In re H.M., H.G., and R.G.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
January 17, 2020
In re H.M., H.G., and R.G. EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 19-0442 (Wood County 18-JA-84, 18-JA-85, and 18-JA-178)

MEMORANDUM DECISION

Petitioner Mother J.D., by counsel Heather L. Starcher, appeals the Circuit Court of Wood
County’s March 27, 2019, order terminating her parental rights to H.M., H.G., and R.G.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N.
Felton-Ernest, filed a response in support of the circuit court’s order. The guardian ad litem, Ernest
M. Douglas, 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 (1) adjudicating
her on the initial petition as an abusing parent, (2) adjudicating her on the amended petition as an
abusing parent, (3) denying her a post-adjudicatory improvement period, and (4) terminating her
parental rights and failing to consider a less-restrictive disposition.

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 May of 2018, the DHHR filed an abuse and neglect petition in regard to two children:
H.M. and H.G.2 In its petition, the DHHR alleged that petitioner failed to provide adequate food,
clothing, and shelter to the children and physically and emotionally abused H.M. The DHHR also
alleged that petitioner and the two children were living in a camper that was being supplied
electricity via the neighbor’s garage and had no water or toilet. The DHHR further alleged that

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
The DHHR later amended its petition to include petitioner’s child, R.G., who is discussed
in detail below.
1
petitioner kicked H.M. in the head, attempted to suffocate her with a pillow, and called her a whore.
Following the petition’s filing, petitioner waived her preliminary hearing.

In August of 2018, the circuit court held an adjudicatory hearing. The circuit court heard
testimony from the principal at the children’s school, the school nurse, a Child Protective Services
(“CPS”) worker, and petitioner. Additionally, the DHHR admitted into evidence the children’s
forensic interviews and a picture that depicted bruising around H.M.’s right eye. Both the principal
and the school nurse described the children as being in need of clothing and personal hygiene
items, such as toothpaste and deodorant. They further testified that both children presented at
school with dirty clothes, often wearing the same outfit for three consecutive days, and had chronic
problems with head lice. The principal also testified that the children were often without stable
housing. In regard to petitioner’s physical abuse of H.M., the CPS worker testified that he observed
a bruise and abrasion on H.M.’s right eyelid that she disclosed was caused when petitioner kicked
her in the head. The CPS worker further testified that H.M. disclosed to him that petitioner
attempted to suffocate her with her hand and a pillow. Petitioner also testified at the hearing and
denied that her children were without food, clothing, and proper shelter and that she physically
and emotionally abused H.M. Petitioner also testified that she had another child, R.G., whose
father had primary custody of him. Petitioner further testified that she had weekly, supervised visits
with R.G. at his father’s home pursuant to a parenting plan. After hearing the testimony presented,
the circuit court took the matter under advisement in order to watch the children’s forensic
interviews before issuing a ruling.

On September 13, 2018, the circuit court entered an adjudicatory order. Based on the
evidence and testimony presented at the adjudicatory hearing, the circuit court found that petitioner
physically and emotionally abused H.M. and “[H.G.] was a child dwelling in the same residence .
. . when the abuse of [H.M.] occurred.” The circuit court further found that petitioner neglected
both children by “fail[ing] to provide them with adequate clothing, food, shelter, the means of
personal hygiene[,] or a safe, secure environment, which failure was not due primarily to a lack of
financial means.” Accordingly, the circuit court found that petitioner abused and neglected the
children. Thereafter, petitioner filed a motion for a post-adjudicatory improvement period.

In October of 2018, the DHHR filed an amended abuse and neglect petition to include
petitioner’s child, R.G. In November of 2018, the circuit court held an adjudicatory hearing on the
amended petition regarding R.G. The circuit court heard testimony from R.G.’s father, a CPS
worker, and petitioner. R.G.’s father testified that petitioner exercised unsupervised visitation with
the child until October 29, 2018, when the DHHR informed him to stop the visits. He further
testified that the visits included overnights, and at least one overnight visit occurred in petitioner’s
camper where H.M. was physically and emotionally abused. Petitioner contradicted the previous
testimony she gave at the August 2018 adjudicatory hearing and admitted that her visits with R.G.
had been unsupervised. Based on the evidence presented, the circuit court found that petitioner
abused and neglected R.G. because he had, albeit minimally, resided with petitioner in her home
at the same time as his siblings.

