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In re W.L.

Supreme Court of West Virginia

March 12, 2018

In re W.L., T.L., and E.L.

         (Wood County 17-JA-116, 117, and 118)


         Petitioner Mother A.L., by counsel Ernest M. Douglass, appeals the Circuit Court of Wood County's August 30, 2017, order terminating her parental rights to W.L., T.L., and E.L.[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"), Justin M. Raber, filed a response on behalf of the children in support of the circuit court's order and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in (1) failing to consider thirteen-year-old W.L.'s wishes at disposition, (2) denying her motion for an additional psychological evaluation, (3) denying her motion for an improvement period, and (4) denying her post-termination visitation with the children.[2]

         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 April of 2017, the DHHR filed an abuse and neglect petition that alleged petitioner repeatedly physically and emotionally abused W.L. in the presence of the other children. According to the petition, during an investigation, petitioner admitted to a DHHR worker that, in December of 2016, she repeatedly slammed W.L. against a wall with her hands around his neck and punched him in the face, in addition to other physical abuse. Both petitioner and the child indicated that this was an isolated incident, and petitioner informed the DHHR worker that she and the child began therapy to address the issue. Based on these facts, the children were permitted to remain in the home while the DHHR's investigation continued. The petition further alleged, however, that approximately two days after the DHHR worker met with petitioner, W.L. appeared for school with severe bruising, welts on his face and neck, a black eye that was almost swollen shut, and numerous abrasions to his head, face, and neck. According to the child, petitioner beat him and threw him out of the home. The child further disclosed that petitioner was physically and mentally abusive to him. The child said that, after telling petitioner about his suicidal ideations, she told him to commit suicide out of the family's presence. According to the petition, that same day, DHHR workers again spoke with petitioner, who admitted that she physically abused the child and made him leave the home because she was angry that he told her she was a bad mother. Law enforcement investigated the incident and eventually charged petitioner criminally with child abuse by a parent resulting in injury. The children were removed from petitioner's care.

         The circuit court held two adjudicatory hearings in May of 2017, during which it heard testimony from a DHHR employee regarding petitioner's admissions to physical abuse.[3] W.L. also testified consistently with his prior disclosures concerning petitioner's extensive physical and emotional abuse. Petitioner testified that, despite her prior admission, the incident in December of 2016 did not occur. She further admitted to striking W.L. repeatedly during the incident in April of 2017, but indicated that the child's behavior caused this reaction. Ultimately, the circuit court adjudicated petitioner as an abusing parent based on her physical abuse of W.L. on multiple occasions in the presence of the other children.

         Later that month, petitioner moved for a post-adjudicatory improvement period. Before ruling on the motion, the circuit court ordered petitioner to undergo a psychological and parental fitness evaluation. After completing the evaluation in August of 2017, the report indicated that petitioner took little responsibility for the physical abuse and instead blamed W.L. for causing her violent actions. In response to a question as to why she was not violent toward the younger children, petitioner stated that they were "not at that stage yet." Petitioner scored extremely high on the "Child Abuse Potential Inventory" and her responses indicated that she exhibited "a concerning level of abusive traits and characteristics that are endorsed by known abusers." The evaluator further noted that "research indicates this assessment produces few false positives and high scores in this area are predictive of present and future physical child abuse." The evaluation also indicated that petitioner admitted to physical violence in her romantic relationships, resulting in two prior criminal charges of assault against her. Petitioner additionally admitted to a history of multiple suicide attempts, depression, drug abuse, and having abused marijuana the day of her evaluation. The evaluator diagnosed petitioner with borderline intellectual functioning and unspecified personality disorder with borderline and antisocial features. Ultimately, the evaluator found that all three children were at "grave risk of physical abuse and harm" in petitioner's care and that her prognosis for improved parenting was "extremely poor to non- existent." Petitioner then moved to have an evaluation performed by a psychologist of her choice. The circuit court denied this motion, but permitted petitioner to have another psychologist review the evaluation.

         Prior to the dispositional hearing in August of 2017, petitioner failed to produce an expert witness on the issue of her psychological evaluation. She further declined to examine the psychologist that performed her evaluation. Petitioner testified that she completed five counseling sessions, an intake for anger management services, and inquired about parenting classes the day before the dispositional hearing. However, petitioner provided no records or testimony from providers to corroborate these assertions. Further, petitioner continued to blame W.L. for the abuse inflicted and specifically requested that only her two youngest children be returned to her custody. Ultimately, the circuit court denied petitioner's motion for a post-adjudicatory improvement period and terminated her parental rights. The circuit court further denied petitioner post-termination visitation with the children.[4] 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.

         Petitioner first alleges that the circuit court erred in failing to take thirteen-year-old W.L.'s wishes into consideration prior to disposition. This assignment of error, however, is entirely disingenuous and without merit, as petitioner specifically testified at the dispositional hearing that W.L. made his wishes known to the circuit court. According to the record, petitioner testified that W.L. "wrote a letter to the [j]udge saying he does not want to come back home[.]"

         Moreover, the record further shows that the guardian submitted a report to the circuit court prior to disposition that indicated, under a heading styled "CHILD'S EXPRESSED WISHES[, ]" that W.L. "does not want to return to [petitioner's] custody and would offer her rights be terminated." Accordingly, there is no support in the record for petitioner's argument that the circuit court's finding that "[t]he [c]ourt [has] taken into consideration the wishes of the children regarding termination of parental rights" is erroneous. Thus, we find no error.

         Next, petitioner argues that the circuit court erred in denying her motion for an additional psychological evaluation.[5] According to petitioner, she was entitled to a second evaluation because the evaluation in question "made two factual assumptions that had not been proven and/or were incomplete." The first of these allegedly inaccurate assumptions was that the incident from December of 2016 actually occurred. Petitioner argues that "the lower court never specifically found that incident to have occurred" and, further, that she specifically denied the incident during her testimony. We find no merit to this argument. The evaluation included consideration of all the facts of the case, which not only included the circuit court's adjudicatory findings, but also the information contained in the DHHR's petition, which asserted that petitioner admitted to the abuse in December of 2016 and W.L. corroborated the same. Moreover, the evaluation specifically reflects petitioner's later recanting of her actions during the December of 2016 incident. Accordingly, it is clear that the evaluation includes a full and fair representation of the facts of the case through adjudication. As such, petitioner is entitled to no relief upon these allegations.

         Petitioner additionally argues that the evaluation mischaracterized her response to W.L.'s suicidal ideation. According to petitioner, the evaluation "mischaracterized this incident as though [she] was condoning [W.L.'s] suicide and coldly dismissed him from the home when, in fact, she prevented it and he left of his own volition." Petitioner further alleges that she had to protect the younger children "from seeing such a thing" and later confirmed that W.L. was safe at his grandmother's home. Again, we do not find that this allegation is sufficient to warrant an additional evaluation, especially given the fact that petitioner's testimony concerning this incident at the ...

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