In re O.G. and J.C. ( 2022 )

FILED
January 12, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re O.G. and J.C.
No. 21-0357 (Randolph County 17-JA-080 and 17-JA-082)
MEMORANDUM DECISION
Petitioner Grandmother A.W., by counsel Gregory R. Tingler, appeals the Circuit Court of
Randolph County’s April 5, 2021, order denying her motion for permanent placement of O.G. and
J.C. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Patrick Morrisey and Lee Niezgoda, filed a response in support of the circuit court’s order. The
guardian ad litem, Brian W. Bailey, filed a response on the children’s behalf in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying her motion
for permanent placement of the children and in failing to consider O.G.’s wishes when determining
permanent placement.
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 October of 2017, the DHHR filed an abuse and neglect petition against the respective
fathers of O.G. and J.C. and the biological mother of O.G., J.C., and K.W., alleging abuse and
neglect. 2 As a result of those proceedings, the mother of all three children voluntarily relinquished
her parental rights in December of 2017. In January of 2018, the circuit court held a hearing, during
which it accepted the voluntary relinquishment of J.C.’s father’s parental rights and terminated the
parental rights of O.G.’s father. At the hearing, the nonabusing father of K.W. consented to a
transfer of guardianship to petitioner.
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
K.W. is not at issue in this appeal.
1
Upon removal from their parents, the children were placed with petitioner in October of
2017. Following the termination of the parents’ parental rights, the permanency plan for O.G. and
J.C. became adoption by petitioner. The circuit court conducted several placement review hearings
over the subsequent three years, including in May, August, and November of 2018; and February,
June, August, and December of 2019. Throughout this period, the DHHR, Child Protective
Services (“CPS”) workers, and service providers conducted regular home visits with petitioner to
monitor the cleanliness and safety of petitioner’s home, as issues with these conditions were
identified early in the proceedings. The DHHR presented evidence at the December of 2019 review
hearing that petitioner would allow the condition of the home to deteriorate, then make
improvements after being warned that the children’s placement with her was in jeopardy. After
making the improvements, petitioner would again allow the home’s condition to deteriorate.
In January of 2020, the DHHR filed an abuse and neglect petition against petitioner,
alleging that fifteen-year-old O.G. had been sexually abused by a family member and informed
petitioner of the abuse but that petitioner failed to take appropriate action against the family
member. According to the petition, O.G.’s therapist reported that O.G. disclosed to her that the
child’s uncle had sexually abused her multiple times and that she had told petitioner about the
abuse. Based upon O.G.’s disclosures during therapy, the child was interviewed at the local Child
Advocacy Center (“CAC”) during which she provided more details concerning the sexual abuse.
During the interview, O.G. disclosed that she first told petitioner about the abuse when she was
six years old, but petitioner did not believe her. She further stated that when she was ten years old,
she told petitioner that the abuse was continuing, and she thought petitioner believed her at that
time. However, the DHHR alleged that petitioner did not report the abuse to anyone outside of the
family. According to the petition, petitioner claimed that O.G. only disclosed the sexual abuse to
her on one occasion—in a letter when she was ten years old. Petitioner claimed that she informed
the child’s mother about the alleged abuse but that the mother told her not to believe the child
because O.G. was a “drama queen.” The DHHR alleged that in response to the child’s disclosures,
petitioner confronted the child’s uncle, the alleged perpetrator, but took no further action. The
DHHR further alleged that petitioner allowed the child’s uncle to have continued contact with
O.G., even consenting to overnight visits in his home.
The circuit court held a preliminary hearing in February of 2020, during which the court
granted petitioner supervised visitation with O.G. and K.W. but ruled that petitioner could not have
any visits with then two-year-old J.C. until the guardian advised that such visits would be
consistent with her best interests. 3 The court also ordered petitioner to participate in a parental
fitness evaluation.
