In Re: L.W., R.W. and I.H.

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED

In Re: L.W., R.W., and I.H. January 17, 2014

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

No. 13-0651 (Taylor County 12-JA-15, 12-JA-16, and 12-JA-17) OF WEST VIRGINIA

MEMORANDUM DECISION

Petitioner Mother, by counsel Karen Johnson, appeals the Circuit Court of Taylor

County’s May 24, 2013, order terminating her parental rights to L.W., R.W., and I.H. The West

Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda,

filed its response in support of the circuit court’s order. The guardian ad litem, Mary Nelson,

filed a response on behalf of the children also supporting the circuit court’s order and a

supplemental appendix. On appeal, Petitioner Mother alleges that the circuit court erred by: (1)

finding that she failed to provide reasonable explanations for I.H.’s injuries; (2) finding clear and

convincing evidence of abuse and neglect; (3) terminating her parental rights; (4) denying her an

improvement period; and (5) denying her visitation.

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.

On August 16, 2013, Petitioner Mother and I.H.’s father took their three-month-old

infant, I.H., to the Grafton City Hospital.1 The same day, Child Protective Services received a

referral from Grafton City Hospital because the infant was diagnosed with multiple unexplained

injuries. Due to the extent of I.H.’s injuries he was transported to Ruby Memorial Hospital in

Morgantown, West Virginia, for further evaluation. It was determined that I.H. had three broken

ribs, a medium to large subdural hematoma on his forehead with fluid underneath, bruising

above his right eye and his chin, a right leg femur fracture, a circular lesion on the head of his

penis, bilateral palm injuries, and blood vessel hemorrhages of the right eye. The DHHR took

emergency custody of I.H. and his siblings, R.W. and L.W.

The next day, the DHHR filed an “Imminent Danger Petition After Emergency Taking”

based upon the infant’s serious, unexplained injuries. The circuit court ratified the immediate

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I.H.’s father appealed the termination of his parental rights to I.H. in West Virginia

Supreme Court of Appeals Case Number 13-0635. Because this matter concerns infant children,

we follow our traditional practice in cases involving sensitive facts and use only the parties’

initials. See State v. Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1

(1990).

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temporary transfer of custody by order entered on August 17, 2012, and scheduled a preliminary

hearing on August 27. At the conclusion of the preliminary hearing, the circuit court concluded

that the children should remain in the DHHR’s custody.

The circuit court took in-camera testimony from R.W. and L.W.2 R.W. testified that

Petitioner Mother let him watch inappropriate R-rated scary movies such as Halloween and Saw.

R.W. testified that he witnessed I.H.’s father injure I.H.’s leg while he was giving him a bath.3

R.W. testified that Petitioner Mother hit him on the hand with her opened hand. L.W. also

testified that he watched inappropriate movies. L.W. testified that I.H.’s father spanked him on

the face and the nose. L.W. further testified that Petitioner Mother spanked him and I.H. in the

face and that I.H.’s father spanked R.W. and I.H. in the face, and hit I.H. in the chest.

During the adjudicatory hearing conducted on October 23, 2012, the circuit court heard

conflicting testimony from several witnesses. Petitioner Mother testified that she was unaware

how I.H. broke his femur until October 1, 2013, when I.H.’s father explained that he may have

injured I.H. while he was giving him a bath on August 15, 2013. Dr. John Lubicky, the infant’s

treating physician, was qualified as an expert in pediatric orthopedics. He testified that the infant

suffered from a “bucket fracture” of his right femur. Dr. Lubicky testified that a “bucket

fracture” is normally the result of “non-accidental trauma,” and is generally caused by twisting

the leg, not by applying pressure to it. Dr. Lubicky testified that the femur fracture was “healing

quite a bit” and occurred at least seven to ten days before he examined I.H. Dr. Lubicky testified

that I.H. also suffered from broken ribs and fractures of the fibula and tibia. Dr. Lubicky testified

that these fractures did not recently occur, because the fractures were in different phases of

healing.4

Petitioner Mother testified that she was unaware of the tibia fractures and offered no

