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

FILED
November 17, 2022
released at 3:00 p.m.
No. 22-0067, In re E.H., J.S., E.K., and C.K. EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Armstead, Justice, dissenting:
I agree that the circuit court’s December 27, 2021 dispositional order, in and
of itself, is scant at best. However, the circuit court’s findings on the record, when
combined with its orders, provide sufficient support for the circuit court’s determination in
this case. The circuit court heard testimony from several witnesses and, as the majority
outlined:
The circuit court found by clear and convincing
evidence that Petitioner had abused the children based on his
admission to engaging in domestic violence with B.H.
Likewise, the circuit court adjudicated B.H. as an abusing
parent based on her admitted participation in domestic violence
with Petitioner. The court stated that it had reviewed the
transcript of C.K.’s testimony at Petitioner’s trial but had not
reviewed the transcript of C.K.’s forensic interview. The
circuit court deferred ruling on the allegations of sexual abuse
until it could review that transcript. On November 1, 2021, the
circuit court entered an order finding by clear and convincing
evidence that Petitioner had sexually abused C.K.
(Footnote omitted.)
The circuit court’s finding in its November 1, 2021 order that Petitioner had
sexually abused C.K. is clearly the primary basis for its determination at disposition that
Petitioner’s parental, custodial, and guardianship rights should be terminated as to E.H and
J.S due to “aggravated circumstances.” West Virginia Code 49-4-604(c)(7)(A) (eff. 2020)
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states that “aggravated circumstances” include, but are not limited to, “abandonment,
torture, chronic abuse, and sexual abuse[.]” (Emphasis added). 1
Moreover, the circuit court’s findings during the dispositional hearing
provide additional support for the circuit court’s determination. Specifically, the circuit
court found:
Well, I’m going to terminate his parental rights to all the
children. I’m going to amend my earlier finding, and here’s
why: I mean, I think there -- not only the sexual assault but just
the entire gamut of these things. It’s just not, you know, -- it’s
just bad. That’s all I can say.
I believe the child. I know they found him [Petitioner]
not guilty but I thought the child was very creditable. I thought
the interview was very creditable.
In addition, the colloquy at the hearing supports a determination that there is
no reasonable likelihood that the conditions of abuse and neglect can be substantially
corrected, as required by West Virginia Code § 49-4-604(c)(6). Jay Williams, counsel for
the mother of J.S., stated, “if you don’t admit you’ve got a problem, you can’t get treated
for it. That’s a huge risk to other children, and . . . I agree with the State about aggravated
circumstances.” The circuit court agreed, stating, “Mr. Williams is right, I haven’t seen
By statute, “aggravated circumstances” are present, among other occasions,
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when the court finds that a “parent has subjected . . . any . . . child residing in the same
household or under the temporary or permanent custody of the parent to . . . sexual abuse[.]”
W. Va. Code § 49-4-604(c)(7)(A). Such a finding relieves the Department of Health and
Human Resources of any duty “to make reasonable efforts to preserve the family[.]” W.
Va. Code § 49-4-604(c)(7).
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any real attempt to improve on some of these things, so I’m terminating the parental
rights.” (Emphasis added.)
Based upon these findings, made upon the record, the circuit court’s findings
and conclusions within the dispositional order entered in December 2021 stated, in part,
that:
Upon consideration of the matters presented and
argument of counsel, this court FINDS and concludes, in the
best interest of the children that:
A Multi-Disciplinary Treatment Team Meeting is
scheduled for January 3, 2021 at 10:00 a.m.
WHEREFORE, it is hereby ORDERED that:
The Court ORDERS that the parental, custodial, and
guardianship rights of the Respondent [R.H.] be terminated as
those rights relate to the infant children, [E.H.] and [J.S.], due
to aggravated circumstances.
(Emphasis added.)
Admittedly, the dispositional order itself is not a model of clarity as to the
circuit court’s rationale for its findings. It is necessary, in order to truly discern the court’s
rationale, to piece together the various orders and findings on the record during the
dispositional hearing. However, the law does not require a circuit court to state all its
findings of fact and conclusions of law in a written order. The West Virginia Rules of
Procedure for Child Abuse and Neglect Proceedings require a court to “make findings of
fact and conclusions of law, in writing or on the record, as to the appropriate disposition
in accordance with the provisions of W. Va. Code § 49-4-604.” W. Va. R. Proc. Child Ab.
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& Negl. Proc. 36(a) [eff. 2015] (emphasis added). Therefore, we do not review a
dispositional order in isolation.2 See In re J.M., No. 19-0548, 2020 WL 1231713, at *3
(W. Va. Mar. 13, 2020) (memorandum decision) (stating that “the record supports the
circuit court’s finding that there was no reasonable likelihood petitioner could substantially
correct the conditions of neglect, given his untreated alcohol addiction and anger
management issues” (emphasis added)).
I do not wish to condone the admitted dearth of detailed findings contained
in the circuit court’s dispositional order. The statutes, rules and case law governing abuse
and neglect proceedings in West Virginia call for findings indicating that the circuit court
has reviewed the evidence and properly applied the applicable statutory requirements to
such evidence in reaching its determination to terminate a parent’s parental rights. Here,
while the order itself does not provide sufficient findings in this regard, the order, the circuit
court’s prior November 1, 2021 order and its findings on the record, albeit minimal, are
sufficient in my view to support the circuit court’s determination. Therefore, I disagree
with the majority opinion’s conclusion that the circuit court’s dispositional order, as
supplemented by the circuit court’s findings from the bench, should be vacated.
2
See Syl. Pt. 4, in part, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620(2001) (“Where a trial court order terminating parental rights merely declares that there is
no reasonable likelihood that a parent can eliminate the conditions of neglect, without
explicitly stating factual findings in the order or on the record supporting such conclusion,
and fails to state statutory findings required by West Virginia Code § 49–6–5(a)(6) (1998)
(Repl.Vol.2001) on the record or in the order, the order is inadequate.” (emphasis added)).
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Accordingly, I would affirm the circuit court’s termination of Petitioner’s parental,
custodial, and guardianship rights to E.H and J.S.
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