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 ...