explanation. Petitioner Mother testified that I.H. has had problems with his penis since birth due

to his circumcision. Beth Kochka, an emergency room nurse at Grafton City Hospital, testified

that the injuries to I.H.’s penis included wounds to the shaft and were not typical of a

circumcision. Petitioner Mother testified that I.H.’s palm injuries might be the result of a seizure

disorder that causes him to clinch his hands. Again, Nurse Kochka testified that the palm injuries

had a specific shape and could not be caused by a three-month-old infant. Petitioner Mother

testified that I.H. may have broken his ribs during the birthing process. Dr. Lubicky testified that

it was unlikely that I.H.’s ribs were broken during birth because they would have healed by the

time he examined I.H. Petitioner Mother further testified that the injury to I.H.’s eye might be

2

L.W. was approximately three years old when the petition was filed. R.W. was

approximately six years old when the petition was filed.

3

According to R.W., he was watching cartoons and witnessed I.H. hit his leg on the

bathroom sink, which caused I.H.’s leg to bleed, while I.H.’s father was giving I.H. a bath. I.H.’s

father asserts that he was giving I.H. a bath in the sink when he became distracted by the other

children, who were taking a bath in the same room, when I.H. began to slide deeper into the sink.

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Dr. Lubicky also testified that a magnetic resonance image of the infant’s brain revealed

“some abnormalities.”

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self-inflicted because he sleeps with his finger in his eye. Finally, Petitioner Mother testified that

she believed that I.H.’s father may have accidentally injured I.H.’s leg. The circuit court

continued the adjudicatory hearing to allow Petitioner Mother to present testimony from I.H.’s

pediatrician to corroborate her testimony regarding I.H.’s potential seizure disorder and injuries

to his penis.

On November 13, 2012, the circuit court reconvened for the continued adjudicatory

hearing. Counsel for Petitioner Mother did not call I.H.’s pediatrician because “he [was] unable

to corroborate [the testimony].” After considering all of the testimony, the circuit court ruled that

the children were abused and neglected and that Petitioner Mother was an abusive and neglectful

parent. The circuit court found by clear and convincing evidence that I.H. was the victim of

multiple instances of child abuse. The circuit court found that Petitioner Mother used physical

violence toward I.H. and spanked I.H.’s “face and head.” Additionally, the circuit court found

Petitioner Mother’s testimony “not credible or believable,” her explanations for I.H.’s injuries

“[were] not consistent with the expert medical testimony,” and Petitioner Mother “[has] not

accepted any responsibility.” Furthermore, the circuit court denied Petitioner Mother’s motion

for a post-adjudicatory improvement period.

On November 29, 2012, the circuit court held a hearing on Petitioner Mother’s motion for

a dispositional improvement period and the previously scheduled disposition. The circuit court

denied Petitioner Mother’s motion and terminated Petitioner Mother’s parental rights. The circuit

court found that no services could be offered because Petitioner Mother failed to adequately

explain I.H.’s injuries and the perpetrator(s) of the abuse have not been identified. It is from this

order that Petitioner Mother 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

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).

With this standard in mind, we turn to Petitioner Mother’s assignments of error. First,

Petitioner Mother argues that the circuit court erred in finding that she did not provide reasonable

explanations for I.H.’s injuries. In support of this argument, Petitioner Mother asserts that it is

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undisputed that she was at work the entire day leading up to the time that I.H. was taken to the

hospital and that she adequately explained I.H.’s injuries.

This Court has previously held, “in the context of abuse and neglect proceedings, the

circuit court is the entity charged with weighing the credibility of witnesses and rendering

findings of fact.” In re Emily, 208 W.Va. 325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1,

in part, In re Travis W., 206 W.Va. 478, 525 S.E.2d 669 (1999)). “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).

As stated above, the circuit court heard conflicting testimony from Petitioner Mother, Dr.

Lubicky, and Nurse Kochka regarding I.H.’s injuries. The circuit court also heard testimony that

Petitioner Mother allowed the children to watch inappropriate R-rated movies and that she hit the

children. The circuit court was in the best position to weigh witness credibility, and we find no

error in the circuit court’s finding that Petitioner Mother’s testimony was “not credible or

believable” and failed to provide “reasonable” and “logical” explanations for I.H.’s injuries.

