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In re A.N.

Supreme Court of West Virginia

March 4, 2019

In re A.N. and C.N.

          Submitted: January 15, 2019

          Appeal from the Circuit Court of Hampshire County The Honorable C. Carter Williams, Judge Abuse & Neglect Case Nos.: 16-JA-100 and 16-JA-101

          Jeremy B. Cooper, Esq. Blackwater Law PLLC Kingwood, West Virginia Counsel for Petitioner

          Joyce E. Stewart, Esq. Moorefield, West Virginia Guardian ad Litem

          Patrick Morrisey, Esq. Attorney General Lee Niezgoda, Esq. Assistant Attorney General Fairmont, West Virginia .Counsel for Respondent Department of Health and Human Resources


         1. "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 re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

         2. "Although parents have substantial rights that must be protected, the primary goal in cases involving abuse and neglect, as in all family law matters, must be the health and welfare of the children." Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

         3. "'Parental rights may be terminated where there is clear and convincing evidence that the infant child has suffered extensive physical abuse while in the custody of his or her parents, and there is no reasonable likelihood that the conditions of abuse can be substantially corrected because the perpetrator of the abuse has not been identified and the parents, even in the face of knowledge of the abuse, have taken no action to identify the abuser.' Syl. pt. 3, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993)." Syl. Pt. 5, In re Taylor B., 201 W.Va. 60, 491 S.E.2d 607 (1997).

         4. "'[C]ourts are not required to exhaust every speculative possibility of parental improvement . . . where it appears that the welfare of the child will be seriously threatened, and this is particularly applicable to children under the age of three years who are more susceptible to illness, need consistent close interaction with fully committed adults, and are likely to have their emotional and physical development retarded by numerous placements.' Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980)." Syl. Pt. 4, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

         5. "In cases involving the abuse and neglect of children, when it appears from this Court's review of the record on appeal that the health and welfare of a child may be at risk as a result of the child's custodial placement, regardless of whether that placement is an issue raised in the appeal, this Court will take such action as it deems appropriate and necessary to protect that child." Syl. Pt. 6, In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013).

         6. "In a proceeding to terminate parental rights pursuant to W.Va. Code [ §§ 49-4-601 to -610 (2015 & 2018 Supp.)], as amended, a guardian ad litem, appointed pursuant to W.Va. Code [§ 49-4-601(f)], as amended, must exercise reasonable diligence in carrying out the responsibility of protecting the rights of the children. This duty includes exercising the appellate rights of the children, if, in the reasonable judgment of the guardian ad litem, an appeal is necessary." Syl. Pt. 3, In re Scottie D., 185 W.Va. 191, 406 S.E.2d 214 (1991).

         7. "It is a traumatic experience for children to undergo sudden and dramatic changes in their permanent custodians. Lower courts in cases such as these should provide, whenever possible, for a gradual transition period, especially where young children are involved. Further, such gradual transition periods should be developed in a manner intended to foster the emotional adjustment of the children to this change and to maintain as much stability as possible in their lives." Syl. Pt. 3, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991).



         In this appeal of the March 30, 2018, order entered by the Circuit Court of Hampshire County, West Virginia, the petitioner, C.N., [1]who is the father of a daughter, A.N., and a son, C.N., argues that the circuit court erred in terminating his parental rights to A.N., when he was otherwise deemed a fit parent suitable to care for C.N. Upon review of the parties' briefs and arguments, the appendix record, and all other matters submitted before the Court, we find no error in the circuit court's decision to terminate the petitioner's parental rights to his daughter and, therefore, affirm the circuit court's order on that issue. But we recognize plain error in the circuit court's decision to return C.N. to the petitioner's "care, custody, and control" and, therefore, reverse the circuit court's decision and remand this case to the circuit court for further proceedings consistent with this opinion.

         I. Factual and Procedural Background

         On December 30, 2016, the Department of Health and Human Resources ("the DHHR"), filed an abuse and neglect petition against V.N., the mother of A.N. and C.N., [2] and the petitioner alleging that they were abusive parents to their children, [3] A.N. and C.N. That allegation stemmed from the mother crashing her car while under the influence of drugs. A.N., who was five years old at the time of the accident and a passenger in the mother's vehicle, was not in a car seat or a booster seat, but was wearing a seatbelt.[4] The DHHR also alleged facts indicating that the petitioner failed to protect his children from the mother's drug abuse. The petitioner allegedly knew of the mother's drug abuse and still allowed her to care for and transport the children in the car.[5] The children were removed from the home and placed into foster care.

