In Re Beth

453 S.E.2d 639, 192 W. Va. 656, 1994 W. Va. LEXIS 250
CourtWest Virginia Supreme Court
DecidedDecember 15, 1994
Docket21908
StatusPublished
Cited by28 cases

This text of 453 S.E.2d 639 (In Re Beth) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Beth, 453 S.E.2d 639, 192 W. Va. 656, 1994 W. Va. LEXIS 250 (W. Va. 1994).

Opinions

PER CURIAM:

The West Virginia Department of Health and Human Resources (Department), the petitioner below and appellant, appeals a final order entered August 2, 1993, by the Circuit Court of Wood County. The circuit court dismissed the Department’s petition which alleged that Elizabeth Jo “Beth,” Debra Kay [658]*658“Debbie,” and Robert Lee “Robbie” H.1 were neglected and/or abused children. The Department asserts on appeal that the circuit court erred because the evidence established that the children were emotionally and physically abused by their parents and neglected by their parents’ failure to provide them with necessary shelter and supervision.

In June of 1993, Joan George, a Child Protective Services worker with the Department, filed a petition pursuant to W.Va.Code, 49-6-1 (1992),2 alleging that nine-year-old Elizabeth, eight-year-old Debra, and six-year-old Robert were neglected and/or abused children according to W.Va.Code, 49-1-3 (1992).3 More specifically, the petition alleged that their parents, Benita K.H. and Robert L.H., did not adequately supervise the children and abused the children emotionally and physically. Furthermore, it was alleged that their living conditions were unfit.

After receipt of the petition, the circuit court determined that the children were in imminent danger and ordered that the children be placed with their maternal grandmother.4

At the adjudicatory hearing5 held on July 30,1993, the Department called the following persons to testify: two counselors employed by the Western District Guidance Center, a counselor from Action Youth Care;' Elizabeth’s teacher, and Joan George. The parents did not testify nor did they call witnesses on their behalf. The uncontroverted evidence showed that this family had been long-time recipients of social services and outside intervention, in part, to help them deal with Elizabeth’s medical problems.6 [659]*659The parents sporadically complied with the instructions from the various services, and the condition of the home and their attitude and approach to parenting did not improve.

Elizabeth would frequently run away from home and wander around Parkersburg. On several occasions, the police returned her to the home. Likewise, Robert ran away from home and was returned by the police. When Debra ran away from home, her parents did not know of her whereabouts for an entire weekend. The record reflects that the mother suspected that Debra was sexually abused during that weekend.

The Department also established that the lack of supervision had resulted in injury to the children. Debra was burned by the stove when she was cooking dinner while her mother was sleeping. When Robert climbed into the family’s truck and knocked it out of gear, the truck rolled over Elizabeth, causing a head injury which required stitches. Elizabeth and Robert had been known to consume beer while being unsupervised for several hours. Elizabeth told a counselor, in explicit detail, that she had had sexual relations with a boy.

The Department described the family home as “deplorable.” The family had several cats and dogs, and feces were found throughout the house. The children slept on urine-stained mattresses. Elizabeth reported that a rat was found in her bed. All three children bathed in the same water. Generally, the house was unkept and had a foul odor.

There was some evidence that Elizabeth had been physically abused. She went to school on one occasion with a bloody nose and claimed that her father hit her. There was also some evidence of sexual abuse. During a family counseling session, Elizabeth kissed her father with an open mouth. At another session, she rubbed the upper part of his thigh in an inappropriate manner. On at least one occasion, Elizabeth washed her father’s back while he was in the bathtub.

After hearing the foregoing evidence, the circuit court found that the Department failed to meet its burden of proof and dismissed the case. Furthermore, the Department’s motion for a stay of the proceeding pending appeal was denied. However, this Court granted a stay of the proceedings. Therefore, the children remain in the custody of their grandmother.

