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In re R.C.

Supreme Court of West Virginia

November 22, 2017

In re: R.C., T.C., E.C., and X.C.

         Wayne County 15-JA-079, 15-JA-080, 15-JA-081, & 15-JA-082

          MEMORANDUM DECISION

         Petitioner Mother B.C., by counsel Michael A. Meadows, appeals the Circuit Court of Wayne County's May 4, 2017, order terminating her parental rights to R.C., T.C., E.C., and X.C.[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") for child R.C., Elizabeth Gardner Estep, filed a response on behalf of the child in support of the circuit court's order. The guardian for children T.C., E.C., and X.C., David R. Tyson, 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 ratifying emergency custody of the children at the preliminary hearing and in terminating her parental rights upon insufficient evidence and without imposing a less-restrictive dispositional alternative.

         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 that alleged the parents had a significant history of Child Protective Services ("CPS") referrals dating back to 2002 that included allegations of poor hygiene, lice, and bed bugs. The petition also alleged a history of referrals regarding R.C., including allegations that he drew inappropriate sexual and violent pictures, threatened to rape a child in his class, and obtained ingredients for making a bomb. As early as 2014, the DHHR received referrals regarding possible sexual abuse in the home, although those allegations were not then substantiated.

         According to the petition, the most recent referral came in September of 2015 and alleged that R.C. sexually abused his siblings E.C., who is autistic, and T.C. According to E.C., R.C. would come into her room at night and touch her "private area[.]" E.C. further alleged that R.C. also touched T.C. The referral also alleged continued poor hygiene, including lice and a strong odor on E.C. According to the petition, the DHHR received a second referral in September of 2015 that R.C. was discovered with a notebook with instructions to make a bomb and "a hit list . . . ." The referral additionally alleged that R.C. raped petitioner, his grandmother, and sibling X.C, in addition to the allegations of sexual abuse against his other siblings set forth above.

         According to the petition, the parents took E.C. to the hospital because of the sexual abuse and were aware of R.C.'s actions. The petition also alleged that the family recently moved to Kentucky for a short time before moving back to West Virginia. According to the petition, the parents resided with one of the children's grandfathers, who kicked T.C. in the stomach, causing him to vomit, and threatened to kill the child. The petition also alleged that E.C. and X.C. underwent forensic interviews that yielded "normal" results. Despite these results, the interviewer had "lots of concerns" about possible coaching of E.C., who may have been told she would be spanked if she told the interviewer about "other things" or anything other than "no[.]" Further, the petition alleged that E.C.'s school reported a discharge from her genitals that had a strong odor. The child's underwear was also extremely dirty, as were her feet. E.C. told school personnel not to say anything because it was a secret. She also mentioned R.C. coming into her room to play a game and pointed to her genitals. The petition contained further allegations of the investigation into sexual abuse in the home, including additional statements from E.C. regarding R.C.'s behavior, in addition to the allegation that the children suffered from repeated lice infestations. After receiving these referrals, the DHHR implemented a series of protection plans that included R.C.'s placement in a relative's home to ensure the safety of his siblings. Finally, because E.C. indicated that the family intended to move to Kentucky on October 1, 2016, the DHHR took immediate emergency custody of the children in order to ensure their safety against the issues of abuse in the home.

         On October 9, 2015, the circuit court held a preliminary hearing and found probable cause to support the children's removal. The circuit court based this finding on the children's chronic health and hygiene issues, history of CPS involvement, and the allegations of sexual abuse by R.C. Additionally, the circuit court appointed separate guardians for R.C. and the other children. The circuit court granted the parents supervised visitation with the children.

         In November of 2015, the circuit court held an adjudicatory hearing, during which the parents stipulated to chronic unclean housing and living conditions; lack of supervision; failure to protect the children; and medical neglect of the children. As such, the circuit court found that the parents neglected the children. Thereafter, the circuit court granted the parents post-adjudicatory improvement periods.

         At a review hearing in March of 2016, the circuit court found that the parents had been "moderately compliant" with the terms of their improvement period. The following month, petitioner submitted to a psychological evaluation, during which she denied having problems with R.C. According to petitioner, the child "listened and minded" at home. Ultimately, the evaluator found that petitioner did not understand the seriousness of the allegations and minimized the issues in the home. Specifically, the evaluator found that petitioner did not believe that R.C. sexually abused E.C. and failed to recognize that R.C. had behavioral problems and emotional issues that required intervention. Petitioner also failed to understand the significant risk to the children presented by their lack of hygiene. Thereafter, the DHHR filed an amended petition based on new allegations from E.C. and T.C., who both disclosed significant sexual abuse by the father and an uncle, in addition to R.C. The amended petition also alleged that petitioner had knowledge of this abuse.[2]

         In October of 2016, the circuit court held an adjudicatory hearing on the new petition and found that the children were abused and neglected based on the sexual abuse in the home. Thereafter, the matter was continued several times before the final dispositional hearing. In April of 2017, the circuit court held a dispositional hearing, during which it found that the parents failed to acknowledge the sexual abuse in the home or otherwise remedy the issues of chronic medical neglect and unsanitary conditions in the home. As such, the circuit court terminated petitioner's parental rights to the children.[3] It is from the 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 proceedings below.

         On appeal, petitioner first alleges that the circuit court erred in ratifying the DHHR's emergency custody of the children at the initial preliminary hearing. According to petitioner, the only reason the DHHR took emergency custody of the children was because the family intended to move to Kentucky the day after the expiration of the protection plan put in place prior to the petition's filing. Petitioner argues ...


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