In Re: D.H., D.R., and A.R.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: D.H., D.R., and A.R
December 1, 2017
EDYTHE NASH GAISER, CLERK
No. 17-0627 (Calhoun County 16-JA-19, 16-JA-20, & 16-JA-21) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother J.R., by counsel Rebecca Stollar Johnson, appeals the Circuit Court of
Calhoun County’s June 15, 2017, order terminating her parental rights to D.H., D.R., and A.R.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Tony Morgan, filed a response on behalf of the children also in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying her
motion for a post-adjudicatory improvement period and terminating her parental rights to the
children when a less-restrictive dispositional alternative existed.
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 August of 2016, the DHHR filed an abuse and neglect petition against petitioner
alleging that petitioner knowingly exposed her children to the risk of sexual abuse. Specifically,
the petition alleged that petitioner and the children continued to reside with petitioner’s live-in
boyfriend, B.P., after petitioner knew that the boyfriend had sexually abused D.H. The petition
further alleged that petitioner was frequently intoxicated, failed to properly supervise and protect
the children, and that the children were exposed to domestic violence in the home. In November
of 2016, the DHHR filed an amended petition alleging that D.H. was also sexually abused by a
neighbor.
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
In March of 2017, after a number of continuances, the circuit court held an adjudicatory
hearing wherein D.H.’s in-camera testimony was presented. D.H. disclosed that petitioner’s
boyfriend, B.P., sexually abused her by touching her breasts and repeatedly exposing her to
pornography. Trooper Brandon Shingleton testified that after he searched petitioner’s home as a
part of his investigation of the sexual abuse allegations, he recovered a pornographic digital
versatile disk (“DVD”) which D.H. identified as the movie petitioner’s boyfriend showed her.
The child’s psychologist testified that thirteen-year-old D.H. is functioning on an eight-year-old
level due to cognitive deficits. The psychologist also testified that D.H. disclosed to her that
petitioner’s boyfriend fondled her breasts and repeatedly exposed her to pornography.
Petitioner testified that she continued her relationship with her boyfriend, B.P., and did
not believe D.H.’s disclosures of sexual abuse. She also testified that she believed that D.H. was
exposed to pornography at the public library. Petitioner admitted that she was aware of the
pornography DVD found in her home and that her boyfriend lived in the home at the time the
allegations arose but stated that she believed that “it was just a coincidence.” Petitioner further
testified that she did not believe that D.H. was telling the truth because D.H. had a “problem with
lying” and that she had no concerns about her boyfriend. A DHHR caseworker testified that D.H.
disclosed to her that she witnessed a domestic violence incident between petitioner and her
boyfriend wherein the boyfriend pulled petitioner’s hair and threatened to kill the whole family.
At the close of the evidence, the circuit court adjudicated petitioner as an abusing parent and
found that there was clear and convincing evidence that petitioner’s boyfriend sexually abused
D.H. In May of 2017, petitioner filed a motion for a post-adjudicatory improvement period.
In June of 2017, the circuit court held a dispositional hearing wherein petitioner testified
that she continues her relationship with B.P. and that he “is an innocent man who has been
charged and put in jail because of D.H.’s lies.” At the conclusion of the hearing, the circuit court
denied petitioner’s motion for an improvement period, finding no reasonable likelihood that
petitioner could substantially correct the conditions of abuse and neglect in the near future and
that termination of petitioner’s parental rights was consistent with the best interests of the
children. Ultimately, the circuit court terminated petitioner’s parental rights to the children by an
order entered on June 15, 2017.2 It is from this order that petitioner now appeals.
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
2
Petitioner’s parental rights to the children were terminated below. According to the
guardian and the DHHR, D.R. and A.R. were placed in the sole custody of their non-offending,
biological father, J.R. Also, D.H. was placed in the custody of her biological father, R.H., who is
currently on an improvement period.
2
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).
Petitioner first argues on appeal that she should have been granted a post-adjudicatory
improvement period because the “testimony in this case indicates that D.H. was prone to make
up stories and tell fibs when she was angry or did not get her way.” We disagree. Petitioner’s
argument ignores important portions of the adjudicatory hearing wherein petitioner illustrated
her continued failure to acknowledge the conditions that gave rise to the matter. In order to
obtain a post-adjudicatory improvement period, West Virginia Code § 49-4-610(2)(B) requires
that the parent “demonstrate[], by clear and convincing evidence, that [the parent] is likely to
fully participate in an improvement period . . . .” Further, we have often noted that 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) (holding that “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) (holding that “[i]t is
within the court’s discretion to grant an improvement period within the applicable statutory
requirements”).
Here, petitioner failed to prove by clear and convincing evidence that she was likely to
substantially comply with the terms and conditions of a post-adjudicatory improvement period
because the circuit court was presented with evidence that petitioner continued her relationship
with her boyfriend, did not believe D.H.’s disclosures of sexual abuse, and had no concerns
about her boyfriend because she did not believe D.H. was telling the truth. In keeping with our
prior holdings, we have stated 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) (quoting In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Simply put, petitioner’s failure to acknowledge
the conditions of abuse resulted in her inability to establish that she was likely to fully participate
in an improvement period, as required by West Virginia Code § 49-4-610(2)(B). As such, we
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find no error in the circuit court’s denial of petitioner’s motion for a post-adjudicatory
improvement period.
Petitioner also argues that the circuit court should have imposed a less-restrictive
dispositional alternative and not terminated her parental rights. However, petitioner’s argument
ignores the circuit court’s findings regarding her failure to acknowledge the abuse in the home,
the fact that there was no reasonable likelihood the conditions of abuse and neglect could be
substantially corrected in the near future, and that termination was necessary for the children’s
welfare. Specifically, the circuit court found that petitioner testified that D.H. was a “liar” despite
its finding that her boyfriend sexually abused D.H. As previously stated, the abuse of a child
cannot be remedied unless its existence is first acknowledged. See In re Timber M., 231 W.Va.
44, 55, 743 S.E.2d 352, 363 (2013).
Given petitioner’s refusal to accept that her boyfriend sexually abused D.H., the circuit
court was correct in finding that there was no reasonable likelihood the conditions of abuse and
neglect could be substantially corrected in the near future. Moreover, the circuit court was
similarly correct in finding that termination of petitioner’s parental rights was necessary to
protect the children’s health, safety, and welfare. Pursuant to West Virginia Code § 49-4­
604(b)(6), circuit courts are directed to terminate parental rights upon such findings.3
Accordingly, we find no error in the termination of petitioner’s parental rights.
3
This Court reminds the circuit court of its duty to establish permanency for the child.
Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires:
At least once every three months until permanent placement is achieved as
defined in Rule 6, the court shall conduct a permanent placement review
conference, requiring the multidisciplinary treatment team to attend and report as
to progress and development in the case, for the purpose of reviewing the progress
in the permanent placement of the child.
Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child
within twelve months of the date of the disposition order. As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia
Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
placement of an abused and neglected child following the final dispositional order
must be strictly followed except in the most extraordinary circumstances which
are fully substantiated in the record.
Syl. Pt. 6, Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Moreover, this Court has stated that
(continued . . . )
4
For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 15, 2017, order is hereby affirmed.
Affirmed.
ISSUED: December 1, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
[i]n determining the appropriate permanent out-of-home placement of a
child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4­
604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
home for the child and shall consider other placement alternatives, including
permanent foster care, only where the court finds that adoption would not provide
custody, care, commitment, nurturing and discipline consistent with the child’s
best interests or where a suitable adoptive home can not be found.
Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).
5