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

> West Virginia Supreme Court · January 17, 2014

URL: https://www.frixlaw.com/law-library/cases/2649703

## Case

- **Court:** West Virginia Supreme Court
- **Decided:** January 17, 2014
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Juvenile
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In Re: L.W., R.W., and I.H. FILED
January 17, 2014
No. 13-0635 (Taylor County 12-JA-15, 12-JA-16, and 12-JA-17) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

MEMORANDUM DECISION

Petitioner Father, by counsel Robert Colaizzi1, appeals the Circuit Court of Taylor
County’s May 24, 2013, order terminating his parental rights to I.H.2 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 child also supporting the circuit court’s order. On appeal, Petitioner
Father alleges that the circuit court erred by: (1) denying Petitioner Father an improvement
period; (2) finding that the DHHR did not have an affirmative duty to investigate Petitioner
Father’s home and attempt to reunify the family pending the filing of the DHHR’s initial request
for emergency custody; and (3) finding that Petitioner Father failed to take responsibility for the
infant’s injuries and provide credible explanations as to the cause of the injuries.

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 courts order is appropriate under Rule 21
of the Rules of Appellate Procedure.

1
By order entered on July 26, 2013, this Court granted Robert Colaizzi leave to practice
pro hac vice before this Court in the above-captioned proceeding pursuant to Rule 8 of the Rules
for Admission to the Practice of Law and Rule 3(c) of the Rules of Appellate Procedure.
2
Petitioner is the biological father of I.H. Other children who are not petitioner’s
biological children were involved in the abuse and neglect proceedings below. Petitioner raises
no argument in regard to these children; therefore, the Court will address only the circuit court’s
rulings in regard to I.H. 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).

1

On August 16, 2013, Petitioner Father and the mother took their three-month-old infant,
I.H. to the hospital.3 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
the child.

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
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 infant should remain in the DHHR’s custody.

The circuit court took in-camera testimony from I.H.’s siblings, R.W. and L.W.4 R.W.
testified that he witnessed Petitioner Father injure I.H.’s leg while Petitioner Father was giving
I.H. a bath.5 L.W. testified that Petitioner Father spanked him on the face, the nose, top of the
head, and on his hand. L.W. testified that Petitioner Father hit 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. The mother testified that she was unaware of how
I.H. broke his femur until October 1, 2013, when Petitioner 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

3
The mother is appealing the circuit court’s order terminating her parental rights to L.W.,
R.W., and I.H in West Virginia Supreme Court of Appeals Docket No. 13-0651.
4
L.W. was approximately three years old when the petition was filed. R.W. was
approximately six years old when the petition was filed.
5
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 Petitioner Father was giving I.H. a bath.
Petitioner 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.

2

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 they were in different phases of healing.6

Petitioner Father testified that “he sort of slammed his hand down on [the infant’s] leg . . .
and denied grabbing or twisting [the infant’s] leg.” Petitioner Father testified that the lesion on
the infant’s penis was “the result of 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 Father also testified that the bruises or
abrasions on the infant’s palms could have occurred because “[I.H.] squeezes his hands. And he
always has his hands really tight and both of his palms are really tight.” Again, Nurse Kochka
testified that the palm injuries had a specific shape and could not be caused by a three-month-old
infant. As to the infant’s hemorrhages, Petitioner Father initially testified that the infant bumped
his eye on the faucet while he was giving the infant a bath, but on redirect examination,
Petitioner Father testified that he bumped the infant’s head on the car seat.

After considering all of the testimony, the circuit court ruled that the infant was an abused
and neglected child and that Petitioner Father was an abusive and neglectful parent. The circuit
court found by clear and convincing evidence that the infant was the victim of multiple instances
of child abuse. Additionally, the circuit court found Petitioner Father’s testimony “[was] not
credible or believable,” his explanations for the infant’s injuries “[were] not consistent with the
expert medical testimony,” and Petitioner Father “[has] not accepted any responsibility.”
Furthermore, the circuit court denied Petitioner Father’s motion for a post-adjudicatory
improvement period.

On November 29, 2012, the circuit court held a dispositional hearing and heard additional
testimony. Carolyn Jones, a parenting instructor with Family Services, testified that Petitioner
Father did not offer any plausible explanation for the infant’s injuries. At the conclusion of the
hearing, the circuit court terminated Petitioner Father’s parental rights. It is from this order that
Petitioner Father 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
6
Dr. Lubicky also testified that a magnetic resonance image of the infant’s brain revealed
“some abnormalities.”

