In re:A.M. and N.M. ( 2020 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2020 Term
_______________ FILED
November 5, 2020
No. 19-0492 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
IN RE A.M. AND N.M.
_____________________________________________
Appeal from the Circuit Court of Wood County
The Honorable J.D. Beane, Judge
Civil Action Nos. 18-JA-53 and 18-JA-54
REVERSED AND REMANDED WITH INSTRUCTIONS
_____________________________________________
Submitted: September 16, 2020
Filed: November 5, 2020
Courtney L. Ahlborn Patrick Morrisey
Parkersburg, West Virginia Attorney General
Guardian ad Litem for the Petitioners, Lee Niezgoda
Minor Children, A.M. and N.M. Assistant Attorney General
Fairmont, West Virginia
Attorneys for the Respondent,
West Virginia Department of Health
and Human Resources
Jeffrey B. Reed F. John Oshoway
Parkersburg, West Virginia Grantsville, West Virginia
Attorney for the Respondent Father, Attorney for the Respondent Mother,
S.M. J.M.
JUSTICE JENKINS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “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.” Syllabus point 1, In re Tiffany Marie S., 196 W. Va. 223,
470 S.E.2d 177 (1996).
2. “‘“‘W. Va. Code, 49-6-2(c) [1980] [now W. Va. Code § 49-4-601(i)
(2015)], requires the State Department of Welfare [now the Department of Health and
Human Resources], in a child abuse or neglect case, to prove “conditions existing at the
time of the filing of the petition . . . by clear and convincing proof.” The statute, however,
does not specify any particular manner or mode of testimony or evidence by which the
State Department of Welfare is obligated to meet this burden.’ Syllabus Point 1, In Interest
of S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981).” Syllabus Point 1, West Virginia
i
Department of Human Services v. Peggy F., 184 W. Va. 60, 399 S.E.2d 460 (1990).’
Syllabus Point 1, In re Beth, 192 W. Va. 656, 453 S.E.2d 639 (1994).” Syllabus point 3,
In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995).
3. “Where there is clear and convincing evidence that a child has suffered
physical and/or sexual abuse while in the custody of his or her parent(s), guardian, or
custodian, another child residing in the home when the abuse took place who is not a direct
victim of the physical and/or sexual abuse but is at risk of being abused is an abused child
under W. Va. Code, 49-1-3(a) (1994) [now W. Va. Code § 49-1-201 (2017)].” Syllabus
point 2, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995).
4. “W. Va. Code, 49-1-3(a) (1984) [now W. Va. Code § 49-1-201 (2017)],
in part, defines an abused child to include one whose parent knowingly allows another
person to commit the abuse.” Syllabus point 3, in part, In re Betty J.W., 179 W. Va. 605,
371 S.E.2d 326 (1988).
ii
Jenkins, Justice:
The Petitioner herein, the Guardian ad Litem (“Guardian”) for the minor
children A.M. 1 and N.M., appeals from an amended 2 adjudicatory order entered May 15,
2019, by the Circuit Court of Wood County in the underlying abuse and neglect case. By
that order, the circuit court determined the Respondent Father, S.M. (“Father”), to be an
abusive and/or neglectful parent as a result of his substantial abuse of alcohol and other
substances and concluded that the Respondent Mother, J.M. (“Mother”), had committed
no abuse and/or neglect of her children. On appeal to this Court, the Guardian contends
that the circuit court erred by failing to also adjudicate Father of sexual abuse of the oldest
child, A.M., and by not finding Mother to be an abusive and/or neglectful parent based
upon her failure to protect the children from such sexual abuse. The West Virginia
Department of Health and Human Resources (“DHHR”), which filed the underlying abuse
and neglect proceeding, joins in the Guardian’s arguments. Upon a review of the parties’
arguments, the briefs, the appendix record, and the relevant law, we conclude that the
circuit court erred by refusing to find both that Father had committed sexual abuse of A.M.
and that Mother was an abusive and/or neglectful parent because she had failed to protect
both of her children from such abuse. Accordingly, we reverse the circuit court’s May 15,
1
In cases such as this in which sensitive facts are involved, we refer to the
parties by their initials rather than by their full names. See, e.g., In re I.M.K., 240 W. Va.
