2. “'In a contest involving the custody of an infant the welfare of the child
is the polar star by which the discretion of the court will be guided.' Syl. pt. 1, State ex rel.
Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972).” Syllabus Point 4, State ex rel.
David Allen B. v. Sommerville, 194 W. Va. 86, 459 S.E.2d 363 (1995).
Per Curiam:
This case is before this Court upon appeal of a September 24, 2009, order of
the Circuit Court of Raleigh County which granted a six-month post-adjudicatory
improvement period to the appellees and respondents below, Samantha and Christopher C. (See footnote 1) In this appeal, the appellant and petitioner below, the West Virginia Department of Health
and Human Resources (hereinafter “DHHR”), contends that the circuit court erred by
granting the improvement period because neither parent has identified who abused their son,
Ryan C., nor even admitted that he was abused, despite uncontroverted medical evidence to
the contrary.
This Court has before it the petition for appeal and the entire record. (See footnote 2) For the
reasons set forth below, the order of the circuit court is reversed, and this case is remanded
to the circuit court with directions to terminate the post-adjudicatory improvement period and
hold a disposition hearing immediately.
This Court has explained that “[f]or appeals resulting from abuse and neglect proceedings, such as the case sub judice, we employ a compound standard of review: conclusions of law are subject to a de novo review, while findings of fact are weighed against a clearly erroneous standard.” In re Emily, 208 W. Va. 325, 332, 540 S.E.2d 542, 549 (2000). In addition, this Court has 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.
Syllabus Point 1, In the Interest of: Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).
With these standards in mind, the issue presented in this case will be considered.
The DHHR contends that the circuit court erred in granting Samantha and Christopher C. a post-adjudicatory improvement period because they failed to present evidence that they were likely to fully participate in the improvement period as required by W.Va. Code § 49-6-12 (1996) (Repl. Vol. 2009). The statute provides that a six-month post- adjudicatory improvement period may be granted when:
The respondent demonstrates, by clear and convincing evidence, that the respondent is likely to fully participate in the improvement period and the court further makes a finding, on the record, of the terms of the improvement period[.]
W.Va. Code § 49-6-12(b)(2). The DHHR argues that Samantha and Christopher C. did not
satisfy this requirement because they have not identified who abused Ryan C., nor even
admitted that he was abused. In other words, the DHHR reasons that Samantha and
Christopher C. could not fully participate in an improvement period when they have not even
acknowledged that abuse occurred, despite uncontroverted medical evidence to the contrary. (See footnote 5) We agree.
This Court has explained that “an improvement period in the context of abuse
and neglect proceedings is viewed as an opportunity for the miscreant parent to modify
his/her behavior so as to correct the conditions of abuse and/or neglect with which he/she has
been charged.” In re Emily, supra, 208 W. Va. at 334, 540 S.E.2d at 551. Therefore,
in 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.
West Virginia Dept. of Health and Human Resources v. Doris S., 197 W. Va. 489, 498, 475
S.E.2d 865, 874 (1996).
As discussed, neither parent in this case has acknowledged that Ryan C. was
abused. Yet, it is undisputed that Ryan C. was in the care and custody of Samantha and
Christopher C. when his leg was broken. According to Samantha C., she and Christopher
C. were in the kitchen cooking dinner when she heard Ryan scream. She has stated that she
went into the living room and discovered two-year-old Christopher, Jr., on top of Ryan. She
claims that Ryan seemed fine and that she then took the kids to pick apples and Ryan was
walking around and playing. After they were back home, Ryan starting screaming again.
She told her husband that she thought his leg was broken and called her grandmother to come
and take them to the hospital.
During the adjudicatory hearing, David Ede, M.D., Ryan's treating orthopedic
surgeon, testified in response to questions from the attorney for the DHHR as follows:
Q: And what type of an injury would cause a spiral
fracture of a femur of a child of this age?
A: Anybody of any age sustaining a spiral fracture would
be from a twisting of the bone.
. . . .
Q: Well, what I'm saying is that there was a description
given that this two-year-old fell on this child's leg and
thereafter, this child walked out and picked apples for a period
of time and came in. If he had had [sic] the spiral fracture from
that, would that child have been able to walk?
A: No. That's inconsistent with the pattern of fracture.
. . . .
Q: Okay. Doctor, do you have an opinion as to whether
or not _ if the description of how this injury occurred was a
child _ another child fell on top of his leg or he fell from a
couch, do you have an opinion as to whether or not those
descriptions would be consistent with the type of fracture that
this child sustained?
A: In my opinion it is inconsistent.
Q: And do you have an opinion based upon the
information that you have been provided as to whether or not
this would likely be the result of child abuse?
A: Child abuse occurs when a child is harmed as a result
of an action taken on that child. What we have is a patient who
has an injury that's consistent with child abuse because spiral
fractures in children are automatically _ almost automatically
considered to be child abuse in and of themselves.
I did not have an opportunity to interview the biological
mother or anyone that was there at that time. Based on what I
see and the history that seems inconsistent, this is almost a
classic example of child abuse.
. . . .
Q: And a two-year-old child would not be strong enough
to have caused this type of fracture of this child's leg?
A: No, not by themselves.
Based on all the above, this Court finds that the circuit court erred when it
granted Samantha and Christopher C. a post-adjudicatory improvement period under these
circumstances. “Although parents have substantial rights that must be protected, the primary
goal in cases involving abuse and neglect, as in all family law matters, must be the health and
welfare of the children.' Syllabus Point 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 59
(1996).” Syllabus Point 1, In re: Tonjia M., 212 W. Va. 443, 573 S.E.2d 354 (2002). In
other words, “'[i]n a contest involving the custody of an infant the welfare of the child is the
polar star by which the discretion of the court will be guided.' Syl. pt. 1, State ex rel. Cash
v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972).” Syllabus Point 4, State ex rel. David
Allen B. v. Sommerville, 194 W. Va. 86, 459 S.E.2d 363 (1995). In this case, the granting
of a post-adjudicatory improvement period to Samantha and Christopher C. was not in the
best interests of Ryan C. and his siblings. Ryan C. was clearly abused and his siblings were
certainly at risk of being abused. (See footnote 6) Absent the parents' acknowledgment of the abuse, the
requirement for granting a post-adjudicatory improvement period as set forth in W.Va. Code
§ 49-6-12(b)(2) was not satisfied. (See footnote 7)
Parental rights may be terminated where there is clear
and convincing evidence that the infant child has suffered
extensive physical abuse while in the custody of his or her
parents, and there is no reasonable likelihood that the conditions
of abuse can be substantially corrected because the perpetrator
of the abuse has not been identified and the parents, even in the
face of knowledge of the abuse, have taken no action to identify
the abuser.
The mandate of this Court shall issue contemporaneously herewith.
Reversed and remanded with directions.