In re I.T. And In re H.S.
County 17-JA-170, 17-JA-171
Mother A.S., by counsel Clarissa M. Banks, appeals the
Circuit Court of Marion County's November 9, 2018, order
terminating her parental rights to I.T. and the November 26,
2018, order terminating her parental rights to
The West Virginia Department of Health and Human Resources
("DHHR"), by counsel S.L. Evans, filed a response
in support of the circuit court's order. The guardian ad
litem for I.T. ("guardian for I.T."), Frances C.
Whiteman, filed a response on behalf of that child in support
of the circuit court's order. The guardian ad litem for
H.S. ("guardian for H.S."), Rebecca L. Tate, filed
a response on behalf of that child in support of the circuit
court's order. On appeal, petitioner argues that the
circuit court erred in terminating her parental rights rather
than imposing a less-restrictive dispositional alternative.
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.
December of 2017, the DHHR filed a child abuse and neglect
petition alleging that petitioner's husband, J.S.,
sexually abused petitioner's daughter, I.T. The DHHR
alleged that petitioner and I.T.'s non-abusing father,
B.T., shared custody of I.T. Further, the DHHR alleged that
H.S., petitioner and J.S.'s biological child, lived in
their home as well. At that time, the DHHR made no
allegations against petitioner, as J.S. agreed to leave the
home following the filing of the petition. The circuit court
ordered petitioner and B.T. to cooperate with the DHHR and
allow the DHHR to make announced and unannounced visits to
the DHHR filed an amended petition against petitioner
alleging she failed to protect H.S. from J.S. "by
allowing [him] to reside in the home with [her.]" The
DHHR alleged the parents inflicted "mental and emotional
abuse . . . by their actions leading to [H.S.] hiding under
her bed to avoid [Child Protective Services] workers."
The DHHR alleged that J.S.'s presence in the home at the
time was in direct contravention to a voluntary protection
plan petitioner executed at the beginning of the proceedings.
Petitioner waived her preliminary hearing.
circuit court held six adjudicatory hearings over seven
months in 2018. I.T., age twelve, testified. The circuit
court found her testimony was "strong and matter of fact
regarding particular experiences to which she was subjected.
[I.T.] was able to describe, in detail, the manner in which
she had been touched and period of time during which such
conduct happened." The circuit court found that,
although the evidence was unclear as to exactly how many
times J.S. touched I.T., the description was sufficient to
indicate that I.T. "experienced this touching in her
genital area" on "many occasions." The
forensic psychologist who performed an assessment on I.T.
testified that the child's testimony was consistent with
their initial session together and the child's forensic
interview. The circuit court found that the psychologist
"stated that [I.T.] was a child of average intelligence
and her actions and statements were consistent with a child
that had been a victim of sexual assault." A nurse also
testified regarding I.T.'s statements during a physical
examination. The circuit court found that testimony
"further shows that [I.T.] has been consistent in her
allegations, and has not changed or recanted the allegations
made against [J.S.]."
sheriff's deputy testified that he accompanied two Child
Protective Service ("CPS") workers to
petitioner's home in March of 2018. The deputy testified
that petitioner and J.S. were in the home. Further, J.S.
stated that they were the only individuals in the home and
that H.S. was at a relative's home. The deputy explained
that, while following petitioner to a back bedroom, he heard
a noise and discovered H.S. underneath a bed. The deputy
explained that she began crying as he assisted her out from
underneath the bed. The deputy further testified that the
parents became "highly agitated" and that J.S. was
handcuffed for officer safety. Both petitioner and J.S. were
cited for obstruction. The CPS workers corroborated the
deputy's testimony. Further, the CPS workers agreed that
petitioner was told not to allow J.S. to have contact with
H.S., which petitioner later denied.
testified in defense of J.S, stating she did not believe that
he sexually abused I.T. Petitioner testified, "I
don't believe these things, plain and simple. That's
just how it is. I don't believe this at all. I can only
tell you . . . how they've interacted with each other.
I'm telling you this, I don't believe this
happened." The circuit court found that petitioner
disregarded the voluntary protection plan as alleged in the
amended petition. Thus, the circuit court perceived that
petitioner was biased in favor of J.S. and her testimony
"did little to detract from the testimony" of I.T.
and the forensic psychologist. Finally, J.S. testified and
denied the allegations that he sexually abused I.T.
Ultimately, the circuit court found "that there [was]
clear and convincing evidence that [I.T.] suffered sexual
abuse by [J.S.] while in the custody of [petitioner] . . .
and another child residing in the home was [H.S.]"
Accordingly, the circuit court found that H.S. was also at
risk of abuse under West Virginia Code §
49-1-201. Further, the circuit court found that
petitioner allowed H.S. to have contact with J.S. and,
therefore, violated the voluntary protection plan. The
circuit court adjudicated petitioner as an abusing parent and
the children as abused children. Further, the circuit court
found that H.S. had "separate interests from
[I.T.]" and appointed H.S. a separate guardian ad litem.
circuit court held the final dispositional hearing in October
of 2018, and the DHHR presented testimony from CPS workers
that petitioner continued to believe that I.T. was not
sexually abused by J.S. The CPS workers testified that
petitioner was not offered services due to her continued
denial of abuse. Petitioner then testified that she had
separated from J.S. and now believed that he sexually abused
I.T. However, petitioner admitted that she never informed the
DHHR of this change. Further, petitioner admitted that she
did not seek services to remedy the conditions of abuse and
neglect on her own.
the circuit court found that petitioner "never expressed
her change of heart [regarding I.T.'s statements that she
was sexually abused] to anyone and she was unable to
articulate the reasons she now believes her daughter."
The circuit court found that petitioner's testimony was
not credible and noted this Court's prior holding that
[f]ailure 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
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)). Consequently, the
circuit court terminated petitioner's parental rights
finding that it was in the children's best interests. It
is from the circuit court's November 9, 2018,
dispositional order regarding I.T. and its ...