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In re A.C.

Supreme Court of West Virginia

April 19, 2019

In re A.C.

          Hardy County 18-JA-17

          MEMORANDUM DECISION

         Petitioner Mother D.W., by counsel Jeffrey N. Weatherholt, appeals the Circuit Court of Hardy County's October 31, 2018, order terminating her parental rights to A.C.[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"), Marla Zelene Harman, filed a response on behalf of the child, also in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in proceeding to the dispositional hearing without the DHHR's having filed a family case plan or providing proper notice, failing to issue the final dispositional order within ten days of the hearing, finding that the DHHR was not required to make reasonable efforts to preserve the family, denying her motion for a post-adjudicatory improvement period, and terminating her parental rights upon erroneous findings.

         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.

         Factual and Procedural Background

         In May of 2018, the DHHR filed a child abuse and neglect petition against the parents alleging physical abuse of then four-month-old A.C. Specifically, the DHHR alleged that the parents took the child to the hospital for bruising to the child's buttocks, neck, face, side, and chest, as well as retinal hemorrhaging.[2] Medical personnel opined that the injuries were the result of abuse given the child's age, immobility, lack of medical explanation, and the various stages of healing of the injuries. The father admitted to causing the injuries; however, petitioner denied abuse and provided other explanations for the injuries such as rolling on top of the baby while co-sleeping. Petitioner waived her preliminary hearing.

         In June of 2018, the circuit court held an adjudicatory hearing wherein petitioner offered to stipulate to certain allegations contained in the petition. However, the DHHR and the guardian objected because petitioner had "prevaricated every step of the way about what happened." According to the guardian, petitioner blamed the doctors for the bruising to the child's head, stated that the child had a preexisting liver problem, and claimed the police coercively obtained the father's confession. As a result, the guardian and the DHHR objected to petitioner's limited stipulation, and the matter proceeded to a contested adjudication, wherein the child's pediatrician testified regarding the multiple bruises in different stages of healing on the child's body. Test results showed that no "organic reason or health condition" caused the bruising, but petitioner denied trauma or injury to the child, and blamed a stroller's restraints for causing the bruises to the child's chest. When the pediatrician asked petitioner why she did not immediately present to the hospital upon noticing the bruises, petitioner responded that she had similar bruising as a child and a Child Protective Services ("CPS") referral was made as a result, and that she did not want that to happen due to this incident. After the pediatrician's testimony, the hearing was continued.

         When the adjudicatory hearing reconvened later in July, the parties permitted petitioner to stipulate that she failed to recognize the severity of the injury to the child, did not respond appropriately to medical evidence that was placed before her regarding the injuries to her child, and should have taken the child to the emergency room immediately upon noticing the bruises. The circuit court accepted petitioner's stipulation and adjudicated her as an abusing parent. The DHHR then presented the testimony of a CPS worker in opposition to petitioner's oral motion for an improvement period. The CPS worker testified that petitioner improperly attempted to have the child placed with petitioner's mother. Petitioner was involved in a CPS case as a child in 2004, wherein she reported that her mother had hit her, causing bruising on her arm.[3] The CPS worker stated that, despite this substantiated abuse by petitioner's mother, petitioner recanted her childhood claims of abuse at an administrative law hearing initiated by her mother in early July. As a result, the hearing officer overturned that determination, essentially removing the barrier to placement of the child in petitioner's mother's home. The worker testified that she had concerns about petitioner being granted an improvement period given her actions of recanting the abuse against her mother in order to facilitate the child's placement and her various excuses as to the cause of the child's bruising. At the conclusion of this testimony, the circuit court held petitioner's motion for an improvement period in abeyance.

         In August of 2018, the circuit court held a dispositional hearing wherein all of the parties requested to continue the proceedings so that petitioner could undergo a polygraph exam. Petitioner testified that she was "done with the lies" and that her mother coerced her into presenting false testimony at the administrative law hearing. Petitioner, by counsel, agreed to continuing the hearing generally to obtain a polygraph. The guardian asked, "Should we just set that [hearing] for status so that we don't have to worry with the [Family] Case Plan until we -" to which petitioner's counsel immediately responded "[t]hat's fine." As such, the circuit court continued the hearing generally pending the completion of petitioner's polygraph exam.[4] The circuit court also spent significant time on the record discussing placement for the child, including with petitioner's grandmother, M.C. However, home studies needed to be completed and the child was continued in her foster placement.

