In re C.W., T.W., P.W., and L.W.

FILED
October 28, 2021
released at 3:00 p.m.
STATE OF WEST VIRGINIA
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re C.W., T.W., P.W., and L.W.
Nos. 20-1032 & 21-0015 (Randolph County 19-JA-07, 19-JA-08, 19-JA-95, 19-JA-122)
MEMORANDUM DECISION
In these consolidated matters, Petitioner Father S.W. (“Father”), by counsel
Steven B. Nanners, and Petitioner Mother T.W. (“Mother”), by counsel J. Brent Easton
(collectively “Petitioners”), appeal the Circuit Court of Randolph County’s December 4,
2020, order terminating their parental rights to four children, C.W., T.W., P.W., and L.W.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Patrick Morrisey and Katherine A. Campbell, filed a response in support of the circuit
court’s order. The children’s guardian ad litem, Gregory R. Tingler, filed a response on
behalf of the children supporting the circuit court’s order. The dispositive issue on appeal
is whether the circuit court erred when it proceeded immediately to disposition after
announcing its adjudicatory ruling on the issues of physical abuse and alcohol abuse.
Petitioners objected to accelerated disposition.
This Court has considered the parties’ briefs, oral arguments, and the record
on appeal. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the
West Virginia Rules of Appellate Procedure. After review, we find that the circuit court
erred by proceeding immediately to disposition, over Petitioners’ objection, after
announcing its adjudicatory ruling. We reverse the circuit court’s December 4, 2020,
disposition order, and remand these matters to the circuit court with directions for it to hold
a new disposition hearing consistent with our ruling herein.
In January of 2019, the DHHR filed a child abuse and neglect petition against
Petitioners alleging that they had 1) physically abused the then ten-year-old child, C.W.,
1
Consistent with our long-standing practice in cases with sensitive facts, we use
initials to identify the parties. See, e.g., State v. Edward Charles L., 183 W. Va. 641, 645
n.1, 398 S.E.2d 123, 127 n.1 (1990).
1
and 2) failed to provide proper medical care for the then nine-month-old child, T.W. 2 A
DHHR worker interviewed C.W. at his elementary school in January of 2019. C.W.
described extensive physical abuse Father inflicted upon him. These incidents of physical
abuse included Father kicking him with steel toed boots and Father picking C.W. up by his
ankle and dropping him on his head. In addition to this physical abuse, C.W. asserted that
Father drank alcohol every night. He stated that Father “will drink and drive while him
[C.W.] and his little brother [T.W.] are in the car along with [Mother].” Further, C.W.
stated that “[Father] keeps the beer in the cooler in his truck and [Mother] does not say
anything to him about drinking and driving.” C.W. also reported that Father was verbally
abusive and would often threaten him. One such threat, according to C.W., was Father
telling him that “I’m going to knock your teeth out of your mouth.”
Additionally, C.W. stated that Mother physically abused him including
“squeezing his mouth shut so he couldn’t speak. [C.W.] reported that he put his hand in
her face to get her [to] stop and she ‘bit me really hard.’” C.W. also provided that Mother
bit him on his big toe. The DHHR worker who interviewed C.W. observed that he had
marks on his “hand right below his pinky and also on his foot.”
Following the interview at the elementary school, a forensic interview with
C.W. was held at the children’s advocacy center (“CAC”) on January 24, 2019. During
this interview, C.W. again described the physical abuse he had suffered and Father’s
alcohol abuse. This forensic interview was recorded.3
The abuse and neglect petition was amended multiple times between July
and October of 2019. The first amended petition was filed in July of 2019, further detailing
Petitioners’ medical neglect of T.W., and describing the lack of prenatal care that Mother
was seeking for an on-going pregnancy. The second amended petition was filed in August
of 2019, citing Father’s abandonment of P.W. A third amended petition was filed in
September of 2019, adding another child, L.W., who was born during these proceedings.
2
Father is the biological father of all four children at issue in this case. Mother is
the biological mother of T.W. and L.W. While Mother is not the biological mother of
C.W., we note that C.W. was living with Petitioners at the time this petition was filed.
Though Mother is not C.W.’s biological mother, for ease of the reader, we refer to her in
this opinion as “Mother.”
