IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2023 Term FILED _______________ April 4, 2023 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK No. 22-0199 SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
IN RE B.V., W.V.-1, L.V., N.R., E.O.-R., E.R., AND S.V. ____________________________________________________________
AND _______________
No. 22-0206 _______________
IN RE B.V., W.V.-1, L.V., N.R., E.O.-R., E.R., AND S.V. ____________________________________________________________
Appeals from the Circuit Court of McDowell County The Honorable Edward J. Kornish, Judge Case Nos. 21-JA-24, 21-JA-25, 21-JA-26, 21-JA-27, 21-JA-28, 21-JA-29, 21-JA-30
AFFIRMED, IN PART, VACATED, IN PART, and REMANDED WITH INSTRUCTIONS ____________________________________________________________
Submitted: January 10, 2023 Filed: April 4, 2023
Dana F. Eddy, Esq. Patrick Morrisey, Esq. Public Defender Services Attorney General Charleston, West Virginia Brittany Ryers-Hindbaugh, Esq. Counsel for Petitioner Mother Assistant Attorney General Charleston, West Virginia Thomas H. Evans, III, Esq. Petitioner for Respondent DHHR THOMAS HANNA EVANS, PLLC Oceana, West Virginia R. Keith Flinchum, Esq. Counsel for Petitioner Father Law Office of R. Keith Flinchum Princeton, West Virginia Guardian ad Litem JUSTICE WOOTON 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.’ Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223,
470 S.E.2d 177 (1996).” Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
2. “For a circuit court to have jurisdiction over a child in an abuse and
neglect case, the child must be an ‘abused child’ or a ‘neglected child’ as those terms are
defined in West Virginia Code § 49-1-201 (2018). Pursuant to West Virginia Code § 49-
4-601(i) (2019), a circuit court’s finding that a child is an ‘abused child’ or a ‘neglected
child’ must be based upon the conditions existing at the time of the filing of the abuse and
neglect petition.” Syl. Pt. 8, In re C.S. and B.S., 247 W. Va. 212, 875 S.E.2d 350 (2022).
i 3. The mere fact that a child is in a legal guardianship at the time an
abuse and neglect petition is filed does not preclude a circuit court from exercising subject
matter jurisdiction in adjudicating whatever rights a respondent to that petition may still
have to that child, provided that the child meets the definition of an “abused child” or
“neglected child” as defined in West Virginia Code § 49-1-201 (2018) so as to confer that
jurisdiction. To exercise subject matter jurisdiction, the court must make specific factual
findings explaining how each child’s health and welfare are being harmed or threatened by
the allegedly abusive or neglectful conduct of the parties named in the petition. Due to the
jurisdictional nature of this question, generalized findings applicable to all children named
in the petition will not suffice; the circuit court must make specific findings with regard to
each child so named.
4. “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, W. Va. Dept. of Health and Hum. Res. ex rel. Wright v. Doris S., 197 W. Va. 489, 475
S.E.2d 865 (1996).
ii WOOTON, Justice:
This consolidated opinion stems from separate appeals filed by Petitioner
Mother M.O.-R. 1 and Petitioner Father W.V.-2 (collectively “Petitioners” or “the parents”)
challenging the order of the Circuit Court of McDowell County that terminated their
parental, custodial, and guardianship rights to seven children: B.V., W.V.-1, L.V., N.R.,
E.O.-R., E.R., and S.V. (collectively “the children”). 2 Three of the children resided in the
home at the time the abuse and neglect petition was filed, but the other four children were
in legal guardianships with various relatives. In addition to addressing Petitioners’ specific
arguments on appeal, we requested supplemental briefing on the question of whether this
Court’s holding in In re C.S. and B.S., 247 W. Va. 212, 875 S.E.2d 350 (2022), 3 precluded
the circuit court’s exercise of subject matter jurisdiction over the children in legal
guardianships.
