In re M.J., N.K., A.K., and B.K.

FILED

June 14, 2022

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 M.J., N.K., A.K., and B.K.

No. 21-0591 (Putnam County Nos. 20-JA- 73 through 76)

MEMORANDUM DECISION

Petitioner Mother E.J. by counsel Benjamin Freeman appeals the Circuit Court of Putnam

County’s June 9, 2021, order terminating her parental rights to M.J., N.K., A.K., and B.K.1 Both

the West Virginia Department of Health and Human Resources (DHHR), by counsel Patrick

Morrisey, Michael R. Williams, and Steven R. Compton, and the guardian ad litem, Rosalee Juba-

Plumley, filed responses in support of the circuit court’s order. On appeal, Mother argues that the

circuit court erred by adjudicating her as an abusive and neglectful parent and by terminating her

parental rights. We find a memorandum decision appropriate under Rule 21 of the Rules of

Appellate Procedure because this case presents no substantial question of law or fact.

On August 1, 2020, the DHHR received a referral that Mother’s boyfriend, A.S., had

sexually abused Mother’s daughter, M.J, while residing in Mother’s home. The referral arose after

Mother took M.J. to the emergency room for evaluation the day another adult family member told

her that M.J. reported sexual abuse to them. 2 When CPS Worker Seth Greensage interviewed M.J.

on August 6, 2020, M.J. refused to talk about the alleged sexual abuse. But a few weeks later, on

September 16, 2020, Maureen Runyon, a qualified expert in forensic interviewing, interviewed

M.J. at the CAMC Child Advocacy Center in Charleston, West Virginia. There, M.J. reported

several occasions where A.S. sexually assaulted her, sometimes by intercourse. She also reported

that Mother knew of the allegations but did not believe her. The same day, Dr. Joan Philips, the

co-medical director of the Child Advocacy Center, physically examined M.J. and reported that her

findings strongly indicated sexual abuse. Based on the findings and consistent statements M.J.

later gave to a police investigator, the State charged A.S. with sexual assault, sexual abuse, and

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials

where necessary to protect the identities of those involved. See e.g. In re K.H., 235 W. Va. 254,

773 S.E.2d 20 (2015); Melinda H. v. William R., 230 W. Va. 731, 742 S.E.2d 419 (2013); State v.

Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005).

2

The record does not provide the date Mother took M.J. to the emergency room, but

according to Mother’s testimony, she took M.J. the day she first learned of the allegations. The

DHHR and police investigations ensued after M.J.’s emergency room visit.

1

sexual abuse by a parent, guardian, custodian, or person in a position of trust, and the police

arrested him on September 21, 2020.

On September 29, 2020, Mr. Greensage interviewed Mother who reported that she

confronted A.S. and took M.J. to the hospital the day she learned of the allegations, and she

recounted several instances where M.J. had allegedly fabricated rape allegations against others.

On October 7, 2020, the DHHR filed an abuse and neglect petition against Mother alleging that

she physically and mentally abused M.J. and failed to provide necessitates to her children. The

petition also alleged, among other things, that Mother threw M.J. to the ground several times,

called her a bad daughter, and told her to “f**k off.”

The circuit court held adjudicatory hearings on November 20, 2020, December 17, 2020,

and January 29, 2021. 3 Dr. Philips testified that M.J.’s physical exam revealed conditions “highly

suggestive of sexual abuse and it was consistent with the disclosure.” She also testified that

“[Mother] had some doubt that day” about whether the abuse happened. Patrolman Alecia Powell

of the Winfield Police Department testified that when she interviewed Mother, Mother said she

did not fully believe M.J. She also testified that officers found Mother with A.S. when they

executed the search and arrest warrants against A.S. Ms. Runyon testified about M.J.’s graphic

sexual assault disclosures and that M.J. reported overhearing Mother telling others “she is accusing

him of raping her.” Mr. Greensage testified that M.J. disclosed the sexual abuse to him at a

September 29, 2020, interview. Mother, during her testimony, denied physically abusing M.J.,

detailed a time when M.J. reported a false rape allegation while living with her grandmother in

Ohio, stated that she believed she took all necessary steps when she learned of M.J.’s allegations

against A.S., and claimed that she would cut all ties with A.S. And when asked “[s]o even after

you were informed of those physical findings that Doctor Philips found during her examination of

the child, you still didn’t believe [M.J.’s] disclosure; is that correct?,” she responded “[y]es, ma’am

that is right. Although I never told her that I did not believe her.”