3
As noted in the DHHR’s abuse and neglect petition, [C.W.] “was previously
forensically interviewed at the Randolph/Tucker CAC on April 26, 2016 and on July 22,
2016. [C.W.] made disclosures of physical abuse at each of these interviews as well.”
2
Finally, the petition was amended in October of 2019, alleging that Father made statements
to medical professionals illustrating his disinterest in the children.
The procedural history of this matter from November 2019 through
December 2020 is convoluted and sometimes involved hearings that seemed to be
simultaneously adjudicatory and dispositional in nature. We note that throughout these
proceedings, there were four main allegations against Petitioners: 1) medical neglect; 2)
Father’s abandonment of P.W.; 3) physical abuse committed by both parents; and 4)
Father’s alcohol abuse.
The circuit court held an adjudicatory hearing on November 1, 2019.
Petitioners filed written stipulations in which they agreed that they had abused and
neglected the children by failing to seek appropriate medical care. However, as noted in
the circuit court’s subsequent order, Petitioners “are specifically denying any type of
physical abuse and alcohol abuse issues. Further, paternity testing is not yet complete with
regard to [P.W.] 4 and the abandonment allegations are not yet ripe for adjudication.” Based
on Petitioners’ stipulation to the medical neglect allegations, the circuit court adjudicated
them of abuse and neglect.
Additionally, during this hearing the DHHR requested that the circuit court
admit and review the three forensic interviews with C.W., including the January 2019
interview. The DHHR explained that these interviews were relevant to both the physical
abuse and alcohol abuse issues. Petitioners did not object to the admission of these forensic
interviews. Each of these interviews lasted for approximately one hour. The circuit court
admitted these interviews and noted that “we’ll set it for another hearing after I [have] had
an opportunity to review it [the forensic interviews].” Based on the foregoing, the circuit
court scheduled an additional adjudicatory hearing for December 16, 2019, “on the
remaining allegations,” i.e., 1) physical abuse, 2) alcohol abuse, and 3) the abandonment
of P.W.
The circuit court held another adjudicatory hearing on December 16, 2019.
According to the order entered following this hearing, 5 the DHHR presented one witness
who testified regarding Father’s abandonment of P.W. Further, the DHHR, relying on the
forensic interviews, requested that the circuit court adjudicate Petitioners of physical abuse
4
Father initially contested whether P.W. was his biological child. The results of the
paternity test revealed that P.W. was Father’s biological child.
5
The order following this hearing was not entered until March 19, 2020. The
appendix record does not include a transcript of the December 16, 2019, hearing.
3
and adjudicate Father of alcohol abuse. However, the circuit court had not reviewed the
forensic interviews prior to this hearing. The circuit court’s order provides, “[t]he Court’s
review of the forensic interviews is necessary prior to ruling on the requested additional
grounds for adjudication.” Because the circuit court had not reviewed the forensic
interviews, it provided that it was taking the issues of physical abuse, alcohol abuse, and
abandonment “under advisement.” 6 While the circuit court did not enter an adjudicatory
ruling on any of these issues, it ordered that a disposition hearing would be held in March
of 2020.
The DHHR filed a motion to terminate Petitioners’ parental rights on March
16, 2020. This motion noted that Petitioners had been adjudicated as “abusing and
neglecting parent[s],” that there was no reasonable likelihood that the conditions of abuse
and neglect could be corrected in the near future, and that termination was necessary for
the welfare of the children. When the DHHR filed this motion, the circuit court had not
entered adjudicatory rulings on the issues of physical abuse, alcohol abuse, or
abandonment.
The circuit court held a disposition hearing on June 5, 2020. 7 When this
disposition hearing was held, the only adjudicatory ruling the circuit court had entered was
on the medical neglect issue. During this hearing, the DHHR called multiple witnesses
who primarily testified to Petitioners’ medical neglect of the children. Petitioners also
testified during this hearing. They denied the physical abuse allegations. However, Father
admitted to occasional physical discipline of C.W. Mother admitted that she bit C.W. on
one occasion, but asserted that this was a reflex because C.W. hit her in the face. Petitioners
both denied that Father abused alcohol. Regarding the abandonment issue, Father admitted
that he had not provided emotionally or financially for P.W.