1 Consistent with our practice in cases involving sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015). 2 Petitioners share only one biological child: S.V. Petitioner Mother is the biological mother of N.R., E.O.-R., and E.R., while Petitioner Father is the biological father of B.V., W.V.-1, and L.V. The other biological parents of the children are nonoffending and are not parties to this appeal. 3 In brief, In re C.S. held that a circuit court may only exercise subject matter jurisdiction over a child in an abuse and neglect proceeding where the court has found said child to be an “abused child” or “neglected child” as defined in the West Virginia Code section 49-1-201. 247 W. Va. at ---, 875 S.E.2d at 353, syl. pt. 8. In that case, we concluded that one of the children involved did not meet either of these definitions, in part due to her having been placed in a legal guardianship several years prior to the initiation of the proceedings. Id. at ---, 875 S.E.2d at 362. 1 Because we find ample support for the termination of Petitioners’ parental
rights as to those children who resided in the home, we affirm the circuit court’s
dispositional order in that regard. However, because we find that the circuit court failed to
make adequate findings to support its exercise of jurisdiction over the children in legal
guardianships, we vacate that portion of the adjudicatory and dispositional orders
culminating in the termination of Petitioners’ parental rights to those four children and
remand this matter to the circuit court for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Before delving into the facts underlying this abuse and neglect petition it
should be noted that the parents have had several interactions with Child Protective
Services (“CPS”) and the West Virginia Department of Health and Human Resources
(“DHHR”) over the years. In the course of those interactions four of Petitioners’ seven
children were placed in permanent legal guardianships with relatives prior to the initiation
of the instant abuse and neglect proceedings. Specifically, B.V. and L.V. were placed with
maternal grandmother, T.K.; W.V.-1 was placed with paternal grandmother, T.M.; and
E.O.-R. was placed with paternal grandmother, B.S. Under the terms of these
guardianships the legal guardians were vested with discretion to control any visitation the
children had with the parents, and we can glean from the record that the two eldest children,
B.V. and W.V.-1, had some contact with the parents, though it is not clear to what extent.
2 Turning to the instant abuse and neglect petition, CPS received a report on
May 8, 2021, that the child E.R., who resided with Petitioners, was suspected to have been
physically abused. The child’s grandparents observed bruising on the majority of his body
and, at the advice of a McDowell County sheriff’s deputy, took the child to Welch
Community Hospital for a medical examination. The exam revealed that the child also
suffered from a fractured nasal bone, and the treating physician opined that the injuries
could not have been sustained accidentally. 4
Following the medical exam, three of the children, E.R., N.R., and B.V., were
forensically interviewed at Stop the Hurt Child Advocacy Center (“CAC”). These
interviews were admitted without objection into evidence before the circuit court at the
adjudicatory hearings, and the record indicates they were reviewed in camera. In his
interview E.R. disclosed that Petitioner Father beat and choked him. E.R. explained that
some of the current bruising resulted from an incident in which E.R. tried to choke his little
sister, S.V., and that Petitioner Father choked him so he “would know how it felt.” The
child further revealed that Petitioner Father broke his nose by slamming a car door into it,
and that Petitioner Father regularly twisted his nipples and genitals in a so-called “cow
bite” to make him shout. At a subsequent interview, E.R. confirmed an allegation from a
different child that Petitioner Father regularly took him to an outbuilding near the family’s
4 E.R. was brought to the hospital by a different grandparent days later for a follow- up exam and reported that the child experienced pain while urinating. A subsequent exam revealed extensive bruising to his genitals.
3 home, but did not disclose what occurred in that building, simply noting that it “wasn’t a
good place.”
CAC also interviewed N.R., who also resided with Petitioners, and
confirmed that Petitioner Father beat and choked E.R. after the child allegedly tried to
choke S.V. She stated that she witnessed the incident, as well as other incidents in which
Petitioner Father caused injury to E.R. She further disclosed witnessing Petitioner Father
beat Petitioner Mother and threaten to kill her, as well as an incident in which Petitioner
Father held a gun to S.V.’s stomach and threatened to kill her if she did not stop crying.
As noted above, N.R. disclosed that Petitioner Father regularly took E.R. to an outbuilding
to “punish him.”
CAC also interviewed the oldest child, B.V., who did not reside in the home
with the parents and the children N.R., E.R., and S.V. In her interview B.V. disclosed that
Petitioner Father had hit her, and that she had witnessed him hit Petitioner Mother and
threaten to kill her. Further, she disclosed an incident in which Petitioner Father allegedly
overdosed on methamphetamine in the family home, although the record is unclear as to
whether B.V. was present for this incident. 5 For reasons that are unclear to this Court, the
DHHR never pursued adjudication or disposition on these specific disclosures with regard
5 Subsequent testimony at one of the adjudicatory hearings indicates that B.V. may have learned of this incident from her grandmother, T.M., rather than witnessing it firsthand.