The circuit court adjudicated Mother as an abusive and neglectful parent on April 8, 2021,

finding that the medical evidence substantiated M.J.’s claims and that Mother did not believe M.J.

despite it. The circuit court specifically found that Mother “subjected [M.J.] to emotional injury”

by disbelieving her and put the other children at risk since they lived in the home when the abuse

occurred.

On June 3, 2021, the circuit court conducted a dispositional hearing. Neither party

presented witnesses, but their counsel presented arguments. Mother’s counsel stated that “she’s

never come asking for an improvement period[]” and that “[Mother] understands she’s not going

to be in [M.J.’s] life. And really, that’s probably best for everyone involved. But I don’t think it’s

the same case with the three younger kids.” The DHHR stated during its argument that Mother

3

The circuit court heard testimony from different witnesses at each hearing and conducted

the hearings over the three separate dates for scheduling purposes and because Mother moved for

continuances to investigate facts related to witness testimony.

2

did not appear for one Multidisciplinary Team (MDT) meeting and denied responsibility when she

participated in later meetings. The guardian ad litem also argued that Mother denied all

responsibility at MDT meetings.

On June 9, 2021, the circuit court terminated Mother’s parental rights. It found that

“[Mother] has failed to acknowledge any wrongdoing . . . ,” “is not amenable to treatment services

. . . ,” and that “[r]eunification . . . is not in the best interest of the children because [Mother] is . .

. unwilling to care for or provide for the children; . . . failed to acknowledge any wrongdoing

whatsoever; and . . . is not amenable to treatment services.”

On appeal, Mother challenges the adjudication and the disposition orders and raises the

following assignments of error: (1) “the circuit court improperly considered expert testimony to

adjudge the petitioner to be an abusive and neglectful parent,” (2) “there is no evidence that the

petitioner ‘emotionally abused’ MJ . . . . ,” (3) “there is no evidence that the petitioner failed to

protect her children from [A.S.’s] alleged abuse and neglect,” and (4) termination was not the least

restrictive alternative.

We have established the following standard of review for abuse and neglect appeals:

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.[4]

In her first assignment of error, Mother argues that the circuit court clearly erred by

ignoring certain testimony in favor of the expert testimony and that “the [c]ourt stated that it gave

the expert testimony greater weight because they are experts.”5 But the circuit court had no duty

to cite all testimony in its order. Instead, it had to make factual findings supported by the record.6

4

Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (quoting Syl. Pt. 1, In

Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996)).

5

Emphasis in original.

6

See W. Va. R. Civ. P. 52(a).

3

And we need not belabor the point that we give circuit courts wide discretion to weigh conflicting

testimony. 7 The circuit court gave the expert testimony more weight, and Mother fails to show

that the circuit court clearly erred by favoring it over the other witnesses’ testimonies.

Mother also argues under her first assignment of error that the circuit court erred by relying

“on [Ms. Runyon’s] opinion that ‘she believed [M.J.] to be credible’ or Ms. Runyon’s and Dr.

Phillips[’s] opinions that ‘they believed the evidence pointed to the child, [M.J.], being sexually

abused by [A.S.].’” To support her contention, Mother cites a syllabus point from State v. Edward

Charles L. that provides:

Expert psychological testimony is permissible in cases

involving incidents of child sexual abuse and an expert may state an

opinion as to whether the child comports with the psychological and

behavioral profile of a child sexual abuse victim, and may offer an

opinion based on objective findings that the child has been sexually

abused. Such an expert may not give an opinion as to whether he

personally believes the child, nor an opinion as to whether the sexual

assault was committed by the defendant, as these would improperly

and prejudicially invade the province of the jury.[8]

Mother asks us to reverse the circuit court for relying on testimony she failed to object to.