3

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 Father’s assignments of error. First,
Petitioner Father argues that the circuit court erred in denying him an improvement period and
failed to find that the conditions of abuse and neglect could not be substantially corrected in the
near future. This Court instructed circuit courts to not unnecessarily extend abuse and neglect
proceedings when it held that

“Courts are not required to exhaust every speculative possibility of
parental improvement . . . where it appears that the welfare of the child will be
seriously threatened, and this is particularly applicable to children under the age
of three years who are more susceptible to illness, need consistent close
interaction with fully committed adults, and are likely to have their emotional
and physical development retarded by numerous placements.” Syl. Pt. 1, in part,
In Re: R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 4, In re Cecil T. This Court has also held

“‘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 the Interest of Kaitlyn P., 225 W.Va. 123, 126, 690 S.E.2d 131, 134 (2010).

Pursuant to West Virginia Code § 49-6-12, a respondent parent bears the burden of
proving that he or she will substantially comply with an improvement period; consequently, the
circuit court has the discretion to deny an improvement period if the circuit court finds that this
burden has not been met. In its order, the circuit court noted that Petitioner Father failed to
accept responsibility for the infant’s injuries, could not explain the infant’s injuries, and failed to
identify the alleged “perpetrator(s).” Petitioner Father has offered no evidence to refute these
findings. For these reasons, it is clear that Petitioner Father failed to establish, by clear and
convincing evidence, that he would fully participate in an improvement period, and it was not
error for the circuit court to terminate his parental rights without granting him an improvement
period.

According to Petitioner Father, the circuit court failed to find that the conditions of abuse
and neglect could not be substantially corrected in the near future. Pursuant to West Virginia
Code § 49-6-5(a)(6), circuit courts are instructed to terminate parental rights upon these findings.
We have previously held that

4

Parental rights may be terminated where there is clear and convincing
evidence that the infant child has suffered extensive physical abuse while in the
custody of his or her parents, and there is no reasonable likelihood that the
conditions of abuse can be substantially corrected because the perpetrator of the
abuse has not been identified and the parents, even in the face of knowledge of the
abuse, have taken no action to identify the abuser.

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

While the circuit court’s dispositional order did not specifically conclude that there was
no reasonable likelihood that Petitioner Father could substantially correct the conditions of abuse
or neglect in the near future, we decline to grant Petitioner Father relief because the evidence of
record and the circuit court’s findings clearly demonstrate that there is no reasonable likelihood
these conditions could be corrected. The circuit court’s order included findings that the infant
sustained multiple, severe, unexplained injuries for which neither parent accepted responsibility
nor identified a perpetrator(s). For all the reasons stated above, we find no error in the circuit
court’s decision to terminate Petitioner Father’s parental rights without an improvement period.

Second, we disagree with Petitioner Father’s argument that the DHHR had an affirmative
duty to attempt to investigate his residence and attempt to reunify the family pending the filing of
the initial “Imminent Danger Petition After Emergency Taking.” Petitioner Father argues that the
testimony and the DHHR’s case plan did not comply with Rule 28 of the Rules of Procedure for
Child Abuse and Neglect Proceedings in that the DHHR failed to describe what services they
provided or why such efforts to reunify would be unsuccessful.7 Petitioner Father reasserts that
the circuit court failed to find that there was no reasonable likelihood that the conditions of abuse
and neglect could be substantially corrected in the near future, and we disagree for the reasons
stated above. Furthermore, pursuant to West Virginia Code § 49-6-3, the DHHR is not required
to make efforts to preserve the family in emergency situations. The infant initially presented at
the hospital with an unknown injury. After further examination, the infant was diagnosed with
several broken bones and other unexplained injuries. The circuit court properly found that the
infant’s serious, unexplained injuries created “an emergency situation which made reasonable
efforts to avoid removal from the home and preservation of the family unreasonable or
impossible.”

Finally, the Court finds no error in regard to the circuit court’s finding that Petitioner
Father failed to take responsibility for the infant’s injuries or to provide credible explanations for
the infant’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
7
We decline to address Petitioner Father’s specific argument that the DHHR failed to
comply with Rule 28 of the Rules of Procedure for Child Abuse and Neglect Proceedings. Under
Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, the Court “may disregard
errors that are not adequately supported by specific references to the record on appeal.” The
record in this case is insufficient to address the merits of Petitioner Father’s argument because
the appendix record does not contain a copy of the infant’s case plan.

5

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).
While Petitioner Father testified that he “slammed” his hand down on the infant’s leg, he failed
to account for the infant’s other serious injuries. After hearing the evidence, the circuit court
found that Petitioner Father’s testimony conflicted with the expert medical testimony. Based
upon our review, it is clear that the circuit court considered the evidence as a whole and was
presented with sufficient evidence upon which to base its finding that Petitioner Father’s
testimony was “not credible or believable” and failed to provide “reasonable” and “logical”
explanations for the infant’s injuries. Because the findings of fact do not constitute clear error,
they will not be disturbed on appeal.

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,

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

6

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.

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

7

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2649703. Public record. Not legal advice.