The issue on appeal concerns the circuit court’s dismissal of this action in light of the foregoing evidence. In Syllabus Point 1 of West Virginia Department of Human Services v. Peggy F., 184 W.Va. 60, 399 S.E.2d 460 (1990), we set forth the Department’s burden of proof in these matters:

“ ‘W.Va.Code, 49 — 6—2(c) [1980], requires the State Department of Welfare [now the Department of Human Services], 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).”

Consistent with our cases in other areas, we give appropriate deference to findings of the circuit court. In this regard, the circuit court has a superior sense of what actually transpired during an incident, by virtue of its ability to see and hear the witnesses who have firsthand knowledge of the events. Appellate oversight is therefore deferential, and we should review the circuit court’s findings of fact following an evidentiary hearing under the clearly erroneous standard. If the circuit court makes no findings or applies the wrong legal standard, however, no deference attaches to such an application. Of course, if the circuit court’s findings of fact are not clearly erroneous and the correct legal standard is applied, the circuit court’s ultimate ruling will be affirmed as a matter of law.

In this case, the circuit court entered a fairly cursory order, concluding as a matter of law that the State failed to sustain its [660]*660burden of proof. A review of the circuit court’s remarks at the time it made its ruling indicates that it found the petition “frivolous” and found there to be no evidence of abuse or neglect. After reviewing the record, we find that the Department presented sufficient evidence to prove, by clear and convincing evidence, that Elizabeth, Debra, and Robert H. are neglected children as defined by W.Va. Code, 49 — 1—3(g)(1).

The unsanitary condition of the home, as described by the Department’s witnesses, was similar to the conditions described in State v. Carl B., 171 W.Va. 774, 301 S.E.2d 864 (1983). In Carl B., the house was very filthy with dirty dishes, roaches, no sheets or blankets on the beds, and dog feces on the floor. We found the evidence sufficient to establish by clear and convincing evidence that Carl B. was neglected. Similarly, the Department in this case attempted to work with Benita K.H. and Robert L.H., but the condition of the home did not consistently improve. In Carl B., the additional factor of a lack of food at the end of the month existed, which was not in the record in the ease at bar.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re J.E.
West Virginia Supreme Court, 2025
Creda Hacker v. Pletcher Motors, Inc.
Int. Ct. of App. of W.Va., 2024
In re S.H.-1 and S.H.-2
West Virginia Supreme Court, 2021
In re:A.M. and N.M.
West Virginia Supreme Court, 2020
In re I.S. and K.S.
West Virginia Supreme Court, 2020
In Re: S.P., G.P., and D.P.
West Virginia Supreme Court, 2016
In Re C.M., D.M., and E.M
782 S.E.2d 763 (West Virginia Supreme Court, 2016)
In Re: O.S.
West Virginia Supreme Court, 2015
In re K.P.
772 S.E.2d 914 (West Virginia Supreme Court, 2015)
In Re L.M. and L.S.
774 S.E.2d 517 (West Virginia Supreme Court, 2015)
In Re F.S. and Z.S.
759 S.E.2d 769 (West Virginia Supreme Court, 2014)
State v. Thornton
720 S.E.2d 572 (West Virginia Supreme Court, 2011)
In Re Katelyn T.
692 S.E.2d 307 (West Virginia Supreme Court, 2010)
In Re Emily G.
686 S.E.2d 41 (West Virginia Supreme Court, 2009)
State ex rel. West Virginia Department of Health & Human Resources v. Fox
624 S.E.2d 834 (West Virginia Supreme Court, 2005)
State v. JULIE G.
500 S.E.2d 877 (West Virginia Supreme Court, 1997)
State Ex Rel. Diva P. v. Kaufman
490 S.E.2d 642 (West Virginia Supreme Court, 1997)
In re Joseph A.
485 S.E.2d 176 (West Virginia Supreme Court, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
453 S.E.2d 639, 192 W. Va. 656, 1994 W. Va. LEXIS 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-beth-wva-1994.