                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS

                                                                                   FILED
In re: K.P. and I.C.,                                                           April 12, 2016
                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
No. 15-0874 (Marion County 13-JA-40 & 13-JA-41)                                    OF WEST VIRGINIA




                                MEMORANDUM DECISION

       Petitioner Mother A.C., by counsel Mikal-Ellen Bennet, appeals the Circuit Court of
Marion County’s August 6, 2015, order terminating her parental rights to sixteen-year-old K.P.
and seven-year-old I.C. 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”), Rebecca Tate, filed a response on behalf of the children also
in support of the circuit court’s order. Petitioner filed a reply. On appeal, petitioner argues that
the DHHR violated her due process rights when it removed I.C. from her custody in July of
2013.1

        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 July of 2013, K.P. made accusations of sexual abuse against her stepfather, petitioner’s
husband. At that time, K.P. resided with petitioner and the stepfather. Three other children,
including I.C., resided in the same residence.2 Upon learning of the accusations, K.P.’s
stepmother took K.P. to a nearby gas station to meet her biological father. Having received
telephone calls about the events from K.P. and K.P.’s stepmother, petitioner met them at the gas
station. Once there, petitioner interrogated K.P. in a parked car. Petitioner reportedly told K.P.
that the accusations would ruin the stepfather’s life; that petitioner herself had been sexually
abused previously in her life; and that sexual abuse “is something you just live with in shame.”

       1
           Petitioner presents no similar argument as to K.P.’s removal from her home at that time.

        We also 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.
       2
           This memorandum decision concerns only petitioner’s two biological children—K.P.
and I.C.
                                                  1


Petitioner later testified that K.P. exited the car, upset that her mother did not believe her. When
K.P.’s biological father arrived at the gas station, the adults took K.P. to the Marion County
Sheriff’s Department. A detective with the Marion County Sheriff’s Department interviewed
K.P. The child told the detective that her stepfather sexually abused her in her bedroom by
rubbing her back and private areas. Child Protective Services (“CPS”) received a referral of the
accusations.

        K.P. was interviewed multiple times in relation to these accusations. During those
interviews, K.P. continued to make accusations of sexual abuse by her stepfather. K.P. explained
that the stepfather came into her bedroom on July 1, 2013, around 10:00 a.m., and began rubbing
her back, both over and under her shirt, her stomach, and her breasts. The stepfather then also
began rubbing K.P.’s vaginal area over her clothes. He then asked if he could lick her breasts, to
which K.P. responded “no.” K.P. asked him to leave the bedroom, but he remained for
approximately thirty minutes longer and continued the sexual contact. Based upon the
accusations, the DHHR instituted the instant abuse and neglect proceedings and removed all four
children who resided in the home with petitioner and the stepfather. Shortly thereafter, the
DHHR filed an abuse and neglect petition against the stepfather and petitioner for failure to
protect her child because she did not believe the disclosure. The DHHR placed K.P. with her
biological father, per her request, and I.C. with her maternal aunt.

       At the preliminary hearing in July of 2013, the circuit court found probable cause for the
removal of the children. K.P. subsequently underwent two psychological evaluations. In October
of 2013, the DHHR filed an amended abuse and neglect petition. In that amended petition, the
DHHR alleged that petitioner physically, emotionally, and mentally abused K.P. by hitting her
and graphically insulting her due to her food intake.

        The circuit court held multiple adjudicatory hearings in this matter. Following days of
testimony by fact and expert witnesses, the circuit court entered an order in August of 2014 that
dismissed the action and returned the children to petitioner and the stepfather, with the exception
of K.P., whom the parties agreed would continue to reside with her biological father. In that
order, the circuit court found that the DHHR failed to meet its burden to prove the allegations in
the petitions. The DHHR and guardian appealed the circuit court’s dismissal order to this Court.

        In May of 2015, by signed opinion following oral argument, this Court reversed the
circuit court’s dismissal order and remanded the matter with instructions that the circuit court
enter an order adjudicating petitioner and the stepfather as abusing parents and K.P., I.C., G.C.,
and I.C. as abused children. See In re: K.P., I.C., G.C., and I.C., 235 W.Va. 221, 772 S.E.2d 914
(2015). However, in that opinion, the Court specifically noted that

       only the issue of adjudication is before us in the appeal sub judice. Any post­
       adjudicatory requirements and the disposition will be matters for the circuit court
       to address on remand, and nothing in this opinion should be construed as directing
       the circuit court as to how it should rule on those issues.

Id., 235 W.Va. at 234 n. 21, 772 S.E.2d at 927 n. 21.



                                                 2


        On remand, the circuit court entered an adjudicatory order, which found that both
petitioner and the stepfather abused the children. The matter was then scheduled for disposition.
At the subsequent dispositional hearing, petitioner and the stepfather moved to voluntarily
relinquish their parental rights to the children. The circuit court denied that motion. Relying, at
least in part, on petitioner’s and the stepfather’s refusal to acknowledge any abuse or neglect in
this matter, the circuit court found that there was no reasonable likelihood that the conditions of
abuse or neglect could be substantially corrected. As such, on August 6, 2015, the circuit court
entered an order terminating the parental rights of petitioner and the stepfather to the children.
Petitioner now appeals that termination 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
       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 DHHR violated her state and federal constitutional
rights to due process of law when it removed I.C. from her home in July of 2013 because she
offered to remove the stepfather from the home at that time. In support, petitioner points to case
law discussing a parent’s fundamental, constitutional right to parent a child. See Troxel v.
Granville, 530 U.S. 57 (2000) (explaining that “we have recognized the fundamental right of
parents to make decisions concerning the care, custody, and control of their children.”); Syl. Pt.
1, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973) (stating that “no rule is more firmly
established than that the right of a natural parent to the custody of his or her infant child is
paramount . . . it is a fundamental personal liberty protected and guaranteed by the Due Process
Clauses of the West Virginia and United States Constitutions.”). Petitioner also relies upon West
Virginia Code § 49-6-3(a),3 which provides as follows:



