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In re R.B.

Supreme Court of West Virginia

June 19, 2017

In re: R.B. and T.B.

         Wayne County 15-JA-020 & 15-JA-022

          MEMORANDUM DECISION

         Petitioner Grandmother A.B.-2, by counsel Timothy P. Rosinsky, appeals the Circuit Court of Wayne County's September 19, 2016, order terminating her guardianship rights to R.B. and T.B.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel S.L. Evans, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Elizabeth Gardner Estep, filed a response on behalf of the children in support of the circuit court's order.[2] On appeal, petitioner argues that the circuit court erred in finding that she abused the children, removing the children from her home, and terminating her guardianship rights.[3]

         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 February of 2015, the DHHR filed an abuse and neglect petition alleging that R.B. sexually abused his sister, A.B.-1.[4] According to the petition, the abuse occurred for approximately three years and A.B.-1 disclosed that she was afraid to tell petitioner, her grandmother, about the abuse because she "is afraid of [petitioner] and what she will do." A.B.-1 also stated that she is afraid of [petitioner] coming to the hospital or being called because she would whip her a**." The DHHR noted that A.B.-1 disclosed the abuse to petitioner and, according to an aunt, petitioner did not believe the allegations and called A.B.-1 "a lying little bit**." The child's aunt also expressed concerns over R.B.'s violent behavior towards the children and petitioner's prescription drug use in the home. The DHHR also alleged that the police were called to petitioner's home after she threatened to "kill everyone in the home because of what [is] going on." According to the DHHR, petitioner was reportedly angry at A.B.-1 about the alleged sexual abuse. Following the DHHR's investigation, A.B.-1 and T.B. were placed with their aunt and R.B. remained in petitioner's home with the caveat that he not have contact with other children. By order entered on February 5, 2015, the circuit court ordered the abuse and neglect petition's filing.

         The circuit court held a preliminary hearing wherein a DHHR worker and petitioner testified. The circuit court found that there was reasonable cause to believe that A.B.-1 was abused based upon the sexual assault allegations against R.B. and petitioner's inability to properly supervise or protect the children. The circuit court ordered that the children undergo psychological and educational evaluations and that petitioner have supervised visitation with A.B.-1 and T.B. The circuit court also ordered that R.B. would remain in petitioner's home. Subsequently, in March of 2015, the DHHR filed an amended petition that included allegations that petitioner abused prescription drugs, the children were regularly disciplined with a wooden paddle, and petitioner verbally abused the children by calling them "stupid" and referring to A.B.-1 as a "ho." According to the DHHR, the children were home schooled by petitioner and reported that there was no structure to the schooling and that they would "teach [themselves]" by reading books or using computer applications. The children also reported that they would do their school work "only if they wanted to" and at the end of the school year, petitioner would complete the work and turn it in to the Board of Education. T.B. reported that he was disciplined with a wooden paddle, a stick, and a belt regularly and that the wooden paddle left marks on his body. He also reported that petitioner "hit" all of the children. The children also reported that petitioner consumed alcohol in their presence and drove with them in her car while intoxicated. According to the amended petition, T.B. was not up-to-date on his immunizations and only received one set of vaccines since birth. The circuit court held a preliminary hearing on the amended petition and petitioner waived her right to the second preliminary hearing.

         In May of 2015, after a series of continuances, the circuit court held an adjudicatory hearing wherein a DHHR worker testified as to the allegations contained in both petitions. Based on the evidence presented, the circuit court found that there was clear and convincing evidence that the children were abused based on the sexual abuse allegations against R.B., petitioner's inability to properly supervise or protect the children, petitioner's excessive discipline, psychological abuse, and medical and education neglect. Petitioner requested a post-adjudicatory improvement period and the circuit court granted her request.

         The children were subsequently psychologically and educationally evaluated. According to the evaluation report, ten-year-old T.B. was never formally schooled and/or immunized. He displayed aggressive and self-harming behavior when angry and reported that petitioner taught him to use foul language, taught him to hit himself in the head, and taught him to threaten suicide. Testing revealed that his intelligence quotient ("I.Q.") was within the normal range but that he reads and comprehends at a kindergarten to a first-grade level. Twelve-year-old A.B.-1's evaluation report indicated that she would need to repeat the sixth grade, experienced significant behavioral problems, and her low abilities were not commiserate with her I.Q. test results. Fourteen-year-old R.B.'s I.Q. test showed him to be within the borderline normal-to-below-normal intelligence range but his reading comprehension, and mathematical scores were at a first-to-third grade level.

         In February of 2016, the circuit court held a dispositional hearing wherein she requested an extension of her improvement period and the circuit court granted her the same with regard to R.B. and T.B. The guardian filed a report with the circuit court in July of 2016, wherein she indicated that R.B. recently disclosed information to her that he had been molested by an older girl who was staying at petitioner's home. He also disclosed that he had sex with A.B.-1 starting when he was approximately five-years old. He further disclosed that he also had sex with T.B. and one other boy at petitioner's home. According to the guardian's report, petitioner denied that there had been any sexual abuse in the home. Following the filing of the guardian's report, the circuit court ordered that R.B. have no contact with petitioner or his siblings and that petitioner have no contact with T.B. The circuit court also placed R.B. at River Park Hospital for treatment. After hearing the additional evidence, the circuit court terminated petitioner's guardianship rights to R.B. and T.B. Based on the evidence presented, the circuit court determined that, because petitioner continually denied sexual abuse and blamed the children, there was no reasonable likelihood she could substantially correct the conditions of abuse and neglect. The circuit court terminated her guardianship rights to the children by order dated September 19, 2016.[5] It is from that order that petitioner appeals.

         The Court has previously established the following standard of review in cases such as these:

"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 findings below.

         Petitioner argues on appeal that the circuit court erred in finding that the children were "neglected and psychologically" abused because there was no "clear and convincing" evidence of abuse or neglect by petitioner. We do not agree. Pursuant to West Virginia Code § 49-1-3, an "[a]bused child" means a child whose health or welfare is being harmed or threatened by "[a] guardian . . . 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 § 49-1-3 further defines a "neglected child" as one

[w]hose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child's guardian . . . to supply the child with necessary food, clothing, shelter, supervision, medical care or education, when that refusal, failure or inability is not due primarily to a ...

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