679, 682 n.1, 815 S.E.2d 490, 493 n.1 (2018); In re S.H., 237 W. Va. 626, 628 n.1, 789
S.E.2d 163, 165 n.1 (2016). See also W. Va. R. App. P. 40(e) (restricting use of personal
identifiers in cases involving children).
2
See infra note 5.
1
2019 amended adjudicatory order and remand this case with instructions to conduct further
proceedings consistent with this Opinion, to include the entry of a new 3 amended
adjudicatory order finding that (1) Father sexually abused A.M. and (2) Mother was an
abusive and/or neglectful parent because she failed to protect the children from such abuse.
Additionally, the circuit court also should (1) vacate that portion of its amended
adjudicatory order granting a gradual reunification of the children with Mother and (2)
proceed to disposition to achieve a final resolution of the status of the parents’ rights and
to determine the permanent placement of the subject children.
I.
FACTS AND PROCEDURAL HISTORY
The underlying abuse and neglect case began in March 2018 when A.M.’s
friend, H.L., disclosed to A.M., her teacher, and her school’s resource officer that Father
had placed his hand under her shirt and rubbed her breasts while they were lying on Father’s
bed and watching movies. H.L. frequently spent the night at the home A.M. shared with
her parents, Father and Mother, and her younger sister, N.M. A.M. was not home at the
time of the alleged incident because she had gone to the hospital with Mother for the birth
of A.M.’s older sister’s child. Other individuals who were in the home at the time of the
alleged incident were N.M., A.M.’s younger, grade-school age sister, and the toddler child
As discussed in Section I., infra, the circuit court already has entered an
3
amended adjudicatory order in this case such that our directions on remand require the
entry of a new amended adjudicatory order. See note 5, infra.
2
of A.M.’s pregnant older sister. Both H.L. and A.M. were fifteen years old at the time of
this alleged incident, and while Father has been indicted on criminal charges with respect
to H.L.’s allegations, the criminal case allegedly has been stayed pending the resolution of
this abuse and neglect proceeding, including the instant appeal before this Court.
The DHHR’s initial abuse and neglect petition recounted H.L.’s allegations
as well as H.L.’s comments that, after she disclosed this incident to A.M., A.M. reportedly
told H.L. that Father had “engaged in similar abuse with her,” without further elaboration. 4
The petition further alleged that Mother had obtained a domestic violence protective order
against Father, on behalf of A.M., after H.L.’s revelations, but that she later requested that
it be dismissed. Ultimately, the petition alleged that Father had sexually abused A.M. and
that Mother had failed to protect her from such abuse. The petition also referenced Father’s
extensive use of alcohol and marijuana.
Following forensic interviews of the children, including H.L., the DHHR
amended its petition to include additional details about the alleged incident reported by
H.L. and to allege further that Father had sexually abused A.M. and that Mother had failed
to protect both A.M. and N.M. from such sexual abuse. In support of its allegations of
sexual abuse by Father against A.M., the DHHR recounted several of A.M.’s interview
4
The DHHR named the children of Father and Mother, A.M. and N.M., as
child parties to the abuse and neglect proceeding; however, it did not name H.L. as a child
party.
3
disclosures, including (1) that Father had applied medicine to her chafed breasts when she
was thirteen years old and that this encounter had made her feel uncomfortable; (2) that
Father shaved her legs, that she wore denim shorts to prevent him from shaving any further
up her legs, and that this practice had made her feel uncomfortable; (3) that she had to sit
next to Father, or on his lap, when they attended gatherings at friends’ or families’ homes;
(4) that Father was very strict and would not let her go out with friends, have a boyfriend,
or talk to boys on her cell phone; (5) that Father would enter the bathroom while she was
showering and watch her, however other family members testified that Father entered the
bathroom while A.M. was showering only if she asked him to bring her hygiene items like
shampoo; (6) that if Father fell asleep on her bed, he would put his legs over hers to prevent
her from getting up; (7) that Father watched pornography on his phone; had downloaded
thousands of pornographic images onto his phone, many of which were from incestuous-
themed websites; and tried to show these images to A.M.; and (8) that Father recited an
incestuous-themed poem about her. The amended petition additionally alleged that
Father’s substance abuse impaired his ability to care for the children and that he had
engaged in domestic violence with Mother in front of the children.
