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In re D.H.-1

Supreme Court of West Virginia

June 11, 2018

In re D.H.-1 and H.H.

          Raleigh County 16-JA-156 and 157

          MEMORANDUM DECISION

         Petitioner Guardian Ad Litem ("guardian") Shannon L. Baldwin, on behalf of the children, appeals the Circuit Court of Raleigh County's December 13, 2017, order in which it declined to adjudicate the grandparents as abusing guardians.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel S.L. Evans, filed a response in opposition to the circuit court's order. The grandmother and legal guardian D.H.-2, by counsel Sidney H. Bell, filed a response in support of the circuit court's order. The grandfather E.H., by counsel Thad A. Bowyer, filed a response also in support of the circuit court's order. Mother K.C., by counsel Mary Beth Chapman, filed a response in opposition to the circuit court's order. Finally, Father J.H. filed a response taking no position on appeal. On appeal, the guardian argues that the circuit court erred in finding that there was not clear and convincing evidence of abuse and neglect of the children, finding that there was not clear and convincing evidence of non-accidental trauma to D.H.-1, and failing to terminate the guardianship and custodial rights of D.H.-2 and E.H. to the children.

         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 that the circuit court below erred in failing to adjudicate the grandparents of abuse and neglect. Accordingly, this case satisfies the "limited circumstances" requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure, and a memorandum decision is appropriate to resolve the issues presented.

         In September of 2016, the DHHR filed an abuse and neglect petition against the children's legal guardians D.H.-2 and E.H., the paternal step-grandmother and paternal grandfather, respectively. The DHHR stated that it received two referrals from D.H.-1's teacher regarding alleged physical abuse perpetrated by D.H.-2 against then five-year-old D.H.-1. The first referral indicated that the child reported to his teacher that D.H.-2 hit him in the nose with a dry erase board when he would not complete his homework. The child's nose had two small abrasions and was bruised and swollen. A CPS worker interviewed D.H.-2, who confirmed that the child owned a dry erase board but stated that he scratched his nose while playing with it. The child was taken to the hospital and consistently reported to the medical staff that D.H.-2 hit him. A temporary protection plan was put into place at that time and the children were placed with a relative. Approximately one week later, the children were returned to the grandparents' home. The second referral, received shortly thereafter, indicated that D.H.-1 reported that D.H.-2 kicked him in the stomach, causing him to fall backwards and strike his head on a washing machine. A golf-ball-sized knot was observed on the back of the child's head. A CPS worker interviewed the child, who reported that D.H.-2 kicked him when he would not respond to her questions about why he had gotten in trouble at school for "flipping people off." However, D.H.-2 informed the CPS worker that the child fell after climbing out of the bathtub. CPS subsequently filed an application for ratification of emergency custody for the children.

         During the preliminary hearing held in December of 2016, the circuit court found probable cause to proceed against the grandparents and scheduled an adjudicatory hearing. The first adjudicatory hearing was held in February of 2017, wherein the DHHR presented the testimony of D.H.-1's teacher regarding his disclosures of the abuse perpetrated by D.H.-2. The teacher testified that she observed the scrapes and swelling to the child's nose and the knot on the back of his head. Regarding the second disclosure, the teacher testified that the child consistently reported the abuse to several other people including an aide, a counselor, the vice principal, and the principal. The teacher also indicated that she had seen the child attempt to injure himself by smacking his head on the desk, pinching himself, and biting himself. However, she testified that the child never hit himself hard enough to break the skin, cause bleeding, or cause knots to form. The teacher further testified that during a meeting, D.H.-2 informed her that the child also harmed himself at home, including breaking his own arm. After hearing this testimony, the hearing was continued in order to review the child's interview, which was conducted at a local Child Advocacy Center ("CAC"), and obtain medical records.

         After another continuance, the adjudicatory hearing was reconvened in May of 2017. The circuit court admitted the child's CAC interview into evidence and heard the testimony of several witnesses. A social worker from the Children's Home Society testified that D.H.-1 had two scars on the back of his head and a flat nose due to trauma. The social worker also testified that the child had a "cauliflower ear, " which a doctor opined resulted from trauma.[2] When questioned regarding the child's ear, the social worker stated that the child reported he had been hit by a car door, but did not disclose whether the incident was intentional or who had closed the car door. The social worker also testified that the child had not attempted to self-harm since being out of the grandparents' care. Finally, the social worker testified that the child made the same disclosures regarding his injuries to a psychologist during an evaluation and further disclosed that D.H.-2 had previously broken his arm. The biological father then testified that D.H.-1's ear and nose had not always been damaged. The father also testified that D.H.-1 had broken his arm in 2015. The father stated that at that time, he was informed that the child's arm was fractured when D.H.-2 pulled the child's arm through a shirtsleeve. Further, each time he asked the grandparents about the event, they told the father that the fracture occurred by pulling D.H.-1's arm through his shirtsleeve and provided no other explanation. The CPS worker then testified that CPS received a referral regarding D.H.-1's fractured arm in 2015. According to the referral, the child had a spiral fracture of the humerus of the left arm. The hospital referred the matter due to the suspicious account of how the injury occurred, but CPS was unable to substantiate any abuse. After hearing evidence, the circuit court continued the adjudicatory hearing.

