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In re D.J.

Supreme Court of West Virginia

February 23, 2018

In re D.J., P.K., I.K., and C.K.

         Kanawha County 16-JA-364, 366, 367, and 368


         Petitioner Mother T.K., by counsel Elizabeth G. Kavitz, appeals the Circuit Court of Kanawha County's July 6, 2017, order terminating her parental rights to D.J., P.K., I.K., and C.K.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Melinda C. Dugas, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Sharon K. Childers, filed a response on behalf of the children in support of the circuit court's order. The DHHR and the guardian filed a supplemental appendix. On appeal, petitioner argues that the circuit court erred in denying her an improvement period, terminating her parental rights upon erroneous findings and insufficient evidence, and terminating post-termination visitation.

         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 July of 2016, the DHHR filed an abuse and neglect petition alleging that petitioner failed to protect her daughter, D.J., from sexual abuse, physical abuse, and emotional abuse by D.J.'s stepfather. The DHHR alleged that D.J. told petitioner that her stepfather had sexually assaulted her in April of 2016 and that petitioner failed to report the allegations to the authorities. When petitioner took no action, D.J. reported the allegations to school employees. D.J. later recanted these allegations, and the DHHR alleged that petitioner persuaded D.J. to recant. The DHHR further alleged that a second incident of sexual abuse occurred in July of 2016, which prompted the filing of the petition. Petitioner, thereafter, waived her preliminary hearing.

         In October of 2016, the circuit court held an adjudicatory hearing, during which the forensic interviewer who conducted all three of D.J.'s interviews testified. In those interviews, D.J. disclosed multiple incidents of sexual abuse by her stepfather. D.J. also disclosed that she reported the incidents to petitioner. D.J. reported that petitioner took no action and allowed the stepfather to continue living in the house, which caused D.J. to report the allegations to school personnel. One month later, D.J. gave a second interview in which she recanted the allegations. D.J. could not give a definite reason why she made up the allegations, but said that she came to the decision to recant on her own. However, D.J. also reported that her stepfather had returned to the home and was having contact with her before she recanted. Two months later, D.J. gave a third interview and reported that she had been newly abused by her stepfather and that her previous disclosures were true. In regard to the most recent incident, D.J. reported that her stepfather drug her into the laundry room and assaulted her. One of the other children allegedly witnessed part of the events, but did not testify. D.J. also stated that her family, including petitioner, pressured her to recant the earlier allegation. Ultimately, petitioner stipulated to adjudication and admitted a failure to protect D.J. from sexual abuse. Petitioner moved for a post-adjudicatory improvement period, and the circuit court held the motion in abeyance.

         In November of 2016, the circuit court held an evidentiary hearing on petitioner's motion for a post-adjudicatory improvement period. Petitioner's treating therapist testified that petitioner could work through her parenting issues within six months. The therapist reported that petitioner believed she would have taken action if she had some clue that sexual abuse was taking place. The therapist based her opinion primarily on petitioner's self-reporting. A DHHR worker testified that petitioner had been compliant with services thus far. Further, one of petitioner's previous co-workers testified that she believed petitioner would fulfill the obligations of an improvement period. However, the clinical psychologist who evaluated petitioner testified that petitioner's very low test score indicated a likely deficiency in future parenting. In the psychologist's opinion, petitioner suffered from dependent personality disorder; thus, petitioner was likely to participate in all therapy without making any actual change. Petitioner told the psychologist that she suffered a head injury prior to the examination. The psychologist did not notice any cognitive delay or defect during testing and noted such in his report. The circuit court then continued the case to hear further evidence.

         At the continued hearing on petitioner's motion for a post-adjudicatory improvement period, she testified that she believed D.J.'s disclosure of sexual abuse, although she admitted that she never called Child Protective Services ("CPS") or the police in reference to the matter. She claimed she did not know what D.J. meant when D.J. said she had been touched inappropriately. Petitioner stated that she did not have a chance to talk to D.J. before D.J. disclosed the abuse at school. After the first CPS intervention, petitioner obtained a domestic violence protective order against the stepfather. However, she voluntarily dismissed this order six days later. Additionally, petitioner testified that, after the stepfather returned to the house, she "felt like a spy" and never left the stepfather and D.J. alone in a room together. Petitioner also testified that the stepfather would discipline the children with a belt and, although she did not believe they deserved it, she felt powerless to stop him. Following petitioner's testimony, the circuit court denied the motion for a post-adjudicatory improvement period.

         In June of 2017, the circuit court held a dispositional hearing and petitioner moved for a post-dispositional improvement period. The guardian reported that D.J. did not want to return to petitioner's custody. Additionally, in contrast to the DHHR's expert witness, petitioner's psychological expert testified as to the possible effects that a concussion would have on a client during psychological testing. Further, the psychologist testified that petitioner's action, seeking help and treatment, was inconsistent with dependent personality disorder. However, petitioner's expert noted that this was the first parental fitness evaluation she had ever conducted and that her information was limited to that provided by petitioner and her counsel. The expert also admitted that her evaluation did not include the CPS investigators as collateral witnesses. Ultimately, the circuit court denied petitioner's motion for a post-dispositional improvement period. In its decision, the circuit court relied on the credibility and consistency of D.J.'s allegations, petitioner's lack of action after D.J.'s initial disclosure, and that petitioner allowed the alleged abuser to have contact with D.J. just days after the disclosure. Further, the circuit court gave weight to the DHHR's expert witness's opinion that petitioner's pattern of behavior indicated she would appear to make change without actually internalizing any change. The circuit court concluded that there was no reasonable likelihood that the conditions of abuse and neglect could be corrected in the near future and that termination was in the children's best interests. Ultimately, the circuit court terminated petitioner's parental rights in its July 6, 2017, order.[2] In the same order, the circuit court granted post-termination visitation at the discretion of the foster parents and the children.

         Shortly after disposition, the guardian filed a motion to revoke the post-termination visitation. The motion alleged that after the visitation was granted, petitioner and her family began calling the foster parents and demanding visitation with the children, which the foster parents refused. The motion also alleged the foster parents had concerns petitioner and her family would abscond to Texas with the children. The circuit court, upon receipt of the motion, revoked the visitation and ordered that petitioner and her family have no contact with the children. It is from the June 6, 2017, 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 argues that the circuit court erred in denying her an improvement period. According to petitioner, she was entitled to an improvement period because she participated in all court-ordered services and was not previously granted an improvement period. She also argues that she was entitled to an improvement period because counsel for the DHHR agreed she met her burden of proof to obtain the same. The Court, however, finds no error in the circuit court's denial of her motions for an improvement period.

         The decision to grant or deny an improvement period rests in the sound discretion of the circuit court. See In re: M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015) (holding that "West Virginia law allows the circuit court discretion in deciding whether to grant a parent an improvement period"); Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (holding that "[i]t is within the court's discretion to grant an improvement period within the applicable statutory requirements"). We have also held that a parent's "entitlement to an improvement period is conditioned upon the ability of the [parent] to demonstrate 'by clear and convincing evidence, that the [parent] is likely to fully participate in the improvement period . . . .'" In re: Charity H., 215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004). Also, "[f]ailure to acknowledge the existence of the problem, i.e. the truth of the basic allegation pertaining to the alleged abuse and neglect . . . results in making the problem untreatable and in making an improvement ...

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