioner argues that the circuit
court erred in adjudicating her as an abusing parent. 2
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
failed to protect three-year-old K.H. who was found unresponsive in his father’s home and later
was pronounced dead at a local hospital. The DHHR alleged that then one-year-old R.W. was in
the home at the time of his sibling’s death. According to the petition, petitioner moved out of the
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).
2
Subsequent to the order on appeal, petitioner’s parental rights to the child were terminated
by order entered on July 6, 2021. Petitioner does not, however, assign error on appeal in regard to
the termination.
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father’s home and did not live in the residence at the time of K.H.’s death. The DHHR further
alleged that the children’s maternal grandfather regularly cared for both children, despite the
involuntary termination of his parental rights to his own children—including petitioner. The
DHHR also alleged that petitioner engaged in domestic violence in front of the children with the
father. The DHHR alleged that petitioner allowed the father to care for the children despite his
violent tendencies and after she had filed a domestic violence petition against him. Finally, the
DHHR alleged that the father was charged with death of a child as a result of child abuse and child
neglect resulting in death, both felony offenses.
Later that month, the circuit court held a preliminary hearing. The court ordered that
petitioner pay child support and undergo psychological, parental fitness, and substance abuse
evaluations. Petitioner was also ordered to obtain full-time employment and suitable housing and
was granted supervised visitation with the child.
In March of 2021, the DHHR filed an amended petition setting forth additional details
concerning domestic violence between petitioner and the father. According to the amended
petition, petitioner reported to the West Virginia State Police that the father had smacked the
deceased child’s buttocks too hard on at least one occasion, leading to a domestic altercation
between the parents. The DHHR alleged that petitioner disclosed that all of the physical
altercations between her and the father were the result of him being too aggressive toward the
children. The next month, the DHHR filed a second amended petition alleging that the father left
the children unattended in the home; it also detailed additional incidents of domestic violence
between petitioner and the father.
The circuit court held an adjudicatory hearing in May of 2021 wherein petitioner testified
that there were ten to twelve incidents of domestic violence between her and the father in the two
years that they were in a relationship. Petitioner acknowledged that some of these incidents
occurred in front of the children. Petitioner stated that the most recent incident occurred in
November of 2020, approximately two-and-a-half months before the father was charged in the
death of three-year-old K.H. Petitioner testified that she sought a protective order after the incident
but acknowledged that the order was later dismissed after she failed to appear for the hearing.
During her testimony, petitioner admitted that, on at least one occasion, she witnessed the father
smacking K.H. “too hard,” which led to a physical altercation between the parents in front of the
children. Petitioner also testified that the father became angry and violent when he heard loud
noises, including noises made by the children. Petitioner explained that the father blamed his
violent behavior on an apparition purportedly named “Fire Face,” which he claimed appeared to
him in the trailer park where he resided. Next, the DHHR entered into evidence petitioner’s
recorded interview with law enforcement officials after K.H.’s death. In the recorded interview,
petitioner stated that she spoke to the father at 11:00 pm the night before K.H.’s death, at which
point he informed her that K.H. had told him that “Fire Face” was going to make him “kill them
all.” Despite this testimony, petitioner testified that she thought the children were safe in the
father’s care. Petitioner also admitted that she regularly left the children in the care of the
grandfather, whose parental rights to his children had been terminated, and claimed that she did
not understand that he was not permitted to supervise the children. Finally, petitioner testified that
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she did not inform a Child Protective Services (“CPS”) worker that she had witnessed the father
using drugs.
Next, a doctor testified as to medical records and photographs of K.H. from a local hospital.
According to the doctor, no pulse was ever detected after the child was brought to the hospital.
