                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


                                                                                      FILED
In Re: S.D. & A.D.                                                                  February 18, 2014
                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
No. 13-0917 (Pocahontas County 12-JA-07 & 12-JA-08)                                OF WEST VIRGINIA




                                  MEMORANDUM DECISION

         Petitioner Mother, by counsel Kristopher Faerber, appeals the Circuit Court of Pocahontas
County’s August 5, 2013, order terminating her parental rights to S.D. and A.D. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel William P. Jones,
filed its response in support of the circuit court’s order. The guardian ad litem, Martin V. Saffer,
filed a response on behalf of the children supporting the circuit court’s order. On appeal,
petitioner alleges that the circuit court violated her procedural and substantive due process rights
by allowing insufficient investigation into A.D.’s injuries, by allowing the State to delay
production of discovery, and by not requiring the DHHR to make reasonable efforts at
reunification. Petitioner also alleges that the circuit court erred in failing to provide her a
meaningful dispositional hearing and in denying her motion for a post-adjudicatory improvement
period.

        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 2012, the DHHR filed an emergency ratification petition alleging that the
parents abused the children. According to the petition, a Child Protective Services (“CPS”)
worker received a referral that three-month-old A.D. had sustained a head injury that resulted in a
brain bleed and was being treated at the Greenbrier Valley Hospital emergency room. The CPS
worker and a state trooper responded and interviewed the parents at the hospital, both of whom
stated they did not injure the child or know who did. According to a nurse at the hospital, the
child had bruises to the face, ear, and arm that were not consistent with accidental trauma. Due to
the severity of the injuries, the child was transferred to Charleston Area Medical Center Women
and Children’s Hospital in Charleston, West Virginia.

        The petition further alleged that, in the hours that followed, the CPS worker discovered
that the father, N.D., returned to his residence rather than going to the hospital in Charleston to be
with the child. As such, the CPS worker and trooper went to petitioner’s home for further
investigation. They discovered drug paraphernalia in the home and the father admitted to using
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marijuana, though he denied owning the paraphernalia. The home was cluttered and dirty, with
multiple holes in the walls, rat poison scattered about the kitchen, and numerous dirty bottles with
curdled milk. There was also a bassinette with a broken leg and a mattress covered in black mold,
which the father admitted the child had slept in until as recently as the night before when the
bassinette’s leg was broken. The CPS worker and trooper also viewed multiple videos of domestic
altercations between the parents on the father’s cell phone. In one video that the father stated was
taken the night before, reference was made to A.D.’s head injury. Interviews with neighbors
indicated that the parents frequently engaged in domestic altercations. One neighbor even stated
that on July 4, 2012, the parents were fighting and petitioner threw A.D. at the father and told him
to care for the child. Later, the CPS worker conferred with multiple medical professionals that
confirmed A.D.’s injuries were non-accidental. A.D.’s treating physician, Dr. Mouna Chebib,
stated that retinal scanning indicated the child had been shaken violently, resulting in severe
retinal hemorrhages.

         On July 25, 2012, the circuit court held a preliminary hearing and found probable cause to
believe that the children were abused and neglected at the time of removal. The circuit court then
held adjudicatory hearings on April 11, 12, and 15, 2013, and ultimately rejected the DHHR’s
assertion of aggravated circumstances based upon A.D.’s injuries. However, the circuit court did
find the children to be abused and neglected due to evidence of domestic violence, drug
paraphernalia and unsanitary conditions in the home, and the parents’ failure to explain the
serious injuries to A.D. The circuit court ordered both parents to undergo psychological
evaluations and deferred ruling on petitioner’s motion for an improvement period and supervised
visitation until the results of her evaluation were known. In July of 2013, the circuit court held a
dispositional hearing, during which it denied an improvement period and terminated petitioner’s
parental rights. It is from the dispositional 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).



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        Upon our review, the Court finds no violation of petitioner’s due process rights, no error
in the circuit court’s denial of her request for an improvement period, and no error in the
termination of her parental rights. To begin, the State’s failure to identify the perpetrator of the
child’s injuries does not constitute an unreasonable investigation or a violation of petitioner’s due
process rights. The record is clear that the State performed a reasonable investigation into the
child’s injuries, despite petitioner’s unreasonable argument that it did not attempt to exonerate the
parents by pursuing criminal investigations against approximately ten individuals who had limited
custody of the child prior to the injuries.

       Further, petitioner’s argument regarding an alleged due process violation regarding
discovery production is without merit. Petitioner argues that “the Government must provide
discovery” and that “failure to provide discovery is an absolute violation of due process.”
However, petitioner admits that all discovery was provided in this matter, albeit in an allegedly
delayed manner. As such, it is clear that petitioner was provided the mandatory discovery
contemplated by Rule 10 of the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings.

       The Court similarly finds no merit in petitioner’s argument regarding an allegedly
untimely adjudicatory hearing, which petitioner supports by stating only that it was not held for
over 250 days. We have previously held that

               [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 adjudicated to be abused or neglected has
       been substantially disregarded or frustrated, the resulting order of disposition will
       be vacated and the case remanded for compliance with that process and entry of an
       appropriate dispositional order.

Syl. Pt. 5, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001). Petitioner cites to no time
restrictions on the holding of an adjudicatory hearing, and the Court notes that this matter was
especially complex, requiring testimony and opinions from medical professionals regarding the
child’s injuries. Therefore, the rules were not “substantially disregarded or frustrated” and the
Court finds no error.

