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In re K.C.

Supreme Court of West Virginia

May 24, 2019

In re K.C., G.C., and K.P.

          Hampshire County 18-JA-04, 18-JA-05, and 18-JA-06

          MEMORANDUM DECISION

         Petitioner Mother H.C., by counsel Jeremy B. Cooper, appeals the Circuit Court of Hampshire County's August 30, 2018, order terminating her parental rights to the children.[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"), Joyce E. Stewart, 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 finding clear and convincing evidence that she abused and neglected the children and in terminating her parental rights without first granting her an improvement period.

         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 January 19, 2018, the DHHR filed an abuse and neglect petition alleging that petitioner's boyfriend, C.S., sexually abused K.C. The DHHR further alleged petitioner refused to believe K.C.'s disclosures that she was sexually abused by C.S. and failed to protect the children from sexual abuse. Additionally, the DHHR alleged that petitioner abused substances and engaged in domestic violence with C.S. in the children's presence.

         On February 12, 2018, the circuit court held an adjudicatory hearing during which petitioner stipulated to some, but not all, of the allegations of abuse and neglect. Petitioner admitted that there was substance use and domestic violence in the home and that she failed to protect the children. Petitioner also admitted that K.C. had been sexually abused by her previous stepfather, T.C. However, petitioner made no admission that K.C. had been sexually abused by C.S. Over the course of two hearings, the circuit court heard evidence in support of the DHHR's allegations including a video recording of K.C.'s forensic interview, during which she disclosed that C.S. sexually abused her thirteen to fourteen times between August of 2017 and December of 2017.[2] Heather Carr, a DHHR investigative worker, testified that she substantiated the sexual abuse based on K.C.'s forensic interview during which the child disclosed that C.S. fondled her both over and under her clothes and put his fingers inside of her vagina on one occasion. Additionally, Ms. Carr testified that the forensic interviewer found the child's disclosures to be credible. Lastly, Ms. Carr testified that when she spoke to petitioner about the child's disclosures, petitioner became "incredibly angry" and called her daughter a liar. Petitioner also suggested to Ms. Carr that K.C. and G.C. be sent to live with relatives so that she and C.S. could raise their child, K.P., together as a family.

         Trooper Jeremy Carson also investigated K.C.'s allegations against C.S. and found the allegations to be credible. Trooper Carson testified that many of the child's disclosures regarding substance abuse and domestic violence were corroborated by evidence found when executing a search warrant at the home. Trooper Carson further testified that C.S. voluntarily submitted to an interview and initially denied sexually abusing K.C., but eventually admitted that it was possible that his hand may have accidentally slipped into K.C.'s vaginal area while he was tickling the child. Finally, Trooper Carson testified that based on his investigation, he charged C.S. criminally with sexual assault; sexual abuse; and sexual abuse by a parent, guardian, or custodian.

         Petitioner testified that she did not believe K.C.'s allegations of sexual abuse by C.S. She defended C.S. and stated that he and K.C. were never alone and hypothesized that K.C. fabricated the allegations so that she could spend more time with petitioner or live with her grandmother and switch schools. Petitioner also explained that she and C.S. no longer lived together, but if not for the conditions of his criminal bond and the pendency of the abuse and neglect proceeding, they would still be living together.

         On May 17, 2018, the circuit court issued the order adjudicating petitioner as an abusing parent. The circuit court found that petitioner exposed the children to substance abuse and domestic violence in the home and failed to protect K.C. from sexual abuse by C.S. The circuit court also found that K.C.'s disclosures regarding the sexual abuse were credible and corroborated by other evidence. The circuit court further found that petitioner minimized the domestic violence and substance abuse in the home and their effects on the children. Finally, the circuit court found that petitioner clearly intended to continue her relationship with C.S. despite the fact that he was adjudicated for sexually abusing her child.

         On July 23, 2018, the circuit court held a dispositional hearing and petitioner moved for a post-adjudicatory improvement period. The DHHR and guardian both moved for the termination of petitioner's parental rights. A DHHR caseworker recommended that petitioner's parental rights be terminated due to her denial of K.C.'s sexual abuse. The caseworker explained that petitioner's denial of the sexual abuse made the remediation of the issue impossible. Petitioner testified that she continued a relationship with C.S. and refused to believe that he abused K.C.

         In its dispositional order, the circuit court found that K.C.'s forensic interview revealed "extremely and profoundly specific and detailed disclosures by said child regarding the sexual abuse perpetrated upon her" by C.S. and that the child's disclosures were credible. The circuit court noted petitioner's theories about why K.C. would fabricate allegations of sexual abuse. The circuit court found it "troubling and deeply concerning that this parent would assume that her child would readily fabricate allegations of sexual abuse especially in light of the evidence before this Court which [petitioner] has witnessed and observed first hand." In light of petitioner's failure to acknowledge the sexual abuse, the circuit court found that petitioner's "protective capacities are so severely compromised and/or non-existent at this juncture as to render any case plan, improvement period, etc. designed to remedy the conditions of abuse or neglect to be futile." Accordingly, the circuit court 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. The circuit court also denied petitioner's motions for a post-adjudicatory improvement period and post-termination visitation. Ultimately, the circuit court terminated petitioner's parental rights to the children in its August 30, 2018, dispositional order.[3] 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 finding clear and convincing evidence that she abused and neglected the children.[4] Petitioner suggests that K.C. was motivated to fabricate the allegations of sexual abuse. She contends that the evidence of abuse and neglect was "too speculative" to satisfy the clear and convincing evidentiary standard. We disagree. Based upon our review of the ...


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