                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


                                                                                   FILED
In Re: A.T.                                                                       June 10, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
No. 12-1419 (Preston County 12-JA-11)                                          OF WEST VIRGINIA


                                 MEMORANDUM DECISION

       Petitioner Mother’s appeal, by counsel Sally C. Collins, arises from the Circuit Court of
Preston County, wherein the circuit court removed her daughter from her custody by order
entered October 24, 2012. The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Lee Niezgoda, has filed its response. The guardian ad litem, Megan M.
Allender, has filed a response on behalf of the child.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        A.T. was the subject of prior abuse and neglect proceedings in Upshur County in 2009.
Petitioner Mother’s then-husband was accused of sexually abusing A.T. Petitioner was granted an
improvement period, which she successfully completed, and A.T. was returned to petitioner in
January of 2010. On April 13, 2012, the DHHR filed an abuse and neglect petition against
petitioner on the basis of allegations A.T. made to a state trooper regarding sexual abuse by
petitioner’s boyfriend. On June 18, 2012, the petition was amended to include A.T.’s biological
father due to exposure to domestic violence, drug abuse, and emotional abuse while residing with
him. The amended petition alleges that A.T. was sexually abused by petitioner’s brother,1
petitioner’s boyfriend, and other of petitioner’s sexual partners. Additionally, the petition alleged
that petitioner did not maintain appropriate housing or employment since the dismissal of the
Upshur County case in January of 2010. During an adjudicatory hearing in July of 2012, A.T.
recanted earlier statements she made to a state trooper and to a clinical psychologist regarding
sexual abuse by petitioner’s boyfriend. Ultimately, the circuit court found petitioner to be an
abusing parent because she failed to protect A.T. when confronted with sexual abuse, with the
current boyfriend and in previous instances. Petitioner did not seek an improvement period. On
October 24, 2012, the circuit court placed A.T. into the temporary custody of the DHHR, pursuant
to West Virginia Code § 49-6-5(a)(5), following the recommendation of a clinical psychologist
who testified in the case and the DHHR.

       The Court has previously established the following standard of review:
1
 Petitioner Mother’s brother, A.T.’s uncle, was convicted of sexually assaulting A.T. in July of
2011.
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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).

        Petitioner’s arguments on appeal are that the allegations in the 2012 petitions were not
conditions existing at the time of petitioner’s filing, due to A.T.’s conflicting assertions regarding
whether Petitioner Mother’s boyfriend sexually assaulted her, and that all other allegations date
from November of 2011 or before. Petitioner also argues that the disposition set forth in West
Virginia Code § 49-6-5(a)(5) was not the least restrictive alternative, and argues that disposition
pursuant to West Virginia code § 49-6-5(a)(4) can achieve the same results by ordering terms of
supervision prescribing the manner of supervision and care of the child. We agree with the
guardian and the DHHR, however, that temporary commitment to the DHHR’s custody is the
least restrictive alternative because at trial a clinical psychologist testified that A.T. required
twenty-four hour care and petitioner did not testify as to how she would address A.T.’s treatment
needs. We agree with the DHHR and the guardian that petitioner’s actions regarding A.T. cannot
be viewed in a vacuum, and that her lifetime of trauma shows a pattern of neglect and indifference
by petitioner as to her daughter’s sexual abuse, supporting A.T.’s need for treatment away from
her mother, temporarily in the custody of the DHHR.

        This Court finds that the circuit court was presented with sufficient evidence upon which
it could have found that Petitioner Mother is presently unwilling or unable to provide adequately
for A.T.’s needs, that continuation in the home is contrary to the best interests of the child, that
the DHHR has made reasonable efforts to preserve the family, and that it was an unacceptable
risk for A.T. to return to Petitioner Mother’s home. Pursuant to West Virginia Code § 49-6­
5(a)(5), circuit courts are directed to temporarily remove a child from a parent’s custody upon
findings that the parent is unwilling or unable to provide adequately for their child’s needs.
Petitioner’s history of disregard for her daughter’s sexual abuse also supports the circuit court’s
holding disallowing petitioner visitation with A.T., as this is the least restrictive alternative in this
case.

      For the foregoing reasons, we find no error in the decision of the circuit court, and the
temporary removal of A.T. from petitioner’s custody is hereby affirmed.


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                                       Affirmed.

ISSUED: June 10, 2013

CONCURRED IN BY:

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




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