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State ex rel. West Virginia Department of Health and Human Resources v. Dyer

Supreme Court of Appeals of West Virginia

November 21, 2019


          Submitted: September 4, 2019


          Joshua W. Downey, Esq. Roane County Prosecuting Attorney

          D. Kyle Moore, Esq. Counsel for Respondent R. B.

          Erica Brannon Gunn, Esq. Guardian Ad Litem for A.N.B., N.B.B. J.S.B., B.K.B., E.G.B., and A.D.M.

          Ryan M. Ruth, Esq. Charleston, WV 25313 Counsel for Respondent T. B.

          JUSTICE HUTCHISON, deeming himself disqualified, did not participate in the decision of this case.


         1. "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

         2. "As a general rule the least restrictive alternative regarding parental rights to custody of a child under W.Va. Code, 49-6-5 (1977) will be employed; however, courts are not required to exhaust every speculative possibility of parental improvement before terminating parental rights where it appears that the welfare of the child will be seriously threatened, and this is particularly applicable to children under the age of three years who are more susceptible to illness, need consistent close interaction with fully committed adults, and are likely to have their emotional and physical development retarded by numerous placements." Syl. Pt. 1, In re R. J. M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

         3. Compliance with the statutory requirements contained in West Virginia Code § 49-4-610 (2015) does not unconditionally entitle a parent to an improvement period. Only where such an improvement period does not jeopardize a child's best interests should one be granted and the circuit court's order granting an improvement period should set forth findings demonstrating the lack of prejudice or harm to the child.

         3. "Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, W.Va. Code, 49-6-5 [1977], may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under W.Va. Code, 49-6-5(b) [1977] that conditions of neglect or abuse can be substantially corrected." Syl. Pt. 1, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993).


          WORKMAN, J.

         Petitioners, West Virginia Department of Health and Human Resources ("DHHR") and Erica Brannon Gunn, guardian ad litem of the minor children A.N.B., N.B.B., J.S.B., B.K.B., E.G.B., and A.D.M. (collectively "petitioners"), seek an order prohibiting the Circuit Court of Roane County from granting a post-adjudicatory improvement period to respondent parents, R. B. and T. B ("respondents").[1] Petitioners assert that the circuit court erred in granting the improvement period by failing to consider the best interests of the children. Respondents maintain that they have demonstrated that they are likely to fully participate in an improvement period and the grant of such an improvement period does not jeopardize the children's best interests.

         After careful review of the parties' briefs and oral arguments, the appendix record, and the applicable law, we find that the circuit court committed a clear legal error in misapprehending the evidence, failing to consider probative evidence, and failing to consider the best interests of the children. We therefore grant the writ of prohibition and remand this case to the circuit court for entry of an order terminating respondents' custodial and parental rights.


         On January 12, 2018, DHHR filed an abuse and neglect petition, requesting emergency custody due to the threat of imminent danger to the respondents' five adopted children and one foster child.[2] By order entered March 23, 2018, the circuit court denied respondents' individual motions for supervised visitation, a decision based on the in camera testimony of the children, all of whom the court deemed to be credible.

         In relevant part, the children's testimony, as set forth in the circuit court's order, included allegations of physical and emotional abuse by respondent T. B., as follows: 1) she dragged E.G.B. by her hair to discipline her, as corroborated by B.K.B.; 2) she locked at least two of the children[3] inside their room each night, beginning at 7:00 p.m., but would "smack" any of the children if they got out of bed; the two who were locked in nightly testified they urinated on themselves if they had to use the bathroom in the middle of the night; 3) she hit the children with a belt or a metal spatula and "tr[ied] her best not to leave bruises or marks"; 4) she threatened on more than one occasion to "snap [N.B.B.'s] neck if she did not listen," as corroborated by B.K.B, and J.S.B.; 5) she held N.B.B.'s head under water in the bathtub in order to make her "pay attention"; 6) she forcibly put medication, occasionally excessive, in E.G.B.'s mouth when she resisted; and 7) she forcibly "ripped" E.G.B.'s clothing off, causing her to stand naked in the kitchen, as corroborated by J.S.B. Significantly, the children further testified that T.B. instructed them not to talk to certain administrators and teachers at their school about what was going on in the home, instructed them on what to say and what not to say to CPS workers, and told them that CPS would not believe adopted children if their accounts differed from the parents' accounts.