4 to B.V. despite their having been admitted into evidence. Further, the circuit court did not
make any individual determinations as to this child at Petitioners’ adjudication and
disposition.
Following these interviews the DHHR filed an abuse and neglect petition on
May 14, 2021, alleging that Petitioner Father physically abused E.R., engaged in domestic
violence, and engaged in substance abuse. The petition further alleged that Petitioner
Mother failed to protect the children from the abuse. 6 The DHHR later filed an amended
petition in which it added W.V.-1’s guardian, T.M., as a potential offending party because
she allegedly facilitated contact between the child and Petitioner Father. However, T.M.
was never adjudicated on this allegation and was later determined to be nonoffending.
The circuit court held multiple adjudicatory hearings from June 23, 2021, to
October 26, 2021, during which it heard testimony from the investigating CPS worker and
from the CAC director regarding the children’s forensic interviews. The court also heard
testimony from a McDowell County Sheriff’s Deputy and the emergency room treating
physician regarding E.R.’s injuries on the night of the medical examination. The parents
declined to testify at the adjudicatory proceedings, citing their pending parallel criminal
6 We note that the B.V. and N.R. each stated in their forensic interviews that they recalled Petitioner Mother attempting to leave Petitioner Father on two occasions. Once, Petitioner Mother locked Petitioner Father out of the home. On another occasion, she packed bags for herself and the children with the intention of leaving. Neither attempt was successful.
5 proceedings as the basis for that refusal. Ultimately the court issued an adjudicatory order
dated November 24, 2021, finding that Petitioner Father physically abused E.R., that there
was domestic violence in the home, and that Petitioner Mother failed to protect the children
from that domestic violence. The court thereafter adjudicated Petitioner Father as an
abusing parent and Petitioner Mother as a neglectful parent.
Significantly, the parents never moved the circuit court for an improvement
period. Moreover, to the extent the DHHR attempted to provide services in the form of
parenting classes, drug screens and supervised visitation, the parents were extremely
uncooperative. Initially they refused to supply the DHHR with any contact information,
then relocated from McDowell County, West Virginia, to somewhere near Martinsburg in
Berkeley County, West Virginia, without providing an address. The McDowell County
DHHR attempted to communicate with the Berkeley County DHHR office to facilitate the
provision of services, but that effort was largely unsuccessful, consisting solely of a series
of intermittent drug screen reports.
The matter proceeded to disposition over the course of two hearings held on
December 2, 2021, and January 26, 2022. At this time, the circuit court reiterated its
findings that Petitioner Father physically abused E.R. and that Petitioner Mother failed to
protect the children from domestic violence. The parents again elected not to testify on
6 their own behalf. 7 Thereafter the circuit court found that the parents failed to acknowledge
any responsibility for their abusive and neglectful conduct, resulting in a conclusion that
the conditions of abuse and neglect could not be rectified. The court further concluded
there was no reasonable likelihood the conditions of abuse and neglect could be corrected
in the foreseeable future, and terminated Petitioners’ parental, custodial, and guardianship
rights to all seven children by order dated February 14, 2022.
Petitioners filed separate appeals of that order raising legally distinct
arguments. In this Court’s October 20, 2022, scheduling order, we ordered the parties to
submit simultaneous supplemental briefing to address whether this Court’s decision in In
re C.S. precluded the circuit court from exercising subject matter jurisdiction over the
children who were in legal guardianships prior to the filing of the abuse and neglect
petition. 8
II. STANDARD OF REVIEW
This Court has long held that our standard of review in abuse and neglect
matters is as follows:
“Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse
The record indicates that the parents declined to testify because their respective 7
counsel in the parallel criminal matters resulting from the same abusive conduct advised them not to testify in the civil abuse and neglect proceeding.
All parties, save Petitioner Father, submitted the requested briefing and this matter 8
proceeded to argument on January 10, 2023.
7 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.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). With this standard in
mind, we now proceed to address the parties’ arguments on appeal.
