In Re: I.S., P.M., and B.A.

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED

In re: I.S., P.M., and B.A. May 22, 2017

RORY L. PERRY II, CLERK

No. 17-0013 (Randolph County 15-JA-49, 15-JA-50 & 15-JA-51) SUPREME COURT OF APPEALS

OF WEST VIRGINIA

MEMORANDUM DECISION

Petitioner Mother J.S., by counsel Erica Klie Kolenich, appeals the Circuit Court of

Randolph County’s October 25, 2016, order adjudicating her an abusing parent, and the

December 9, 2016, order terminating her parental rights to three-year-old I.S., four-year-old

P.M., and one-year-old B.A.1 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 (“guardian”), Heather M. Weese, filed a response on behalf of the children

also in support of the circuit court’s order. P.M.’s father, by counsel Jeremy B. Cooper, also filed

a response in support of the circuit courts order. Petitioner filed a reply. On appeal, petitioner

argues that the circuit court erred in: (1) adjudicating her an abusing parent; (2) considering

expert opinions that were beyond the scope of the experts’ expertise; (3) terminating her parental

rights; (4) denying her motion for post-termination visitation; and (5) denying her motion for an

improvement period.

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 September of 2015, the DHHR filed an abuse and neglect petition against petitioner

alleging that she abused and neglected I.S. because of I.S.’s unexplained injuries and petitioner’s

inconsistent explanations of I.S.’s injuries. The petition alleged that, on September 20, 2015,

petitioner took I.S. to the Davis Memorial Hospital after I.S. collapsed. Petitioner initially told

medical personnel that I.S. fell off the couch and might have hit her head on the coffee table.

Medical professionals determined that I.S. had a subdural hematoma with a midline shift. Due to

the nature of the injury, medical personal suspected nonaccidental trauma. Thereafter, I.S. was

transferred to the West Virginia University Hospital and underwent emergency surgery wherein

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).

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doctors had to remove a piece of I.S.’s skull to relieve the swelling of her brain. During the

underlying investigation, a Child Protective Services (“CPS”) worker observed injuries to I.S.’s

shoulder blade, and bruises on I.S.’s face, legs, and thigh. Petitioner provided two alternative

explanations for I.S.’s injuries: that she “f[e]ll from the porch and f[e]ll in a hole.” Medical staff

indicated that these explanations are also inconsistent with I.S.’s injuries. On September 23,

2015, medical personnel also discovered that I.S. had multiple retinal hemorrhages, in various

stages of healing. Medical staff advised CPS that these were also nonaccidental injuries that are

the result of “a shaking-type injury.”

Thereafter, the circuit court held two adjudicatory hearings during which multiple

witnesses testified. According to multiple service providers, petitioner provided three

explanations as to how I.S. sustained her injuries. Specifically, providers testified that petitioner

(1) blamed another child in the home, (2) said that I.S. fell off the couch, and (3) said that I.S.

fell off the porch. The testimony also showed that in addition to her subdural hematoma, workers

also observed bruising on I.S.’s face, chin, chest, and legs, a burn on her shoulder blade, multiple

scratches “all over her body,” and a blood clot. According, to a CPS worker, I.S.’s treating

physicians explained that her injuries were not consistent with petitioner’s various explanations.

Without objection, medical experts also testified that I.S.’s brain injury was not consistent with

petitioner’s explanations and not likely caused by a fall. Similarly, an ophthalmologist testified

that I.S.’s retinal hemorrhages were typically associated with nonaccidental trauma, and not the

result of a fall as petitioner described. Petitioner’s own expert opined that it was “extremely

improbable” that I.S.’s injuries were caused by a fall.

Petitioner testified on her own behalf and explained that I.S.’s injuries may have been

caused when I.S. fell on three separate occasions. Moreover, petitioner explained that I.S. could

have sustained the injuries while sleepwalking. Petitioner refused to acknowledge that her

boyfriend may have injured I.S. However, petitioner admitted that she should have “protected

I.S. more[.]” After considering the evidence, the circuit court found that petitioner’s testimony

was not credible. As such, the circuit court found that I.S. was abused and neglected.

In October of 2016, the circuit court held a dispositional hearing during which it heard

testimony that petitioner was a good mother, that she had a bond with her children, and that she

would participate in any services needed to regain the custody of her children. Furthermore, the

circuit court heard proffers that while petitioner may participate in an improvement period, she

would be unable to benefit from the services. Moreover, while petitioner continued to deny that

she abused or neglected her children, and she failed to identify the perpetrator of the abuse. After

considering the parties’ argument the circuit court denied petitioner’s motion for an improvement

period and terminated her parental rights by order entered December 9, 2016. This appeal

followed.2

2

After the parental rights of the children’s mother were terminated, I.S. and P.M. were

placed with their non-offending fathers with a permanency plan to remain in their care. B.A.’s

father voluntarily relinquished his parental rights. B.A. was placed in a foster home with a

permanency plan of adoption by the foster family.

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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). Upon our review, the Court finds

no error in the proceedings below.