But “[w]here objections were not shown to have been made in the trial court, and the matters

concerned were not jurisdictional in character, such objections will not be considered on appeal.”9

Even so, Mother misplaces her reliance on Edward Charles L., because Dr. Philips testified about

her findings from a physical examination and did not “state an opinion as to whether the child

comports with the psychological and behavioral profile of a child sexual abuse victim.” And Ms.

Runyon’s testimony that she found M.J. credible did not “invade the province of the jury,”

considering Mother was not a criminal defendant in a jury trial. This Court expects a circuit court

judge who conducts a bench trial to disregard any inadmissible evidence when rendering a

decision. 10 And in this instance, the circuit court made factual findings recounting Ms. Runyon’s

testimony that included her statement that she found M.J.’s allegations credible, but it made no

finding that it relied on the testimony when rendering its decision. Instead, the circuit court’s

7

See e.g. In re S.S.-1, No. 21-0795, 2022 WL 710945, at *1-3 (W. Va. March 9, 2022)

(Memorandum Decision) (rejecting petitioner’s argument that the circuit court failed to give

“enough weight” to certain testimony).

8

Syl. Pt. 7, State v. Charles L. 183 W. Va. 641, 398 S.E.2d 123 (1990).

9

Syl. Pt. 1, State Rd. Comm’n v. Ferguson, 148 W. Va. 742, 137 S.E.2d 206 (1964).

10

State ex rel. Marshall Cty. Comm’n v. Carter, 225 W. Va. 68, 74, 689 S.E.2d 796, 802

(2010).

4

findings indicate that it relied on Dr. Philips’s and Ms. Runyon’s expert opinions about the

evidence showing that M.J. was sexually abused.

Also relating to her first assignment of error, Mother argues that Dr. Phillips performed a

biased physical examination, because prior to it, she learned about M.J.’s “sexual assault disclosure

and that she identified her alleged abuser.” But while bias may prime impeachment evidence,

Mother cites no authority for her assertion that a doctor’s knowledge of a sexual assault allegation

invalidates a physical examination conducted during an investigation into the allegation. Indeed,

in most instances, a doctor would not physically evaluate a patient for evidence of sexual assault

absent a sexual assault allegation. Mother fails to show that the circuit court clearly erred by

considering the experts’ testimonies about the evidence supporting M.J.’s claims or by presuming

the validity of the physical examination.

In her second assignment of error, Mother claims that the circuit court’s finding that she

emotionally abused M.J. “is not supported by the record, nor is there evidence that [Mother]

subjected any of her children to abuse and neglect.” She contends that the circuit court adjudicated

her based on “the thoughts in her own mind” since she claims she never told M.J. that she did not

believe her allegations. She also claims that “all that should have concerned the [c]ourt was

[Mother’s] conduct subsequent to [M.J.’s] disclosure.” And she reiterates her belief that she “did

what any parent should—she took her daughter to be examined and removed the potential threat

from her home.” Also, Mother also asks us to “dissect[] . . .[M.J.’s] credibility and truthfulness”

by considering that A.S. “has not been indicted for this ‘crime.’”