        As to petitioner’s argument that the circuit court violated her due process rights because it
failed to require the DHHR to make reasonable efforts to reunify the family, the Court finds no
merit to this argument. In the adjudicatory order, the circuit court specifically stated that the
DHHR “shall provide services to the family to include psychological evaluations of the
[parents].” It is undisputed that petitioner received such services, which constitute reasonable
efforts to achieve reunification pursuant to West Virginia Code § 49-6-5(a), especially in light of
the uncertainty surrounding the child’s injuries.

         The circuit court specifically delayed ruling on other services, such as supervised
visitation, pending completion of the psychological evaluations so that there would be a better

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understanding of what services would be appropriate. However, after reviewing petitioner’s
psychological evaluation, the circuit court found that petitioner was “not motivated to address
[her] problems that led to the abuse and neglect of [her] children.” Therefore, there were no
additional efforts the DHHR could make to attempt reunification in light of petitioner’s failure to
acknowledge the underlying issues of abuse and neglect. The Court finds no merit in petitioner’s
argument that supervised visitation or an improvement period are required in order for the DHHR
to have made reasonable efforts to achieve reunification. Quite the contrary in this matter, such
efforts would have been unreasonable in light of the potential danger they posed to the children
and their best interests. For these reasons, the Court finds that the DHHR made reasonable efforts
to achieve reunification in this matter.

        As to petitioner’s argument that the circuit court erred in denying her request for a post­
adjudicatory improvement period, West Virginia Code § 49-6-12(b)(2) gives circuit courts
discretion in granting such improvement periods upon a showing that the parent will fully
participate in the same. The record in this matter supports the circuit court’s denial because of
petitioner’s failure to show, by clear and convincing evidence, that she would fully comply with
the terms of a post-adjudicatory improvement period.

         Petitioner argues that she satisfied this burden by admitting certain facts asserted in the
DHHR’s petition and acknowledging that she needed improvement in regard to the child’s
injuries, domestic violence, and the home’s condition. However, these assertions are insufficient
to show that petitioner would substantially comply with the terms of an improvement period in
light of her failure to acknowledge the underlying conditions of abuse that necessitated the
children’s removal. Petitioner’s argument on this issue is based almost entirely on her allegation
that the State failed to properly investigate the child’s actual abuser and her continued denial of
inflicting injury upon the child. However, petitioner’s argument fails to address the other issues of
abuse present in the home. As noted in the dispositional order, petitioner’s psychological
evaluation indicated that she “minimized the harm to [the] child, the domestic violence in [the]
home,” and also failed to “acknowledge maltreatment of [the] children . . . .” Further evidence
established that other than obtaining a new residence, petitioner “made no effort to improve [the]
environment in order to safely return the children to the home.”

       We have previously held that

       in order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
       of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator
       of said abuse and neglect, results in making the problem untreatable and in making
       an improvement period an exercise in futility at the child’s expense.

In re Kaitlyn P., 225 W.Va. 123, 126, 690 S.E.2d 131, 134 (2010) (quoting W.Va. Dep’t of Health
and Human Res. v. Doris S., 197 W.Va. 489, 498, 475 S.E.2d 865, 874 (1996)). Based upon the
evidence above, it is clear that petitioner failed to acknowledge the abuse and neglect she
perpetrated on the children. This encompasses more than the severe injuries to A.D.; it also

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includes ongoing domestic violence issues and the conditions in the home. As such, it was not
error to deny petitioner’s motion for a post-adjudicatory improvement period.

        Finally, as to petitioner’s argument that she was denied a meaningful dispositional
hearing, the Court finds no merit in this argument. According to petitioner, the circuit court was
not permitted to simultaneously hear evidence regarding disposition and her motion for a post­
adjudicatory improvement period and instead should have continued the matter for a hearing
devoted entirely to disposition. However, the record does not support this argument. It is true that
at the dispositional hearing, the circuit court heard arguments on petitioner’s motion, but the
hearing was very clearly a dispositional hearing and petitioner was afforded notice as required by
Rule 31 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings and
the opportunity to be heard as required by that same rule and West Virginia Code § 49-6-5(a).
The adjudicatory order clearly stated that “[a] dispositional hearing shall be held . . . on May 22,
2013,” and the record shows that this hearing was continued until July 24, 2013. Finally, the
transcript of the July 24, 2013, hearing shows that the circuit court expressly began the hearing by
stating that “we are here on a disposition.”

        Further, the Court finds that the evidence upon which the circuit court based its denial of
petitioner’s motion for a post-adjudicatory improvement period also supports termination of her
parental rights. As noted above, petitioner made no progress in attempting to remedy the
conditions of abuse and neglect in order to achieve reunification. Therefore, the circuit court was
correct to find that there was no reasonable likelihood that petitioner could substantially correct
the conditions of abuse or neglect in the near future in accordance with West Virginia Code § 49­
6-5(b)(3). The circuit court further found that termination of petitioner’s parental rights was in the
children’s best interest. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed
to terminate parental rights upon such findings. While petitioner argues that the circuit court
failed to consider any less restrictive alternatives to termination of parental rights at disposition,
the Court finds no evidence of such a disregard for less restrictive alternatives in the record. To
the contrary, petitioner’s failure to acknowledge the conditions of abuse and neglect left the
circuit court no option other than termination of parental rights. For these reasons, the Court finds
no merit in petitioner’s argument that the appropriate procedural rules regarding disposition were
not followed.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
August 5, 2013, order is hereby affirmed.


                                                                                           Affirmed.




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ISSUED: February 18, 2014

CONCURRED IN BY:

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




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