         In July of 2017, the circuit court reconvened the adjudicatory hearing wherein it heard testimony regarding several of D.H.-1's medical records. D.H.-1's dental records revealed that the child had a dead tooth, which the dentist opined was likely the result of trauma. Testimony established that the child had not had any trauma to his face or tooth while in foster care. Several of D.H.-1's medical records were introduced into evidence, including records from when the child was seen at the hospital after reporting that he had been kicked by D.H.-2. The hospital performed a full-body scan of the child at that time and found two to three rib fractures. A growth chart introduced indicated that D.H.-1 was in the ninetieth percentile for weight prior to being placed with the grandparents. After being placed with the grandparents, D.H.-1 dropped as low as the twenty-second percentile. After hearing evidence, the circuit court continued the adjudicatory hearing.

         The guardian filed an amended petition in August of 2017, adding new allegations regarding D.H.-1's spiral fracture of the left arm while under the grandparents' guardianship. The guardian noted the hospital report recorded D.H.-2's explanation that the fracture occurred when she was pulling the child's arm through his shirt sleeve. However, this explanation was inconsistent with the teacher's testimony that D.H.-2 told her the child had broken his own arm for attention. The petition also contained allegations regarding the child's left rib fractures. The guardian alleged that both of these injuries were non-accidental trauma.

         In September of 2017, the circuit court once again reconvened the adjudicatory hearing. Joan M. Phillips, M.D., testified regarding D.H.-1's injuries. Dr. Phillips was introduced as an expert witness as she has had permanent board certification by the American Board of Pediatrics since 1985, has been licensed to practice medicine in the State of West Virginia since 1981, and has a sub-board certification from the American Board of Pediatrics in child abuse pediatrics. Dr. Phillips worked as the co-medical director for the Child and Advocacy Center and worked at Women's and Children's Hospital in Charleston, West Virginia. She submitted a report of her findings and testified that D.H.-1's rib fractures were highly specific for child abuse. Specifically, she stated

[p]osterolateral rib fractures - "posterior" meaning in the back near the spine and a little more lateral. Those are fractures that are highly unusual in accidents. The only kind of accident that would occur in that area that would leave that kind of injury would be something like a pedestrian/motor vehicle accident. Because the rib attaches to the spinal cord or the tuberal column, the most common injury that's inflicted is a squeezing injury and it's like a fulcrum and it snaps in the posterolateral - posterior position. So it is one that has been identified in literature as highly specific for child abuse.

         She did note that the fractures were beginning to heal at the time the full-body scan was performed and, as such, would have occurred prior to the report of being kicked by D.H.-2.

         Regarding the child's spiral fracture of the left arm, Dr. Phillips testified that it could have occurred in an accident or by child abuse. She stated that a fracture of that nature could be caused by falling on an extended arm, but noted that the medical records did not disclose a fall and only cited D.H.-2's explanation that the fracture occurred by pulling the child's arm through a shirtsleeve. Dr. Phillips noted that it could have been possible to hear a popping sound when pulling the child's arm through a shirtsleeve if it was already broken. She denied that it would have been biomechanically possible for D.H.-1, who was three years and ten months old at the time of the fracture, to intentionally break his own arm. Regarding the child's nose, Dr. Phillips noted that it was unlikely that D.H.-1 injured himself by hitting his head on a desk, as his forehead would have been the more likely spot to hit. She also noted that abused children are more likely to have externalized patterns of aggressive or antisocial behavior.

         Dr. Phillips also testified regarding D.H.-1's growth patterns and noted that he dropped from the ninety-seventh percentile to the twenty-second percentile. Specifically, she noted that D.H.-1 weighed thirty-two pounds at age two, which increased to thirty-six pounds by nearly age two and one half. However, the child dropped to thirty-two pounds by age three and only weighed thirty-three pounds by age four. D.H.-1 was also behind in height. Dr. Phillips testified that the growth chart was significant because "once a child establishes a growth curve they tend to stay on that growth curve." A significant decline in growth, or failure to thrive, was an indicator that something was wrong. She further testified that after being removed from the grandparents' home, the child's growth climbed to between the fiftieth and seventy-fifth percentile and she noted that this was indicative that, nutritionally, there was a difference in environment at ages three and four, and age six. Based on these factors, Dr. Phillips concluded that D.H.-1 was the victim of child abuse. The circuit court then continued the adjudicatory hearing.

         A final adjudicatory hearing was held in November of 2017. D.H.-2 testified that she did not injure the children and that they had been hurt a few times in her care due to roughhousing. She testified that she had discussed D.H.-1's weight with the pediatrician. She noted that the child had been eating unhealthy things such as "gummies" when in the care of his biological parents and that she changed his diet to include healthy foods such as fruits and vegetables and she attributed the child's weight loss to the change in diet and his active lifestyle. Regarding the child's fractured arm, D.H.-2 testified that she never told the teacher that D.H.-1 broke his own arm to gain attention. Instead, she stated that on the day of the incident, the children had been playing in a children's pool on the deck and she assumed D.H.-1 must have slipped and fallen. She also testified that she had no explanation for how D.H.-1 sustained fractures to his ribs despite admitting that she ...


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