         As to respondent R.B., the children testified that he drank a substantial amount of alcohol every night, resulting in frequent loud, sometimes physical, and often threatening arguments between him and T.B., which frightened the children. The eldest child testified that he did not feel safe in the home when the arguments got "really loud" and that occasionally, respondents would threaten to kill each other. J.S.B. testified that R.B. hit T.B. in the arm and T.B. threw a chair at R.B. during one such argument. R.B. allegedly broke a television set during one such argument. [4]

         Additionally, the children testified that three of them-A.N.B., B.K.B. and A.D.M.-were considered the "good children," while N.B.B., J.S.B. and E.G.B.[5] were considered the "bad children" and were subjected to harsher discipline, deprivation of food, and spartan living conditions with far less clothing and far fewer toys and personal belongings. The children expressed concern that T. M. would "be mad" for disclosing the incidents and their reluctance to return to the home because "they're mean."

         The two eldest children-A.D.M. and E.G.B.-indicated they neither wanted visitation with respondents, nor to return to the home. N.B.B. indicated she would like to visit with respondents, but did not ultimately want to return to the home. Two of the younger boys-J.S.B. and B.K.B.-however, indicated they would like to visit with and return to respondents. The circuit court found that A.N.B.'s "cognitive limitations" made her responses in this regard unreliable.

         Adjudicatory hearings were conducted on May 31, 2018 and June 19, 2018. CPS representative Tasha Ruppert testified regarding what she characterized as "profound abuse and neglect" of the children. [6] She characterized the children's demeanor as "terrified" when they spoke with her, due to T. M.'s threats about disclosing the abuse to CPS. She noted that the children became more forthcoming after they were assured they were not returning to the home. She described her inspection of the locks on the outside of the bedroom doors and that the shared bedroom of E.G.B. and N.B.B. was relatively "bare" without clothing, toys, or comfort items; in contrast, A.N.B.'s room was filled with clothing and toys, consistent with the markedly disparate treatment described by the children.[7]

         DHHR case worker, Jessica Bailey, also testified at the adjudicatory hearing. She testified that services had not been offered to respondents because "they have said that they do not think they did anything wrong." Ms. Bailey further testified that she became aware that respondents had previously put in their "ten day notice" to return certain of the children after they were initially placed. However, they rescinded their notice after being advised that no further children would be placed with them if they did so. She agreed that certain of the children were known to have behavioral problems and continued to exhibit those in their post-removal placements. However, she testified that the children were all doing well in their current placements as of the date of the hearing.[8]

         Finally, respondents testified on their own behalf, but denied virtually the entirety of the children's allegations.[9] R. B. admitted to locking one of the bedroom doors from the outside, but contended that it was to keep certain of the children from tampering with the others' belongings. He denied the doors were ever locked while the children were in the rooms. R. B. admitted only to "arguing" with T. B. and denied any domestic violence. He admitted to drinking four to six beers nightly, but denied that his drinking affected his parenting. He admitted that he and T. B. spanked the children with their hands, but denied use of any implements. He denied knowledge of any physical or emotional abuse or threats by T. B., other than her threats to "smack the kids' ass" if they didn't return to bed. R. B.'s lone concession was that his arguments with T.B. caused emotional harm to the children, "if you look back to what they've been through growing up."

         T. B. similarly denied any wrongdoing and offered differing explanations for the specific allegations of abuse. For example, she denied ripping off E.G.B.'s clothing; she insisted that she merely assisted E.G.B. in taking off her cheerleading uniform, but that E.G.B. was upset and came into the kitchen before putting on other clothes. She denied "forcibly" making her take her medication, explaining that she merely "coached" her through it, otherwise she would spit it across the floor. She denied that she pulled E.G.B. by the hair and insisted that she suffered from alopecia, a medical condition causing hair loss. She denied threatening the children if they spoke with CPS, but admitted she instructed the children not to speak to two specific school employees who she alleged had "manhandled" N.B.B. Further, T. B. insisted that N.B.B. was merely afraid of water and that N.B.B. was not attempting to accuse her of "drowning" her, but rather could not properly articulate the word "grounding." Finally, T. B. denied the existence of anything other than a "tiny little hook lock" on the doors that E.G.B. could easily access, and insisted the locks were actually on the inside of the door.[10] She denied treating the children unequally in terms of food, clothing or belongings.

         Importantly, in addition to the above denials and explanations, T. B. testified that neither she nor her husband had committed any acts of abuse or neglect:

Q. And, [T. B.], do you think that you did anything wrong that led to the removal of the children here?
A. No, I don't.
Q. Do you think your husband did anything wrong whatsoever?
A. No, I don't.

         T. B. testified that she did not believe she needed services, but would accept them. At the close of the evidentiary hearings on adjudication, the circuit court again denied supervised visitation to respondents.[11]

         On September 5, 2018, the court entered an order adjudicating respondents as abusive, pursuant to West Virginia Code § 49-4-601(i) (2015). The court's order reiterated much of the in camera testimony of the children, again noting that it found their testimony credible, corroborated by each other and their reports to CPS and DHHR, and that the denials of the respondents were "contradicted in significant part by the credible testimony of the Children." The court concluded that respondents inflicted 1) "substantial mental or emotional injury"[12]; 2) that R. B.'s alcohol abuse "has impaired his parenting skills to a degree as to pose a risk to the Children's health or safety"; and 3) that there were "ongoing occurrences of domestic violence in the home such that the health, life, or safety of the Children was threatened."

