In Re Bryanna H.

695 S.E.2d 889, 225 W. Va. 659
CourtWest Virginia Supreme Court
DecidedJune 9, 2010
Docket35306
StatusPublished
Cited by5 cases

This text of 695 S.E.2d 889 (In Re Bryanna H.) 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 Bryanna H., 695 S.E.2d 889, 225 W. Va. 659 (W. Va. 2010).

Opinion

*662 PER CURIAM:

This appeal arises from the May 1, 2009, final dispositional order entered by the Circuit Court of Wood County in an abuse and neglect proceeding that resulted in the placement of the minor children in the home of their mother, Robin M., and her husband, Anthony M. In this appeal, Brian H., the appellant and respondent-father below, contends that the circuit court erred in granting the children’s stepfather an improvement period, by adjudicating the children abused and/or neglected because of his own conduct, and by placing the children in the home of their mother and stepfather. 1 The mother, Robin M., and her husband, Anthony M., did not appeal any part of the order but did participate in this appeal.

The Court has before it the petition for appeal and the entire record in this matter. Based upon the briefs and arguments of the parties, and for the reasons set forth below, the order of the circuit court is reversed, and this ease is remanded to the circuit court with directions to hold an immediate dispositional hearing that adequately contemplates the placement of the children in the home of Brian H., as a non-abusing parent.

I.

FACTUAL AND PROCEDURAL HISTORY

This proceeding commenced in the Circuit Court of Wood County with the filing of a petition on August 28, 2007, alleging that four children of the appellee-respondent, Robin M. 2 were abused and neglected children. The four children affected by this action were Bryanna H., born June 24, 1998; Skylar H., born April 24, 1996; and twins Holly T. and Hanna T., born November 9, 1994. The father of Bryanna H. and Skylar H. is Brian H., the appellant-respondent in this matter. The father of Holly T. and Hanna T. is Kenny T. The order appealed by Brian H. does not address the placement of Holly and Hanna T. and as such, Kenny T. did not participate in this appeal. 3 Counsel was appointed for all parties and a guardian ad litem was appointed to represent the minor children.

The original petition herein was signed and verified by Amy Rexroad, a representative of the West Virginia Department of Health and Human Resources, hereinafter referred to as “the Department.” In it, the Department alleged that the children were abused and/or neglected children within the definition of West Virginia Code § 49-1-3 (2007) (Repl. Vol.2009). The petition contained allegations that the children’s health, safety and welfare was endangered by events as early as October of 2006, when Robert J., then the husband of the mother Robin M. and the children’s stepfather, committed acts of domestic violence involving a firearm. Skylar H. and Holly T. were instrumental in disarming Robert J. on this occasion. Over the course of the next six months, the family received services including counseling for the children and domestic violence counseling for the family, but domestic violence continued in the home. In May, 2007, Robert J. left the residence that he shared with Robin M. and the four children.

At about the same time, Robin M. began a new relationship with Anthony M., an appellee in this matter. While the family was still receiving services from the Department related to when Robert J. lived in the family home, a new referral was made alleging that Robin M. and Anthony M. were engaging in drug use in the presence of the children. *663 The children also informed social workers of a trip to a local tattoo shop where Anthony M. and Robin M. purchased drugs. The petition included an allegation that Anthony M.’s parental rights to his own children had been terminated in another proceeding by order dated May 27, 2005. Anthony M.’s parental rights were affected in part by his conviction on child abuse charges arising in the State of Florida, as well as by acts of domestic violence against his former wife in the presence of his children. The petition also included an allegation that Anthony M. had an “extensive criminal history.”

The concerns about the presence of Anthony M. in the home prompted social workers providing services to the family to approach Robin M. about signing a protection plan that included a condition that Anthony M. would not reside in the home. Robin M. refused to agree to this plan, calling it harassment on the part of the Department. The mother’s failure to execute the protection or safety plan prompted the filing of the initial petition.

In the order filing the petition, the lower court found, inter alia, that “by removing Anthony M. from the home of the respondent-mother, the children can be protected and safe.” The court order contained the following findings:

There exists no imminent danger to the children if Anthony M. is not permitted to have contact with the children, and therefore if he is removed from the home, removal from the home of the respondent-mother would not be in the best interest of the children.
It is accordingly ORDERED that Bryanna H., Skylar H., Holly T. and Hanna T. shall remain in the home of Robin J.
It is further ORDERED that the alleged abusing person, Anthony M., is ordered to refrain from visiting or residing in the home of the children, and from having any unauthorized contact with the children.
It is further ORDERED that if the respondent-mother continues to let Anthony M. live in her home or have contact with the children, then the children should be removed immediately from the home and placed in the custody of the Department, after which the Court should be immediately notified and a preliminary hearing will be held.

The order filing the petition required the Department to convene a multi-disciplinary team (MDT) meeting within 30 days of the filing of the petition, and required that the Department provide the respondent parents with forms to complete for the purposes of evaluating and establishing child support.

On August 28, 2007, the Department filed an amended petition with new allegations regarding Robin M.’s conduct since being served with the original petition. At the time of the filing of the amended petition Holly T. and Hanna T. were residing with their biological father. Skylar H. and Bryanna H. likewise were residing in the home their biological father, the appellant Brian H., and paternal grandmother. The amended petition included an allegation that Robin M. was not going to make Anthony M. leave the home and that they intended to get married. It was alleged that Anthony M. was disruptive during the process of carrying out the court’s order and police officers attempted to escort him off the property, to the mother’s protest.

The preliminary hearing on the amended petition was scheduled for September 4, 2007. After a hearing, the lower court found that imminent danger existed to the physical well-being of the children and that there were no reasonable alternatives to the removal of these children from the home of their mother, Robin M. The circuit court found that reasonable efforts were made to prevent the removal of the children including services by the Department and the opportunity offered to Robin M. to have the children remain in her home provided Anthony M. was not present.

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Cite This Page — Counsel Stack

Bluebook (online)
695 S.E.2d 889, 225 W. Va. 659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bryanna-h-wva-2010.