On appeal, petitioner argues that the circuit court erred in adjudicating the children as

abused and neglected. According to petitioner, the DHHR failed to prove that her conduct

constituted abuse or neglect of the children. We disagree. An abused child is one whose “health

or welfare is being harmed or threatened by [a] parent, guardian or custodian who knowingly or

intentionally 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.” W.Va. Code §

49-1-201. We have also explained that

“W.Va. Code, 49–6–2(c) [now West Virginia Code § 49-4-601], requires

the [DHHR], 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 [DHHR] 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. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (internal citations omitted).

While petitioner claims the DHHR failed to prove abuse or neglect by clear and

convincing evidence, the record on appeal demonstrates that petitioner and her boyfriend were

the primary caregivers of the children when I.S. was injured. Further, expert testimony

established that petitioner’s explanations for I.S.’s injuries were inconsistent and such injuries

were likely the result of nonaccidental trauma. We have held that “in the context of abuse and

neglect proceedings, the circuit court is the entity charged with weighting 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)). As

such, the circuit court found petitioner’s testimony to be not credible. Furthermore, petitioner

admitted that she “should have protected [I.S.] more[.]” Thus, the record on appeal supports the

circuit court’s finding that there was clear and convincing evidence that I.S. was abused or

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neglected. As such, we find that the circuit court did not err in adjudicating petitioner as an

abusing parent.

Next, petitioner argues that the circuit court erred in considering the expert testimony of

I.S.’s treating physicians because it was beyond the scope of their expertise. Specifically,

petitioner asserts that the DHHR’s expert witnesses testified to biomechanical issues regarding

the type of force required to cause I.S.’s injuries, which was outside the scope of their expertise.

We disagree. Our case law is clear that

[t]he West Virginia Rules of Evidence . . . allocate significant discretion to

the trial court in making evidentiary and procedural rulings. Thus, rulings on the

admissibility of evidence . . . are committed to the discretion of the trial court.

Absent a few exceptions, this Court will review evidentiary and procedural

rulings of the circuit court under an abuse of discretion standard.

Syl. Pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).

Rule 702 of the West Virginia Rules of Evidence provides that, “[i]f scientific, technical,

or other specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education, may testify thereto in the form of an opinion or otherwise.” Here, Doctors

Casey, Serrano, and Wiley, were qualified as experts, without objection, in the fields of pediatric

critical care, pediatric neurosurgery, and ophthalmology, respectively. Their testimony was not

based upon biomechanical issues. Each doctor testified that, based upon their experience, and

research and medical literature, I.S.’s injuries were inconsistent with petitioner’s explanations.

Because these experts’ opinions were based upon their experience and independent research and

medical literature, we find no error in the circuit court admitting their testimony.

Lastly, petitioner argues that the circuit court erred in terminating her parental rights.

Petitioner’s argument is premised, in part, on her claim that she did not abuse I.S. The Court does

not agree. The evidence below, including the medical testimony, was sufficient to establish that

the child was severely injured, even though there was no direct evidence that petitioner caused

the injuries. However, there was evidence that petitioner cared for I.S. at the time the injuies

occurred. While petitioner testified I.S.’s injuries may have been the result of multiple falls, it is

clear that the circuit court found that petitioner’s testimony was not credible. We have held that

“[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 such, it is clear that the circuit court had sufficient evidence upon

which to find that the child suffered a nonaccidental, life-threatening injury while in petitioner’s

care.

In addressing situations in which the identity of an abuser has not been determined, we

have held as follows:

“Parental rights may be terminated where there is clear and convincing

evidence that the infant child has suffered extensive physical abuse while in the

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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.” Syllabus Point 3, In re Jeffrey

R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993).

Syl. Pt. 4, In re Harley C., 203 W.Va. 594, 509 S.E.2d 875 (1998). In this case, there was clearly

no reasonable likelihood that the conditions of abuse or neglect could be substantially corrected

because petitioner testified that she did not injure I.S., but took no action to identify the abuser,

despite the fact that child’s injuries were inconsistent with her explanations. As such, we find no

error in the circuit court’s termination of petitioner’s parental rights.

Related to this assignment of error, petitioner argues that the circuit court erred in

denying her motion post-termination visitation with the children. With respect to post-

termination visitation, we previously have held that

[w]hen 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.

Syl. Pt. 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995). Under our holding in

Christina L., the decision to grant post-termination visitation is a discretionary one for the circuit

court based on its consideration of the circumstances of the case before it. Because I.S. suffered

multiple severe injuries while in petitioner’s care, we find no error in the circuit court denying

petitioner’s motion for post-termination visitation. Similarly, it does not appear from the record

that the children are of an appropriate maturity to request post-termination visitation. For these

reasons, we find no error.

For the foregoing reasons, we hereby affirm the circuit court’s October 25, 2016,

adjudicatory order finding that petitioner was an abusing parent and the December 9, 2016, order

terminating her parental rights.

Affirmed.

ISSUED: May 22, 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

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