In December of 2018, the circuit court held a hearing on petitioner’s motion for a post-
adjudicatory improvement period and a dispositional hearing. The circuit court heard testimony
from petitioner and her witness. Petitioner testified that she abused and neglected her children,

2
H.M. and H.G., by having untreated mental health issues and having inadequate housing.
However, petitioner denied that she physically and emotionally abused H.M. and that her children
went to school hungry and in dirty clothes. Petitioner further testified that she admitted to posting
on social media regarding the case, and she accused H.M. of lying about the abuse. Petitioner also
testified that the school principal lied regarding her children coming to school hungry and in dirty
clothes. Petitioner further admitted to using methamphetamine prior to and during the proceedings.
Petitioner’s witness testified that he believed petitioner would comply with an improvement
period. The witness also testified that he was aware that petitioner used illegal substances and
witnessed her using marijuana in the home while her children were present. After hearing the
testimony presented, the circuit court held its ruling in abeyance and ordered petitioner to be
screened for controlled substances immediately after the hearing and to continue screening at the
Day Report Center.

On March 27, 2019, the circuit court entered a final dispositional order, which also
addressed petitioner’s motion for a post-adjudicatory improvement period. The circuit court made
findings that petitioner denied that she physically abused H.M., that her children were not
adequately fed, and that they went to school in dirty clothing. The circuit court also found that
petitioner admitted to using methamphetamine prior to and during the proceedings. The circuit
court further found that petitioner failed to submit to a drug screen on December 11, 2018, and
tested positive for methamphetamine and THC on December 14, 2018. Based on petitioner’s
failure to acknowledge her abuse and neglect, the circuit court denied her motion for a post-
adjudicatory improvement period. Furthermore, the circuit court found that petitioner was unable
and unwilling to provide for her children’s needs and there was no reasonable likelihood that the
conditions of her neglect and abuse could be substantially corrected in the near future. As such,
the circuit court terminated petitioner’s parental rights.3 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).

3
According to respondents, the permanency plan for H.M. and H.G. is adoption by their
current foster family, pending the family home study. The permanency plan for R.G. is to remain
in the custody of his nonabusing father. The children are seeing each other regularly.
3
Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Upon our review, this Court finds
no error in the proceedings below.

On appeal, petitioner first alleges that the circuit court erred in adjudicating her on the
initial petition based upon insufficient evidence that she abused and neglected her children, H.M.
and H.G. Specifically, petitioner argues that the DHHR presented no direct evidence corroborating
the allegations in the petition or the reports of the children. Petitioner further argues that the
circuit’s court finding of abuse and neglect was clearly erroneous given her testimony that she did
not hit H.M. and both children had plenty of food to eat and clothes to wear.4 We find petitioner’s
arguments to be without merit.

We have previously noted as follows:

“[W. Va. Code § 49-4-601(i)], requires the [DHHR], in a child abuse or
neglect case, to prove ‘conditions existing at the time of the filing of the petition . .
. by clear and convincing proof.’ The statute, however, does not specify any
particular manner or mode of testimony or evidence by which the [DHHR] is
obligated to meet this burden.” Syllabus Point 1, In Interest of S.C., 168 W.Va. 366,
284 S.E.2d 867 (1981).

Syl. Pt. 3, In re F.S., 233 W. Va. 538, 539, 759 S.E.2d 769, 770 (2014). Further, this Court has
explained that “‘clear and convincing’ is the measure or degree of proof that will produce in the
mind of the factfinder a firm belief or conviction as to the allegations sought to be established.”
Id. at 546, 759 S.E.2d at 777 (citing Brown v. Gobble, 196 W. Va. 559, 564, 474 S.E.2d 489, 494
(1996)). However, “the clear and convincing standard is ‘intermediate, being more than a mere
preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as
in criminal cases.’” Id. at 546, 759 S.E.2d at 777 (quoting Cramer v. W. Va. Dep’t of Highways,
180 W. Va. 97, 99 n.1, 375 S.E.2d 568, 570 n.1 (1988)). Pursuant to West Virginia Code § 49-1-
201 (2018), an abused child is one whose health or welfare is harmed or threatened by “[a] parent
. . . who knowingly or intentionally inflicts . . . physical injury . . . upon the child or another child
in the home.” Further, a
“[n]eglected child” means a child . . . [w]hose physical or mental health is harmed
or threatened by a present refusal, failure or inability of the child’s parent, guardian
or custodian to supply the child with necessary food, clothing, shelter, supervision,
medical care or education, when that refusal, failure or inability is not due primarily
to a lack of financial means on the part of the parent, guardian or custodian.