III. DISCUSSION
As noted above, Petitioners filed separate appeals with legally distinct
arguments. Petitioner Mother argues that the circuit court erred in finding that she failed
to protect the children when there was “uncontroverted evidence” she took steps to protect
them. She also argues that the court erred in finding that the DHHR was relieved of its
duty to make reasonable efforts to preserve the family in this matter. Petitioner Father
argues that the court erred in adjudicating him as an abusing parent, contending that the
adjudication was not necessary to protect the welfare of the children, and further
contending that he could have properly parented the children if given the proper tools. He
also argues that the court erred in relying on his failure to acknowledge the conditions of
abuse and neglect as a basis for termination because his pending criminal charges
8 “prevented [him] from testifying or acknowledging the alleged abuse.” We address each
of these arguments in turn below.
A. Jurisdiction
Before we can properly consider Petitioners’ legal arguments as to
termination, we must address a separate matter. As noted above, in addition to Petitioners’
arguments, this Court ordered supplemental briefing on the question of whether this
Court’s decision in In re C.S., 247 W. Va. at 212, 875 S.E.2d at 350, deprived the circuit
court of jurisdiction over the four children in legal guardianships at the time the instant
abuse and neglect proceedings began, thus presenting a question of subject matter
jurisdiction which must be resolved prior to consideration of the terminations of parental
rights.
In the requested supplemental briefing, the DHHR and guardian ad litem
(“GAL”) each argued that In re C.S. has no impact on the terminations at issue here, while
Petitioner Mother argued that In re C.S. fully precludes circuit courts from exercising
subject matter jurisdiction over any child in a legal guardianship prior to the initiation of
the abuse and neglect proceedings. Neither of these positions is correct.
In re C.S. centered on a mother’s appeal of the termination of her parental
rights to two children arising from her substance abuse. 247 W. Va. at ---, 875 S.E.2d at
354. One child, C.S., resided in the mother’s home. Id. The other child, B.S., had been in
9 a permanent legal guardianship with third parties for five years at the time the abuse and
neglect petition was filed. Id. On appeal to this Court the mother argued that the circuit
court erroneously exercised jurisdiction over B.S. because the child was not in her care
when the abuse and neglect petition was filed. Id. at ---, 875 S.E.2d at 360-61. We agreed,
based upon our conclusion that B.S. did not qualify as an abused or neglected child under
the definitions set forth in the West Virginia Code. 9 In reaching this decision, we held:
For a circuit court to have jurisdiction over a child in an abuse and neglect case, the child must be an “abused child” or a “neglected child” as those terms are defined in West Virginia Code § 49-1-201 (2018). Pursuant to West Virginia Code § 49-4-601(i) (2019), a circuit court’s finding that a child is an “abused child” or a “neglected child” must be based upon the conditions existing at the time of the filing of the abuse and neglect petition.
Id. at ---, 875 S.E.2d at 353, syl. pt. 8.
In applying that holding to the facts of the case, we explained that B.S. did
not qualify as an abused or neglected child because her
health and welfare were not harmed or threatened by the [mother’s] drug addiction, and there is no evidence that any
9 West Virginia Code § 49-1-201 states, in relevant part, that an “abused child” is a child “whose health or welfare is being harmed or threatened by: . . . [a] parent, guardian, or custodian who knowingly or intentionally inflicts, attempts to inflict, or knowingly allows another person to inflict, physical injury or mental or emotional injury, upon the child or another child in the home.” The same Code section explains, in relevant part, that a “neglected child” is a child “[w]hose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care, or education, when that refusal, failure, or inability is not due primarily to a lack of financial means[.]” Id.
10 person inflicted abuse or neglect upon B.S. or upon another child in the home where B.S. was living. It is undisputed that [the legal guardians] are non-abusing guardians. Critically, the [mother] did not have custody of B.S. and could not have simply gone to the guardians’ home to retrieve B.S. any time she wished. To obtain custody of B.S., the [mother] would have to file a petition to terminate the legal guardianship. . . and a court would have to grant that petition.
Id. at ---, 875 S.E.2d at 362; see also In re C.T.-1, No. 22-0047, 2022 WL 3960166 (W.Va.
Aug. 31, 2022) (memorandum decision) (finding that a child who had been in a
guardianship with a relative for eleven years at the time the abuse and neglect petition was
filed did not qualify as an abused or neglected child).
