                                                          STATE OF WEST VIRGINIA
                                                        SUPREME COURT OF APPEALS

                                                                                           FILED
    In Re: A.H.                                                                        October 20, 2015 
                                                                                      RORY L. PERRY II, CLERK
    No. 15-0504 (Kanawha County 14-JA-420)                                          SUPREME COURT OF APPEALS
                                                                                        OF WEST VIRGINIA 



                                                              MEMORANDUM DECISION
            Petitioner Mother Y.S., by counsel Paul K. Reese, appeals the Circuit Court of Kanawha
    County’s April 30, 2015, order terminating her parental rights to A.H. The West Virginia
    Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed its
    response in support of the circuit court’s order. The guardian ad litem (“guardian”), Jennifer R.
    Victor, filed a response on behalf of the child supporting the circuit court’s order. Petitioner filed
    a reply. On appeal, petitioner alleges that the circuit court erred in finding she abused or
    neglected the child, denying her post-termination visitation, and that the West Virginia Rules of
    Procedure for Child Abuse and Neglect Proceedings were substantially disregarded or frustrated
    such that vacation of the dispositional order is warranted.1

            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 December of 2014, the DHHR filed an abuse and neglect petition and alleged that
    petitioner, then seventeen-years-old, abused her child. The DHHR filed the petition after the
    circuit court overseeing a youth services case involving petitioner was made aware of several
    Child Protective Services (“CPS”) referrals alleging that petitioner abused the child and directed
    that a petition be filed. Specifically, on one occasion, a witness from Florence Crittenton, the
    residential facility petitioner attended because of truancy, saw the child’s mouth bleeding and
    blood on a bathroom floor. Petitioner was holding a towel in the child’s mouth in an attempt to
    stop the bleeding. Shortly thereafter, a bruise appeared on the child’s cheek near his mouth. The
    child was reported as saying “mommy bad” and “mommy did it.” Petitioner alleged the child hit
    his head in the bathtub. However, the witness indicated that petitioner is very short-tempered
    with the child and often yells at him, and that staff did not believe her version of the event.

                                                                
                  1
             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 
     
 
         During the preliminary hearing in January of 2015, the circuit court took judicial notice
of the fact that petitioner was placed at Florence Crittenton under a truancy order for treatment,
which included parenting services. However, petitioner was released from that facility in
December of 2014 because she completed the necessary requirements for graduating from high
school. A worker from that facility also testified about an incident where petitioner became
frustrated with the child, grabbed him from a table, shoved him against a wall, and then bent his
arms backward to the point the child began crying. The staff member instructed petitioner to let
the child go, but she responded that she would discipline him as she saw fit. Another worker
testified that petitioner frequently grabbed the child by the arm, yelled at him, and failed to
provide proper supervision. At the conclusion of the hearing, the circuit court ordered both
petitioner and the child be placed at Florence Crittenton with additional parenting services.

         In February of 2015, the circuit court held an adjudicatory hearing, during which CPS
advised that petitioner had not gone back to Florence Crittenton as ordered. Petitioner told CPS
that she was taking online college classes, had two jobs, and that going back to the facility would
“set her back.” Because petitioner did not return to the facility, the DHHR set up supervised
visitation and adult life skills and parenting education. Petitioner testified that she did not return
to the residential facility because she thought it was a suggestion, rather than an order. When
asked if she would avail herself of another opportunity to return to the facility, petitioner
responded that she would not. As such, the circuit court adjudicated petitioner as an abusing
parent.

         In April of 2015, the circuit court held a dispositional hearing, during which a service
provider testified that petitioner only visited the child four times of the approximately eleven
visitation opportunities available. The circuit court then stated that it would give petitioner one
more chance to enter the residential facility, but petitioner declined the offer. The circuit court
then terminated her parental rights. In terminating petitioner’s parental rights, the circuit court
found that she did not appear for some services and failed to actively or consistently participate
in others. The circuit court also found that she failed to benefit from services, having resisted
instructions and learning. The circuit court also found that petitioner failed to consider her
child’s needs and did not make them a priority. Petitioner appeals from the dispositional order.

       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



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        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, the Court finds
no error in the circuit court adjudicating petitioner as an abusing parent or in denying her post-
termination visitation. Further, we decline to find that any alleged frustration or disregard of the
applicable rules warrants vacation of the dispositional order.

        First, there is simply no merit to petitioner’s argument that the circuit court lacked
sufficient evidence upon which to adjudicate her as an abusing parent. West Virginia Code § 49-
1-3(1)(A) states that “‘[a]bused child’ means a child whose health or welfare is harmed or
threatened by . . . [a] parent . . . who knowingly or intentionally inflicts [or] attempts to inflict . . .
physical injury or mental or emotional injury, upon the child or another child in the home[.]” In
the instant matter, the circuit court was presented with testimony from workers from Florence
Crittenton who witnessed petitioner’s actions and a CPS worker who investigated the abuse. The
evidence established that the child stated “mommy did it” and “mommy bad” after petitioner was
discovered in the bathroom with the child bleeding profusely from the mouth. The evidence also
established that petitioner became frustrated with the child, pulled him from his chair, shoved
him against a wall face-first, and pulled his arms behind his back to the point he cried. When
confronted by an employee, petitioner indicated that she would parent the child as she saw fit
and became hostile with the employee. The circuit court heard evidence of other incidents
wherein petitioner yelled and screamed at the child, and also provided inappropriate supervision.
In fact, one witness testified that because petitioner could not properly care for the child, the
facility provided her one-on-one supervision for the child’s safety. Further, petitioner admitted
that she had anger issues and physically disciplined the child out of anger.