At the conclusion of this hearing, counsel for Petitioners requested that the
circuit court grant them improvement periods. The DHHR and guardian ad litem requested
that the court grant the motion to terminate Petitioners’ parental rights. They both relied
on 1) C.W.’s forensic interviews in which he described the physical abuse he suffered and
Father’s alcohol abuse; and 2) Petitioners’ failure to acknowledge the physical abuse. The
6
It is unclear why the circuit court took the abandonment issue “under advisement”
because there had been testimony about this issue during the December 16, 2019, hearing
and there was no indication that the forensic interviews with C.W. included information
that would be relevant to determining whether Father had abandoned P.W.
7
The disposition hearing was continued from its original date, March of 2020, due
to the COVID-19 pandemic.
4
DHHR and guardian ad litem also argued that Petitioners had failed to fully acknowledge
their medical neglect.
After hearing these arguments, the circuit court provided as follows:
There is a lot for the Court to consider in terms of, not only the
medical testimony, the medical conditions that are present
here, choices that the parents made . . ., the CAC [forensic]
interviews of [C.W.], um, I – there is a lot of information the
Court would have to put into the decision it would make in
regard to, um, both the issue of the adjudication as well as the
improvement period. I am going to take this . . . under
advisement for a short period of time, put together my own
order and identify the things that I think are important, and I
will send a copy of that order to counsel and Department in the
near future.
Over four months later, on October 20, 2020, the circuit court issued an order
adjudicating Father “on grounds of abandonment” as to P.W. This order does not contain
any specific findings of fact or conclusions of law. The order merely provides, “[t]he
Court, having heard testimony and argument from all parties to this matter, does hereby
FIND by clear and convincing evidence that, based upon the conditions existing at the time
of the filing of the petition, the child [P.W.] is abused and neglected as defined in West
Virginia Code § 49-1-201.” 8
The circuit court held another hearing on November 9, 2020. The DHHR
noted that the adjudicatory rulings on the issues of physical abuse and Father’s alcohol
abuse were still pending. Counsel for the DHHR reminded the circuit court that it had
previously stated that it needed to review C.W.’s forensic interviews before making an
adjudicatory ruling on these issues. Petitioners asserted that their motions for improvement
periods were under advisement and had not been ruled upon. The circuit court declined to
rule on any of the outstanding issues at this hearing, explaining that “the CAC [forensic]
interviews of [C.W.] I have not reviewed. So I want to review those before I have a chance
to . . . make a decision in this case.” Because the circuit court needed additional time to
review the forensic interviews, it scheduled a hearing for November 19, 2020.
8
Rule 27 of our Rules of Procedure for Child Abuse and Neglect Proceedings
provides that a circuit court “shall make findings of fact and conclusions of law” in its
adjudicatory order. See n. 10 infra.
5
During the November 19, 2020, hearing, the circuit court stated that it had
reviewed the forensic interviews 9 of C.W. and found convincing statements that C.W. had
been bitten by Mother, kicked by Father repeatedly, and had been repeatedly struck by both
parents as a means of discipline, which had left bruising on C.W. The circuit court further
found clear and convincing evidence of alcohol abuse, including Father driving a vehicle
after drinking with the family in the vehicle, of which Mother was aware. Based on these
findings, the circuit court adjudicated Petitioners on the issues of physical abuse and
alcohol abuse.
After the circuit court announced its adjudicatory ruling, the DHHR asked
the circuit court to deny Petitioners’ motions for improvement periods and to terminate
their parental rights. Father’s counsel requested that the circuit court set the matter for a
disposition hearing so that he could present testimony to support a motion for an
improvement period. Mother’s counsel also requested that the matter be set for a
disposition hearing.
The circuit court found that an additional hearing was unnecessary. It
explained that “I don’t see the need for another continuance of this matter. It has been
continued from dispositions back in June, and I think one other one[.]” By order entered
on December 4, 2020, the circuit court terminated Petitioners’ parental rights and denied
Petitioners’ motions for post-adjudicatory improvement periods. After entry of the circuit
court’s order, Petitioners filed the instant appeals.
This 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
9
While the circuit court reviewed all three forensic interviews, it stated that it was
only relying on the 2019 interview because the two earlier interviews, recorded in 2016,
were “several years prior to the filing of the petition, . . . [a]nd so I did not believe that they
were pertinent to determining the situation that existed at the time the petition was filed in
this matter.”