The parental fitness evaluation was conducted in March of 2020, and the resulting report
indicated that petitioner exercised “poor judgment by not reporting allegations of sexual
misconduct by her brother-in-law toward her granddaughter [O.G.].” According to the report,
petitioner’s poor judgment was not based upon a psychological condition, but rather, stemmed
from petitioner’s feeling that threats she made to the child’s uncle were sufficient to deal with the
3
Petitioner acknowledges that she has not seen or visited with J.C. since her removal in
January of 2020, as the guardian never consented to visits with the child.
2
allegations of sexual abuse. The report further indicated that petitioner had the “parental capacity
to care, protect and change in order to provide adequately for [the] children.”
In December of 2020, the circuit court dismissed the abuse and neglect petition against
petitioner after she relinquished guardianship of K.W. to the custody of her nonabusing father. At
the time of the dismissal, the court had not adjudicated petitioner as to the petition. After dismissing
the petition, the court found that the sole remaining issue in the proceedings was the permanent
placement of O.G. and J.C.
The circuit court held a permanent placement hearing in March of 2021, during which
petitioner presented evidence that O.G. had sent three letters, between June of 2020 and February
of 2021, to the court in which she requested that she return to petitioner’s custody. Next, in
response to the allegations, petitioner admitted that when O.G. was ten years old, she wrote a letter
to petitioner disclosing that her uncle had repeatedly “tried” to sexually abuse her since she was
six years old. Petitioner testified that she still possessed the letter in which O.G. made the
disclosures of abuse. Under questioning, petitioner admitted that the only action she took following
the disclosure was to confront the uncle and threaten him as a means of preventing him from
sexually abusing O.G. in the future. Specifically, petitioner testified that she threatened the uncle
with “bodily injury if [she] found out he had done it.” In defense of her failure to report the sexual
abuse, petitioner explained that “there is a difference between trying and doing.”
Next, the DHHR presented evidence that concerns about the cleanliness and the state of
petitioner’s home were constant issues throughout the proceedings, despite several interventions
by CPS workers. A CPS worker testified that at the beginning of the proceedings, there was
extreme clutter in the home, and she worried that the clutter prevented infant J.C. from having a
place to play or lay down. The CPS worker admitted that the issues were discussed with petitioner,
she was receptive to instruction, and the conditions were improved. Another CPS worker testified
that she visited the home on multiple occasions in 2019 and had similar concerns about the
condition of the home.
Further, the DHHR presented evidence that petitioner took no action to protect O.G.
following the child’s disclosures of sexual abuse and allowed the child’s uncle to have further
access to the child. The DHHR also demonstrated that although O.G. was attending therapy,
petitioner failed to provide the child with the emotional support and therapy tailored to her status
as a victim of sexual abuse. Finally, the DHHR presented evidence that petitioner failed to initiate
services to assist in J.C.’s development while the child was in her care.
After hearing the evidence, the circuit court cited to the conditions of petitioner’s home
and found that “there have been repeated historical concerns about the condition of the home from
a cleanliness and clutter perspective.” The court found that while “there were some minimal
improvements for short periods of time when [petitioner was] prompted by the [DHHR], the
conditions would then deteriorate again.” The court further found that after petitioner learned of
the sexual abuse allegations against O.G., she “took no action to protect [O.G.] from further contact
with [the uncle],” including a lack of therapy and counseling. The court further found that then
two-year-old J.C. was suffering from developmental delays at the time of her removal and was
deficient in every milestone. However, the court found that J.C. had begun to thrive in her new
3
foster placement and was being provided with recommended services. As a result, the court found
that the best interests of O.G. were served by remaining in her foster care placement, with a plan
for legal guardianship by the caregiver that included continued visitation with petitioner. The court
further found that it was in the best interest of J.C. to remain in the care of her foster family, who
intended to adopt her. The circuit court memorialized its decision in its April 5, 2021, order.
