                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                  FILED
In re: M.G., C.G., and E.G.
                                                                            September 19, 2016
                                                                                RORY L. PERRY II, CLERK
No. 16-0443 (Taylor County 14-JA-13, 14-JA-14, & 14-JA-15)                    SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Mother T.G., by counsel Jason T. Gain, appeals the Circuit Court of Taylor
County’s April 6, 2016, order terminating her parental rights to M.G., C.G., and E.G.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda,
filed its response in support of the circuit court’s order. The guardian ad litem (“guardian”),
Mary S. Nelson, filed a response on behalf of the children also in support of the circuit court’s
order. On appeal, petitioner alleges the following: (1) that the circuit court erred in implementing
an inappropriate improvement period; (2) that the evidence upon which the circuit court based
termination of her parental rights was insufficient; (3) that the circuit court erred in failing to
consider less-restrictive dispositional alternatives; and (4) that her due process rights were
violated due to having to defend against allegations not contained in the petition.2

        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.

       In April of 2014, the DHHR filed an abuse and neglect petition regarding petitioner’s
three children, M.G., then twelve years old; C.G., then eight years old; and E.G., then six years
old. According to the DHHR, at the time of the petition’s filing, M.G. primarily resided with her
maternal grandmother by petitioner’s agreement. According to the DHHR, all three children
were severely truant as a result of petitioner’s neglect. The DHHR additionally indicated that

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
       2
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
                                                 1


petitioner was charged criminally as a result of the children’s neglect. The DHHR further alleged
in its petition that petitioner exaggerated and/or falsified the children’s medical conditions to
their detriment. This allegation was supported with numerous references to medical records that
indicated petitioner had reported that the children had unfounded medical conditions. These
records included entries from medical professionals indicating that petitioner was “trying to
gather attention” and expressing concern that petitioner’s statements regarding the children’s
health were inconsistent. It was later determined that the children were being treated by as many
as twenty-one different physicians.

        Later that same month, the circuit court held a preliminary hearing, during which it noted
that the children’s truancy issues and medical concerns persisted despite the prior intervention of
the board of education and the criminal court. According to the circuit court, petitioner continued
to pursue unnecessary medical care for the children, who continued to miss school. At the
conclusion of the hearing, the circuit court placed the children in the DHHR’s legal custody and
authorized the DHHR to remove the children from petitioner’s care. At the time, however, the
DHHR chose to allow the children to remain in petitioner’s physical custody.

        In June of 2014, the circuit court held a status hearing, during which it determined that
the children’s truancy continued, as did concerns about petitioner imposing unnecessary medical
treatment on the children. Based on these issues, both the DHHR and the guardian moved the
circuit court to remove the children from petitioner’s care. At the time, the only alternate relative
placement was in the home of the maternal grandmother who was alleged to be supportive of
petitioner’s excessive medical tests and treatments for the children and unsupportive of
intervention services. As such, the children were placed in foster care. After the children were
removed from petitioner, medical testing confirmed that both M.G. and E.G. suffer from
myotonic dystrophy. However, tests did not confirm that either child exhibited symptoms of the
condition. Moreover, after medical evaluation, most of C.G.’s medications were found to be
unnecessary and were reduced or discontinued altogether. Thus, according to the DHHR, none of
the medical issues petitioner asserted the children had were confirmed by medical testing, apart
from the genetic condition itself. Further, petitioner admitted that the course of treatment the
children received was improper and excessive, even given this diagnosis.

        The circuit court held an adjudicatory hearing in August of 2014, during which petitioner
stipulated to exaggerating and misrepresenting the children’s medical issues which resulted in
them missing an inexcusable number of school days. However, after it was suggested that she
may suffer from Munchausen by proxy syndrome, petitioner denied the same.3 The circuit court
further granted petitioner a post-adjudicatory improvement period. As such, the multidisciplinary
team (“MDT”) met, designed, and agreed upon a family case plan with a goal of reunification