       3
         We note that petitioner cites the new version of Chapter 49 of the West Virginia Code
made effective in May of 2015, after the time of the children’s removal from her home in 2013.
We cite the version of Chapter 49 in effect in 2013. However, the statutory language relied upon
by petitioner is substantially similar.

                                                3


       Upon the filing of a petition, the court may order that the child alleged to be an
       abused or neglected child be delivered for not more than ten days into the custody
       of the state department or a responsible person found by the court to be a fit and
       proper person for the temporary care of the child pending a preliminary hearing, if
       it finds that: (1) There exists imminent danger to the physical wellbeing of the
       child; and (2) There are no reasonably available alternatives to removal of the
       child, including, but not limited to, the provision of medical, psychiatric,
       psychological or homemaking services in the child's present custody: Provided,
       That where the alleged abusing person, if known, is a member of a household, the
       court shall not allow placement pursuant to this section of the child or children in
       said home unless the alleged abusing person is or has been precluded from
       visiting or residing in said home by judicial order. In a case where there is more
       than one child in the home, or in the temporary care, custody or control of the
       alleged offending parent, the petition shall so state, and notwithstanding the fact
       that the allegations of abuse or neglect may pertain to less than all of such
       children, each child in the home for whom relief is sought shall be made a party to
       the proceeding. Even though the acts of abuse or neglect alleged in the petition
       were not directed against a specific child who is named in the petition, the court
       shall order the removal of such child, pending final disposition, if it finds that
       there exists imminent danger to the physical wellbeing of the child and a lack of
       reasonable available alternatives to removal.

(Emphasis added.)

        At the outset, we note that petitioner fails to cite any authority in support of her
contention that a due process violation occurs when a child is removed from a parent who is later
adjudicated as abusive; has her parental rights involuntarily terminated; and fails to contest either
the adjudication or termination. Further, the statutory provision in West Virginia Code § 49-6­
3(a) relied on by petitioner is a prohibition to a child’s placement in the home unless the alleged
abusing person is removed; by the same token, it is not a mandate that a child must be placed in
the home if the alleged abusing person is removed.

        Moreover, petitioner’s argument hinges on a factual assertion upon which this Court
cannot rely. In her argument, petitioner claims that the stepfather was the sole alleged abusing
person in the home. Therefore, according to petitioner, when she offered to have the stepfather
leave the home to keep I.C., such action would have removed “the alleged abusing person” as
contemplated in West Virginia Code § 49-6-3(a). We disagree.

        Assuming petitioner offered to have the stepfather leave the home,4 petitioner herself was
an alleged abusing person at that time. In an exchange with petitioner’s counsel during the
adjudicatory phase of this case, a CPS worker explained that petitioner and the stepfather were
both alleged abusing persons:



       4
       Petitioner fails to indicate where in the record on appeal evidence supports her claim that
she made that offer to the DHHR at the time of the children’s removal.
                                                 4


       Q [by petitioner’s counsel on cross-examination]: . . . I don’t quite understand
       why you didn’t feel that it was appropriate with [K.P.] not being in the home for
       [petitioner] to have kept at least [I.C.]?

       A [by the CPS worker]: When—in West Virginia, I mean, if there are allegations
       of abuse and neglect that determine that a child is unsafe in a home, then all
       children are deemed unsafe in that home.

       Q: But if the alleged abuser was leaving?

       A: There were t[w]o alleged abusers at this time. We would allegations [sic]
       against [petitioner] at the time we filed the ratification based upon the fact that she
       did not believe her child and was, therefore, failure to protect. So, at that time we
       had two maltreaters.

Therefore, petitioner’s factual assertion must fail. In July of 2013 when the DHHR removed the
children, petitioner’s offer to have the stepfather leave the home would not have removed all
alleged abusing persons from her home.

        In this case, the statutory guidelines for the DHHR to intervene in the parent-child
relationship were followed throughout. Petitioner’s children were removed from her home
following allegations of sexual misconduct in her home and her failure to protect a child
therefrom. Pursuant to the statutory framework for the conduct of abuse and neglect proceedings
in this State, the DHHR filed an abuse and neglect petition against petitioner and the stepfather
that alleged improper conduct by both parties. The circuit court appointed petitioner counsel and
held a preliminary hearing at which it made findings that the children’s removal was permitted
pending further proceedings, as provided in West Virginia Code § 49-6-3(a). Thereafter,
following multiple, lengthy adjudicatory hearings, an appeal to this Court, and additional
proceedings below, petitioner was adjudicated as an abusing parent, and her parental rights were
involuntarily terminated. It is clear from the record before us that petitioner was provided with
due process of law in the removal of her children. Therefore, given the circumstances presented
herein, we find no merit to petitioner’s assignment of error.

       For the foregoing reasons, the circuit court’s August 6, 2015, termination order is hereby
affirmed.
                                                                                       Affirmed.

ISSUED: April 12, 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


                                                 5