Petitioner now appeals this decision. 4
The Court has previously held:
“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 argues that the circuit court’s findings were clearly erroneous in light
of the record viewed in its entirety and that it was in the children’s best interests to be placed in
her care. Petitioner emphasizes that “she was initially found to be a suitable person for the
permanent placement of [the] children in October of 2018” and “the adoption process was well
underway when the children were removed in January of 2020.” Petitioner also asserts that the
abuse and neglect petition against her was dismissed in December of 2020 and that she was never
adjudicated as an abusing guardian. Finally, petitioner asserts that the DHHR’s evidence about the
condition of her home, failure to protect O.G. from abuse, and best interests of J.C. were
insufficient to deny her custody of the children. Upon our review, we find no error in the circuit
court’s denial of petitioner’s motion for permanent placement of the children.
4
The record below indicates that permanency for these children remained unresolved for
over three years in these proceedings. This Court has often stressed the necessity for rapid finality
in abuse and neglect proceedings. Thus, we remind both the circuit court and the parties that
“[c]hild abuse and neglect cases must be recognized as being among the highest priority for the
courts’ attention. Unjustified procedural delays wreak havoc on a child’s development, stability
and security.” Syl. Pt. 1, in part, In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365(1991). We have also recognized “matters involving the abuse and neglect of children shall take
precedence over almost every other matter with which a court deals on a daily basis, and it clearly
reflects the goal that such proceedings must be resolved as expeditiously as possible.” Syl. Pt. 5,
in part, Carlita B.
4
West Virginia law sets forth a preference for adoption of a child by their grandparents if
possible. See W. Va. Code § 49-4-114(a)(3). 5 “[West Virginia Code § 49-4-114(a)(3)]
contemplates that placement with grandparents is presumptively in the best interests of the child,
and the preference for grandparent placement may be overcome only where the record reviewed
in its entirety establishes that such placement is not in the best interests of the child.” Syl. Pt. 7, in
part, In re P.F., 243 W. Va. 569, 848 S.E.2d 826 (2020) (internal citation omitted). We have
reiterated that the “grandparent preference” is not absolute and that placement must be in “the best
interests of the child, given all circumstances of the case.” Id. at 570, 848 S.E.2d at 827, Syl. Pt.
8, in part.
Here, we find no error in the circuit court’s conclusion that permanent placement with
petitioner was not in the children’s best interest. First, petitioner takes issue with the circuit court’s
findings that the conditions of her home were used as a basis to deny her placement of the children.
Petitioner notes that the court conducted seven placement reviews throughout 2018 and 2019 and
continuously found it was in the best interests of the children to live with her. However, petitioner
acknowledges that the DHHR presented four witnesses during the permanent placement hearing
in March of 2021 who testified as to the concerning conditions inside petitioner’s home. Each
witness testified that they addressed concerns with petitioner, including extreme clutter and a lack
of suitable sleeping locations for the children. The DHHR further demonstrated that each of the
workers addressed their concerns with petitioner but—despite some short-term improvements in
the condition of the home—petitioner regressed and failed to maintain a suitable home over a
lengthy period of time. As such, although it was not the primary cause for denying petitioner
permanent placement of the children, there was clear and convincing evidence that petitioner’s
home was regularly unsafe and unclean.
Next, petitioner acknowledges that she was denied permanent placement of the children
due to her failure to protect them from risk of sexual abuse. However, petitioner argues that
testimony and evidence during the permanent placement hearing did not support the circuit court’s
ultimate findings. Specifically, petitioner argues that the child’s uncle—who was alleged to have
committed sexual abuse against O.G.—had not been arrested and that there was no pending CPS
investigation into those allegations. We do not find these arguments persuasive. We have
previously noted that the standard of proof at various stages of abuse and neglect proceedings is
the clear and convincing evidentiary burden. See Syl. Pt. 1, In re Joseph A., 199 W. Va. 438, 485
5
For purposes of any placement of a child for adoption by the department, the
department shall first consider the suitability and willingness of any known
grandparent or grandparents to adopt the child. Once grandparents who are
interested in adopting the child have been identified, the department shall conduct
a home study evaluation, including home visits and individual interviews by a
licensed social worker. If the department determines, based on the home study
evaluation, that the grandparents would be suitable adoptive parents, it shall assure
that the grandparents are offered the placement of the child prior to the
consideration of any other prospective adoptive parents.