       3
          Munchausen by proxy is a condition in which “a person acts as if an individual he or she
is caring for has a physical or mental illness when the person is not really sick. The adult
perpetrator has the diagnosis . . . and directly produces or lies about illness in another person
under his or her care, usually a child under 6 years of age.” Diseases & Conditions: Munchausen
Syndrome by proxy, http://my.clevelandclinic.org/health/diseases_conditions/hic_An_Overview
_of_Factitious_Disorders/hic_Munchausen_Syndrome/hic_Munchausen_Syndrome_by_Proxy
(last visited Sept. 15, 2016).
                                                 2


with petitioner. According to the plan, the medical issues and the children’s truancy were
identified as the deficiencies that needed to be corrected. Moreover, the plan set forth the
changes petitioner needed to make in order to correct these issues, and set forth a plan for
specific services to assist in this goal. The MDT additionally requested that petitioner undergo a
psychiatric evaluation to determine if she suffered from Munchausen by proxy, but petitioner’s
counsel was not cooperative with this request and made clear that he did not want his client to
participate in such an evaluation. As such, the DHHR did not schedule the same. However,
issues related to the evaluation persisted throughout the proceedings. The circuit court and
guardian repeatedly voiced concerns that petitioner suffered from this condition, and the
children’s therapist and petitioner’s skills provider both recommended that petitioner undergo an
evaluation to determine if she suffered from the condition. Despite these concerns, petitioner
never completed the psychiatric evaluation.4

         Following the adjudicatory hearing, the circuit court held five status hearings in the case;
however, petitioner and/or her counsel appeared for only two. At a status hearing in September
of 2014 that neither petitioner nor her counsel attended despite prior notice, the children’s
maternal aunt and uncle appeared and requested placement of the children. The circuit court
ordered a home study on their residence. As to petitioner’s improvement period, the record
shows that she initially complied with services. However, petitioner’s level of effort declined
over time, which ultimately resulted in service providers, the DHHR, and the guardian
expressing concern that petitioner was unable to make the changes necessary to safely reunify
with her children. According to several service providers, petitioner failed to implement the
things she learned in her services; therefore, both individuals who provided parenting instruction
to petitioner discontinued services based upon his lack of progress. Moreover, after the first few
months of her improvement period, petitioner began spending extended periods in the
Commonwealth of Pennsylvania with a new significant other, which resulted in her missing
several visits with the children. According to one provider, during this time, petitioner became
more involved in her own personal life and less eager to complete the terms of her improvement
period. Ultimately, petitioner’s noncompliance with the terms of her improvement period
resulted in the guardian filing a motion to revoke the same in January of 2015.

        Around that time, petitioner was given a new parenting provider who worked with
petitioner from May of 2015 through June of 2015. By that point, petitioner’s attendance rate for
parenting services was approximately fifty percent. During her improvement period, petitioner
continued to exhibit issues regarding her children’s perceived medical conditions, as evidenced
by a file petitioner kept in regard to the children’s health. As late as mid-2015, petitioner
discussed her belief that the children suffered from neurological conditions and that one child
required leg braces. In spite of these beliefs, however, the DHHR asserted that the children had
required no treatment or medications since their removal from petitioner’s care.

        In September of 2015, petitioner’s oldest child, fourteen-year-old M.G., sent a letter to
the circuit court indicating that, although she loved petitioner, she did not wish to be returned to
her care. M.G. further indicated that she did not believe petitioner had truly changed and that the

       4
        According to the record, petitioner did complete an initial psychological evaluation that
deferred psychiatric treatment recommendations.
                                                 3


children would not receive proper care if reunited with her. The following month, the circuit
court held a dispositional hearing, during which it determined there was no reasonable likelihood
petitioner could substantially correct the conditions of abuse and neglect in the near future. As
such, it terminated petitioner’s parental rights to the children by order entered in April of 2016. 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).

        First, the Court finds no error in regard to petitioner’s allegation that the improvement
period below was inappropriate. In support, petitioner argues that her improvement period was
inappropriate because it failed to address the deficiencies in her parenting as identified in the
family case plan and instead focused on irrelevant issues. According to petitioner, the subject
family case plan was “undoubtedly ambiguous” in its description of the underlying problems in
the home, the issues she needed to correct, and the overall goal. The Court, however, does not
agree, as the family case plan clearly identified petitioner repeatedly subjecting the children to
unnecessary medical treatment and their truancy as the problems present. The family case plan
further indicated that petitioner needed to change certain issues regarding her own feelings and
emotional needs as a way to put her children’s needs, including education, ahead of her own.
Further, the family case plan clearly set a goal for petitioner of participating in services,
including individual and family therapy, adult life skills and parenting education, and a
psychological evaluation and recommended treatment, in an attempt to improve her ability to
properly fill her role as a parent and to correct issues with the family unit as a whole. This
information is in keeping with our prior holdings regarding family case plans, wherein we have
held that

                “[t]he purpose of the family case plan as set out in W.Va. Code [§] 49-6D­
       3(a) [now W.Va. Code § 49-4-408(a)] . . . is to clearly set forth an organized,
       realistic method of identifying family problems and the logical steps to be used in
       resolving or lessening these problems.” Syl. Pt. 5, State ex rel. Dep’t of Human
       Services v. Cheryl M., 177 W. Va. 688, 356 S.E.2d 181 (1987).