By amended 5 adjudicatory order entered May 15, 2019, the circuit court
adjudicated Father as an abusive and neglectful parent as a result of his excessive alcohol
The circuit court entered an amended adjudicatory order because the first
5
adjudicatory order it issued did not make a determination as to whether Mother was an
abusive and/or neglectful parent.
4
(approximately 30 cans of beer per day) and marijuana (every evening) use, but did not
find that Father had sexually abused either H.L., based upon conflicting testimony about
the alleged incident, or A.M. The circuit court additionally dismissed the petition as to
Mother, and ordered that the children be returned to her care, which reunification has been
stayed pending the outcome of this appeal. Additionally, the circuit court has deferred
rendering a final disposition as to Father pending the outcome of this appeal. The
children’s Guardian now appeals to this Court to challenge the circuit court’s rulings that
(1) Father did not sexually abuse A.M. and (2) Mother was not abusive and/or neglectful.
II.
STANDARD OF REVIEW
In abuse and neglect cases such as the one presently before us, we have
established the standard of review by which we consider the correctness of the circuit
court’s order as follows:
[a]lthough 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
5
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 re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). Guided by this
standard, we proceed to consider the parties’ arguments.
III.
DISCUSSION
On appeal to this Court, the children’s Guardian, as well as the DHHR,
contend that the circuit court erred by failing to adjudicate Father of sexual abuse and
failing to adjudicate Mother as an abusive and/or neglectful parent in the first instance.
Upon our review of the record in this case, we agree that the circuit court’s failure to render
such rulings based upon the record evidence before it constitutes reversible error.
When prosecuting an abuse and neglect proceeding, the DHHR is required
to prove the allegations set forth in its petition by clear and convincing evidence:
“‘“W. Va. Code, 49-6-2(c) [1980] [now W. Va. Code
§ 49-4-601(i) (2015)[6]], requires the State Department of
Welfare [now the Department of Health and Human
Resources], in a child abuse or neglect case, to prove
‘conditions existing at the time of the filing of the petition . . .
by clear and convincing proof.’ The statute, however, does not
specify any particular manner or mode of testimony or
evidence by which the State Department of Welfare is
obligated to meet this burden.” Syllabus Point 1, In Interest of
S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981).’ Syllabus Point
6
The version of the subject statutes in effect at the time of the events giving
rise to the underlying abuse and neglect proceeding will be cited in this Opinion.
6
1, West Virginia Department of Human Services v. Peggy F.,
184 W. Va. 60, 399 S.E.2d 460 (1990).” Syllabus Point 1, In
re Beth, 192 W. Va. 656, 453 S.E.2d 639 (1994).
Syl. pt. 3, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995) (footnote added).
Clear and convincing evidence means that more than a mere scintilla of evidence has been
presented to establish the veracity of the allegations of abuse and/or neglect, but it does not
impose as exacting an evidentiary burden as criminal proceedings which generally require
proof beyond a reasonable doubt. See Cramer v. W. Va. Dep’t of Highways, 180 W. Va.
97, 99 n.1, 375 S.E.2d 568, 570 n.1 (1988) (construing clear and convincing evidentiary
standard of proof as “intermediate, being more than a mere preponderance, but not to the
extent of such certainty as is required beyond a reasonable doubt in criminal cases”). See
also In re F.S., 233 W. Va. 538, 546, 759 S.E.2d 769, 777 (2014) (per curiam) (“It is
imperative to note that the evidence in an abuse and neglect case does not have to satisfy
the stringent standard of beyond a reasonable doubt; the evidence must establish abuse by
clear and convincing evidence.”).