We disagree with Mother’s contention that the evidence does not support the circuit court’s

finding of emotional abuse. The evidence certainly supports the circuit court’s finding that A.S.

sexually abused M.J., because M.J. reported that it happened, and a medical expert testified that

her evaluation substantiated the claim. The evidence, likewise, supports the circuit court’s finding

that M.J. knew her mother did not believe her and was emotionally injured by her Mother’s

conduct. The circuit court did not adjudicate Mother for unshared thoughts, as she contends; it

adjudicated her because it found that her boyfriend sexually abused M.J. and Mother denied that

it happened despite the contrary evidence. The DHHR presented evidence that officers located

Mother with A.S. when they arrested him and after Mother knew about M.J.’s allegations. The

objective evidence of her continued relationship with A.S.—despite knowledge of M.J.’s

allegation—and her consistent denial that A.S. sexually abused M.J. aligns with M.J.’s disclosure

that she knew her mom did not believe her. And Ms. Runyon’s testimony that “in my experience,

it also is emotionally as harmful, if not more so, that they’re not believed by their parent, can be

more detrimental than the actual abuse itself[]” supports the circuit court’s finding that Mother’s

manifest disbelief inflicted emotional injury upon M.J.

Also, the circuit court disagreed with Mother’s claim that she did what “any parent should”

after M.J.’s disclosure—it refused to condone her continued association with the A.S. after

learning of M.J.’s medically substantiated sexual assault claims against him. Mother urges us to

5

dissect M.J.’s credibility and reverse the circuit court based on the conflicting evidence that, among

other things, M.J. had a history of lying, “the other children did not believe [M.J.’s] allegations,”

that M.J. made unsubstantiated allegations about other conditions in the home, and Mother’s

testimony that “this entire quagmire was caused likely because she caught [M.J.] stealing money

from her purse shortly before these disclosures were made.” But as we have held “[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.” 11 Evidence supported the circuit court’s finding that Mother inflicted emotional

injury upon M.J. by disbelieving her substantiated allegations, and we refuse to disturb the finding.

In her third assignment of error, Mother argues that the DHHR presented no evidence that

she failed to protect M.J., N.K., A.K., and B.K. But we have held that “termination of parental

rights of a parent of an abused child is authorized . . . where such nonparticipating parent supports

the other [custodian’s] version as to how a child’s injuries occurred, but there is clear and

convincing evidence that such version is inconsistent with the medical evidence.” 12 An abused

child is “[a] child whose health or welfare is being harmed or threatened by . . . [a] parent . . . who

knowingly or intentionally inflicts . . . emotional injury, upon the child or another child in the

home.” 13 When a circuit court uses abuse suffered by one child to terminate a parent’s rights to

children who live with that child, “the DHHR must [also] present clear and convincing evidence

that the [children’s]‘health or welfare is harmed or threatened.’” 14 In this instance, the evidence

supports the circuit court’s finding that A.S. sexually abused M.J. in Mother’s home, Mother

consistently denied that it happened, and Mother supported A.S.’s innocence despite M.J.’s

contrary allegations and the medical evidence that supported them. And we will not disturb the

circuit court’s supported finding “[i]f the [circuit] court’s account of the evidence is plausible in

light of the record viewed in its entirety.”15 So, the circuit court acted within its discretion by

finding that “even though the children. [A.K., N.K., and B.K.] were not direct victims of abuse by

[Mother], they were at risk of being abused and are abused children under W. Va. Code § 49-1-

201.”

11

In re J.F., No. 16-0851, 2017 WL 923431, at *3 (W. Va. February 21, 2017) (quoting

Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997)).

12

Matter of Scottie D., 185 W. Va. 191, 197, 406 S.E.2d 214, 220 (1991).

13

W. Va. Code § 49-1-201 (emphasis added).

14

In re Christina L., 194 W. Va. 446, 452, 460 S.E.2d 692, 698 (1995).

15

Tiffany Marie S., 196 W. Va. at 231, 470 S.E.2d at 186 (citing In re Jonathan Michael

D., 194 W. Va. 20, 25, 459 S.E.2d 131, 133 (1995)).