Here, Petitioner Mother contends that in all circumstances In re C.S.
precludes a circuit court from exercising subject matter jurisdiction over a child in a legal
guardianship prior to the filing of the abuse and neglect petition. Simply put, that is an
incorrect reading of this Court’s opinion. To the extent that the DHHR and the GAL argue
that In re C.S. has no impact on the circuit court’s exercise of jurisdiction, they likewise
misread the opinion. With respect to a child in a legal guardianship at the time an abuse
and neglect petition is filed, In re C.S. stands for the proposition that a circuit court must
make factual findings that said child is an “abused child” or “neglected child,” as defined
in West Virginia Code section 49-1-201, in order to exercise jurisdiction over the child.
247 W. Va. at ---, 875 S.E.2d at 353, syl. pt. 8.
11 Lest there be further confusion regarding In re C.S., while we would observe
that the mother’s lack of custody over B.S. was a predominant factor in the decision, we
wish to make clear that nothing in In re C.S. forecloses a circuit court from finding that a
parent’s conduct has threatened the child’s health or welfare such that the child may
properly be deemed an abused or neglected child, as that term is defined by section 49-1-
201, even though the parent does not have legal custody of their child. Without venturing
into hypotheticals, we can envision countless factual scenarios wherein a child in a
guardianship could be directly threatened by their parent’s conduct, so as to render the
child an abused or neglected child. The mere fact that a child is in a legal guardianship at
the time an abuse and neglect petition is filed does not preclude a circuit court from
exercising subject matter jurisdiction in adjudicating whatever rights a respondent to that
petition may still have to that child, provided that the child meets the definition of an
“abused child” or “neglected child” as defined in West Virginia Code § 49-1-201 (2018)
so as to confer that jurisdiction. To exercise subject matter jurisdiction, the court must
make specific factual findings explaining how each child’s health and welfare are being
harmed or threatened by the allegedly abusive or neglectful conduct of the parties named
in the petition. Due to the jurisdictional nature of this question, generalized findings
applicable to all children named in the petition will not suffice; the circuit court must make
specific findings with regard to each child so named.
Such a finding was not possible in In re C.S. because the abuse and neglect
petition only pertained to the mother’s drug abuse and its impact on C.S, the child in her
12 home. 247 W. Va. at ---, 875 S.E.2d at 354. The child in the guardianship, B.S., had been
out of the mother’s home for five years and the petition only mentioned the child in a
perfunctory fashion. Id. at ---, 875 S.E.2d at 354-55. It was not clear from the record
whether the mother had any contact with B.S. during the time period in which she was
suffering from substance abuse problems. Id. The same was true in In re C.T.-1, as the
allegations in the petition were specific to the child who resided in the home, C.T.-2, and
there was no indication that the mother’s conduct impacted C.T.-1—the child who had
been in a guardianship for eleven years. See 2022 WL 3960166 at *5.
The case at bar differs from those mentioned above. The original abuse and
neglect petition included allegations of domestic violence and drug abuse predicated at
least partially on disclosures from B.V., a child who was indisputably in a legal
guardianship at the time the petition was filed. At a minimum, these facts suggest the
possibility that B.V. may have been directly exposed to the conditions of abuse and neglect
created by the parents, despite having been in a guardianship with a non-offending guardian
during the relevant time frame. Moreover, the amended petition added a different legal
guardian, T.M., as an offending party 10 based upon allegations that she permitted W.V.-1
to have unfettered contact with Petitioner Father and refused to acknowledge that the
parents engaged in abusive and neglectful behaviors. The GAL’s report lends some
credence to that assertion, insofar as he noted his concern that W.V.-1 was exposed to
10 T.M. was ultimately not adjudicated as an abusing or neglectful guardian.
13 ongoing problems in the home as a result of this unrestricted contact. 11 Thus, at least as to
B.V. and W.V.-1, there remains an open question as to whether the parents’ abusive and
neglectful conduct threatened their health and welfare such that they would qualify as
abused or neglected children even while in legal guardianships.
The circuit court’s decision in this matter was rendered prior to our decision
in In re C.S., so the court may not have been aware of the questions posed by the existing
legal guardianships and should not be faulted for failing to make the required jurisdictional
findings. We are mindful that “[u]njustified procedural delays wreak havoc on a child’s
development, stability and security.” Syl. Pt. 1, in part, In Interest of Carlita B., 185 W.