                                                  4


Syl. Pt. 2, In re Desarae M., 214 W.Va. 657, 591 S.E.2d 215 (2003). It is clear that the family
case plan in this matter met the applicable requirements as set forth by statute and our prior
holdings.

        Moreover, it is important to note that the record is devoid of petitioner ever objecting to
the family case plan during the proceedings below. This Court has routinely held that a party
must assert a right in the circuit court to preserve the issue for appellate review. See State v.
Jessie, 225 W.Va. 21, 27, 689 S.E.2d 21, 27 (2009) (“general rule is that nonjurisdictional
questions not raised at the circuit court level will not be considered to the first time on appeal.”)
(citation omitted). While petitioner argues that her assignment of error is predicated on the
allegation that the services provided during her improvement period were not related to the
underlying issues of abuse and neglect that needed to be corrected, her argument clearly hinges
on her allegation regarding the family case plan’s ambiguity. Moreover, all of the services that
petitioner alleges addressed irrelevant issues were laid out in the family case plan as services
designed to achieve the specific goal of reunification of petitioner and her children. In short,
petitioner’s assignment of error is based upon the implementation of the services set forth in the
family case plan. Because petitioner failed to object to the family case plan below and, in fact,
actively assisted in its creation during the MDT process, she is not entitled to relief in this regard
on appeal.

        Next, the Court finds no error in regard to petitioner’s allegation that the evidence upon
which the circuit court based termination was insufficient. According to petitioner, the circuit
court terminated her parental rights upon improper evidence regarding issues beyond the scope
of the petition, including the allegation that she may suffer from Munchausen by proxy, a
condition she was never diagnosed with, and the letter from M.G. indicating that she did not
wish to be returned to petitioner’s care. On appeal, petitioner argues that several parties and the
circuit court had a “near obsession” with Munchausen by proxy and that it should have been
given no weight at all. Petitioner also argues that M.G. never requested that petitioner’s parental
rights be terminated, nor did the child express that she was happier in the absence of excessive
medical treatment or due to attending school full time. Moreover, petitioner alleges that in
considering M.G.’s letter, the circuit court erroneously found that M.G. was “better off” in the
foster home, which petitioner alleges is an inappropriate consideration at disposition in abuse and
neglect proceedings. Upon our review, however, the Court finds that the evidence at disposition
was sufficient to support termination of petitioner’s parental rights.

        We have previously held that “‘[t]he standard of proof required to support a court order
limiting or terminating parental rights to the custody of minor children is clear, cogent and
convincing proof.’ Syl. Pt. 6, In re: Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).” Syl. Pt. 3, In
re Jessica M., 231 W.Va. 254, 744 S.E.2d 652 (2013). Contrary to petitioner’s arguments
regarding the circuit court’s consideration of allegations of Munchausen by proxy and the letter
from M.G., the record is clear that the circuit court considered voluminous additional evidence
that overwhelmingly supported termination of petitioner’s parental rights. This includes evidence
that, absent a specific diagnosis of the condition, petitioner exhibited characteristics associated
with Munchausen by proxy that, in and of themselves, resulted in abuse and neglect to the
children, such as exaggeration and misrepresentation of the children’s medical issues. Moreover,

                                                  5


the DHHR presented evidence of how this abuse negatively impacted the children, as they
required instruction on how to properly identify issues with their own health in order to make
appropriate determinations about when to seek care and suffered developmental delays
associated with the perceived medical issues.

         Further, the DHHR presented evidence that petitioner failed to remedy this condition, as
evidenced by her continued improper focus on the children’s health during the proceedings
below. According to one service provider, petitioner would simply redirect her focus from the
children’s perceived medical conditions to her own, as the provider witnessed petitioner’s focus
shift “back and forth” during the proceedings. Moreover, the provider testified that, “at least one
time per meeting,” petitioner would address issues regarding either “her own health, the
children’s health, or what the children were unable to do.” A different service provider also
testified to petitioner’s continued improper focus on the children’s health, as evidenced by the
fact that petitioner kept a file of the children’s medical records throughout the proceedings. The
provider also testified that petitioner told her that one of the children required leg braces because
petitioner noticed the child’s feet turning inward during a visitation in May or June of 2015.

