In re R.J.-1, M.J., and T.J.

• Court: West Virginia Supreme Court
• Decided: June 11, 2018
• Docket: 18-0078
• Status: Published

Opinion

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED June 11, 2018 In re R.J.-1, M.J., and T.J. EDYTHE NASH GAISER, CLERK

No. 18-0078 (Webster County 17-JA-10, 11, and 12) OF WEST VIRGINIA

MEMORANDUM DECISION Petitioner Mother K.J., by counsel Steven B. Nanners, appeals the Circuit Court of Webster County’s January 2, 2018, order terminating her parental rights to R.J.-1, M.J., and T.J.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Mary Elizabeth Snead, filed a response on behalf of the children also in support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in adjudicating her as an abusing parent and terminating her parental rights without first granting her an improvement period.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

In January of 2017, the DHHR filed a child abuse and neglect petition against petitioner and the father.2 The DHHR alleged that a Child Protective Services (“CPS”) worker observed that R.J.-1 suffered from a severe medical condition which attacked his joints, muscles, and flesh and required regular and constant care in addition to normal care associated with good hygiene and regular feeding. According to the DHHR, the child did not appear to be fed, cleaned, or medicated regularly. The DHHR reported that then three-year-old M.J. had no speech or ability to articulate words, was not potty-trained, and appeared to have no socialization or human interaction skills that would be normal for a child of her age. The CPS worker found M.J. in her bedroom, which had a broken door handle and rendered the child unable to open the door from

1 Consistent with our long-standing practice in cases with 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); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013); State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990). Additionally, because a child and the father share the same initials, we will refer to them as R.J.-1 and R.J.-2, respectively, throughout this memorandum decision. 2 The father, R.J.-2, is the biological father of M.J. and T.J., and the stepfather of R.J.-1. 1

the inside, essentially locking her in the room. The DHHR also alleged that the home was extremely cluttered and dirty, with trash scattered about the home. Dog food and animal feces littered the floors and the toilet was covered in human feces. Medication and sharp objects were strewn throughout the floors and within reach of the children. A screw was observed in then two- month-old T.J.’s crib. Petitioner stated that M.J. had only been in her room for approximately thirty minutes and that she sometimes put the child in the room with the broken door handle because she was “hard to handle.” After observing the condition of the home, the DHHR took custody of the children.

The DHHR further alleged that, the following day, R.J.-1’s physical therapist opined that elements of his therapy and treatment were being ignored on a regular basis at home, resulting in the lack of medication for his skin condition and the disuse of a special chair for his muscles, bones, and posture. The child was subsequently admitted to Summersville Regional Medical Center, in Summersville, West Virginia. The child was diagnosed with failure to thrive and transferred to Ruby Memorial Hospital in Morgantown, West Virginia. There, the child was diagnosed with Familial Mediterranean Fever3 (“FMF”), severe malnutrition, dehydration, necrosis, open wounds to his body, child neglect, a feeding tube that was visibly soiled with animal feces, and various other medical conditions. The then five-year-old child only weighed twenty-two pounds upon admission and had to undergo a procedure to replace his feeding tube. The petition further indicated that the child had last been seen regarding his feeding tube in April of 2016. The child was scheduled for a follow-up three months later, but the parents did not keep the appointment. In sum, the DHHR alleged that the parents were unable to provide a safe, clean home and were unable to provide the children with adequate medical care and treatment in a regular and timely manner.

The circuit court held a preliminary hearing in February of 2017. In September of 2017, the circuit court held an adjudicatory hearing wherein it heard the testimony of several witnesses regarding R.J.-1’s medical condition. An inpatient pediatrician from West Virginia University Children’s Hospital testified that R.J.-1 was admitted to the hospital in January of 2017 with several diagnoses including a chronic skin disorder and malnourishment, as well as for his own protection due to unsafe conditions in the home.4 The pediatrician testified that the child only weighed twenty-two pounds at the time and had not gained any weight in seventeen months,

3 “Familial Mediterranean Fever . . . is an inherited disease, characterized by recurrent attacks of fever, inflammation of the abdominal lining (peritonitis), inflammation of the lining surrounding the lungs (pleurisy), painful, swollen joints (arthralgia and occasionally arthritis), and a characteristic ankle rash. This condition is also sometimes referred to as recurrent polyserositis or familial paroxysmal polyserositis.”