6

Mother’s final assignment of error asserts that the circuit court erred by terminating her

parental rights because less restrictive alternatives existed. But we have held that

[t]ermination of parental rights, the most drastic remedy

under the statutory provision covering the disposition of neglected

children . . . may be employed without the use of intervening less

restrictive alternatives when it is found that there is no reasonable

likelihood . . . that conditions of neglect or abuse can be substantially

corrected.[16]

There is no reasonable likelihood under West Virginia Code § 49-4-604(d) when “the

abusing adult or adults have demonstrated an inadequate capacity to solve the problems of abuse

or neglect on their own or with help.” 17 And we have reiterated 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.[18]

In this instance, Mother denied—and continues to deny, despite the circuit court’s

conclusive finding—that A.S. sexually abused M.J., denied that she emotionally abused M.J. by

disbelieving her substantiated claims, did not request an improvement period, and refused all

services. Her conduct demonstrated an inadequate capacity to solve the problem or prevent future

abuse, and the circuit court acted within its discretion by finding no reasonable likelihood that she

could improve the conditions of abuse and neglect.

Evidence supported the circuit court’s finding that A.S. sexually abused M.J., that Mother

disbelieved M.J despite medical evidence substantiating her claims, that M.J. knew of Mother’s

disbelief, and that the disbelief emotionally injured M.J. Also, evidence supported the circuit

court’s finding that the abuse M.J. suffered posed a risk to the health and welfare of the other

children in the home—especially considering Mother denied any problems throughout these

16

Syl. Pt. 5, In re Kristen Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (quoting Syl. Pt. 2, In

re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)).

17

W. Va. Code § 49-4-604(d).

18

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)) (citation omitted).

7

proceedings. And the circuit court did not clearly err by terminating Mother’s parental rights. Her

failure to acknowledge the problems demonstrated an inadequate capacity to solve them.

Affirmed.

ISSUED: June 14, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

DISSENTING:

Justice William R. Wooton

Justice C. Haley Bunn, not participating

No. 21-0591 – In re: M. J., et al

WOOTON, J., dissenting:

The majority improperly affirms the circuit court’s termination of petitioner’s

parental rights to three additional children in the home who were not the subject of the allegations

of abuse. While rights to other children in the home who are not direct subjects of abuse may be

terminated, our caselaw is clear that the court may not do so without undertaking an individual

assessment of whether their “‘health or welfare is harmed or threatened‘” and termination is in

their best interests. See In re Christina L., 194 W. Va. 446, 452, 460 S.E.2d 692, 698 (1995).

Here, the circuit court terminated petitioner’s rights to these other children in absence of any such

analysis and without even requiring DHHR to present evidence in support. Accordingly, I

respectfully dissent. 1

1

Because petitioner is ostensibly amenable to M. J. remaining in a placement outside of

the home requiring adjudication as a prerequisite, I yield to the majority’s affirmance of

petitioner’s adjudication and termination as to M. J. However, I take issue with its insubstantial

analysis of petitioner’s assertion of error as to the expert’s testimony regarding M. J.’s credibility

and the circuit court’s unmistakable reliance upon it. More specifically, I caution against relying

upon the majority’s suggestion that a circuit court may merely “disregard” inadmissible evidence,

particularly as pertains to expert witnesses. West Virginia Code § 49-4-603 (2015) makes clear

that expert testimony in the context of abuse and neglect proceedings is “subject to . . . the rules

of evidence.” Here, the circuit court specifically and repeatedly referenced Ms. Runyon’s

improper testimony that she found M. J. credible and any suggestion that its order did not indicate

8

First, in violation of this Court’s recent admonition, DHHR and the guardian ad

litem sought and obtained termination of petitioner’s parental rights, but neither presented

witnesses nor offered other materials into evidence in support. See In re K. S., No. 20-1030, 2022

WL 1223231, at *7 (W. Va. Apr. 26, 2022) (memorandum decision) (vacating disposition where

DHHR failed to offer evidence at dispositional hearing). The circuit court below informally

referenced having previously received DHHR’s “case plans” and “court summary”; however, none

of these items appear in the appendix record nor appear to have been formally admitted into

evidence below. Regardless, the majority presumes to affirm the circuit court’s disposition without

any idea what these informally received materials contain and in the absence of any evidence being

presented at the dispositional hearing.