In this case, the record evidence reveals that both H.L. and A.M. submitted
to extensive forensic interviews: H.L. was interviewed one time, A.M. participated in two
interviews, and N.M. spoke with the interviewer once. Due to the trauma faced by young
victims of abuse and/or neglect, and the possibility that facing the adults they accuse of
committing such atrocities might exacerbate such trauma, children subject to abuse and
neglect proceedings are permitted to present their description of the alleged abuse and
circumstances in their homes by testimony that may or may not be in the presence of their
7
alleged abusers. See W. Va. R. P. Child Abuse & Neglect Proceeds. 8(a)
(“Notwithstanding any limitation on the ability to testify imposed by this rule, all children
remain competent to testify in any proceeding before the court as determined by the Rules
of Evidence and the Rules of Civil Procedure. However, there shall be a rebuttable
presumption that the potential psychological harm to the child outweighs the necessity of
the child’s testimony and the court shall exclude this testimony if the potential
psychological harm to the child outweighs the necessity of the child’s testimony. Further,
the court may exclude the child’s testimony if (A) the equivalent evidence can be procured
through other reasonable efforts; (B) the child’s testimony is not more probative on the
issue than the other forms of evidence presented; and (C) the general purposes of these
rules and the interest of justice will best be served by the exclusion of the child’s
testimony.”); In re S.F., No. 12-0489, 2012 WL 5205670, at *3 (W. Va. Oct. 22, 2012)
(memorandum decision) (finding “no error in the circuit court’s decision to introduce the
child’s recorded statement during the adjudicatory hearing”). Cf. W. Va. R. P. Child Abuse
& Neglect Proceeds. 8(b) (explaining procedure for taking testimony directly from children
during abuse and neglect proceedings). The alternate procedure to requiring the children’s
direct testimony was followed in the underlying proceedings when the circuit court
admitted the recordings of the children’s forensic interviews into evidence during the
adjudicatory hearings; as a result, none of the children testified to the alleged sexual abuse,
in person, during the adjudicatory hearings held by the circuit court. Despite the
permissibility of this manner of victim testimony in the abuse and neglect context,
however, the circuit court, in evaluating the evidence before it, improperly gave less weight
8
to the testimony of the children who were subjected to sexual abuse by Father and found
their testimony to be less credible merely because Father was not permitted to cross-
examine H.L. and A.M. regarding their specific allegations. In this regard, the circuit court
specifically observed in the findings of fact set forth in its amended adjudicatory order that
“assessment of the credibility of witnesses whose testimony is conflicting becomes difficult
and critical” and that
[t]his assessment is complicated in the present case
where [Mother’s adult daughter] and [Father’s adult son] as
well as the respondent parents testified under oath and were
cross-examined while H[.] L[.] and A[.] M[.] made allegations
of sexual abuse to a sympathetic interviewer, not under oath
and without being subject to cross-examination.
Discounting both the weight and the veracity of the child victims’ testimony for this reason
in an abuse and neglect proceeding that specifically allows the presentation of such
evidence in this manner was clearly an erroneous ruling by the circuit court.
Although we are obligated to defer to a circuit court’s assessment of witness
credibility in most cases, abuse and neglect cases present a unique circumstance given the
Court’s parens patriae duty to protect the children of this State from such harmful conduct.
See Syl. pt. 5, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) (“Though
constitutionally protected, the right of the natural parent to the custody of minor children
is not absolute and it may be limited or terminated by the State, as parens patriae, if the
parent is proved unfit to be entrusted with child care.”). Accordingly, that is why our
usually deferential standard of review of a lower court’s findings of fact yields when we
9
are convinced that the circuit court, in making such evidentiary rulings, has committed a
mistake based upon our review of the record evidence as a whole. See generally Syl. pt.
1, Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177. The evidentiary record presently
before us leaves us with a “definite and firm conviction” that the circuit court erred in its
evaluation of the evidence in this case because there is clear and convincing evidence that
Father engaged in the sexual abuse of which he has been accused. Syl. pt. 1, in part, id.The underlying abuse and neglect case, from which this appeal has been
taken, was filed by the DHHR based upon allegations that Father had sexually abused his
daughter’s friend, H.L., as well as his own daughter, A.M., and that Mother had failed to
protect both A.M. and N.M. from such abuse. Specifically, H.L. recounted that, while she
was alone with Father watching movies on his bed, 7 Father placed his hand inside her shirt
and fondled her breasts. She maintained the same description of the encounter during
numerous retellings of the incident to A.M., a teacher, a school resource officer, and the
forensic interviewer. During her forensic interview, both her demeanor and her extreme
emotion strongly suggest that H.L.’s description of the events that she alleges to have
occurred between Father and herself actually transpired as she claims. See generally State
v. Edward Charles L., 183 W. Va. 641, 650, 398 S.E.2d 123, 132 (1990) (explaining that
cases involving child victims of sexual abuse “generally pit the child’s credibility against
The two younger children who also were in the residence that evening were
7
watching television in a different room.