Learning About Familial Mediterranean Fever, https://www.genome.gov/12510679/learning- about-familial-mediterranean-fever/, (last visited May 3, 2018). 4 FMF had previously been diagnosed, but the pediatrician testified that a dermatologist treating R.J.-1 considered this diagnosis inconsistent with the child’s symptoms. While FMF was not ruled out as a diagnosis, the pediatrician treated the child’s illness as undiagnosed. 2

despite having a functional feeding tube. The pediatrician described the child as a “bag of bones” at that time, and noted that he had numerous scars and pressure sores from not being moved. Additionally, he testified that the child’s “nose was pretty much nonexistent, and he had some sores on his face.” The child also had joint contractures, which left his joints in a flexed position, and he was unable to use his hands. Regarding treatment, the pediatrician testified that the child gained weight while in the hospital, which demonstrated that there were no health issues preventing him from gaining weight, but rather a lack of nutrition. While it was clear the child had an underlying disease, the pediatrician testified that lack of nutrition likely worsened the child’s symptoms. The pediatrician opined that had the child not been admitted to the hospital at that time, he likely would have died within the week.

R.J.-1’s primary care physician testified that, as of August of 2017, following removal from petitioner’s care, the child weighed forty pounds and his joint contractures had greatly improved. The physician testified that she agreed with the pediatrician’s opinions and noted that as soon as the child received therapy and nutrition, he “made a complete turnaround.” The DHHR then presented the testimony of R.J.-1’s former pediatrician, who treated him from infancy until the child was around three years old. The child’s former pediatrician testified that petitioner had problems with following through with treatment or appointments. In fact, he testified that he reported to petitioner that “[R.J.-1] was falling into medical neglect here because [the parents] couldn’t get him to his appointments” and whether due to financial means or abuse, he suggested that CPS be called to help care for the child. The pediatrician testified that he did not see R.J.-1 again after that conversation.

M.J.’s foster parent also testified. She stated that when M.J. first came to her home, she could not speak or communicate. She testified that the child barked like a dog and babbled. The child also ran on all four extremities and tried to drink water out of the toilet. Since being in the foster home, the foster parent testified that M.J. learned words and had been enrolled in school. However, the foster parent stated that after attending visitation with the parents, M.J. would begin walking on all four extremities again.

After hearing evidence, the circuit court found that the parents did not have a fit and suitable home and failed to provide appropriate food, medical care, and nutrition to R.J.-1 for an extended period of time. The circuit court noted that although R.J.-1 had a serious medical condition, the parents were nevertheless neglectful in his medical care as the child’s weight and mobility significantly improved with proper treatment and nutrition after being removed. Accordingly, the circuit court adjudicated the parents as abusing parents.

The DHHR held a dispositional hearing in November of 2017 wherein a CPS worker testified that the parents failed to express understanding regarding the circumstances of abuse and neglect. The CPS worker testified that the parents indicated they understood that they needed to clean their home, but alleged that they did everything they were told to do regarding R.J.-1’s medical care. The CPS worker stated that the parents received adult life skills and parenting classes, but still failed to acknowledge the issues relating to R.J.-1’s medical problems and nutrition. Petitioner then testified and requested an improvement period. Petitioner stated that she believed she would be able to learn how to better care for her children if she were provided with services and further noted that she was willing to comply with any terms and conditions of an

improvement period should one be granted. When asked about the state of her home, petitioner testified that it was dirty from where their dogs tracked in dirt and that there was not feces on the floor. She also testified that she fed R.J.-1 two to three times a day as directed and had no idea why he would have had feces in his feeding tube. After hearing evidence, the circuit court found that petitioner’s testimony was not credible, noted that it was not required to exhaust every speculative possibility for rehabilitation, found that there was no reasonable likelihood that petitioner could correct the conditions of abuse in the near future, and concluded that termination was necessary for the children’s welfare. It is from the January 2, 2018, dispositional order terminating her parental rights to the children that petitioner appeals.5

The Court has previously established the following standard of review in cases such as this:

“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).