The doctor explained that K.H.’s rectal temperature upon his arrival to the hospital was 89.6º
Fahrenheit while the normal rectal temperature for a child is approximately 100º Fahrenheit. The
doctor explained that a dead body loses approximately 1.5º Fahrenheit per hour in a room
temperature climate. As a result, the doctor estimated that K.H. had been deceased for
approximately three to five hours before arriving at the hospital. According to the doctor, the
child’s ears, mouth, nose, and body were bruised and swollen upon arrival to the hospital. The
doctor noted that he could not open the child’s mouth or left eye, and the right eye was fixed and
dilated. He further explained that there was air in the child’s brain, the second and third cervical
vertebra were displaced three millimeters, and there was air in both chest cavities and outside the
lungs. The doctor testified that he had never seen injuries like this from CPR, only from child
abuse, severe trauma, and car accidents. The doctor noted that several of the child’s injuries could
have been fatal in and of themselves, and opined that the injuries to K.H. were a result of severe
child abuse.
Finally, a CPS worker testified that she investigated K.H.’s death and found that only the
father and R.W. were present at the time of K.H.’s death. The worker testified that after
interviewing the doctor and reviewing medical records of K.H.’s death, she filed the instant abuse
and neglect petition. The worker testified that petitioner failed to protect the children because she
placed the children in a domestic violence environment and allowed the father, who had violent
tendencies, to supervise the children. The worker noted that petitioner’s decision to allow the
children’s grandfather to supervise the children was concerning, as well. The worker also
contradicted testimony from petitioner that she never witnessed the father abuse controlled
substances.
After hearing the evidence, the circuit court found the testimony of the CPS worker and
doctor to be credible, while petitioner’s testimony was incredible. The court found that petitioner
consistently denied all allegations of wrongdoing or abuse and neglect. The court further found
that petitioner and the father committed ten to twelve acts of domestic violence in the presence of
the children. Based on the evidence, the court found that the DHHR established by clear and
convincing evidence that petitioner abused and neglected the children. 3 It is from the adjudicatory
order that petitioner appeals.
The Court has previously established the following standard of review:
3
During a later-held dispositional hearing, petitioner’s parental rights to R.W. were
terminated. The father’s parental rights were also terminated below. According to the parties, the
child’s permanency plan is adoption by his current foster parents.
3
“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).
All of petitioner’s assignments of error concern the circuit court’s adjudication of her as an
abusing and neglectful parent. First, petitioner argues that the circuit court erred in adjudicating
her as an abusing parent based on her decision to allow the children’s grandfather to supervise the
children. Petitioner argues that the DHHR failed to call a single witness who testified that petitioner
was ever informed that she could not allow the grandfather to supervise the children. She contends
that no one explained any terms or conditions related to the grandfather’s prior termination of
parental rights to his own children and that there was no evidence that she had any knowledge that
his prior termination of parental rights should have impacted his fitness to supervise the children.
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). Further, West Virginia Code § 49-
1-201 defines “abused child” as
[a] child whose health or welfare is being harmed or threatened by . . . [a] parent .
. . who knowingly or intentionally inflicts, attempts to inflict, or knowingly allows
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another person to inflict, physical injury or mental or emotional injury, upon the
child or another child in the home.
(Emphasis added).
Having reviewed the record, we find that sufficient evidence existed to adjudicate
petitioner as an abusing parent. While petitioner claims that she did not know that the grandfather
could not supervise the children, she does not dispute having knowledge that his parental rights
were previously terminated. Further, her testimony reflects that she understood that the grandfather
had been found by a circuit court to be unsafe to parent his children—including her. Nevertheless,
petitioner chose to allow the grandfather to serve as a caregiver for her children on a regular basis,
based upon a personal assessment that he had changed. Although there is no evidence that the
grandfather perpetrated acts of abuse or neglect against petitioner’s children, petitioner’s choice to
place the children in her father’s care, despite his history of abuse and neglect, threatened the
children’s safety and wellbeing. As noted above, West Virginia Code § 49-1-201 defines an
“abused child” as one whose “health or welfare is harmed or threatened” by abuse and neglect. As
such, the DHHR was not required to prove that the grandfather actually perpetrated abuse or
neglect against the children. Further, the DHHR was not required to put on evidence that petitioner
had knowledge of the terms and conditions of the grandfather’s prior termination of parental rights.
Rather, the DHHR demonstrated, by clear and convincing evidence, that petitioner knew or should
have known that the grandfather was an inappropriate caregiver for the children. Consequently,
the circuit court did not err in adjudicating petitioner based upon allowing the grandfather to
provide care for the children when she knew that his prior termination of parental rights placed the
children at risk for abuse and neglect.