Va. 613, 408 S.E.2d 365 (1991). However, this Court is not a factfinding tribunal, and we
cannot infer that findings as to the four children in guardianships could have been properly
made in this case; the record does not afford sufficient facts from which to draw any such
inference. For that reason we must vacate, in part, the circuit court’s adjudicatory and
dispositional orders with regard to the four children—B.V., W.V.-1, L.V., and E.O.-R.—
in legal guardianships at the time the underlying abuse and neglect petition was filed. We
remand this matter to the circuit court for further proceedings, including but not limited to
an order setting out the requisite findings as to whether any of the four children in legal
11 The other two children in guardianships, L.R. and E.O.-R. were each mentioned only once in the underlying proceedings; in the GAL’s report it was noted that those children had little to no contact with the parents. It is impossible for this Court to determine whether those children were exposed to any abusive or neglectful conduct at the hands of the parents that would justify a finding they were abused or neglected children.
14 guardianships met the statutory definitions of an abused or neglected child, based on the
evidence previously adduced. See W. Va. Code § 49-1-201. To the extent that evidence
does not support such a determination, we further direct the circuit court to undertake such
proceedings, consistent with this opinion, as may be necessary to ascertain whether the
children in legal guardianships met the statutory definitions of an abused or neglected child,
so that the circuit court might properly exercise jurisdiction.
B. Termination
Having determined that the portion of the dispositional order dealing with
the children in guardianships must be vacated, we now turn to that portion of the
dispositional order dealing with the children—N.R., E.R., and S.V.—residing with
Petitioners. We begin with Petitioner Mother, who contends that the record includes
“uncontroverted evidence” that she took steps to protect the children from Petitioner
Father’s abusive conduct; to wit: in their forensic interviews B.V. and N.R. recounted
instances in which she locked Petitioner Father out of the home and where she packed bags
for herself and the children with the intention of leaving the home. Although this evidence
was undoubtedly before the circuit court, the court found it to be insufficient to rebut the
evidence that she failed to protect the children.
This Court has explained that “[a]n appellate court may not decide the
credibility of witnesses or weigh evidence as that is the exclusive function and task of the
trier of fact.” State v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995).
15 The circuit court’s finding that Petitioner Mother failed to protect the children is amply
supported by the evidence of record. While she may have occasionally taken steps to leave
the home, the record is clear that those steps were minimal, were never successful, and that
she continued her relationship with Petitioner Father throughout the proceedings. In
addition, the court had before it significant evidence that Petitioner Mother was present or
in the next room when Petitioner Father was abusing E.R. and failed to intervene. Thus,
even with evidence of Petitioner Mother’s limited attempts to protect them, the circuit court
was wholly justified in finding she failed to protect the children.
Next, Petitioner Mother contends the circuit court erred in finding that the
DHHR was relieved of its duty to make reasonable efforts to preserve the family in this
matter. While it is true that the DHHR generally must make such reasonable efforts, West
Virginia Code § 49-4-604(c)(7)(A) (2020) relieves it of that duty where the circuit court
makes a finding that the parent “has subjected the child, another child of the parent or any
other child residing in the same household or under the temporary or permanent custody of
the parent to aggravated circumstances which include, but are not limited to, abandonment,
torture, chronic abuse, and sexual abuse[.]” In the instant case, Petitioner Mother readily
concedes that Petitioner Father engaged in chronic abuse of E.R., and the circuit court made
an explicit finding to that effect. It is clear from the circuit court’s order that this finding
applied to both parents; Petitioner Mother was aware of the chronic abuse and did nothing
to prevent it. See, e.g., In re A.L.C.M., 239 W. Va. 382, 392, 801 S.E.2d 260, 270 (2017)
(“Thus, for a child to be determined to be an ‘abused child,’ the parent charged with such
16 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.”) (citation omitted). The DHHR was properly relieved of its duty
to preserve the family in this instance.
Even assuming such a finding had not been made, Petitioner Mother fails to
rebut the wealth of evidence in the record illustrating that the DHHR attempted to provide
services to the parents in the form of supervised visits, parenting classes, and drug screens.