         The circuit court held a hearing in September of 2018, wherein the DHHR requested to present the testimony of a witness for the purpose of disposition. Petitioner moved the circuit court to continue the hearing because it had been noticed as a status hearing, not a dispositional hearing. The DHHR objected, as it had secured the presence of a doctor who had traveled a long distance to testify that day. The circuit court ordered that the DHHR could proceed for the limited purpose of presenting the doctor's testimony and reserved petitioner's right to recall the witness at a later date if necessary.

         The doctor testified that, upon the child's presenting to the hospital in Petersburg, West Virginia, she was transferred to a hospital in Morgantown, West Virginia. There, he examined the child, reporting that the bruising had occurred at different times based on the coloration, and opined that the oldest bruise was possibly around two weeks old. The doctor testified that petitioner claimed the child bruised easily, could have incurred the bruising during co-sleeping, and the abrasion was caused by a car seat. Petitioner denied any form of abuse; however, the doctor opined that the injuries to the child were attributable to non-accidental trauma.

         On October 3, 2018, the DHHR filed its case plan recommending termination of petitioner's parental rights. The dispositional hearing was held on October 12, 2018. The circuit court took judicial notice of all prior testimony. The DHHR presented the testimony of several witnesses who testified regarding petitioner's denial of abuse to the child. Testimony established that petitioner continued to maintain that she had no knowledge of the bruising prior to presenting to the hospital. Further, petitioner remained evasive, blamed others, and failed to accept responsibility for her actions. While she independently obtained and underwent a psychological evaluation in June of 2018, petitioner did not give the DHHR the opportunity to provide any relevant information to the evaluating psychologist.[5] In any event, petitioner failed to follow through with any of the psychologist's recommendations, such as counseling. Lastly, petitioner continued to live with her mother, despite her substantiated abuse. As such, the DHHR recommended termination of petitioner's parental rights.

         Petitioner testified on her own behalf. When asked whether she had noticed the child's bruising prior to the day before bringing her to the hospital, she stated "[w]hen [A.C.] was a baby, we would pat her back, and she would get a bruise in the center of her back just from patting her." The circuit court asked petitioner whether she now suspected those bruises were from the father, and she responded that he "might have hit her." Petitioner further testified that she had independently sought a psychological evaluation and complied with the recommendations. However, upon further examination, petitioner admitted that she had only attended one counseling session. Lastly, petitioner admitted that she had been sexually abused as a child by her grandmother's then-boyfriend. Petitioner confirmed that the same grandmother was seeking custody of the child. The circuit court asked petitioner, "I mean, do you not see the problem there?" Petitioner responded, "Yeah, I could see it." Nevertheless, petitioner insisted she would comply with an improvement period and requested the same.

         The circuit court entered a dispositional order later in October of 2018, denying petitioner's request for an improvement period and terminating her parental rights. In explaining its reasoning, the circuit court found that petitioner was unable to provide a sustainable, safe home for the child. Throughout the case, petitioner was resistant to suggestions that the child was abused and provided several other incredible causes for the bruises. Moreover, petitioner admitted to lying during an administrative law hearing to facilitate the child's placement with her mother and failed to disclose that her grandmother failed to protect her from sexual abuse as a child while knowing that same grandmother was also seeking placement of her child. The circuit court determined that petitioner's minimization and denial of the issue boded for poor prognosis, and that her failure to identify the issues rendered her problem untreatable. Further, her decisions during the proceedings showed that she was not protective of her child and was unduly influenced to cater to her family. Finding that the DHHR was not required to make reasonable efforts to preserve the family, the circuit court denied petitioner an improvement period, stating she failed to prove that she would comply with the same. Lastly, the circuit court found that there was no reasonable likelihood that the conditions of abuse and neglect could be corrected in the near future and that termination was in the child's best interests. It is from the October 31, 2018, dispositional order that petitioner appeals.[6]

         Discussion

         I.

         The Court has previously established the following standard of review in cases such as this:

"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 ...

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