        According to testimony, petitioner’s issues stemmed from her failure to make “sound
decisions for her children” and the fact that petitioner was generally “not functional.” The
evidence further established that petitioner’s poor decision-making abilities not only contributed
to the children’s abuse and neglect, but also negatively impacted petitioner’s compliance with
services and made assessing her progress difficult. Specifically, evidence from a service provider
indicated that petitioner exhibited poor-decision making by routinely choosing to travel to the
Commonwealth of Pennsylvania for extended periods of time, which resulted in several missed
service appointments and visits with the children. The evidence further showed that petitioner
continued to miss visits and services even after the DHHR explained that her failure to see the
children as scheduled had a negative impact on their behavior. Ultimately, a provider testified
that petitioner was unable to remedy the conditions of abuse and neglect despite extended
services to correct the same. As such, it is clear that the circuit court was presented with
sufficient evidence upon which to base termination, as the evidence outlined above amounts to
clear, cogent, and convincing proof of petitioner’s inability to substantially remedy the
conditions of abuse and neglect sufficient to achieve reunification with the children. Importantly,
the evidence set forth above is sufficient to support termination in the absence of the allegations
that petitioner suffers from Munchausen by proxy or that M.G. did not wish to be returned to
petitioner’s care.

        Contrary to petitioner’s argument that the circuit court simply made conclusory findings
that were not in line with the evidence presented, the circuit court used this evidence as the basis
for the finding that there was no reasonable likelihood the conditions of abuse or neglect could
be substantially corrected. Pursuant to West Virginia Code § 49-4-604(c)(3), a situation in which
there is no reasonable likelihood the conditions of abuse and neglect can be substantially
corrected includes one where

       [t]he abusing parent . . . [has] not responded to or followed through with a
       reasonable family case plan or other rehabilitative efforts of social, medical,
       mental health or other rehabilitative agencies designed to reduce or prevent the

                                                 6


       abuse or neglect of the child, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child;

The evidence in this matter is clear that, although petitioner complied with some services, she
overwhelmingly failed to fully comply, as evidenced by her many absences from services and
visits and the fact that the conditions of abuse and neglect persisted throughout the proceedings.
Moreover, the circuit court also found that termination of petitioner’s parental rights was
necessary for the children’s welfare. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit
courts are directed to terminate parental rights upon these findings. Further, as outlined above,
this Court “must affirm a finding if the circuit court’s account of the evidence is plausible in light
of the record viewed in its entirety.” Cecil T., 228 W.Va. 91, 717 S.E.2d at 875, Syl. Pt. 1, in part
(quoting Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996)).
While petitioner argues that the evidence below was contradictory, our review of the record does
not reveal any conflict in regard to the facts set forth above regarding petitioner’s inability to
substantially correct the conditions of abuse and neglect. As such, we find no error.

        In light of the fact that we have determined that the circuit court’s findings are not in
error, we similarly find no merit to petitioner’s argument that the circuit court erred in failing to
impose a less-restrictive dispositional alternative. In support of this argument, petitioner sets
forth several alternative dispositional scenarios, such as returning the children to the care of her
roommate, R.B., or returning them to her care with a requirement that she receive prior
authorization from the DHHR to have the children receive medical care. The Court, however,
notes that petitioner’s argument in this regard ignores the fact that, upon its findings that there
was no reasonable likelihood she could substantially correct the conditions of abuse and neglect
and that termination of her parental rights was necessary for the children’s welfare, the circuit
court was required to terminate her parental rights pursuant to West Virginia Code § 49-4­
604(b)(6). As such, we find no error in the circuit court’s disposition below.

         Finally, petitioner argues that her due process rights were violated because she was
forced to defend against allegations beyond the “definite and particular” description of abuse and
neglect from the original petition, as required by Rule 18(c) of the West Virginia Rules of
Procedure for Child Abuse and Neglect Proceedings. However, the Court does not agree, as this
argument misrepresents the evidence. The record is clear that throughout the pendency of the
proceedings below, the circuit court appropriately addressed the underlying conditions of abuse
and neglect and petitioner’s efforts, or lack thereof, to correct them. For instance, petitioner
argues that she was required to defend against allegations that she failed to provide stability to
the children by virtue of her frequently fluctuating relationship status with the same or changing
partners. The record shows, however, that the DHHR did not allege this to be a condition of
abuse and neglect upon which it sought termination of her parental rights. To the contrary, the
evidence shows that the DHHR expressed concerns over how petitioner’s failure to exhibit
stability in her personal relationships was detrimental to services designed to remedy the
underlying issues of abuse and neglect as alleged in the petition. Specifically, one provider
testified that petitioner’s “consistency . . . and her choice of companions [were] consistent issues
throughout” the case, as evidenced by petitioner’s inability to put her children’s needs above her
own. As a result, one service provider testified that petitioner became “very involved on the
phone with her . . . fiancé to the point that it interfered with her time allocated to be spent visiting

