In Re: B.H. ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: B.H. May 22, 2017
RORY L. PERRY II, CLERK
No. 16-1214 (Mercer County 16-JA-123-MW) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother E.B., by counsel John G. Byrd, appeals the Circuit Court of Mercer
County’s September 29, 2016, order terminating her parental, custodial, and guardianship rights
to thirteen-year-old B.H.1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel S.L. Evans, filed its response in support of the circuit court’s order. The
guardian ad litem (“guardian”), Patricia Kinder Beaver, filed a response on behalf of the child
also in support of the circuit court’s order.2 On appeal, petitioner alleges that the circuit court
erred in denying her motion to extend his post-dispositional improvement period and in allowing
the DHHR to fail to timely file a family case plan.
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 2015, G.H., B.H.’s biological dad, filed a domestic violence petition on behalf of B.H.
against petitioner mother alleging that petitioner forced her to sit in a chair and asked her to close
her eyes. When B.H. opened her eyes, petitioner was pointing a gun at B.H.’s head. Petitioner
also told B.H. that if she told anyone about the incident that she would “make sure she was
sorry.” The Family Court of Mercer County granted B.H. a 180-day domestic violence protective
order against petitioner and granted custody of B.H. to G.H. Based on these allegations, the case
was referred to Child Protective Services (“CPS”) for further investigation.
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
B.H.’s non-offending father G.H., by counsel William O. Huffman, filed a response
“joining in and concurring” with the guardian’s brief.
1
The following year, DHHR filed an abuse and neglect petition against petitioner based in
part, on the allegations that petitioner held a gun to B.H.’s head. The petition also alleged that
petitioner abused B.H. when she acquired a pitbull despite the fact that she knew that B.H. was
“terrified” of dogs. Petitioner admitted that she purchased the pitbull to “help [B.H.] overcome
her fears.”
In August of 2016, the circuit court held an adjudicatory hearing during which petitioner
and a DHHR worker testified. According to the DHHR worker, petitioner tied B.H.’s hands
together, made her close her eyes, and when B.H. opened her eyes, petitioner had a gun pointed
at B.H.’s forehead. The worker also testified that petitioner knew about B.H.’s extreme phobia of
dogs, but acquired a pitbull. Finally, the worker testified that while B.H. did not want to visit
with petitioner because of the pitbull, petitioner refused to remove the pitbull from her residence.
Petitioner admitted that she knew about B.H.’s fear of dogs, but purchased a pitbull to help B.H.
overcome her fears. Petitioner also testified that she still owns the pitbull. After considering the
testimony, the circuit court adjudicated petitioner as an abusing parent by order entered on
August 25, 2016.
During the dispositional hearing, the circuit court heard testimony that petitioner refused
to cooperate with the DHHR to address the issues of abuse and neglect. According to the CPS
worker, petitioner refused to participate in the development of a family case plan, to submit to a
psychological evaluation, or to participate in parenting and adult life skills classes because she
did not want to admit that she held a gun to B.H.’s head. While petitioner did participate in at
least one supervised visitation, the CPS worker testified that petitioner failed to show any bond
with B.H. After considering the parties’ arguments and B.H.’s best interests, the circuit court
terminated petitioner’s parental rights by order entered on September 29, 2016.3 This appeal
followed.
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 the guardian, as of the filing of her response briefs, B.H. was placed in
permanent care of her non-offending father with a permanency plan of remaining in his care.
2
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 failing to properly consider the
wishes of B.H. before terminating petitioner’s parental, custodial, and guardianship rights. We
have stated that
“[w]here it appears from the record that the process established by the
Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes
for the disposition of cases involving children [alleged] to be abused or neglected
has been substantially disregarded or frustrated, the resulting order . . . will be
vacated and the case remanded for compliance with that process and entry of an
appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
558 S.E.2d 620 (2001).
Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009).
While petitioner is correct that circuit courts should consider the wishes of a child of
appropriate age before terminating a parent’s parental rights, the Court does not find reversible
error on that issue under the specific limited circumstances of this case. Pursuant to West
Virginia Code § 49-4-604(b)(6)(C), when reaching disposition, a circuit court “shall give
consideration to the wishes of a child fourteen years of age or older or otherwise of an age of
discretion as determined by the court regarding the permanent termination of parental rights.”
The record on appeal in this case is undisputed that B.H. was not yet fourteen years old at the
time of the dispositional hearing. Furthermore, petitioner does not argue that B.H. was of an
appropriate age of discretion. Although the circuit court did not hear from B.H., it did hear
testimony that B.H. did not want to visit with petitioner because she was “terrified” of the pitbull
at petitioner’s residence. Similarly, petitioner refused to remove the pitbull from her home. The
circuit court also heard testimony that petitioner failed to show any bond with B.H. during her
supervised visitation. As such, we cannot find that the Rules of Procedure for Child Abuse and
Neglect Proceedings or the related statutes have been substantially disregarded or frustrated such
that vacation is required. Therefore, we find no reversible error in this regard.
Moreover, West Virginia Code § 49-4-604(a)(6) provides that circuit courts are directed
to terminate parental 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 children’s welfare.” West Virginia Code § 49-4-604(c)(2)
provides that no reasonable likelihood that the conditions of abuse or neglect can be substantially
corrected exists when “[t]he abusing parent . . . ha[s] willfully refused or [is] presently unwilling
to cooperate in the development of a reasonable family case plan[.]” It is undisputed that
petitioner refused to participate in the development of a family case plan, submit to a
psychological evaluation, or participate in parenting and adult life skills classes because she did
not want to admit that she held a gun to B.H.’s head. Given these facts, we find no error in the
circuit court’s ruling that there was “no reasonable likelihood that the conditions of neglect or
abuse can be substantially corrected in the near future.” As such, we find no error.
3
For the foregoing reasons, we find no error in the circuit court’s September 29, 2016,
order, and we hereby affirm the same.
Affirmed.
ISSUED: May 22, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
4