On appeal, petitioner argues that the circuit court erred in adjudicating her as an abusing parent. Specifically, petitioner argues that her home was not dirty, but merely cluttered, and that she diligently cared for R.J.-1. According to petitioner, the child’s undiagnosed illness caused the sores and lesions and that even with proper nutrition, the child would still suffer from skin problems. Therefore, petitioner argues that the circuit court erred in adjudicating her as an abusing parent when she was caring for a sick child whose doctors could not even provide a diagnosis. We disagree.

“W.Va.Code [§] 49-6-2(c) [now West Virginia Code § 49-4-601(i)], requires the [DHHR], in a child abuse or neglect case, to prove ‘conditions existing at the time of the filing of the petition . . . by clear and convincing [evidence].’ The statute, however, does not specify any particular manner or mode

5 R.J.-2’s parental rights were terminated below. D.B., R.J.-1’s biological father, voluntarily relinquished his parental rights below. The children have been placed in foster homes and the permanency plan is adoption therein. 4

of testimony or evidence by which the [DHHR] is obligated to meet this burden.” Syllabus Point 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).

Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (citations omitted). This Court has explained that “‘clear and convincing’ is the measure or degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the allegations sought to be established.” In re F.S., 233 W.Va. 538, 546, 759 S.E.2d 769, 777 (2014) (citing Brown v. Gobble, 196 W.Va. 559, 564, 474 S.E.2d 489, 494 (1996)). However, “the clear and convincing standard is ‘intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases.’” In re F.S., 233 W.Va. at 546, 759 S.E.2d at 777 (quoting Cramer v. W.Va. Dep’t of Highways, 180 W.Va. 97, 99 n.1, 375 S.E.2d 568, 570 n.1 (1988)).

Pursuant to West Virginia Code § 49-1-201, a neglected child is one

[w]hose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child’s parent . . . 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 on the part of the parent. . . .

After reviewing the record, we find that sufficient evidence existed upon which to adjudicate petitioner as an abusing parent. The inpatient pediatrician who attended to R.J.-1 during his hospital stay testified that the child was near death at the time of his removal from the home and would have died within the week had he not been admitted to the hospital. Testimony established that the child had not gained weight in seventeen months and only weighed twenty-two pounds at five years old. What appeared to be animal feces was in the child’s feeding tube. Moreover, the child had sores and lesions all over his body such that his nose had nearly completely deteriorated. While petitioner argues that the child’s undiagnosed illness largely contributed to his poor health at the time of removal, the expert testimony of the pediatrician established that the illness did not prevent the child from growing. Several times throughout this testimony, the pediatrician stated “if you feed him, he will grow[.]” In fact, the child’s weight nearly doubled in the seven months following his removal from petitioner’s care. The pediatrician and the primary care physician both testified that while R.J.-1 would have had problems with his skin regardless of his caloric intake, lack of nutrition certainly attributed to the severity of his sores and lesions and his health in general. Regarding the other children, the evidence established that three-year- old M.J. could not speak, barked like a dog, ran on all four extremities, and had no human interaction or socialization skills, and a loose screw was found in two-month-old T.J.’s crib. As such, we find that the record demonstrates that the children were abused and/or neglected and that the circuit court properly adjudicated petitioner as an abusing parent based upon clear and convincing evidence.