W. Va. Code § 49-4-114(a)(3).
5
S.E.2d 176 (1997) (requiring the DHHR to establish conditions of abuse and neglect by clear and
convincing evidence in order to satisfy the burden of proof at adjudication); State v. C.N.S., 173
W. Va. 651, 656, 319 S.E.2d 775, 780 (1984) (requiring clear and convincing evidence to support
termination of a parent’s rights at disposition). Here, the DHHR’s evidence of petitioner’s failure
to protect O.G. from the threat of sexual abuse was sufficient to satisfy this burden. O.G. stated in
her CAC interview that petitioner was aware of sexual abuse that was perpetrated upon her as a
child and that petitioner failed to take action when she was just six years old. Further, O.G.
explained in her CAC interview that she again told petitioner about the sexual abuse when she was
ten years old. Based upon O.G.’s disclosures, the circuit court found that petitioner had allowed
the child’s uncle to sexually abuse O.G. as a minor. We agree that the evidence supports this
finding under the applicable evidentiary standard.
In further support of her argument, petitioner points out that the parental fitness evaluation
report documented her “parental capacity to care, protect and change in order to provide adequately
for [the] children.” While we acknowledge this conclusion, the evidence that petitioner failed to
protect O.G. from sexual abuse as a child is nonetheless extremely troubling and sufficient to
overcome this speculative assessment. Further, petitioner’s explanations for her past actions—
including her threats against the child’s uncle—demonstrate her inability to appropriately respond
to the child’s disclosures. The circuit court was concerned that petitioner did not have the capacity
to protect the children based upon her inability to protect O.G. from sexual abuse while O.G. was
a minor in petitioner’s care. Although petitioner assured the circuit court that she would protect
the children, the evidence showed that she had already failed in the past to protect minors in her
care from sexual abuse. Ultimately, the circuit court properly weighed this evidence, giving more
weight to O.G.’s earlier testimony in its findings of fact, which is a credibility determination we
will not undermine. See Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538
(1997) (“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.”).
Finally, petitioner argues that the circuit court erred in failing to give due consideration to
O.G.’s request for permanent placement with petitioner. Petitioner states that O.G. was sixteen
years old at the time of the permanency hearing and had expressly advised the court of her
preferred guardian. Petitioner contends that O.G. “repeatedly begged” the circuit court for
permission to live in petitioner’s home, but those “requests went unheeded.” As such, petitioner
alleges that the lower court violated West Virginia Code § 44-10-4(a), which provides:
If the minor is above the age of fourteen years, he or she may in the presence
of the circuit or family court, or in writing acknowledged before any officer
authorized to take the acknowledgment of a deed, nominate his or her own
guardian, who, if approved by the court, shall be appointed accordingly.
While petitioner is correct that O.G. requested placement with her, the circuit court
specifically found that permanent placement with petitioner would not be in the children’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.”). Further, we have held
6
that “while a child over the age of fourteen may have an absolute right to nominate his or her own
guardian, a court is not bound to appoint such guardian.” In re: Antonio R.A., 228 W. Va. 380,
386-87, 719 S.E.2d 850, 856-57 (2011) (citation omitted); see also Kathryn C. v. Mark C., No. 12-
1542, 2013 WL 5676636 (W. Va. Oct. 18, 2013)(memorandum decision). Indeed, the disturbing
facts surrounding the many findings of sexual abuse committed against O.G., including petitioner’s
knowledge of some of these incidents, support the permanent placement of the children outside
petitioner’s custody. Based on the circuit court’s extensive findings regarding petitioner’s inability
to protect the children from repeated acts of sexual abuse, we find no error in the circuit court’s
denial of her motion for permanent placement of the children.
For the foregoing reasons, we find no error in the decision of the circuit court, and its April
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
7