                                                   7


with the children.” Moreover, testimony established that petitioner’s relationship with her then-
fiancé was addressed at multiple MTD meetings, insomuch as the introduction of the fiancé and
his child to petitioner’s children required therapeutic efforts for the children, especially M.G.
who was reported to find the issue difficult. Evidence also established that petitioner’s residence
fluctuated as a result of her changing relationship status, and further M.G. expressed concerns
about the negative impact that moving had on the children.

        The evidence below also established that petitioner exhibited issues with mental health
throughout the proceedings, as testified to by the psychologist who served as petitioner’s
therapist below. According to the psychologist, petitioner’s anxiety and past trauma disorders
were a root cause of the abuse and neglect to the children as alleged in the petition. While
petitioner argues that she was forced to defend against allegations of mental illness when the
same were not specifically alleged in the petition, it is clear that these issues were identified
through remedial services as factors contributing to the abuse and neglect that needed to be
resolved before petitioner could achieve reunification. As such, it is clear that petitioner was not
forced to defend against extraneous allegations, as she alleges. Instead, the circuit court heard
evidence of relevant issues surrounding petitioner’s inability to properly comply with services
below and the impact these issues had on the subject children.

         Petitioner further argues that her due process rights were violated by the circuit court’s
acceptance of M.G.’s letter regarding her wishes and in conducting hearings in the absence of
petitioner or her counsel. As to the first issue, the record is clear that no due process violation
occurred, as petitioner was provided the letter well in advance of the dispositional hearing.
Moreover, the circuit court was required to consider this letter in reaching its dispositional
determination. Pursuant to West Virginia Code § 49-4-604(b)(6)(C), when reaching disposition,
a circuit court “shall give consideration to the wishes of a child fourteen years of age or older . . .
regarding the permanent termination of parental rights.” The record is clear that M.G. was
fourteen years old at the time of the dispositional hearing and specifically indicated to the circuit
court that she did “not wish to return to [petitioner’s] care [or] custody.” While petitioner argues
that M.G. did not address whether she wished petitioner’s parental rights to be terminated, the
Court does not agree. Although the child may not have specifically used the phrase “termination
of parental rights,” the thrust of her four-page letter was that she did not wish to reside with
petitioner because of concerns for her well-being and the well-being of her siblings. Moreover,
the record is clear that petitioner not only failed to object to the letter’s introduction, but also
failed to request any testimony concerning the letter from M.G. Pursuant to Rule 8(a) of the
Rules of Procedure for Child Abuse and Neglect Proceedings, “all children remain competent to
testify” in abuse and neglect proceedings, subject to certain exceptions. Additionally, Rule 8(b)
provides for the availability of in camera interviews of children in these proceedings if it is
determined that such testimony should be obtained outside a parent’s presence. The record is
devoid of any such request by petitioner for M.G. to testify. Accordingly, she is entitled to no
relief in this regard.

       Similarly, we find no violation of petitioner’s due process rights in regard to hearings
conducted in her absence or the absence of her counsel. On appeal, petitioner does not allege that
these hearings were improperly noticed, and nothing in the record indicates as such. Instead, it
appears that both petitioner and her counsel chose not to attend these review hearings, although

                                                  8


counsel did sometimes send someone else on petitioner’s behalf. Petitioner makes much of these
“ex parte” actions by the circuit court, but we disagree with petitioner’s assertion, as her failure
to appear for a properly noticed hearing does not render subsequent discussions on the record at
that hearing improper. Moreover, petitioner can point to no prejudice resulting from the manner
in which the review hearings were held, as her improvement periods continued through the
proceedings. As such, we find no error in this regard.

       For the foregoing reasons, we find no error in the circuit court’s April 6, 2016, order, and
we hereby affirm the same.


                                                                                         Affirmed.

ISSUED: September 19, 2016


CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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