More specifically, the circuit court terminated, and the majority affirms, on the

basis of petitioner’s unsubstantiated “refusal” of services and lack of participation with multi-

disciplinary meetings. However, only the guardian ad litem’s report cursorily states that petitioner

had not participated in unspecified “services” or attended multi-disciplinary team meetings; none

of these assertions are supported by any evidence at the dispositional hearing or elsewhere in the

record.2 In fact, during the hearing, the guardian ad litem contradicted her report, stating that

petitioner had attended one multi-disciplinary team meeting in May. More importantly for

purposes of this Court’s analysis, there is no evidence whatsoever in the record that petitioner was

offered “services,” what those services were, or whether and why they were declined. Given the

circuit court’s near-exclusive focus on the refusal of services to terminate, this paucity of evidence

directly violates our holding that “the burden of proof in a child neglect or abuse case does not

“reliance” on that testimony is disingenuous. In fact, it was because of petitioner’s skepticism in

the face of the expert’s opinion that M. J. was credible that the circuit court adjudicated her in the

first instance.

While this Court has not had occasion to extend the rule expressed in Syllabus Point seven

of State v. Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990) forbidding experts from opining on

a child abuse victim’s credibility to abuse and neglect proceedings, this is a fairly universally

recognized rule. See Gore, Amy G., et al, “CREDIBILITY OF WITNESSES,” 31A Am. Jur. 2d Expert

and Opinion Evidence § 137 (“Expert testimony on the psychological and emotional traits of abuse

victims is typically admissible so long as the witness makes no comment on the alleged victim’s

credibility.”); Amendola, Francis C., et al, “EXPERT TESTIMONY ON CHILD SEXUAL ABUSE OR

BATTERED CHILD SYNDROME,” 23A C.J.S. Criminal Procedure and Rights of Accused § 1506

(“When particularized testimony concerning a specific victim's credibility is offered, it must be

rejected because it usurps the decision-making function of the jury and, therefore, is

inadmissible.”); (“Social workers’ testimony as to their interviews with children, and their

conclusions that children were the victims of sexual abuse, have been held to constitute improper

vouching on the credibility of the children, during a prosecution for sexual abuse and attempted

sexual abuse.”).

2

Notably, the guardian ad litem’s report further incorrectly states that petitioner was

adjudicated for “failure to protect” M. J. from sexual abuse and failure to provide “food, shelter,

and support[.]”—none of which is borne out by the record at any point.

9

shift from the [DHHR] to the parent, guardian or custodian of the child. It remains upon the

[DHHR] throughout the proceedings.” Syl. Pt. 2, in part, In re S. C., 168 W. Va. 366, 284 S.E.2d

867 (1981). For purposes of this Court’s review, the DHHR and circuit court must create a record

that permits the Court to exercise its standard of review rather than simply rubber-stamping the

circuit court’s decision, content that the circuit court was apparently satisfied with the parties’

offerings. See State v. Michael M., 202 W. Va. 350, 360, 504 S.E.2d 177, 187 (1998) (remanding

where court made post-termination award “without hearing evidence and making conclusions

under the applicable standards.”); In re Michael Ray T., 206 W. Va. 434, 443, 525 S.E.2d 315, 324

(1999) (“[P]arties are duty-bound to preserve evidence in the record to ensure that this Court may

conduct a complete review of the challenged lower court proceedings.”).

Not surprisingly, the court’s dispositional order reflects this absence of evidence

and factual support for termination as to the siblings, generically stating as to all children

collectively that petitioner is “presently unwilling and/or unable to provide adequately for the

needs of the children[.]” The order finds that petitioner had “not availed herself of any treatment

services and is not amenable to treatment services”—evidence of which cannot be found in the

appendix record. The order even specifically states that DHHR “has offered numerous services to

the respondent mother; however, she has failed to participate with the same” yet this Court is

without any information as to what the circuit court was referring. (Emphasis added).

