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In re I.S.

Supreme Court of West Virginia

May 22, 2017

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

         (Randolph County 15-JA-49, 15-JA-50 & 15-JA-51)


         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 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]

         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 ...

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