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In re A.M.

Supreme Court of West Virginia

June 12, 2019

In re A.M.

          Randolph County 2018-JA-109

          MEMORANDUM DECISION

         Petitioner Mother K.M., by counsel David C. Fuellhart III, appeals the Circuit Court of Randolph County's December 12, 2018, order terminating her parental rights to A.M.[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"), Melissa T. Roman, filed a response on behalf of the child also in support of the circuit court's order and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in adjudicating her as an abusing parent 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.

         The DHHR filed a child abuse and neglect petition against petitioner and the father in September of 2018. According to the DHHR, petitioner called 9-1-1 to report sexual abuse perpetrated by the father against their child. Petitioner reported that the father helped the child out of the bathtub and accompanied her into the bedroom to assist her in getting ready for bed. After an "awkward silence," petitioner entered the room and observed the father thrusting over the child, who was clothed only in a diaper, with an erect penis. Petitioner took the child to the hospital for evaluation. However, she subsequently recanted her statements and returned to the family home after leaving the hospital. The child remained with DHHR personnel at that time.

         An amended petition was subsequently filed in October of 2018. The amended petition added allegations that, on the night of the incident, the father confessed that his penis became a "little erect" while playing with the child and "popped out" of his boxers at the same time petitioner walked into the room. According to the father, "this is not a big deal, and he can't control it." The DHHR further alleged that approximately two weeks later the father again confessed that he was "bouncing [the child] on the bed while humping her diaper, leg, and the comforter on the bed with an erect penis." Petitioner continued to withdraw her initial allegations of sexual abuse, stating that she "overreacted" and simply observed the father playing with their child. Petitioner further stated that she "trusted [the father] with [A.M.'s] life."

         At an adjudicatory hearing held in November of 2018, a recording of the father's confession was played in open court, and the DHHR presented the testimony of several witnesses, including the 9-1-1 operator, a law enforcement officer, a Child Protective Services ("CPS") worker, and petitioner. Testimony established that petitioner reported seeing the father sexually abuse the child to both police officers and CPS workers, that the father confessed to the same, and that petitioner subsequently retracted her statements regarding the abuse. Indeed, during her testimony, petitioner stated that she simply saw "a father interact[ing] with his daughter." She claimed she "premeditated" a story of sexual abuse because she presumed the worst after observing the father bounce the child on the bed and had known immediately that she made a mistake in assuming abuse by the father. Petitioner testified,

I know I didn't see anything that was bad. I know my first reaction and my first conclusion was not anything bad. And that is what I am standing on today, that I would trust [the father] with his daughter. I did not see any of these things that I have been told. Everything I stated was fabricated, it was premeditated. I went through this whole scenario all the way down the road and I stuck with it.

         Petitioner further stated that she did not understand why her child was taken from her and that she protected her as best she could. Petitioner's psychological evaluation report was also submitted into evidence. The report stated that petitioner did not have the parental capacity to care, protect, or adequately provide for the child. After hearing evidence, the circuit court found that petitioner failed to protect the child through her "willingness to return home, permit contact[, ] and continue a relationship with the man that had sexual contact with her child." Accordingly, the circuit court adjudicated petitioner as an abusing parent.

         Later in November of 2018, the circuit court held a dispositional hearing wherein the DHHR moved the court to take judicial notice of the testimony presented at the adjudicatory hearing, which it granted without objection. After considering the evidence, the circuit court found that there was no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near future and that termination was necessary for the child's welfare, and, accordingly, terminated her parental rights. It is from the December 12, 2018, dispositional order that petitioner appeals.[2]

         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 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).

         On appeal, petitioner argues that the circuit court erred in adjudicating her as an abusing parent. According to petitioner, testimony established that she never intended to return to the father's home with the child. Further, she argues that testimony established that she never harmed the child and that ...


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