Next, petitioner argues that the circuit court erred in adjudicating her based upon exposure
of the children to domestic violence. Petitioner contends that she had taken several steps to remove
the children from the toxic environment several months prior to K.H.’s death. She notes that the
father was undergoing mental health treatment, and only after he began treatment did she begin to
allow the father to engage in supervised visits with the children for hours at a time. Petitioner also
notes that she moved out of the father’s residence in November of 2020, after which there were no
incidents of domestic violence. As such, petitioner argues that she was not exposing R.W. to
domestic violence when the instant petition was filed in February of 2021. We find petitioner’s
arguments without merit.
Petitioner’s arguments in support of this assignment of error are predicated on her assertion
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 attacks the circuit court’s findings that acts of domestic violence committed
between petitioner and the father as recently as November of 2020 could serve as valid grounds
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for adjudication of abuse and neglect of the children based on a petition filed in February of 2021.
Petitioner argues that a CPS worker who testified was unable to articulate any remedial action that
petitioner could have taken between November of 2020 and January of 2021, when she began to
allow visitation with the children. However, petitioner ignores the fact that she filed for a protective
order against the father following an incident of domestic violence in November of 2020. That
protective order was later dismissed after petitioner failed to appear and present evidence in
support of her petition. Further, while petitioner separated herself from the father by moving out
of the shared residence, she continually allowed him to have regular contact with the children—
including unsupervised contact for extended periods of time. Petitioner allowed the father to
supervise the children, despite knowing his propensity for violence against her and the children.
Indeed, petitioner admitted at the adjudicatory hearing that the father engaged in at least ten to
twelve incidents of domestic violence in the course of their two-year relationship, including many
incidents in front of the children. Therefore, the children remained at risk of future harm from
exposure to domestic violence and as potential victims of the father’s violence. Accordingly, we
find no error in the circuit court’s adjudication of petitioner based upon domestic violence.
Finally, petitioner argues that the circuit court erred in adjudicating her based on her failure
to admit any wrongdoing or culpability. Petitioner notes that the DHHR has the burden of proof,
under West Virginia Code § 49-4-601(i), to prove conditions of abuse and neglect by clear and
convincing evidence. Petitioner contends that the circuit court shifted the burden of proof onto her
by finding that she failed to take any responsibility for the death of K.H. as to the finding of abuse
for R.W. We find petitioner’s arguments unavailing.
Here, while recognizing that “[t]he burden of proof in a child neglect or abuse case does
not shift from the State Department of [Health and Human Resources] to the parent, guardian or
custodian of the child,” we nonetheless find that such shifting did not occur below. Syl. Pt. 4, in
part, In re K.L., 233 W. Va. 547, 759 S.E.2d 778 (2014) (citation omitted). As set forth above, the
DHHR presented overwhelming evidence that petitioner knew or should have known that the
father was not a safe caregiver for the children. Petitioner testified that the father committed several
acts of domestic violence in the presence of the children, had anger management issues, and had
violent tendencies. Further, petitioner admitted that on at least one occasion, the father smacked
K.H., in her own words, “too hard.” Petitioner further testified that mere loud noises, including
from the children, caused the father to become angry and violent. Petitioner also documented that
the father failed to take responsibility for domestic violence in their relationship, blaming many
incidents on an apparition which he named “Fire Face.” Petitioner also allowed the children’s
grandfather, whose parental rights were previously terminated, to supervise the children and
minimized her actions by claiming that she did not “know” that he should not be around the
children. Thus, while the circuit court did find that petitioner “denied any wrongdoing” during the
proceedings, there is no evidence that the court used petitioner’s lack of admission to abuse and
neglect as a basis for her adjudication.
In sum, the evidence presented below was sufficient to demonstrate that petitioner abused
and/or neglected R.W. Therefore, we find no error in the circuit court’s adjudication of petitioner
as an abusing parent. Petitioner is entitled to no relief.
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For the foregoing reasons, we find no error in the decision of the circuit court, and its June
2, 2021, order is hereby affirmed.
Affirmed.
ISSUED: January 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
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