In re E.S., E.C., K.S., and A.S. ( 2022 )

FILED
February 1, 2022
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re E.S., E.C.-1, K.S., and A.S.
No. 21-0275 (Harrison County 18-JA-90-3, 18-JA-91-3, 18-JA-92-3, and 19-JA-26-3)
MEMORANDUM DECISION
Petitioner Mother E.C.-2, by counsel Dreama D. Sinkkanen, appeals the Circuit Court of
Harrison County’s February 10, 2021, order terminating her parental and custodial rights to E.S.,
E.C.-1, K.S., and A.S. 1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Patrick Morrisey and Katherine A. Campbell, filed a response in support
of the circuit court’s order. The guardian ad litem, Julie N. Garvin (“guardian”), 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 terminating her parental and custodial rights to the children rather than
imposing a less-restrictive dispositional alternative.
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 2011, the DHHR filed a child abuse and neglect petition against petitioner and her then
husband alleging that she locked then four-year old E.S. and then two-year old E.C.-1 in their
bedrooms for extended periods of time. After petitioner failed to comply with services, the
DHHR removed the children from her home. Ultimately, the circuit court reunified the children
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, as one of the children and petitioner
share the same initials, we refer to them as E.C.-1 and E.C.-2, respectively, throughout this
memorandum decision.
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with petitioner, and terminated E.S.’s father’s parental rights and E.C.-1’s father’s custodial
rights to those children.
In September of 2018, the DHHR alleged that then eleven-year-old E.S. disclosed to
school personnel that he was afraid to return home because his stepfather, J.S., told him that he
would kill the child “with [the] swords” in their garage if the child was at home when J.S. turned
from work. E.S. further disclosed that he forgot to feed the family cat and, as punishment,
petitioner “put him on a duct-tape square in the basement” and monitored him with security
cameras to ensure he remained in the square. He reported that he was required to be in the duct-
tape square from the time he returned home from school until 8 o’clock in the evening, when he
was sent to bed. This punishment continued for several days. The child reported that J.S. told the
child that he did not deserve to live in the house, that he was not part of the family, and that he
was a bad son. Moreover, the child described the parents striking him with a belt between eight
to thirteen times as a single instance of discipline. Finally, the DHHR alleged that petitioner
tested positive for marijuana while pregnant with newborn K.S. The DHHR asserted that
petitioner refused to stop smoking marijuana, despite the fact that she was breastfeeding K.S.
Petitioner waived her preliminary hearing.
The DHHR filed an amended petition in November of 2018. The DHHR alleged that E.S.
participated in a psychological evaluation, and the evaluator diagnosed the child with post-
traumatic stress disorder (“PTSD”), major depressive disorder, social exclusion or rejection, and
“possible” attention deficit hyperactivity disorder (“ADHD”). During the evaluation, E.S.
disclosed that he was the recipient of significant physical abuse, including J.S. “chok[ing] him
and pick[ing] him up by his neck.” The evaluator noted that E.S. seemed preoccupied with
personal safety and fears of death, as well as physiological and psychological arousal around
knives. Finally, the DHHR alleged that E.C.-1 reported domestic violence between petitioner and
J.S., being physically and emotionally abused by J.S., and observing J.S. abuse E.S. E.C.-1’s
therapist diagnosed the child with PTSD and dissociative symptoms.
Later in November of 2018, the circuit court convened an adjudicatory hearing. Petitioner
stipulated to the allegations in the petition. The circuit court adjudicated petitioner as an abusing
parent upon her stipulation. Thereafter, petitioner was granted a post-adjudicatory improvement
period in December of 2018, which was later extended.
The DHHR filed an amended petition in August of 2019, naming A.S., born in July of
2019, as an infant respondent in the matter. In November of 2019, petitioner moved for a post-
dispositional improvement period, which the circuit court granted.
In August of 2020, the circuit court held a dispositional hearing and heard testimony from
petitioner’s therapist, her service providers, the children’s therapists, and petitioner herself. The
circuit court also heard in camera testimony of E.C.-1 in September of 2020. Following the
conclusion of evidence, the circuit court determined that petitioner continued to minimize the
conduct alleged in the petition and failed to acknowledge the physical and emotional abuse of the
children. Petitioner’s therapist testified that petitioner informed her that she punished E.S. by
making him stay in a duct-taped square on the basement floor for an hour long “time out.” The
court found that petitioner’s statement was contrary to her prior admission that E.S. remained
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within the duct-tape square for lengthy periods of time over several days. Further, petitioner’s
therapist testified that petitioner consistently denied that J.S. threatened to kill E.S., stating that
J.S. would “never say that.” The circuit court found that petitioner did not discuss the very
incident that led to the filing of the [p]etition until August 10, 2020, and petitioner had not
addressed her responsibility in the emotional and physical abuse suffered by the children.
Petitioner also stated during therapy that J.S. was a “stressor” to her children. Yet,
petitioner continued to associate with him, as evidenced by petitioner storing her belongings in
J.S.’s home, showering at his home, and suggesting virtual visitation with the children from his
home. Further, petitioner continued to discuss J.S. with E.C.-1, despite knowing that the child
had “no positive feelings” towards J.S.
During her in camera testimony, then eleven-year-old E.C.-1 confirmed that petitioner
placed E.S. in the duct tape box on the basement floor “for several hours at a time for several
days.” The child recounted that she and E.S. were frequently “smacked” by petitioner and J.S.
and belittled by them. E.C.-1 also reported that she was left in the home alone to supervise the
other children and that the home had insufficient food. The child did not believe that it was safe
for her or her siblings to return to petitioner’s care and stated that she only wanted supervised
contact with petitioner.
