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In re M.F.

Supreme Court of West Virginia

May 22, 2017

In re: M.F. and M.K.

         (Jackson County 15-JA-147and 15-JA-149)

          MEMORANDUM DECISION

         Petitioner Mother E.K., by counsel Joel Baker, appeals the Circuit Court of Jackson County's August 3, 2016, order terminating her parental and custodial rights to M.F. and M.K.[1]The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Erica Brannon Gunn, filed a response on behalf of the children in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in adjudicating her as an abusing parent, denying her request for a post-adjudicatory improvement period, and terminating her parental rights.

         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 December of 2015, M.F. experienced a serious behavioral issue at school related to his autism. M.F.'s teacher called the home and M.F.'s step-father, J.K., picked the child up from the school. When M.F. returned to school he had noticeable injuries on his face and forehead, including a black eye. Accordingly, the DHHR filed an abuse and neglect petition against petitioner and the step-father. Specifically, the petition alleged that the parties engaged in domestic violence in the children's presence and that petitioner and the step-father physically and emotionally abused the children. An amended abuse and neglect petition was filed in April of 2016, alleging that petitioner and the step-father attempted to interfere with the children's statements to the DHHR.

         In January of 2016, the circuit court held a preliminary hearing wherein it heard the testimony of several witnesses. A DHHR worker testified that she observed bruises on M.F. and that M.F. reported to her that his step-father threw him on the ground and caused the bruises. She also testified that M.F. hid under a chair and reported that the bruises were the reason he was absent from school. The worker further testified that when she confronted petitioner about the allegations of abuse, petitioner denied the allegations and told her that M.F. was "not able to make sentences or be understood." Respondent called the step-father to testify but the circuit court continued the matter to allow the step-father to further confer with his attorney regarding the implications of testifying at the preliminary hearing.

         Also in January of 2016, the circuit court held a second preliminary hearing wherein it heard the testimony of another witness. M.F.'s teacher testified that she observed bruises on M.F.'s forehead and a black eye. She also testified that M.F. told her that his step-father pushed him down onto the floor. She further testified that M.F. did not have bruises on his forehead or a black eye when he left school on December 15, 2015. Based on the evidence, the circuit court found that imminent danger existed at the time of the petition's filing and sustained the children's removal from the home. The circuit court ordered that petitioner, the step-father, and the children undergo psychological evaluations.

         In May of 2016, the circuit court held an adjudicatory hearing wherein it heard testimony from the psychologist that evaluated the step-father, petitioner, and the children. The psychologist testified that petitioner and the step-father denied abusing the children. He also testified that the step-father had an unspecified personality disorder with antisocial and narcissistic features. According to the psychologist, M.F. stated that petitioner told him that he was not supposed to acknowledge the allegations of abuse and that he would be "back in the home soon." The psychologist further testified that, according to M.F., petitioner told him that he should tell the psychologist that "dad [did] [not] do anything." The psychologist opined that the children would be in danger if left in the step-father's care and testified that he could not formulate treatment recommendations because petitioner refused to acknowledge the abuse. Petitioner testified that she did not believe that the step-father abused the children. At the conclusion of the hearing, the circuit court adjudicated petitioner and the step-father as abusing parents. Following the adjudicatory hearing, petitioner and the step-father filed written motions requesting post-adjudicatory improvement periods.

         In July of 2016, the circuit court held a dispositional hearing. A DHHR worker testified that the DHHR was seeking termination of petitioner's parental rights because she denied the abuse that led to the petition's filing. Petitioner testified that she was "willing to follow any recommendations of the DHHR" but that she did not believe that she or the step-father did anything wrong and the children were appropriately disciplined. At the conclusion of the hearing, the circuit court found that petitioner failed to acknowledge the existence of abuse in the home. The circuit court also found that there was no reasonable likelihood petitioner could substantially correct the conditions of abuse and neglect, terminated her parental rights to the children, and denied her motion for a post-adjudicatory improvement period.[2] It is from that August 3, 2016, dispositional order that petitioner 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). Upon our review, the Court finds no error in the circuit court's adjudicating petitioner as an abusing parent, denying her motion for a post-adjudicatory improvement period, or terminating her parental rights.

         On appeal, petitioner argues that the circuit court's findings of abuse were not supported by clear and convincing evidence. West Virginia Code § 49-1-201 defines an "abused child" as "a child 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." West Virginia Code § 49-1-201 also defines an "abusing parent" as "a parent, guardian or other custodian, regardless of his or her age, whose conduct has been adjudicated by the court to constitute child abuse or neglect as alleged in the petition charging child abuse or neglect." Further, this Court has described the "clear and convincing" standard as one in which

the evidence does not have to satisfy the stringent standard of beyond a reasonable doubt; the evidence must establish abuse by clear and convincing evidence. This Court has explained that "'clear and convincing' is the measure or degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the allegations sought to ...

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