10
an adult’s credibility and often times an adult family member’s credibility. Since sexual
abuse committed against children is such an aberrant behavior, most people find it easier
to dismiss the child’s testimony as being coached or made up or conclude that any touching
of a child’s private parts by an adult must have been by accident.”).
While Father did not have formal rights regarding H.L. as her parent or
guardian, H.L. was a very frequent visitor in Father’s home such that he was, particularly
on the evening of the incident giving rise to this proceeding when no other adults were
present in the dwelling, acting as her custodian. See W. Va. Code § 49-1-204 (eff. 2015)
(defining “custodian” in context of abuse and neglect proceedings as “a person who has or
shares actual physical possession or care and custody of a child, regardless of whether that
person has been granted custody of the child by any contract or agreement”). The incident
H.L. alleges to have occurred also fits squarely within the statutory definition of sexual
abuse in the provisions governing abuse and neglect proceedings. See W. Va. Code § 49-
1-201 (eff. 2017) 8 (explaining “sexual abuse” as including “sexual contact”) and W. Va.
Code § 61-8b-1(6) (eff. 2007) (describing “sexual contact,” in relevant part, as “any
intentional touching, either directly or through clothing, of the breasts . . . of another
person, . . . where the victim is not married to the actor and the touching is done for the
purpose of gratifying the sexual desire of either party”). Moreover, such a conclusion
See note 6, supra.
8
11
supports, by extension, a finding that the other children residing in the home, specifically
A.M. and N.M., also were abused children:
Where there is clear and convincing evidence that a
child has suffered physical and/or sexual abuse while in the
custody of his or her parent(s), guardian, or custodian, another
child residing in the home when the abuse took place who is
not a direct victim of the physical and/or sexual abuse but is at
risk of being abused is an abused child under W. Va. Code, 49-
1-3(a) (1994) [now W. Va. Code § 49-1-201 (2017)[9]].
Syl. pt. 2, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (footnote added).
Furthermore, the allegations of A.M.’s interactions with Father, over a period
spanning at least two years, also supports a finding that Father sexually abused her. While
many of the encounters detailed by A.M. involve unusual and, in some instances, rather
bizarre behavior by Father, not all of these incidences support a finding that Father engaged
in sexual misconduct as defined by the abuse and neglect statutes’ definition thereof. See
generally W. Va. Code § 49-1-201 (providing descriptions of conduct constituting sexual
abuse, sexual assault, sexual contact, sexual exploitation, sexual intercourse, and sexual
intrusion). Nevertheless, other behavior A.M. alleges Father to have engaged in with her
is extremely more disturbing because the incidents A.M. described entail more intimate,
and inappropriate, touching of A.M., and include sexual overtones and graphic sexual
innuendoes. See id. On balance, our review of both the evidence in the record detailing
A.M.’s allegations, as well as testimony that corroborated several of these incidents and
See supra note 6.
9
12
the appliable law, demonstrate that the DHHR presented clear and convincing evidence
that Father had sexually abused A.M. Cf. In re K.P., 235 W. Va. 221, 230, 772 S.E.2d 914,
923 (2015) (recognizing that “[s]exual abuse may be proven solely with the victim’s
testimony, even if that testimony is uncorroborated” (citation omitted)); Syl. pt. 5, in part,
State v. Beck, 167 W. Va. 830, 286 S.E.2d 234 (1981) (holding, in criminal law context,
that “[a] conviction for any sexual offense may be obtained on the uncorroborated
testimony of the victim, unless such testimony is inherently incredible”). Therefore, the
circuit court erred by failing to find that, in addition to his other behavior demonstrating
his abuse and neglect of his children, Father’s actions also constituted sexual abuse of A.M.
