                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: C.B.                                                                      FILED
                                                                            November 22, 2017
                                                                              EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
No. 17-0613 (Grant County 17-JA-5)                                                OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Custodian T.R., by counsel Jeremy B. Cooper, appeals the Circuit Court of
Grant County’s June 13, 2017, order terminating his custodial rights to C.B.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”), Marla Zelene
Harman, filed a response on behalf of the child also in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in failing to dismiss him from the abuse and
neglect 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 January of 2017, the DHHR filed an abuse and neglect petition alleging that petitioner
and the child’s mother, K.H., abused C.B. based upon the child’s injuries, which included a
subdural hematoma. The petition also alleged that petitioner was providing care for the child at
the time the injuries occurred and that his explanations for the child’s extensive injuries were not
consistent and did not comport with medical evidence. The petition further alleged that the
child’s mother supported petitioner’s version of events despite being informed that his version
did not comport with medical evidence and that the child’s injuries were the result of non-
accidental trauma. Later in January of 2017, the circuit court held a preliminary hearing wherein

       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
        Petitioner did not assert any assignment of error regarding termination. As such, we will
not address the circuit court’s termination of petitioner’s parental rights in this memorandum
decision.

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petitioner waived his rights to the same and moved the circuit court to dismiss him from the
proceedings. In support of his motion, he argued that he was not related to the child and was
currently prohibited from contacting the mother, due to a domestic violence restraining order.
The circuit court denied petitioner’s motion and granted him leave to renew the motion at a later
time. In February of 2017, the circuit court held an adjudicatory pre-trial hearing wherein
petitioner renewed his motion to be dismissed from the underlying proceedings. The circuit court
again denied petitioner’s motion and found that he could not be dismissed because petitioner was
the child’s caretaker in the home at the time the child sustained the injuries.

        In March of 2017, the circuit court held an adjudicatory hearing at which the mother
stipulated to the allegations as alleged in the petition. Petitioner again renewed his motion to be
dismissed from the underlying proceedings. In support of his motion, petitioner claimed that he
lacked standing given that he was not a biological parent, psychological parent, or step-parent to
the child. The circuit court again denied his motion based on its finding that petitioner was the
child’s caretaker at the time the child sustained the injuries.

        Also in March of 2017, the circuit court held another adjudicatory hearing wherein it
heard testimony from multiple medical professionals and a police officer. According to the
testimony, the child was transported to the Grant Memorial Hospital emergency room by
ambulance on January 10, 2017. The child presented with extensive injuries that were the result
of non-accidental trauma, including a subdural hematoma; a bloody nose; retinal hemorrhaging;
impact bruising on his head; as well as bruising to his inner ear, arms, legs, abdomen, pubis area,
scrotum, and back. The circuit court also heard testimony that petitioner was at home with the
child on January 10, 2017; reported that the child suffered a fall at the home; found the child
unresponsive; and called for an ambulance. Petitioner did not present any testimony or evidence
on his own behalf. At the conclusion of the adjudicatory proceedings, the circuit court found that
petitioner was the sole caregiver for the child at the time the child sustained multiple, non-
accidental injuries; that his explanations for the child’s injuries were not consistent with the
severity of the child’s injuries; and that multiple medical experts testified that the child’s injuries
were caused by non-accidental trauma.

        In May of 2017, the circuit court held a dispositional hearing wherein petitioner renewed
his motion to be dismissed from the underlying proceedings and the circuit court again denied
his motion. The circuit court found that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future, noting that he
“demonstrated an inadequate capacity to solve the problems of abuse and neglect that exist in
this case.” On June 13, 2017, the circuit court terminated his custodial rights to the child.3 It is
from that June 13, 2017, order that petitioner appeals.

        The Court has previously established the following standard of review in a case such as
this:

        3
        Petitioner’s custodial rights to C.B. were terminated below. According to the guardian,
C.B.’s biological mother, K.H., was placed on an improvement period. C.B. remains in the care
of his non-offending biological father, A.B., and the permanency plan is for the reunification
with the mother.
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               “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). Upon our review, the Court finds
no error in the circuit court’s denial of petitioner’s motion to dismiss him as a party to the abuse
and neglect proceedings.

        On appeal, petitioner asserts that the circuit court should have dismissed him as a party to
the abuse and neglect proceedings below because the “facts indicate that the date of the alleged
abuse is actually the only time, ever, that [p]etitioner had been alone with the child.” However,
because petitioner is not the child’s biological or adoptive parent, our focus is on whether he
qualifies as a “party . . . having custodial . . . rights or responsibilities.” W.Va. Code § 49-4­
601(h) (2015). West Virginia Code § 49-1-204 provides that a “custodian” is defined as “a
person who has or shares actual physical possession or care and custody of a child, regardless of
whether that person has been granted custody of the child by any contract or agreement.”

        In the instant case, petitioner clearly shared actual physical possession, care, and custody
of a child. The mother and the child were living with petitioner in his home at the time the abuse
and neglect petition was filed. Petitioner and the mother were involved in a romantic relationship
and petitioner was providing care for the child while the mother was working. According to the
record, petitioner admitted to a police officer at the hospital that the child was in his sole care at
the time the child sustained the injuries. Furthermore, petitioner stood silent at both the
adjudicatory and dispositional hearings, despite being afforded the opportunity to present
evidence to rebut the allegations against him.

              Because the purpose of an abuse and neglect proceeding is remedial,
       where the parent or guardian fails to respond to probative evidence offered against
       him/her during the course of an abuse and neglect proceeding, a lower court may
       properly consider that individual’s silence as affirmative evidence of that
       individual’s culpability.

Syl. Pt. 2, W.Va. Dep’t of Health and Human Res. v. Doris S., 197 W.Va. 489, 475
S.E.2d 865 (1996).



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       Finally, because the mother’s parental rights are still intact, this Court reminds the circuit
court of its duty to establish permanency for the child. Rule 39(b) of the Rules of Procedure for
Child Abuse and Neglect Proceedings requires:

       At least once every three months until permanent placement is achieved as
       defined in Rule 6, the court shall conduct a permanent placement review
       conference, requiring the multidisciplinary treatment team to attend and report as
       to progress and development in the case, for the purpose of reviewing the progress
       in the permanent placement of the child.

        Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules
of Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child
within twelve months of the date of the disposition order. As this Court has stated,

               “[t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
       placement of an abused and neglected child following the final dispositional order
       must be strictly followed except in the most extraordinary circumstances which
       are fully substantiated in the record.”

Syl. Pt. 6, Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875 (2011). Moreover, this Court has stated
that

               “[i]n determining the appropriate permanent out-of-home placement of a
       child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4­
       604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
       home for the child and shall consider other placement alternatives, including
       permanent foster care, only where the court finds that adoption would not provide
       custody, care, commitment, nurturing and discipline consistent with the child’s
       best interests or where a suitable adoptive home can not be found.”

Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 13, 2017, order is hereby affirmed.

                                                                                          Affirmed.



ISSUED: November 22, 2017




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CONCURRED IN BY:

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




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