The circuit court heard evidence that E.S. was in a residential placement. Then thirteen-
year-old E.S. was reportedly functioning at a seven- or eight-year-old level and had difficulty
regulating his emotions when he felt unsafe or insecure. He “indicated trauma” to his therapist
but was not willing or able to address it yet; he would only say that something happened but
would not describe what occurred. The child’s therapist believed that addressing E.S.’s trauma
could be a lengthy process and recommended that the child complete treatment without
disruption. The circuit court found that E.S. and E.C.-1 had suffered extensive psychological
harm and had progressed “only a little in recovering from their traumas.” The court also found
that returning the children to petitioner’s home “could have a devasting impact on their
emotional and mental health.” The circuit court also concluded that the children did not have a
parent-child bond with petitioner.
Ultimately, the circuit court decided that termination of petitioner’s parental and custodial
rights was the least restrictive disposition. The court found by clear and convincing evidence that
E.S. and E.C.-1 were the victims of physical and emotional abuse, which placed the other
children in the home at risk of abuse. The circuit court determined that petitioner participated in
all services recommended by the DHHR. However, the court further found that “despite being
afforded numerous improvement periods, [petitioner] displayed little insight into the underlying
issues which gave rise to the [p]etitions” and that petitioner’s continued lack of insight placed the
children’s safety and welfare at risk. Therefore, the circuit court found that petitioner had not
made sufficient progress to justify the return of the children because she continued to minimize
the conditions alleged in the petitions. Because petitioner was unwilling or unable to
acknowledge the physical and emotional abuse of the children, the circuit court concluded that
there was no reasonable likelihood that the conditions of neglect or abuse could be substantially
corrected in the near future and that termination of petitioner’s parental and custodial rights was
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in the children’s best interests. Petitioner now appeals the circuit court’s February 10, 2021,
order that terminated her parental and custodial rights. 2
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 erred in terminating her parental and
custodial rights to the children. According to petitioner, she was making progress in services,
only to be substantially hindered by the COVID-19 pandemic. Petitioner asserts that she was
progressing towards unsupervised visitations with the children, but the DHHR required video
visitations once the pandemic began. She further avers that she substantially participated in the
terms of her improvement period as an indicator of progress.
Significantly, petitioner concedes that the circuit court found that she failed to
acknowledge the conditions of abuse and neglect but fails to challenge this finding. This Court
has held that
[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.
2
The circuit court also terminated the parental and custodial rights of J.S. to K.S. and A.S.
The adult respondents divorced during the proceedings, and J.S. no longer exercises any rights
over E.S. or E.C. According to the parties, the permanency plan for E.C., K.S., and A.S. is
adoption in their current foster placement. E.S. remains in his residential treatment, and his
permanency plan is adoption or legal guardianship following the completion of that treatment.
4
In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted). The record
supports the circuit court’s finding that petitioner failed to acknowledge the extent of the abuse
and neglect that she inflicted on the children. The evidence showed that petitioner
misrepresented the conditions of abuse and neglect to her therapist, stating that she used the duct
tape square in the basement as a one hour “time out” for E.S. Further, petitioner denied that J.S.
threatened E.S. Petitioner’s recitation of the conditions is substantially different from E.C.-1’s
testimony that petitioner directed E.S. to remain in the square for several hours over several days.
Furthermore, it appears petitioner did not mention that she and J.S. struck the children “every
day” and consistently belittled them. Upon our review, we find no error in the circuit court’s
finding that petitioner failed to acknowledge the conditions of abuse and neglect, which is fatal
to petitioner’s appeal.
Pursuant to West Virginia Code § 49-4-604(c)(6), a circuit court may terminate a parent’s
parental and custodial rights upon finding that “there is no reasonable likelihood that the
conditions of neglect or abuse can be substantially corrected in the near future” and that
termination is necessary for the welfare of the children. West Virginia Code § 49-4-604(d)
provides that “there is no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected” means that “the abusing adult or adults have demonstrated an inadequate
capacity to solve the problems of abuse or neglect on their own or with help.” This Court has
consistently held that a failure to acknowledge the conditions of abuse and neglect renders those
conditions untreatable. Regardless of petitioner’s participation in services during the
proceedings, this evidence definitively established that there was no reasonable likelihood that
the conditions of neglect and abuse could be substantially corrected in the near future.
Furthermore, the circuit court found that the children needed permanency and consistency
that petitioner could not reasonably provide in the near future. According to their therapists, both
E.C.-1 and E.S. required additional time to recover from the trauma of petitioner’s care. The
circuit court found that reunification with petitioner could be “devastating” to the children’s
mental health, and we find no error in that conclusion. Termination of petitioner’s parental and
custodial rights was necessary for the children’s welfare to provide permanency to the children.
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(d)] . . . 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 there was no reasonable
likelihood that the conditions of neglect or abuse could be substantially corrected in the near
future due to petitioner’s failure to acknowledge the conditions of abuse and neglect, we find no
error in the circuit court’s termination of petitioner’s parental and custodial rights to the children.
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Finally, petitioner briefly argues that the circuit court erred in denying her post-
termination visitation with the children. She argues, without citation to the record, that E.S.
desired to have continued contact with her. This Court has held that
“[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). As noted, petitioner’s
assertion that E.S. requested contact is unsupported. To the contrary, the circuit court denied
post-termination visitation between petitioner and the children “due to the trauma the older
children have suffered, age of the two younger children, and the lack of bond” between them.
Additionally, the circuit court heard evidence that “any recommendation regarding contact
between E.S. and [petitioner] would depend on her progress in treatment.” As noted above,
petitioner failed to address the conditions of abuse and neglect in her treatment and no
improvement was expected. Accordingly, we find no error in the circuit court denying petitioner
post-termination visitation with the children.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 10, 2021, order is hereby affirmed.
Affirmed.
ISSUED: February 1, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
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