                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS


                                                                                    FILED
In re J.N.
                                                                                 June 25, 2020
                                                                                EDYTHE NASH GAISER, CLERK
No. 19-1177 (Kanawha County 18-JA-552)                                          SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                              MEMORANDUM DECISION


         Petitioner Mother J.F., by counsel Sandra K. Bullman, appeals the Circuit Court of
Kanawha County’s November 20, 2019, order accepting her voluntary relinquishment of her
parental rights to J.N. and denying her post-termination visitation with the child. 1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a
response in support of the circuit court’s order. The guardian ad litem, J. Rudy Martin, filed a
response on behalf of the children in support of the circuit court’s order and a supplemental
appendix. On appeal, petitioner argues that the circuit court erred in denying her post-termination
visitation with 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In September of 2018, the DHHR filed a child abuse and neglect petition against
petitioner after another child in the home, five-month-old A.N., was found dead with bruising
and scratching to the head and face. 2 The petition specifically noted that petitioner lived in a

       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
         In October of 2018, the DHHR filed an amended petition related to additional parties not
at issue on appeal.




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home with fifteen other people. Petitioner claimed that she fed A.N. and placed her in her
playpen before leaving the home with her boyfriend, leaving the children in the care of other
adults in the home. Later that evening, an adult placed a call to 9-1-1 and stated that A.N. was
not breathing. Her deceased body had signs of unexplained trauma, including bruising to the left
side of her head, scratches on her right temple, and marks around her nostrils. The petition
further indicated that A.N. was born drug-exposed and had been taken to the hospital at two
months old for bruising to the head. According to the petition, “[t]he WV Medical Examiner’s
Office . . . determined that [A.N.] died from non-accidental trauma.” Finally, the petition
indicated that petitioner’s oldest child, S.N., died of sudden infant death syndrome in 2014.
Because of the extreme circumstances surrounding A.N.’s death, the DHHR alleged that J.N.
was in imminent danger and removed the child from the home, which removal was later ratified
at a preliminary hearing.

        Thereafter, the circuit court convened multiple adjudicatory hearings over several
months. At one hearing, the circuit court was informed that petitioner’s supervised visitation
with the child was suspended because she tested positive for marijuana on six drug screens in
June and July of 2019. Thereafter, the circuit court ordered that petitioner could resume visitation
if she provided clean drug screens. After this order, petitioner tested positive for marijuana at
least four additional times, although she eventually provided a negative screen. Ultimately, the
circuit court adjudicated petitioner as an abusing parent by order entered in October of 2019. The
circuit court found that the evidence demonstrated that the living conditions in the home were
deplorable as evidenced by post-mortem bites found on A.N.’s body due to a cockroach
infestation. Further, the evidence demonstrated drug use in the home and that A.N.’s autopsy
revealed that the child’s body contained enough methamphetamine to be lethal but for the blunt
force trauma sustained to her head. According to the medical examiner, the child would have
exhibited clear signs and symptoms of her injuries, including seizing and trouble breathing,
which would have been obvious to anyone present. The circuit court found that none of the
adults in the home made any effort to provide a reasonable explanation for what happened to the
child, that the statements given were “completely inconsistent with the medical evidence
presented,” and that it was not possible for the adults in the home on the date of A.N.’s death to
not have known that something happened to the child.

         At a dispositional hearing held in October of 2019, the circuit court permitted petitioner
to voluntarily relinquish her parental rights to J.N. Petitioner then moved for post-termination
visitation with the child, which the circuit court denied upon finding that it would not be in the
child’s best interests. Petitioner now appeals from the circuit court’s November 20, 2019,
dispositional order. 3



       3
         According to respondents, the DHHR filed an amended petition against the child’s father
and proceedings in regard to him are ongoing. The child is currently placed with relatives. The
permanency plan for the child is reunification with the father, while the concurrent permanency
plan is adoption in his current placement.


                                                                                   (continued . . . )
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       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’s lone assignment of error concerns the circuit court’s denial of her
request for post-termination visitation. According to petitioner, she shared a strong emotional
bond with the child and visits during the proceedings went well. As such, petitioner asserts that
post-termination visitation would be appropriate. We disagree.

       In addressing post-termination visitation, the Court has directed as follows:

                “When 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
repeatedly asserts that a strong emotional bond existed between her and the child, but the record
simply does not support this assertion. In fact, none of the portions of the record to which


        Additionally, although petitioner appeals from the circuit court’s November 20, 2019,
dispositional order, the record shows that petitioner filed a motion to reconsider the order on
appeal. The circuit court held a hearing on the motion and again denied petitioner’s request for
post-termination visitation.