Accordingly, we reverse the circuit court’s contrary ruling and remand this case for further
proceedings consistent with this Opinion, including the entry of a new amended
adjudicatory order finding that Father, in addition to the other parental shortcomings found
by the circuit court, also had sexually abused A.M. Thereafter, the circuit court should
conduct further proceedings to reach a final disposition regarding Father’s rights to his
children.
During the underlying proceedings, the circuit court entered an amended
adjudicatory order because it had failed to render an adjudication as to Mother in its first
adjudicatory order. 10 In its amended order, the circuit court concluded that Mother had
neither abused nor neglected either of her children, A.M. or N.M. However, in light of our
See supra note 5.
10
13
determination that the circuit court erred by failing to find that Father had sexually abused
A.M., we likewise find that the circuit court committed additional error by refusing to
adjudicate Mother as an abusive and/or neglectful parent based upon her failure to protect
A.M., and N.M. who resided in the same household, from such abuse.
To adjudicate a parent of abuse and/or neglect, it is not necessary that the
parent him/herself committed the acts giving rise to such a finding. This is so because
“W. Va. Code, 49-1-3(a) (1984) [now W. Va. Code § 49-1-201 (2017)[11]], in part, defines
an abused child to include one whose parent knowingly allows another person to commit
the abuse.” Syl. pt. 3, in part, In re Betty J.W., 179 W. Va. 605, 371 S.E.2d 326 (1988)
(footnote added). Accord W. Va. Code § 49-1-201 (defining “abused child,” in part, as “a
child whose health or welfare is being harmed or threatened by [a] parent . . . who . . .
knowingly allows another person to inflict physical injury or mental or emotional injury,
upon the child or another child in the home”). Rather, a parent’s knowledge of the abusive
and/or neglectful conduct of another is sufficient upon which to base an adjudication of
abuse and/or neglect. In this regard, we have held that
[t]he term “knowingly” as used in West Virginia Code
§ 49-1-3(a)(1) (1995) [now W. Va. Code § 49-1-201(2017)[12]] does not require that a parent actually be present at
the time the abuse occurs, but rather that the parent was
presented with sufficient facts from which he/she could have
and should have recognized that abuse has occurred.
See note 6, supra.
11
Id.
12
14
Syl. pt. 7, W. Va. Dep’t of Health & Human Res. ex rel. Wright v. Doris S., 197 W. Va.
489, 475 S.E.2d 865 (1996) (footnote added).
Thus, for a child to be determined to be an “abused child,” the
parent charged with such abuse need not commit the abuse
him/herself, so long as he/she knew that the subject abuse was
being perpetrated, even if the alleged abuse occurs outside of
the presence of the parent charged with such abuse.
In re A.L.C.M., 239 W. Va. 382, 392, 801 S.E.2d 260, 270 (2017) (citation omitted).
Likewise, a parent’s failure to acknowledge the existence of abuse and/or
neglect, acquiescence to such conduct, or the failure to intervene or to take measures to
stop abuse and/or neglect that is occurring or to prevent such conduct from occurring in
the future, also can support a finding that the parent is abusive and/or neglectful. In this
regard, we have found that not only an adjudication as an abusive and/or neglectful parent,
but also a full termination of the complicit parent’s parental rights, is warranted by a
parent’s failure to protect his/her child(ren) from conditions of abuse:
Termination of parental rights of a parent of an abused
child is authorized under W. Va. Code, 49-6-1 to 49-6-10 [now
W. Va. Code § 49-4-601 to § 610], as amended, where such
parent contends nonparticipation in the acts giving rise to the
termination petition but there is clear and convincing evidence
that such nonparticipating parent knowingly took no action to
prevent or stop such acts to protect the child. Furthermore,
termination of parental rights of a parent of an abused child is
authorized under W. Va. Code, 49-6-1 to 49-6-10 [now W. Va.
Code § 49-4-601 to § 610], as amended, where such
nonparticipating parent supports the other parent’s version as
to how a child’s injuries occurred, but there is clear and
convincing evidence that such version is inconsistent with the
medical evidence.
15
Syl. pt. 2, Matter of Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991). See also Syl. pt.
2, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002) (“‘Because the purpose of an
abuse and neglect proceeding is remedial, where the parent or guardian fails to respond to
probative evidence offered against him/her during the course of an abuse and neglect
proceeding, a lower court may properly consider that individual’s silence as affirmative
evidence of that individual’s culpability.’ Syl. Pt. 2, West Virginia Dept. of Health and
Human Resources ex rel. Wright v. Doris S., 197 W. Va. 489, 475 S.E.2d 865 (1996).”).
Under the facts of this case, it is apparent that Mother both acquiesced in and
failed to acknowledge that Father was committing acts of sexual abuse against A.M.
During the underlying abuse and neglect proceedings, Father was prohibited from visiting
with the children; nevertheless Mother continued to communicate with Father during this
time and allowed him to visit with the children, at a time he was expressly precluded from
doing so, thus allowing Father access to A.M. to engage in further inappropriate behavior.
Additionally, during the circuit court proceedings, Mother repeatedly maintained that
Father was not committing abusive and/or neglectful acts against the children even though
many of the reported interactions between Father and A.M. were not consistent with a
typical, nonabusive father-daughter relationship. As further evidence of Mother’s failure
to fully acknowledge or appreciate the gravity of A.M.’s allegations of sexual abuse,
16
Mother also delayed scheduling A.M.’s forensic interview for almost a month after H.L.
reported her sexual abuse by Father. 13
Additionally, as argued by both the Guardian and the DHHR on appeal to
this Court, the record evidence supports a finding that, in the face of apparent knowledge
of the sexual abuse in the home, Mother failed to protect her children from such
misconduct. Upon hearing H.L.’s report of her encounter with Father, the school resource
officer advised Mother to obtain a protective order on behalf of A.M. Although she did so,
Mother thereafter decided, of her own volition, to withdraw the protective order even
though A.M. reported still feeling uncomfortable around Father. Such actions further
evince Mother’s refusal to acknowledge the existence of abuse and neglect by Father and
her failure to protect her children from such conditions.
Based upon the record evidence regarding Mother, the DHHR presented
clear and convincing evidence that Mother abused and/or neglected her children by failing
to protect them from Father’s abusive and neglectful conduct and that the circuit court erred
by failing to adjudicate Mother as an abusive and/or neglectful parent. Accordingly, we
additionally reverse the circuit court’s order in this regard and remand this case with
instructions to enter a new amended adjudicatory order finding Mother to be an abusive
It appears from the record that Mother’s mother, i.e. A.M.’s grandmother,
13
passed away shortly after H.L.’s encounter with Father, which partially explains the reason
for Mother’s delay in facilitating the interview.
17
and/or neglectful parent based upon her failure to protect her children from Father’s
abusive and neglectful conduct. In light of this ruling, we further direct the circuit court to
vacate that portion of its amended adjudicatory order that provided for the children to be
gradually reunified with Mother because such reunification is inappropriate given that
Mother has, during the underlying abuse and neglect proceedings, facilitated Father’s
access to the children at a time when he was prevented from having contact with them;
failed to acknowledge her complicity in, or lack of recognition of, Father’s abuse and
neglect of the children; and otherwise has not protected her children from the conditions of
abuse and neglect giving rise to this case. Thereafter, the circuit court also should proceed
to disposition as to Mother’s rights to her children, as well as a determination of the
children’s permanent placement following the court’s determination of the status of both
parents’ rights.
IV.
CONCLUSION
For the foregoing reasons, the May 15, 2019 amended adjudicatory order of
the Circuit Court of Wood County is hereby reversed, and this case is remanded with
instructions to the circuit court to conduct further proceedings consistent with this Opinion,
to include the entry of a new amended adjudicatory order finding that (1) Father sexually
abused A.M. and (2) Mother was an abusive and/or neglectful parent because she failed to
protect the children from such abuse. Additionally, the circuit court also should (1) vacate
that portion of its amended adjudicatory order granting a gradual reunification of the
18
children with Mother and (2) proceed to disposition to achieve a final resolution of the
status of the parents’ rights and to determine the permanent placement of the subject
children. Finally, we direct the Clerk of this Court to issue the mandate contemporaneously
with this Opinion.
Reversed and Remanded with Instructions.
19