Petitioner Mother’s second assignment of error is that the circuit court erred in finding

that clear and convincing evidence existed to support the finding that she was an abusive and

neglectful parent. We have previously held that

“W.Va.Code[§] 49–6–2(c) [1980], requires the State Department of

Welfare [now the Department of Health and Human Resources], in a child abuse

or neglect case, to prove ‘conditions existing at the time of the filing of the

petition . . . by clear and convincing proof.’ The statute, however, does not specify

any particular manner or mode of testimony or evidence by which the State

Department of Welfare 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. 3, In re Randy H., 220 W.Va. 122, 640 S.E.2d 185 (2006).

We find no error in regard to the circuit court’s findings that Petitioner Mother was an

abusive and neglectful parent. We disagree with Petitioner Mother’s argument that the children’s

in-camera testimony was unreliable, and that Dr. Lubicky’s testimony proved the injuries were

suspicious of child abuse.5 During his in-camera interview, L.W. testified that Petitioner Mother

spanked him and I.H. in the face and that I.H.’s father spanked him on the face and nose.

As already stated, the circuit court is charged with “weighing the credibility of witnesses

and rendering findings of fact” and this Court “will not second guess such determinations.” We

decline to grant Petitioner Mother relief in this regard because of the overwhelming evidence

supporting the circuit court’s findings. This includes the specific evidence that Petitioner Mother

physically abused I.H. and L.W. and allowed the children to watch inappropriate R-rated movies.

West Virginia Code § 49-1-3(a)(1) defines an abused child as one “whose health or welfare is

harmed or threatened by [a] parent, guardian or custodian who knowingly or intentionally

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Petitioner Mother did not object to the children’s in-camera testimony below.

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inflicts, attempts to inflict or knowingly allows another person to inflict, physical injury or

mental or emotional injury, upon the child or another child in the home.” Further, because the

children meet the definition of an abused child, Petitioner Mother meets the definition of an

abusing parent under West Virginia Code § 49-1-3(2). For these reasons, we find no error in the

circuit court’s decision to adjudicate Petitioner Mother as an abusive and neglectful parent.

Third, Petitioner Mother argues that the circuit court erred in terminating her parental

rights. Fourth, Petitioner Mother argues that the circuit court erred in denying her a dispositional

improvement period. Because these assignments of error are substantially related, they will be

addressed together.

Upon our review, the Court finds no error in the circuit court’s termination of Petitioner

Mother’s parental rights without an improvement period. While Petitioner Mother argues that the

evidence was insufficient to support termination without a dispositional improvement period, the

record establishes that the circuit court was presented with ample evidence upon which to

terminate her parental rights. Specifically, Petitioner Mother argues that the circuit court erred in

terminating her parental rights when there was a less restrictive dispositional alternative available

and erred in denying her a dispositional improvement period because she vowed to terminate her

relationship with I.H.’s father.

To begin, West Virginia Code § 49-6-12(c) gives circuit courts the discretion to grant an

improvement period as a disposition when “the [parent] demonstrates, by clear and convincing

evidence, that the [parent] is likely to fully participate in the improvement period.” We have

previously held that

“in 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.” West Virginia Dept. of Health and Human Resources v. Doris S., 197

W.Va. 489, 498, 475 S.E.2d 865, 874 (1996).

In re Kaitlyn P., 225 W.Va. 123, 126, 690 S.E.2d 131, 134 (2010)

The record is clear that Petitioner Mother failed to admit to the underlying issues of abuse

and neglect that gave rise to the petition, failed to terminate her relationship with I.H.’s father

and failed to identify the perpetrator(s). Furthermore, Petitioner Mother testified that I.H.’s

injuries were not intentional. More importantly, the circuit court found that the DHHR cannot

provide services because Petitioner Mother “[denied that] the abuse occurred and “[has not]

accepted any responsibility” for I.H.’s injuries, and has failed to identify the perpetrator(s).

