FILED
January 12, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re C.D.-1 and L.L.
No. 21-0459 (McDowell County 19-JA-17 and 19-JA-18)
MEMORANDUM DECISION
Petitioner Mother K.W.-1, by counsel Zachary K. Whitten, appeals the Circuit Court of
McDowell County’s May 5, 2021, order denying her motion for post-termination visitation with
C.D.-1 and L.L.1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel Patrick Morrisey and Brittany Ryers-Hindbaugh, filed a response in support of the circuit
court’s order. The guardians ad litem, Monica Oglesby Holliday and Zoey Vilasuso,2 filed a
response on behalf of the children in support of the circuit court’s order. Respondent Father C.D.-
2, by counsel R. Keith Flinchum, filed a response in support of the circuit court’s order. Finally,
Respondent Maternal Grandmother K.W.-2, by counsel Paige Flanigan, filed a response in support
of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying her
motion for post-termination visitation with the children.
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.
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). Additionally, because one of the children and one of the fathers
share the same initials, we will refer to them as C.D.-1 and C.D.-2, respectively, throughout this
memorandum decision. Lastly, because petitioner and the maternal grandmother share the same
initials, we will refer to them as K.W.-1 and K.W.-2, respectively, throughout this memorandum
decision.
2
Zoey Vilasuso, an eligible law student, was permitted to participate in the filing of the
guardian’s brief pursuant to Rule 10 of the West Virginia Rules for Admission to the Practice of
Law.
1
As this case concerns only the circuit court’s denial of petitioner’s motion for post-
termination visitation, it is unnecessary to set forth a detailed statement of the facts underlying the
proceedings. Instead, it is sufficient to explain, as set forth more fully in her earlier appeal,3 that
petitioner was adjudicated upon her failure to protect the children from L.L.’s father, who severely
injured C.D.-1. According to the evidence, the child’s symptoms were indicative of an abusive
injury. Petitioner was also adjudicated because she and L.L.’s father engaged in domestic violence.
Despite these conditions, petitioner continued to live with L.L.’s father.
Ultimately, the court terminated petitioner’s parental rights to the children based on
evidence of her failure to improve; her refusal to acknowledge any wrongdoing; and her continued
relationship with L.L.’s father. Although petitioner indicated that she ended the relationship one
week prior to the hearing, she was nonetheless pregnant with his child at disposition. Importantly,
petitioner testified at the dispositional hearing that she could not be sure that L.L.’s father injured
C.D.-1 because she required proof, which ignored the fact that the child was in L.L.’s father’s care
at the time of the injuries and the medical evidence establishing that the injuries were
nonaccidental.
Relevant to the current appeal, the court held a permanency review hearing in April of
2021, during which it addressed petitioner’s motion for post-termination visitation with the
children. Based on the evidence, the court found that petitioner still interacted with L.L.’s father
frequently and lived in close proximity to him. Further, when giving birth to her most recent child,
petitioner rode to the hospital with L.L.’s father, permitted him to hold the newborn child, and let
him stay in the hospital with her. The court therefore found that petitioner failed to timely sever
her relationship with L.L.’s father and, in fact, “remains in a de facto relationship” with him.
According to the court, “throughout these proceedings one thing has remained constant:
[petitioner’s] children are second-best to [L.L.’s father] notwithstanding her words to the
contrary.” The court further found that petitioner “to this day has knowingly chosen to do nothing”
in regard to the conditions of abuse and neglect that necessitated the termination of her rights. The
court also found that petitioner “effectively disregarded whatever bond that may have existed
between” her and the children. As such, the court found that it would be “prejudicial, detrimental,
and manifestly harmful to the children if post-termination visitation were granted.” Finding that it
was “duty-bound to protect these innocent [children] from further abuse and neglect,” the court
denied petitioner’s motion for post-termination visitation.4 It is from the order denying post-
termination visitation 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
3
See In re C.D.-1 and L.L., No. 21-0334, 2021 WL 4938168 (W. Va. Oct. 13,
2021)(memorandum decision).
4
The permanency plan for L.L. is adoption in the current foster home. The permanency
plan for C.D.-1 is to remain in the custody of the nonabusing father.
2
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 argues that the circuit court erred in denying her motion for post-
termination visitation. According to petitioner, the court did not take into account the close
emotional bond between her and the children, as evidenced by their interactions during visits
throughout the proceedings. We find no merit to petitioner’s argument. Contrary to petitioner’s
argument, the court made extensive findings about petitioner’s clear inability to put the children’s
safety above her own desire to have continued contact with L.L.’s father, an individual who
seriously injured C.D.-1 through nonaccidental trauma. Petitioner can cite to no evidence in the
record sufficient to overcome the court’s findings that she continues to present an ongoing threat
to the children by virtue of her failure to acknowledge that L.L. intentionally injured C.D.-1. This
fact is determinative of the issue on appeal.
As we have explained,
“[w]hen 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). The evidence clearly
establishes that contact with petitioner would be detrimental to the children, as she continues her
relationship with the individual who intentionally injured C.D.-1 and refuses to acknowledge the
conditions of abuse and neglect that resulted in the termination of her parental rights. Even more
egregiously, petitioner gave birth to another of L.L.’s father’s children, permitted him to remain
in the hospital with her, and then allowed him to hold the child. This reckless conduct clearly
evidences the fact that petitioner represents an ongoing threat to the safety and wellbeing of the
children. As such, we find no error in the circuit court’s denial of petitioner’s request for post-
termination visitation with the children.
3
For the foregoing reasons, we find no error in the decision of the circuit court, and its May
5, 2021, order is hereby affirmed.
Affirmed.
ISSUED: January 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
4