Petitioner also argues that the circuit court erred in terminating her parental rights without first granting her an improvement period. Specifically, petitioner argues that she demonstrated that she was likely to fully comply with an improvement period because she complied with the services offered to her throughout the underlying proceedings. However, we find that petitioner’s

argument is without merit. The decision to grant or deny an improvement period rests in the sound discretion of the circuit court. See In re M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015) (“West Virginia law allows the circuit court discretion in deciding whether to grant a parent an improvement period.”); Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (“It is within the court’s discretion to grant an improvement period within the applicable statutory requirements.”). We have also held that a parent’s “entitlement to an improvement period is conditioned upon the ability of the [parent] to demonstrate ‘by clear and convincing evidence, that the [parent] is likely to fully participate in the improvement period. . . .’” In re Charity H., 215 W.Va. 208, 215, 599 S.E.2d 631, 638 (2004).

We note that while petitioner was not granted a formal improvement period, she was provided with several services during the underlying proceedings including adult life skills classes, parenting classes, and drug screens. However, the CPS worker testified that, while petitioner complied with adult life skills and parenting classes, she failed to recognize her wrong- doing regarding R.J.-1’s lack of nutrition. During her testimony at the dispositional hearing, petitioner testified that she fed R.J.-1 two to three times a day and that the boxes containing his food were only covered with clothing because she was in the process of “switching out his clothes” due to his growth in height and not because of failure to feed the child. This testimony contradicted medical evidence that showed the child had not gained weight in nearly seventeen months, but proceeded to nearly double in weight following his removal from the home. Further, the CPS worker’s testimony established that CPS exhausted its resources and could not offer any other services which would help petitioner recognize the severity of R.J.-1’s medical neglect. We have previously held that

[i]n 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.

In re Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re Charity H., 215 W.Va. at 217, 599 S.E.2d at 640). Because petitioner failed to acknowledge how her actions constituted abuse and/or neglect of the children, an improvement period was rendered futile. Accordingly, we find that the circuit court did not err in denying her the same.

Moreover, we find that the circuit court did not err in terminating petitioner’s parental rights. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate parental rights upon findings that there is no reasonable likelihood the conditions of abuse and neglect can be substantially corrected in the near future and when necessary for the children’s welfare. West Virginia Code § 49-4-604(c)(3) clearly indicates that a situation in which there is no reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes one in which

[t]he abusing parent . . . [has] not responded to or followed through with a reasonable family case plan or other rehabilitative efforts of social, medical,

mental health or other rehabilitative agencies designed to reduce or prevent the abuse or neglect of the child, as evidenced by the continuation or insubstantial diminution of conditions which threatened the health, welfare or life of the child. . ..

The record demonstrates that there was sufficient evidence upon which to terminate petitioner’s parental rights. As mentioned above, testimony established that petitioner was provided with adult life skills and parenting classes, but failed to recognize the extent of the abuse perpetrated against the children. R.J.-1 was near death when he was removed from the home and petitioner continued to maintain at the dispositional hearing that she was caring for the child as directed. As such, she was unable to successfully follow through with the services provided and correct the conditions of abuse. While petitioner argues that she should have been granted an improvement period prior to the termination of her parental rights, we have previously held that

“[t]ermination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, W. Va. Code [§] 49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under W. Va. Code [§] 49-6-5(b) [now West Virginia Code § 49-4-604(c) ] . . . that conditions of neglect or abuse can be substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Having reviewed the record, we agree that there was sufficient evidence for the circuit court to find that there was no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near future and termination was necessary for the children’s welfare. As mentioned above, circuit courts are directed to terminate parental rights upon such findings.

For the foregoing reasons, we find no error in the decision of the circuit court, and its January 2, 2018, order is hereby affirmed.

Affirmed.

ISSUED: June 11, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman Justice Robin Jean Davis Justice Menis E. Ketchum Justice Elizabeth D. Walker

Justice Loughry, Allen H., II suspended and therefore not participating.