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petitioner cites contain any evidence of a strong emotional bond. At best, the record shows that
one of the goals of her case plan was to “maintain and nurture bond between” petitioner and the
child, but the record is devoid of any evidence that the bond was of such strength that continued
visitation following petitioner’s voluntary relinquishment of her parental rights was necessary for
the child’s wellbeing. As this Court has held, “[o]ur cases indicate that a close emotional bond
generally takes several years to develop.” In re Alyssa W., 217 W. Va. 707, 711, 619 S.E.2d 220,
224 (2005). Indeed, in analyzing whether post-termination visitation was appropriate in that case,
we noted that “the possibility of post-termination visitation is usually considered in cases
involving children significantly older” than the child at issue in that case, who was only one year
old when the case was initiated. Here, J.N. was only two years old when the circuit court denied
petitioner’s request for post-termination visitation, which was in keeping with this Court’s prior
holdings regarding the development of close emotional bonds.

        Petitioner further repeatedly asserts that both the DHHR and the guardian ad litem
supported post-termination visitation, but the record again does not support this assertion. At
best, the guardian and the DHHR indicated at various times that they did not oppose post-
termination visitation. The only recommendation from the DHHR in regard to the possibility of
post-termination was for extensive restrictions on such visitation in the event that the circuit
court determined continued visitation would be in the child’s best interests. Further, the portion
of the record to which petitioner cites to assert that the guardian actively recommended post-
termination visitation simply does not contain such a recommendation. Instead, the guardian ad
litem clearly recommended that the child “may receive post-termination visits from [petitioner] .
. . provided, however, that the contact is in [the child’s] best interests.” On appeal, the guardian
ad litem is explicit that this recommendation “was not intended to be an endorsement of
[petitioner’s] position set forth in her appeal.” Instead, the guardian ad litem asserts that “the
recommendation was to suggest that if the [c]ourt did allow any visitation that it be severely
limited.”

        More importantly, the circuit court specifically found that continued visitation would not
be in the child’s best interests, which is, ultimately, the controlling determination on this issue.
See Kristopher O. v. Mazzone, 227 W. Va. 184, 192, 706 S.E.2d 381, 389 (2011) (“[T]he best
interests of the child is the polar star by which decisions must be made which affect children.”).
Indeed, the disturbing facts surrounding A.N.’s death and petitioner’s conduct in regard to the
child’s death support the circuit court’s denial of post-termination with J.N. As the circuit court
found below, petitioner “did nothing to protect the infant, [A.N.]; and there is no reason to
believe” that petitioner would protect two-year-old J.N. This finding was based on the fact that
petitioner “did nothing to assist” the investigation into A.N.’s death and “lied to the [Child
Protective Services] worker and when providing testimony to the [c]ourt.” Given that A.N. died
of blunt force trauma to the head while in petitioner’s care and had a lethal amount of
methamphetamine in her system, the circuit court’s findings in this regard are well supported. As
such, we find no error in the circuit court’s denial of her motion for post-termination visitation. 4


       4
         In support of this assignment of error, petitioner also argues that post-termination
visitation is appropriate because the permanency plan is for the child to be placed with the father,

                                                                                    (continued . . . )
                                                 4
       Lastly, because the proceedings regarding the child’s father are ongoing, 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 that

       [a]t 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 Procedure[] 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.

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 6. Moreover, this Court has stated that

               [i]n determining the appropriate permanent out-of-home placement of a
       child under [West Virginia Code § 49-4-604(b)(6) (2019) 5], 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 [cannot] be found.


with whom she alleges she shares a “good co-parenting relationship.” This argument does not
entitle petitioner to relief for several reasons. First, respondents to this action have indicated that
an amended petition raising allegations against the father was filed below and proceedings in
regard to his parental rights to J.N. are ongoing, thereby calling into question whether the child
will be placed back into his permanent custody. Further, the record shows that petitioner
admitted to filing for a domestic violence protective order against the father shortly before the
petition’s filing in this matter, thereby undermining her unsupported assertion of a good
relationship with the father. Finally, the fact that the child may be placed back into the father’s
custody has no impact on the circuit court’s finding that continued contact between petitioner
and J.N. would not be in the child’s best interests, given the facts surrounding A.N.’s death and
petitioner’s failure to take any action to protect that child.
       5
        Although the Legislature amended West Virginia Code § 49-4-604 effective June 5,
2020, including renumbering the provisions, the amendments do not impact this case



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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
November 20, 2019, order is hereby affirmed.


                                                                                      Affirmed.

ISSUED: June 25, 2020

CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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