The evidentiary insufficiency aside, the circuit court’s collective treatment of the

children most markedly runs afoul of our caselaw. The dispositional order finds that termination

of petitioner’s parental rights was in the children’s collective best interests because petitioner failed

to acknowledge wrongdoing by not believing M. J.’s allegations and did not “avail[] herself of any

treatment services.” Nowhere in the order, transcript of the dispositional hearing, or elsewhere in

the appendix record is there any evidence that 1) the individual risk to the health and welfare of N.

K., A. K., and B. K. or 2) their best interests were evaluated or considered independently of M.

J.’s.

It is in this collective treatment of the children that the circuit court and majority

most profoundly miss the mark. This collective treatment stems from a failure to carefully examine

the case upon which the circuit court relied in terminating petitioner’s rights to the siblings—

Christina L. In that case, this Court noted that the definition of “abused child” statutorily includes

other children in the home of an abused child, but who were not the direct subject of abuse:

“Abused child” means:

(1) A child whose health or welfare is being harmed or threatened

by:

(A) 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. . . .

10

W. Va. Code § 49-1-201 (2018) (emphasis added). As a result, the Christina L. Court found that

“there need not be a showing by the Department that each child in the home is directly abused,

either sexually or physically, before termination of parental rights is sought.” Id. at 452, 460

S.E.2d at 698. Accordingly, the Court issued the following syllabus point:

Where there is clear and convincing evidence that a child has

suffered physical and/or sexual abuse while in the custody of his or

her parent(s), guardian, or custodian, another child residing in the

home when the abuse took place who is not a direct victim of the

physical and/or sexual abuse but is at risk of being abused is an

abused child under W. Va. Code, 49-1-3(a) (1994).

Id., 194 W. Va. 446, 460 S.E.2d 692, syl. pt. 2 (emphasis added). 3

The passage of Christina L. which should have guided the circuit court and

majority’s analysis is nowhere to be found in the order or opinion. However, upon issuing the

above syllabus point, the Christina L. Court made the following critical caveat, rejecting any

argument that the rights to other children in the home must necessarily be terminated and requiring

an individualized assessment as to the risk presented to other children:

We decline, however, to adopt a blanket rule that parental rights

must be terminated to all the children residing in the home based

merely on the finding that one child is abused. We do not believe

this result was intended under the statute. Under W. Va. Code, 49-

1-3(a), the Department must present clear and convincing evidence

that the child’s “health or welfare is harmed or threatened.”

Id. at 452, 460 S.E.2d at 698.

The circuit court provided no support for its conclusion that by virtue of the highly

fact-specific circumstances involving M. J., the other children were somehow “at risk” for similar

“emotional abuse.” Christina L. makes clear that as to physical or sexual abuse, the likelihood of

abuse to other children in the home is fairly apparent. Nonetheless, it makes clear that the

associated risk to those children—regardless of the nature of the risk—must be proven by DHHR

by clear and convincing evidence. Here, DHHR offered no evidence whatsoever as to the other

children, who were scarcely even mentioned in the dispositional hearing. Given the very fact-

specific nature of the underlying allegations, extending the “risk” of “emotional abuse” under these

facts to other children in the home simply does not follow.

It is fundamental to our abuse and neglect jurisprudence that “[w]here a trial court

order terminating parental rights merely declares that there is no reasonable likelihood that a parent

can eliminate the conditions of neglect, without explicitly stating factual findings in the order or

3

It is not clear why emotional abuse was not included in the syllabus point; however, the

rationale for the holding would apply equally to any of the types of abuse outlined in the statutory

definition.

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on the record supporting such conclusion, . . . the order is inadequate.” Syl. Pt. 4, in part, In re

Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001). Both the order and the proceedings below

were wholly inadequate to make the necessary findings and analysis as to termination of

petitioner’s rights to other children in the home. Because the majority affirms the circuit court’s

failure to require DHHR to adduce sufficient evidence as to the threat of harm to the three siblings’

health and welfare and independently assess their best interests, I respectfully dissent.

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