The parents rendered those efforts futile by being uncooperative with the DHHR, failing
to provide contact information, and relocating in the middle of the proceedings without
informing the DHHR of their new address. Further, the parents abjectly failed to
acknowledge the conditions of abuse or neglect; that fact alone renders those problems
untreatable and any services the DHHR may have provided an exercise in futility. In re
Timber M., 231 W. Va. 44, 56, 743 S.E.2d 352, 364 (2013). Accordingly, we find no error
in the circuit court relieving the DHHR of its duty to preserve the family.
We turn now to Petitioner Father, who first contends the circuit court erred
in terminating his parental rights, or more specifically that termination was unnecessary to
protect their welfare. We find this argument to be without merit. The circuit court’s
dispositional order thoroughly explains that Petitioner Father subjected E.R. to extensive
physical abuse and engaged in domestic violence against Petitioner Mother in the presence
of the children. Moreover, the record is replete with evidence suggesting Petitioner
17 Father’s abusive conduct was pervasive that he continuously exposed the children to his
egregious behavior, perhaps including those children residing outside of the home. Finally,
as noted above, the record makes clear that throughout the proceedings Petitioner Father
failed to acknowledge any responsibility for this abusive behavior. In light of this record
there is scant merit to the argument that it was unnecessary to terminate his parental rights
in order to protect the children’s welfare.
In the same vein, Petitioner Father argues the circuit court erred in finding
that he failed to acknowledge his abusive conduct because pending criminal charges
“prevented [him] from testifying or acknowledging the alleged abuse.” As a preliminary
matter, Petitioner Father fails to cite to any authority supporting this proposition. No such
precedent exists; this Court’s precedents lead to the exact opposite conclusion. More
specifically, we have previously considered whether a circuit court may consider a parent’s
silence in an abuse and neglect proceeding when a parallel criminal proceeding is pending.
We explained that “[t]here is no basis in law for requiring that a court be disallowed from
considering a parent’s or guardian’s choice to remain silent as evidence of civil
culpability.” W. Va. Dept. of Health and Hum. Res. ex rel. Wright v. Doris S., 197 W. Va.
489, 497, 475 S.E.2d 865, 873 (1996). Instead, we held that
[b]ecause 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.
18 Id. at 492, 475 S.E.2d at 868, syl. pt. 2.
In reaching this conclusion, we explained that a parent or guardian’s rights
in the criminal proceedings are sufficiently protected such that they may still acknowledge
responsibility in the civil abuse and neglect proceeding. We stated:
Such a parent or guardian may be invoking his/her right to remain silent pursuant to the Fifth Amendment because that individual also may be facing criminal charges arising out of the abuse and neglect of the child. The rights of the criminally accused are sufficiently protected, however, by the following statutory provisions: 1) West Virginia Code § [49-4-603(a)(5) (2018)] which allows medical and mental examinations of the child or other parties involved in an abuse and neglect proceeding provides that “[n]o evidence acquired a result of an[] [] examination of the parent or any other person having custody of the child may be used against [the] person in any subsequent criminal proceedings against [the] person”; 2) West Virginia Code § [49-5-101(a) (2022)] . . . and 3) West Virginia Code § 57-2-3 (1966) provides that “[i]n a criminal prosecution other than for perjury or false swearing, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination.”
Id. at 497 n.22, 475 S.E.2d at 873 n.22. In short, the laws of this state already account for
the possibility that civil abuse and neglect proceedings may run parallel to criminal
proceedings, and afford protection to the criminally accused should that be the case. Thus,
in light of established law, there was nothing preventing Petitioner Father from
acknowledging his abusive conduct in the instant abuse and neglect proceedings.
Therefore, the circuit court was well within its authority to take his failure to do so into
account in determining whether to terminate his parental rights.
19 For the reasons stated, we affirm the termination of the parents’ parental,
custodial, and guardianship rights to N.R., E.R., and S.V., the children who resided in the
home. We vacate in part the dispositional and adjudicatory orders of the circuit court as to
B.V., W.V.-1, L.V., and E.O.-R., the children in legal guardianships at the time the abuse
and neglect petition was filed, and remand for further proceedings consistent with this
opinion.
IV. CONCLUSION
Based on the foregoing, we affirm, in part, and vacate, in part, the Circuit
Court of McDowell County’s February 14, 2022, dispositional order, and November 24,
2021, adjudicatory order. We remand this matter for further proceedings with regard to
the children placed in legal guardianships, consistent with this opinion.
Affirmed, in part, vacated, in part, and remanded with instructions.