Id. Having reviewed the record, we find that sufficient evidence existed to adjudicate petitioner as
an abusing parent. Contrary to petitioner’s assertion, the DHHR presented evidence that supported
the allegations in the petition when it admitted into evidence a photograph that depicted bruising
around H.M.’s right eye and the forensic interviews of the children, which the circuit court found

4
Petitioner further argues that the circuit court erred in finding she abused and neglected
her children given her witness’s testimony that he had seen the children’s clothes in the cabinets
of the camper and that he and petitioner would fix food for the children. However, this witness
testified at the dispositional hearing, not the adjudicatory hearing.
4
to be credible. Furthermore, the testimony provided by the CPS worker clearly established that
H.M. disclosed that petitioner kicked her in the eye and attempted to suffocate her with a pillow.
Additionally, the testimony that was presented by the school principal and school nurse proved
that the children lacked stable housing, adequate personal hygiene items, food, and clean clothing.
The circuit court found that H.M.’s description of her abuse and neglect was corroborated by this
testimony and by the photograph that depicted bruising around her eye. As such, the record clearly
contains sufficient evidence to adjudicate petitioner as having abused and neglected H.M. and H.G.
under the definitions contained in West Virginia Code § 49-1-201.
Moreover, petitioner’s argument that there was insufficient evidence to adjudicate her as
an abusing parent given her testimony is entirely based upon the circuit court’s assessment of the
credibility of witnesses. We have previously held that “[a] reviewing court cannot assess witness
credibility through a record. The trier of fact is uniquely situated to make such determinations and
this Court is not in a position to, and will not, second guess such determinations.” Michael D.C. v.
Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997) (citations omitted). During the
proceedings below, the circuit court weighed all of the testimony presented and determined that
petitioner’s testimony “was not credible or persuasive.” Accordingly, we decline to reassess the
circuit court’s credibility determinations and find that it properly adjudicated petitioner as an
abusing parent based upon the evidence and testimony presented.
Petitioner next argues that the circuit court erred in adjudicating her on the amended
petition, as there was insufficient evidence in the initial petition to support a finding that she was
an abusing parent. Additionally, petitioner argues that the circuit court erred in finding that the
child, R.G., was “similarly situated” to his siblings because petitioner did not have residential
custody of him. She further argues that this finding was clearly erroneous given R.G.’s father’s
testimony that petitioner never abused or neglected R.G., and he had no issues with her taking care
of him. As explained in detail above, we find that the record in this matter is clear that sufficient
evidence existed to adjudicate petitioner as an abusing parent on the initial petition. To the extent
that petitioner asserts that the circuit court erred in finding that the child, R.G., was similarly
situated to his siblings, we find this argument to be unfounded. As noted above, West Virginia
Code § 49-1-201 defines an abused child as follows:
“Abused child” means . . . [a] child whose health or welfare is being harmed or
threatened by . . . [a] parent, guardian, or custodian who knowingly or intentionally
inflicts, attempts to inflict, or knowingly allows another person to inflict, physical
injury or mental or emotional injury, upon the child or another child in the home.
(Emphasis added). Further, this Court has held that
[w]here there is clear and convincing evidence that a child has suffered
physical . . . abuse while in the custody of his or her parent(s), guardian, or
custodian, another child residing in the home when the abuse took place who is not
a direct victim of the physical . . . abuse but is at risk of being abused is an abused
child under [West Virginia Code § 49-1-201].

Syl. Pt. 2, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995); see also Syl. Pt. 4, State ex
rel. W. Va. Dep’t of Health and Human Res. v. Fox, 218 W. Va. 397, 624 S.E.2d 834 (2005). Here,
the testimony of both petitioner and R.G.’s father clearly established that R.G. resided in

5
petitioner’s home during the time his siblings were abused. While petitioner relies on the fact that
she did not have residential custody of R.G. during this time, the record established that she was
exercising unsupervised visitation with him, including overnight visitation, prior to and throughout
the duration of these proceedings. R.G.’s father testified that petitioner had unsupervised,
overnight visitation with R.G. while his siblings were still in her care. R.G.’s father further testified
that at least one of these visits occurred in the same home where R.G.’s siblings were abused.
Petitioner also admitted in her testimony that these visits took place. Although petitioner asserts
that R.G.’s father testified that she had never abused or neglected R.G., this does not change the
fact that R.G. meets the definition of an abused child under West Virginia Code § 49-1-201. Given
that the testimony clearly established that R.G. had been in the home with petitioner and his
siblings, the circuit court’s finding that R.G. was also an abused child was not erroneous.

Petitioner next argues that the circuit court erred in denying her motion for a post-
adjudicatory improvement period. Petitioner asserts that she was entitled to an improvement period
because she admitted to some allegations in the petition and testified that she would participate in
an improvement period. Petitioner further argues that she was entitled to an improvement period
based on her participation in services. Upon review, we find that petitioner is entitled to no relief.