         Subsequent to the adjudicatory hearings, the circuit court ordered respondents to undergo psychological evaluations of parental fitness. With respect to T. B., the evaluation noted that she blamed the family's involvement in the abuse and neglect proceedings on a former foster child, S. T., who "threatened her";[13] she denied all of the specific allegations made by the children in their in camera testimony; and she "denied any other concerns that CPS might have regarding her parenting." The psychological evaluation of T. B. concluded:

Failure to acknowledge past child maltreatment is always a significant risk factor for future maltreatment. Given [T. B.'s] denial, her defensive responding in the current evaluation, her poor motivation for treatment, and the dangerousness of some of the reported physical abuse, prognosis for the reliable attainment of minimally adequate parenting within the typical timeframe of this type of case is currently assessed to be poor. The recommendations below are for her own benefit and for use if reunification must be attempted, though we would caution against undertaking any such effort in this case. It is not likely that the recommended interventions will facilitate the reliable attainment of minimally adequate parenting.

(emphasis added).

         With respect to R. B., the evaluation showed that he too blamed the family's involvement in the proceedings on the former foster child, S. T., denied any psychological or physical abuse of the respondent children, and denied any knowledge of such abuse perpetrated by his wife. He reported that he drank four to five 12-ounce beers per day and that he had one DUI arrest, but "minimized his problems with alcohol [and] denied significant negative consequences of use." The psychological evaluation of R. B. concluded:

Prognosis for the reliable attainment of minimally adequate parenting within the typical timeframe of this type of case is currently assessed to be poor, largely due to denial of the referral concerns, chronic alcohol abuse and apparent minimization of the same, poor motivation for treatment, and defensive responding in the current evaluation. The recommendations below are for his personal benefit and for use if reunification must be attempted, but are unlikely to facilitate the reliable achievement of minimally adequate parenting.

(emphasis added).

         On November 1, 2018, the court held a dispositional hearing. The DHHR indicated that it was seeking termination because respondents had continued to deny wrongdoing and the children did not wish to have visitation or contact with respondents. Similarly, the guardian ad litem submitted a report which recommended termination and that post-dispositional improvement periods be denied. In support of her recommendation, the guardian noted 1) the psychological evaluations of respondents indicating poor prognosis; 2) respondents' continued "problems with acceptance of responsibility"; 3) respondents' previous receipt of extensive PRIDE[14] training prior to their adoption of the children, suggesting additional services would be pointless; 4) the children's length of time in foster care[15] and unrelenting exposure to abuse and neglect throughout their short lives. The guardian unequivocally expressed that the children were doing well in their placements and that their best interests would be served by remaining in those placements.

         Kimberly Morris, respondents' service provider, testified that they had not missed any sessions and that their compliance had been "exemplary." However, Ms. Morris testified that T. B. and R. B. still refused to accept responsibility for the allegations made by the children:

They have not said that they accept responsibility. They believe that a lot of this has been blown out of proportion and the allegations aren't true, is what they tell me. There are some things that we discussed that they will say "I never saw it like that," "maybe I was too harsh," or "maybe I was too negative." But as far as the allegations, I believe they believe-they've told me that they are untrue.

         Ms. Morris agreed that respondents' "position" on the allegations could prove to be a barrier to continued services.

         In this regard, respondents continued to characterize themselves as "overwhelmed" at the time of the petition in large part due to the behavior of S. T., as well as the death of a granddaughter. Both testified services had been "helpful," and in particular, T. B. agreed that she had been "overly harsh" and "negative" toward the children. R. B. testified that he was willing to undergo treatment for alcohol abuse. Both respondents indicated willingness to comply with any services required.

         On November 1, 2018, the circuit court issued an order granting respondents a six-month post-adjudicatory improvement period. Citing the above testimony, the court found that respondents "have acknowledged wrongdoing and accepted responsibility for their actions that led to the filing of the Petition[.]" The court further found that respondents were "likely to fully participate in an improvement period." The court did not address the findings contained in respondents' psychological evaluations. The court noted that the wishes of the children were not dispositive, noting that only A.D.M., who did not want reunification or even visitation, was over the age of fourteen, and that E.G.B., whose testimony aligned with that of A.D.M., "is not well-equipped to take part in the decisions of this case" due to "several factors" which the court did not identify.[16] Finally, the court appeared to take particular issue with DHHR's request for termination, citing its "continuous" objection to visitation, failure to provide services until six months after the petition was filed, and reliance on the children's wishes. This writ of prohibition followed.[17]

          II. ...

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