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In re N.S.

Supreme Court of West Virginia

March 15, 2019

In re N.S., E.S., and A.J.

          Randolph County 2018-JA-057, 2018-JA-058, and 2018-JA-059

          MEMORANDUM DECISION

         Petitioner Mother A.N., by counsel J. Brent Easton, appeals the Circuit Court of Randolph County's October 4, 2018, order terminating her parental rights to N.S., E.S., and A.J.[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"), Heather M. Weese, filed a response on behalf of the children in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in denying her motion for a post-adjudicatory improvement period and terminating her parental rights.

         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.

         On May 15, 2018, the DHHR filed an abuse and neglect petition alleging that petitioner failed to protect the children from being sexually abused by petitioner's boyfriend, A.J.'s father. According to the DHHR, petitioner disclosed to her mother that she suspected her boyfriend sexually abused her two older children. The children also disclosed the sexual abuse to petitioner's mother. According to the report from petitioner's mother, petitioner questioned E.S. about the boyfriend touching her and the child began crying and stated that the boyfriend "touches her down there." The DHHR also alleged that the two older children disclosed to a relative that the boyfriend touched them. The DHHR further alleged that petitioner reported that on one occasion, the boyfriend offered her money in exchange for sex and additional money in exchange for sex with E.S.

         According to the DHHR, eight-year-old N.S. participated in a forensic interview on May 10, 2018. She disclosed that on a school night after she and her sister showered, the boyfriend went into N.S.'s room with her and secured the door closed with a chair and a box. The child reported that the boyfriend pushed her pants and underwear down to her knees and "got his thing out of his pants and he started playing with me." When asked to clarify, the child stated that he "put his private part on her private, while she was sitting on his lap." The child recalled that the boyfriend was wearing shorts and a camouflage shirt during the incident. The child told her mother what happened after the incident, but did not tell anyone else until later. The child reported that the boyfriend did not touch her again, but she feared that he was abusing her sister because the boyfriend was always in her sister's room. Six-year-old E.S. also participated in a forensic interview and disclosed that she was taken to the hospital because "they thought some boys touched her privates." However, she did not disclose any specific instances of sexual abuse.

         On July 2, 2018, the circuit court held an adjudicatory hearing during which petitioner stipulated to the allegations of abuse and neglect in the petition and requested a post-adjudicatory improvement period. Also in July of 2018, the circuit court held the boyfriend's contested adjudicatory hearing. At this hearing, petitioner testified that she did not believe that the boyfriend sexually abused the children. However, the circuit court noted that petitioner's testimony was inconsistent with other evidence that substantiated petitioner's knowledge of the sexual abuse of the two older children. During the hearing, evidence was admitted regarding the allegations set forth in the petition as it related to the boyfriend, and he was also adjudicated as an abusing parent.

         On September 18, 2018, the circuit court held a dispositional hearing during which petitioner testified that, despite her prior stipulations that she failed to protect her children from sexual abuse by her boyfriend, she had "very strong doubts" that he sexually abused them. Petitioner suggested that the children might have been sexually abused while in the care of her mother, because petitioner herself was sexually abused in that home. However, petitioner admitted on cross-examination that she allowed the children to visit that home regularly, despite having been sexually abused there herself. At the conclusion of the hearing, the circuit court denied petitioner's motion for a post-adjudicatory improvement period finding that petitioner's lack of acknowledgement of the sexual abuse of her children rendered her incapable of addressing and remediating the issue. The circuit court also found no reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near future and that the termination of her parental rights was in the children's best interests. Ultimately, the circuit court terminated her parental rights in its October 4, 2018, dispositional order.[2] It is from this 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, this Court finds no error in the proceedings below.

         First, petitioner argues that the circuit court erred in denying her motion for a post-adjudicatory improvement period. In support, she asserts that she testified that she would fully participate in an improvement period if she were granted one. Additionally, she contends that her stipulation to adjudication demonstrated that she accepted responsibility for failing to protect the children, "if they were in fact abused." Petitioner's argument is without merit.

         West Virginia Code § 49-4-610(2)(B) provides that a parent may be granted a post-adjudicatory improvement period if the parent "demonstrates, by clear and convincing evidence, that the [parent] is likely to fully participate in the improvement period." Additionally, we have stated that "West Virginia law allows the circuit court discretion in deciding whether to grant a parent an improvement period." In re M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015). Further, we have held

[i]n order to remedy the abuse and/or neglect problem, the problem must first be acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator of said abuse and neglect, results in making the problem untreatable and in making an improvement period an exercise in futility at the child's expense.

In re Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215 W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). While petitioner stipulated to adjudication, she later claimed that she had "very strong doubts" that the children were sexually abused by the boyfriend, despite evidence that substantiated her knowledge of the abuse. Her argument on appeal demonstrates that she continues to doubt the sexual abuse occurred, despite the evidence presented below. Additionally, during the dispositional hearing, petitioner also attempted to shift the blame to her mother, claiming that she herself was sexually abused in that home. Yet, petitioner admitted that she still frequently allowed the children to visit her mother's home. It is clear that petitioner failed to acknowledge the sexual abuse of the children. Petitioner's argument that she should have been granted an improvement period because the father of N.S. and E.S. was granted an improvement period is also without merit because, according to the record, the father acknowledged the abuse of the children and accepted responsibility for ...


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