6
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). With this standard in
mind, we proceed to examine the parties’ arguments.
The dispositive issue raised by Petitioners is whether the circuit court erred
when it proceeded immediately to disposition after adjudicating Petitioners on the issues
of physical abuse and alcohol abuse during the November 19, 2020, hearing. This issue
requires us to examine when an accelerated disposition in an abuse and neglect case may
occur. However, before addressing the accelerated disposition issue, we begin our analysis
by noting the numerous procedural irregularities that occurred in these matters.
The circuit court heard testimony on the issue of abandonment during the
December 16, 2019, adjudicatory hearing. It did not enter an adjudicatory ruling on this
issue until October of 2020. The circuit court heard testimony on the issues of physical
abuse and alcohol abuse during the June 2020 hearing. It did not announce its adjudicatory
ruling on these issues until November 19, 2020. Rule 27 of our Rules of Procedure for
Child Abuse and Neglect Proceedings requires an adjudicatory order to be entered within
ten days of the adjudicatory hearing. 10
10
Rule 27 of our Rules of Procedure for Child Abuse and Neglect Proceedings
provides:
At the conclusion of the adjudicatory hearing, the court
shall make findings of fact and conclusions of law, in writing
or on the record, as to whether the child is abused and/or
neglected in accordance with W. Va. Code § 49-4-601(i). The
court shall enter an order of adjudication, including findings of
fact and conclusions of law, within ten (10) days of the
conclusion of the hearing, and the parties and all other persons
entitled to notice and the right to be heard shall be given notice
of the entry of this order.
7
Similarly, the circuit court violated Rule 36 of our Rules of Procedure for
Child Abuse and Neglect Proceedings which requires a disposition order to be entered
within ten days of the conclusion of the disposition hearing. 11 The circuit court’s June 5,
2020, hearing was purportedly a disposition hearing. At the conclusion of the hearing, the
circuit court informed the parties that it would issue an order in the “near future.” The
circuit court’s disposition order following the June hearing was not entered until December
4, 2020.
The delays in these matters were apparently caused by the circuit court’s
failure to review the three forensic interviews with C.W. The three forensic interviews
were each approximately one hour long. These interviews were introduced by the DHHR
at the November 1, 2019, adjudicatory hearing. At that time, the circuit court set another
adjudicatory hearing for December 16, 2019, stating “we’ll set it for another hearing after
I [have] had an opportunity to review it [the forensic interviews].” However, the circuit
court held adjudicatory and/or dispositional hearings in this matter on December 16, 2019,
and June 5, 2020, and failed to review the forensic interviews prior to each of these
hearings.
The circuit court’s failure to review these interviews in a timely fashion
demonstrated a complete disregard for our long-standing admonition that “[c]hild abuse
and neglect cases must be recognized as being among the highest priority for the courts’
attention. Unjustified procedural delays wreak havoc on a child’s development, stability
and security.” Syl. Pt. 1, in part, In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d
365 (1991). We have also recognized that “matters involving the abuse and neglect of
children shall take precedence over almost every other matter with which a court deals on
11
Rule 36(a) of our Rules of Procedure for Child Abuse and Neglect Proceedings
provides:
(a) Findings of Fact and Conclusions of Law; Time
Frame. At the conclusion of the disposition hearing, the court
shall make findings of fact and conclusions of law, in writing
or on the record, as to the appropriate disposition in accordance
with the provisions of W. Va. Code § 49-4-604. The court shall
enter a disposition order, including findings of fact and
conclusions of law, within ten (10) days of the conclusion of
the hearing.
8
a daily basis, and it clearly reflects the goal that such proceedings must be resolved as
expeditiously as possible.” Syl. Pt. 5, in part, Carlita B. 12
Having addressed the general procedural irregularities that occurred
throughout these matters, we now examine whether the circuit court erred when it
proceeded immediately to disposition after adjudicating Petitioners on the issues of
physical abuse and alcohol abuse during the November 19, 2020, hearing. Petitioners
objected to accelerated disposition and requested that it be held at a later date. The circuit
court denied this request, citing the previous continuances that had occurred. We find this
ruling was erroneous.