         At the adjudicatory hearing that occurred on February 16, 2017, the petitioner stipulated to failing "to protect and ensure for the safety and well-being" of his children and, placing them "in imminent danger of abuse and neglect by leaving them in the care of . . . [their] Mother . . . when he knew or should have known that she was abusing drugs and/or alcohol." The circuit court adjudicated the petitioner as an abusing parent and granted his request for a post-adjudicatory improvement period.

         During the post-adjudicatory improvement period, the petitioner participated in parenting and adult life skills training, as well as undergoing a parental fitness evaluation at the request of the DHHR on May 17, 2017. The prognosis made by the psychologist who evaluated the petitioner was that he

appears to be overly fixated on the well-being and actions of his wife, as opposed to focusing on what tasks he needs to complete in order to regain custody of his children. He has failed in the past to serve in a protective role by ending his relationship with his wife or preventing her from having contact with the children, thus exposing them to ongoing neglect. It is questionable as to whether or not he would be able to follow through with a decision to separate from his wife or maintain distance from her in the future. For that reason, a fair, but guarded prognosis is offered.

         Approximately five months later, the Multi-Disciplinary Team ("MDT") agreed to reunification of the petitioner with his children. By August 15, 2017, following a gradual transition, the children were placed back in the petitioner's home.

         By August 21, 2017, within one week of the children's reunification with the petitioner, a daycare worker for A.N. reported to the CPS that the child had extensive bruising to her backside, from her buttocks to the thigh area, which appeared, in part, to be the form of a handprint. The bruising was described by the CPS worker as dark purple and blue. Both A.N. and C.N. were immediately removed from the petitioner's home.[6]

         C.N. and A.N. were interviewed at the Child Advocacy Center ("CAC") on August 23, 2017. According to the record, A.N. was unable to communicate sufficiently with the interviewer, due to her disabilities. C.N. told the interviewer that A.N. gets in trouble "[f]or doing bad stuff[, ] [l]ike hitting" and gets spanked "easily with a hand." When discussing touches, C.N. indicated that he liked being touched on his hand and being hugged. The interviewer asked him whether A.N. had ever gotten a touch that hurt and C.N. answered: "On her butt, I saw a big scratch on her butt, but I don't know where it came from and Dad doesn't know either." When asked to describe the mark, C.N. said, "It looked pretty bad." C.N. stated that he had seen the "scratch" on A.N.'s butt during the daytime at the babysitter's house.[7]

         On August 26, 2017, after being returned to foster care, C.N. told his foster mother that he had touched A.N. inappropriately in the past and said he could do the same thing to his younger foster siblings because they cannot talk to anyone. There were other prior incidents reported regarding C.N. while he was in foster care, which included the child reportedly putting his head on his foster sister's private parts and "trying to eat" the child and trying to take a foster sister's clothes off to "eat her down there." Also, C.N., on a different occasion, had handcuffed his blind foster brother to a bed in the middle of the night.[8]

         At a status hearing conducted on September 19, 2017, the circuit court found that it was in the children's best interest to remain in the custody of the DHHR. The circuit court further found that there existed "imminent danger to [the] physical wellbeing of the minor children" and there remained "no reasonable, available, and less drastic alternatives to the removal of the minor children at the time." The circuit court also found that continuation in the petitioner's home was contrary to the children's welfare and best interests "due to the findings of abuse and neglect." The circuit court indicated that it would address in a separate order the parties' request for an order to evaluate C.N. due to the child's disclosures, which included an evaluation to determine whether the juvenile comports with the psychological behavioral profile of a child sexual abuser and/or victim.

         By agreed order entered September 26, 2017, based upon allegations that C.N. inflicted "Abuse - Sexual Abuse or Sexual Exploitation and Abuse - Mental or Emotional Injury" upon other children, the circuit court ordered an independent psychological evaluation "to determine . . . whether the juvenile comports with the psychological behavioral profile of a child sexual abuser and/or victim." The psychological evaluator, Dr. Timothy Saar, was also directed to provide recommended treatment and placement of the child "to meet any special needs determined as part of the evaluation."

         On November 28, 2017, the DHHR filed revised case plans recommending termination of the petitioner's parental rights due to concerns for the safety of the children.