        In addressing the burden of proof at adjudication in abuse and neglect matters, we have
held that

                “W.Va.Code, 49-6-2(c), requires the State Department of Welfare [now
        the Department of Human Services], in a child abuse or neglect case, to prove
        ‘conditions existing at the time of the filing of the petition . . . by clear and
        convincing proof.’ The statute, however, does not specify any particular manner
        or mode of testimony or evidence by which the State Department of Welfare is
        obligated to meet this burden.” Syllabus Point 1, In Interest of S.C., 168 W.Va.
        366, 284 S.E.2d 867 (1981).

Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (internal citations omitted).
Upon our review of the record, it is clear that the DHHR satisfied the requisite burden of proof in
this matter. Petitioner’s argument on this issue is premised almost entirely on the fact that, prior
to the abuse and neglect petition’s filing, CPS investigated these incidents and did not
substantiate abuse. While it may be true that CPS and the DHHR are more adept at investigating
allegations of abuse and neglect in accordance with applicable protocols and policies, the fact
that the DHHR did not choose to file an abuse and neglect petition following this investigation is
not proof that no abuse occurred. As set forth above, the evidence clearly established that
petitioner physically abused the child, failed to supervise him properly, and failed to provide

                                                    3 
 
appropriate care, all while placed in a supervised and controlled environment. As such, we find
no error in this regard.

        Next, the Court finds no error in regard to the applicable Rules of Procedure for Child
Abuse and Neglect Proceedings. On appeal, petitioner argues that the circuit court erred in
failing to ensure that the DHHR complied with its order for a psychological evaluation; ordering
and obtaining a drug screen, but then allowing the results to be misplaced; and imposing
residential treatment. In arguing for relief for these alleged errors, petitioner relies upon the
following holding:

               “[w]here it appears from the record that the process established by the
       Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes
       for the disposition of cases involving children [alleged] to be abused or neglected
       has been substantially disregarded or frustrated, the resulting order . . . will be
       vacated and the case remanded for compliance with that process and entry of an
       appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
       558 S.E.2d 620 (2001).

Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). Upon our review, however, we
find no error in this regard that would require vacation of the dispositional order.

        First, the circuit court did not err in ordering that petitioner report back to Florence
Crittenton at the outset of the proceedings. As noted above, there were legitimate concerns about
petitioner’s ability to provide the child with care even in this facility such that she was required
to have direct supervision while in that facility. Pursuant to West Virginia Code 49-6-3(a)(1) and
(2), when a petition is filed

       the court may order that the child alleged to be an abused or neglected child be
       delivered . . . into the custody of the [DHHR] . . . if it finds that . . . [t]here exists
       imminent danger to the physical well being of the child; and . . . [t]here are no
       reasonably available alternatives to removal of the child . . . .

Because the circuit court had evidence that the child was in imminent danger in petitioner’s care,
it sought to allow petitioner to remain with the child in the residential treatment facility.
However, petitioner refused to re-enter the facility. Throughout the case, the circuit court
repeatedly allowed petitioner the choice to re-enter the facility in an effort to provide her with
services to remedy the abuse and neglect, but she continued to put her own needs above those of
her child, thereby evidencing her inability to correct the conditions of abuse and neglect. Because
it is clear petitioner could not parent the child on her own, the circuit court did not err in
requiring petitioner to re-enter this program in order to obtain the services necessary to properly
parent her child.

        As to the other issues petitioner raises in regard to this assignment of error, the Court
finds that the DHHR’s failure to obtain a psychological evaluation or secure the results of
petitioner’s drug screen are inconsequential in light of petitioner’s refusal to follow through with
services in this matter. Testimony from service providers established that petitioner did not

                                                   4 
 
cooperate or participate in the services offered and that she put her needs before the child’s. This
includes the fact that petitioner attended only four of the approximately eleven opportunities to
visit the child. Testimony further established that during the visits she did attend, petitioner did
not exhibit a strong bond with the child and spent her time interacting with adults that were
present. The Court additionally notes that a recent psychological assessment from Florence
Crittenton was provided in discovery below, and that petitioner’s parental rights were not
terminated upon any findings of substance abuse. For these reasons, the Court finds that none of
the alleged errors herein amount to a substantial disregard or frustration of the applicable rules
such that vacation of the dispositional order is warranted.

         Finally, the Court finds no error in the circuit court denying petitioner post-termination
visitation.2 We have previously held that

                       “[w]hen parental rights are terminated due to neglect or abuse, the circuit
              court may nevertheless in appropriate cases consider whether continued visitation
              or other contact with the abusing parent is in the best interest of the child. Among
              other things, the circuit court should consider whether a close emotional bond has
              been established between parent and child and the child’s wishes, if he or she is of
              appropriate maturity to make such request. The evidence must indicate that such
              visitation or continued contact would not be detrimental to the child’s well being
              and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
              446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002). On appeal, petitioner
provides no evidence that continued contact or visitation would be in the child’s best interest,
other than her assertion that she and the child share a close bond. However, as noted above, the
circuit court was presented with evidence that petitioner and the child were not closely bonded,
and the record is devoid of any evidence that continued contact would be in the child’s best
interests. As such, we find no error in the circuit court denying petitioner post-termination
visitation.

       For the foregoing reasons, we find no error in the decision of the circuit court and its
April 30, 2015, order is hereby affirmed.

                                                                                                Affirmed.




                                                            
              2
         The circuit court did permit petitioner visitation with the child at the sole discretion of
the child’s non-abusing father. However, the circuit court was clear that it “provides no right of
visitation to [petitioner].”
                                                               5 
 
ISSUED: October 20, 2015

CONCURRED IN BY:

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




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