Rule 32 of our Rules of Procedure for Child Abuse and Neglect Proceedings
(“Rule 32”) provides the time frame for when a disposition hearing shall occur, as well as
the circumstances in which an accelerated disposition hearing may occur:
(a) Time Frame. The disposition hearing shall
commence within forty-five (45) days of the entry of the final
adjudicatory order unless an improvement period is granted
pursuant to W.Va. Code § 49-4-610(2) and then no later than
thirty (30) days after the end of the improvement period.
(b) Accelerated Disposition Hearing. The disposition
hearing immediately may follow the adjudication hearing if:
(1) All the parties agree;
(2) A child’s case plan meeting the requirements of W.
Va. Code §§ 49-4-408 and 49-4-604 was completed and
provided to the court or the party or the parties have waived the
requirement that the child’s case plan be submitted prior to
disposition; and
(3) Notice of the disposition hearing was provided to or
waived by all parties as required by these Rules.
This Court examined Rule 32 in In re Travis W., 206 W. Va. 478, 525 S.E.2d
669 (1999). The Court in Travis W. reversed and remanded a circuit court’s disposition
order because it did not comply with Rule 32. As the Court explained:
12
Because we are reversing and remanding this matter for a disposition hearing due
to the circuit court’s failure to comply with Rule 32 of our Rules of Procedure for Child
Abuse and Neglect Proceedings, we need not decide whether these delays and procedural
irregularities constitute reversible error.
9
Rule 32 provides that the court may hold an accelerated
disposition hearing immediately following the adjudication
hearing but only if the parties agree, the case plan was
submitted or the requirement that the case plan be submitted
prior to disposition was waived, and notice was provided or
waived. It is not disputed that these requirements were not met
in this case. . . . The circuit court must hold a disposition
hearing which complies with these rules.
Id. at 483, 525 S.E.2d at 674 (emphasis added).
Relying on Rule 32, the Court in Travis W. held:
Pursuant to Rule 32 of the West Virginia Rules of
Procedure for Child Abuse and Neglect, circuit courts may
hold accelerated disposition hearings immediately following
adjudication hearings if: (1) the parties agree; (2) the child’s
case plan which meets the requirements of W.Va. Code §§ [49-
4-604 and 49-4-408] is provided to the court or the party or
parties waive the requirement that the child’s case plan be
submitted prior to disposition; and (3) notice is provided or
waived.
Id. at Syl. Pt. 3.
In the instant case, Petitioners did not agree to accelerated disposition after
the circuit court announced its adjudicatory ruling on the physical abuse and alcohol abuse
issues. Therefore, under the plain language of Rule 32, and our holding in Travis W., we
find that the circuit court erred by proceeding immediately to disposition. While the circuit
court cited previous delays as the reason it denied Petitioners’ requests to have a separate
disposition hearing, these delays were caused by the circuit court’s failure to review the
forensic interviews in a timely fashion. The circuit court’s failure to review the forensic
interviews in a timely fashion does not provide a proper basis for disregarding the clear
procedure set forth in Rule 32.
We have held:
Where it appears from the record that the process
established by the Rules of Procedure for Child Abuse and
Neglect Proceedings and related statutes for the disposition of
cases involving children adjudicated to be abused or neglected
has been substantially disregarded or frustrated, the resulting
10
order of disposition will be vacated and the case remanded for
compliance with that process and entry of an appropriate
dispositional order.
Syl. Pt. 5, In re Edward B., 210 W. Va. 621, 624, 558 S.E.2d 620, 623 (2001). 13
Based on the foregoing, we find that the circuit court erred by proceeding
immediately to disposition after announcing its adjudicatory ruling on the issues of
physical abuse and alcohol abuse. We therefore reverse the circuit court’s December 4,
2020, disposition order and remand these matters back to the circuit court with directions
for it to conduct a new disposition hearing.
Reversed and Remanded With Directions.
ISSUED: October 28, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
13
See In re C.E., 2021 WL 1549970, *3 (memorandum decision) (April 20, 2021)
(“We find that the process established by our rules has been substantially disregarded or
frustrated such that the dispositional order must be vacated, in part, and the matter
remanded for the holding of a new dispositional hearing[.]”).
11