West Virginia Code § 49-4-610(2)(B) provides that the circuit court may grant a parent a
post-adjudicatory improvement period when the parent “demonstrates, by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period.” “This Court
has explained that ‘an improvement period in the context of abuse and neglect proceedings is
viewed as an opportunity for the . . . parent to modify his/her behavior so as to correct the
conditions of abuse and/or neglect with which he/she has been charged.’” In re Kaitlyn P., 225 W.
Va. 123, 126, 690 S.E.2d 131, 134 (2010) (quoting In re Emily, 208 W. Va. 325, 344, 540 S.E.2d
542, 551 (2000)). However,

[i]n 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 Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215
W. Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Here, the circuit court correctly found that
petitioner “lack[ed] insight into her behaviors and the circumstances of her children.” While
petitioner asserts in her brief that she was actively participating in parenting classes and “learning
a lot,” she fails to mention that she screened positive for methamphetamines and THC after she
testified that she stopped using controlled substances. Similarly, though petitioner testified that she
abused and neglected her children by having untreated mental health issues and inadequate
housing, petitioner adamantly denied physically abusing H.M. and failing to provide her children
with adequate food, clothing, and means of personal hygiene. Specifically, petitioner testified that
H.M. lied in her account of the physical abuse and that the school principal lied regarding her
children coming to school hungry and in dirty clothing. Based on petitioner’s failure to
acknowledge the truth of these basic allegations, we agree with the circuit court that granting her

6
an improvement period would have been futile. Accordingly, we find no error in the circuit court’s
decision to deny petitioner a post-adjudicatory improvement period.

Lastly, petitioner argues that the circuit court erred in terminating her parental rights and
failing to consider a less-restrictive disposition.5 Petitioner argues that termination of her custodial
rights would have been more appropriate given the age of her children and that R.G. was already
in the custody of his father. We find no error in the termination of petitioner’s parental rights, as
opposed to a less-restrictive disposition, given that the circuit court found there was no reasonable
likelihood petitioner could substantially correct the conditions of her neglect and abuse and that
termination was necessary for the children’s welfare, as required by West Virginia Code § 49-4-
604(b)(6) (2019). Pursuant to West Virginia Code § 49-4-604(c), “‘[n]o reasonable likelihood that
conditions of neglect or abuse can be substantially corrected’ means that . . . the abusing adult . . .
[has] demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own
or with help.” Additionally, this Court has held that

“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [West Virginia
Code § 49-4-604] may be employed without the use of intervening less restrictive
alternatives when it is found that there is no reasonable likelihood under [West
Virginia Code § 49-4-604(c)] that conditions of neglect or abuse can be
substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d
114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). As set forth above, petitioner
failed to fully acknowledge the conditions of abuse and neglect, thereby making them untreatable.

5
In support of this assignment of error, petitioner briefly asserts that the circuit court erred
in failing to consider the wishes of H.M. and H.G. to have post-termination visitation with her,
despite them being under the age of fourteen. We note, however, that petitioner has not set forth a
separate assignment of error regarding the consideration of the children’s wishes or post-
termination visitation. Pursuant to Rule 10(c)(3) of the West Virginia Rules of Appellate
Procedure, a petitioner’s brief must contain a “list of the assignments of error that are presented
for review, expressed in terms and circumstances of the case.” Additionally, petitioner fails to cite
any authority on post-termination visitation or consideration of the children’s wishes. Rule
10(c)(7) requires that

[t]he brief must contain an argument exhibiting clearly the points of fact
and law presented, the standard of review applicable, and citing the authorities
relied on, under headings that correspond with the assignments of error. The
argument must contain appropriate and specific citations to the record on appeal,
including citations that pinpoint when and how the issues in the assignments of
error were presented to the lower tribunal. The Court may disregard errors that are
not adequately supported by specific references to the record on appeal.

Accordingly, we decline to address this issue because petitioner’s passing reference to it fails to
comply with the applicable rules regarding appellate briefs.
7
Accordingly, we find no error in the circuit court’s findings that there was no reasonable likelihood
petitioner could substantially correct the conditions of abuse and neglect or that termination was
necessary for the children’s welfare. Based on these findings, termination of petitioner’s parental
rights, as opposed to a less-restrictive dispositional alternative, was appropriate.

For the foregoing reasons, we find no error in the decision of the circuit court, and its March
27, 2019, order is hereby affirmed.

Affirmed.

ISSUED: January 17, 2020

CONCURRED IN BY:

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

8