         Dr. Saar evaluated C.N. on October 3, 2017. In a report dated December12, 2017, Dr. Saar concluded that C.N. was functioning in the very low range for IQ, but the IQ testing "appeared to be a low estimate of his ability due to his noncompliance and inability to concentrate throughout testing." Both C.N.'s foster father and teacher found C.N. to have "significant symptoms of Hyperactivity, Aggression, and Conduct Problems." C.N. denied that his father ever spanked or whipped him or his sister. This response was in conflict with what C.N. reported during his interview at the CAC. Significantly, Dr. Saar concluded:

Although it is unclear on the specifics of the situation in the . . . [petitioner's] home, there are concerns about the lack of supervision along with the disciplinary procedures that are being followed. It is also concerning the number of CPS referrals this family has received along with two incidents implying . . . [C.N.] was being sexually inappropriate. [C.N.] . . . has exhibited sexually inappropriate behaviors and comments, leading to his removal for inappropriately touching one of the foster children. Children who exhibit these kinds of behaviors and this level of knowledge of sexual matters have generally either been sexually abused or have been exposed to sexual materials. As there are indications of a lack of supervision in the home, [C.N.'s] . . . behaviors suggest he has either been sexually abused or exposed to inappropriate sexual materials, raising concerns about him or other children being placed back in the home and put at risk for additional abuse. Child[ren] who are sexually abused often perpetrate on each other and . . . [C.N.] presents a risk to other children in the home with him, particularly a home which has ineffectual supervision.
The family has had a number of CPS referrals and the allegations were mainly related to . . . [the mother] failing to perform her duties as a parent due to substance abuse and . . . [the petitioner] not being present in the home to supervise and provide care for the children. One of the children [older C.N.] indicated he was responsible for not only the other children's care, but also for protecting them from being in a vehicle with their mother. This is very concerning as children returning to this household without proof of significant change would be at a high risk for abuse and neglect. At this time, . . . [C.N.'s] prognosis is considered poor.

         Based upon the foregoing conclusions, Dr. Saar recommended, inter alia, that C.N. not be left unsupervised and alone with any younger children, including his sister, A.N.; that C.N. "requires a structured, stable, and supportive home environment, offering consistent discipline and consequences for his behaviors, as well as consistent emotional support, and a stimulating environment[;]" that C.N. continue to receive individual therapy on a weekly to biweekly basis; and that C.N. could benefit from a psychiatric consultation for purposes of determining whether medication would help with his attention deficiencies.

         The issue of the petitioner's disposition was the subject of hearings held by the circuit court on December 12, 2017, January 22, 2018, and February 5, 2018. Evidence introduced before the circuit court included testimony from Dr. Saar, the petitioner, a DHHR employee and a foster-care provider. Jessica Deardorff, a CPS worker with the DHHR, testified that she observed the bruising on A.N.'s lower thigh and buttocks, which was dark purple and blue with what appeared to be "a handprint or some kind of striping marks." Ms. Deardorff stated that A.N. was unable to say what happened to her. According to Ms. Deardorff, when she spoke with C.N., he did not tell her how A.N.'s bruising occurred. Ms. Deardorff also testified that when she told the petitioner about the bruising on A.N., he told her he did not know what had happened to A.N. Ms. Deardorff stated that no one has taken any responsibility for A.N.'s injuries.[9]

         Testifying consistently with his written report, Dr. Saar stated that C.N. did not cooperate in the evaluation. The psychologist testified that he could not make an assessment concerning sexual abuse of or by C.N. He further stated that C.N. denied having ever been touched in any way or having touched anyone else inappropriately. According to Dr. Saar, the child "appeared somewhat resistant to talk about that topic." He testified that C.N. required intense supervision, because the child's behaviors could place other children at risk of harm. Dr. Saar also indicated that C.N. should be evaluated by a psychiatrist to determine whether medication may be helpful for some of his attention issues. When questioned about A.N.'s injuries that she received within a week of being returned to the petitioner's custody, Dr. Saar stated that he did not recall being aware of those injuries at the time he evaluated C.N.[10] Dr. Saar did state that if it turned out the situation surrounding A.N.'s injuries was one where there was a need for supervision and there was a failure to supervise, then that would have impacted his opinion. Further, if it was a situation in which the parent caused the injury, the doctor stated that also could have impacted his opinion. As Dr. Saar testified, "if it was something done out of anger or poor impulse control and the child was hurt, then yes, we would have concerns about putting the child back in that parent's care depending on what that parent's rationale for that [was] . . . ."

         Dr. Saar did diagnosis C.N. with "child neglect, ADHD, and oppositional[.]" The doctor did not feel that C.N. "was giving enough symptoms (inaudible) behaviors characteristic of those children that we know have [been a] child sexual abuse[r] or been the victim [of child sexual abuse]. It certainly doesn't rule it out." But Dr. Saar testified that C.N. refused to answer questions about that issue. Dr. Saar later testified that more information would have been helpful in determining whether C.N. comported with the ...

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