Additionally, on appeal the guardian ad litem filed a supplemental appendix, which includes

copies of I.H.’s father Facebook page that indicates that he is engaged to Petitioner Mother.

Because Petitioner Mother failed to admit the truth of the basic allegations of abuse and neglect,

the problem was therefore untreatable and the circuit court did not err in proceeding to

termination.

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Based upon the evidence above, it is clear that Petitioner Mother failed to identify I.H.’s

abuser and failed to respond to or follow through with a reasonable family case plan or other

rehabilitative efforts designed to reduce or prevent the abuse or neglect of the children. Pursuant

to West Virginia Code § 49-6-5(b)(3), this constitutes a situation in which there is no reasonable

likelihood that the conditions of abuse or neglect can be substantially corrected in the near future.

Furthermore, we have held that “there is no reasonable likelihood that the conditions of abuse

can be substantially corrected because the perpetrator of the abuse has not been identified . . . .”

Syl. Pt. 3, in part, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993). For these reasons,

and because the circuit court found that termination was in the children’s best interest, the circuit

court was correct to terminate Petitioner Mother’s parental rights to the children without a

dispositional improvement period as directed by West Virginia Code § 49-6-5(a)(6).

Finally, Petitioner Mother argues that the circuit court erred in denying her visitation

during the pendency of the case and post-termination. We find no error in the circuit court’s

decision to deny Petitioner Mother visitation during the pendency of this case. The record shows

that the circuit court was presented with evidence that Petitioner Mother spanked the children

and failed to explain I.H.’s injuries. Based upon this evidence, the circuit court concluded that

visitation was not appropriate. Pursuant to Rule 15 of the Rules of Procedure for Child Abuse

and Neglect Proceedings, determining visitation is within the circuit court’s authority. In cases of

abuse and neglect, we reiterate that the children’s welfare acts as “the polar star by which the

discretion of the court will be guided.” In Re: Clifford K., 217 W.Va. 625, 634, 619 S.E.2d 138,

147 (2005) (quoting Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221

(1948)). Because the evidence supports the circuit court’s finding that visitation was not

appropriate, we find no abuse of discretion.

Likewise, we find no abuse of discretion in the circuit court’s decision to deny Petitioner

Mother post-termination visitation. Petitioner Mother asserts that she has a strong bond with the

children and that it is in the children’s best interest to have post-termination visitation. The Court

has held as follows:

“‘When parental rights are terminated due to neglect or abuse, the circuit

court may nevertheless in appropriate cases consider whether continued visitation

or other contact with the abusing parent is in the best interest of the child. Among

other things, the circuit court should consider whether a close emotional bond has

been established between parent and child and the child’s wishes, if he or she is of

appropriate maturity to make such request. The evidence must indicate that such

visitation or continued contact would not be detrimental to the child’s well being

and would be in the child’s best interest.’ Syllabus Point 5, In re Christina L., 194

W.Va. 446, 460 S.E.2d 692 (1995).” Syl. Pt. 8, In re Katie S., 198 W.Va. 79, 479

S.E.2d 589 (1996).

Syl. Pt. 8, In re: Charity H., 215 W.Va. 208, 599 S.E.2d 631 (2004).

Our review of the record supports the circuit court’s decision denying Petitioner Mother

post-termination visitation with her children. The record clearly shows that Petitioner Mother has

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denied that any abuse occurred and is engaged to I.H.’s father. For these reasons the Court finds

no error in the circuit court’s decision denying Petitioner Mother post-termination visitation.

This Court reminds the circuit court of its duty to establish permanency for the children.

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

children within twelve months of the date of the disposition order. As this Court has stated,

The [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, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Moreover, this Court has stated

that:

In determining the appropriate permanent out-of-home placement of a

child under W.Va.Code § 49-6-5(a)(6) [1996], 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).

For the foregoing reasons, we find no error in the decision of the circuit court and the

May 24, 2013, order is hereby affirmed.

Affirmed.

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ISSUED: January 17, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis

Justice Brent D. Benjamin

Justice Margaret L. Workman

Justice Menis E. Ketchum

Justice Allen H. Loughry II

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