Christina L., In re

• Decision Date: 11 July 1995
• Docket Number: Nos. 22803,22804,s. 22803
• Citation: 194 W.Va. 446,460 S.E.2d 692
• Court: West Virginia Supreme Court
• Parties: In re CHRISTINA L. and Kenneth J.L.

Page 692

460 S.E.2d 692

194 W.Va. 446

In re CHRISTINA L. and Kenneth J.L.

Nos. 22803, 22804.

Supreme Court of Appeals of

West Virginia.

Submitted May 30, 1995.

Decided July 11, 1995.

[194 W.Va. 448] Syllabus by the Court

1. " ' "W.Va.Code, 49-1-3(a) (1984), in part, defines an abused child to include one whose parent knowingly allows another person to commit the abuse. Under this standard, termination of parental rights is usually upheld only where the parent takes no action in the face of knowledge of the abuse or actually aids or protects the abusing parent." Syl. pt. 3, In re Betty J.W., 179 W.Va. 605, 371 S.E.2d 326 (1988).' Syllabus Point 2, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993)." Syllabus Point 1, In re Jonathan Michael D., 194 W.Va. 20, 459 S.E.2d 131.

2. Where there is clear and convincing evidence that a child has suffered physical and/or sexual abuse while in the custody of his or her parent(s), guardian, or custodian, another child residing in the home when the abuse took place who is not a direct victim of the physical and/or sexual abuse but is at risk of being abused is an abused child under W.Va.Code, 49-1-3(a) (1994).

3. " ' "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).' Syllabus Point 1, West Virginia Department of Human Services v. Peggy F., 184 W.Va. 60, 399 S.E.2d 460 (1990)." Syllabus Point 1, In re Beth, 192 W.Va. 656, 453 S.E.2d 639 (1994).

4. "Each child in an abuse and neglect case is entitled to effective representation of counsel. To further that goal, W.Va.Code, 49-6-2(a) [1992] mandates that a child has a right to be represented by counsel in every stage of abuse and neglect proceedings. Furthermore, Rule XIII of the West Virginia Rules for Trial Courts of Record provides that a guardian ad litem shall make a full and independent investigation of the facts involved in the proceeding, and shall make his or her recommendations known to the court. Rules 1.1 and 1.3 of the West Virginia Rules of Professional Conduct, respectively, require an attorney to provide competent representation to a client, and to act with reasonable diligence and promptness in representing a client." Syllabus Point 5, in part, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993).

5. When parental rights are terminated due to neglect or abuse, the circuit court may nevertheless in appropriate cases consider whether continued visitation or other contact with the abusing parent is in the best interest of the child. Among other things, the circuit court should consider whether a close emotional bond has been established between parent and child and the child's wishes, if he or she is of appropriate maturity to make such request. The evidence must indicate that such visitation or continued contact would not be detrimental to the child's well being and would be in the child's best interest.

6. When the West Virginia Department of Health and Human Resources seeks to terminate parental rights where an absent parent has abandoned the child, allegations of such abandonment should be included in the petition and every effort made to comply with the notice requirements of W.Va.Code, 49-6-1 (1992).

Jeffrey A. Elder, Albright, Bradley & Ellison, Parkersburg, guardian ad litem for Kenneth J.L.

C. Scott Durig, Asst. Pros. Atty. for Wood County, Parkersburg, for W.V. Dept. of Health and Human Resources.

Barbara H. Allen, Allen & Allen, Charleston, for Bonita L.

Ernest M. Douglass, Douglass, Douglass & Douglass, Parkersburg, guardian ad litem for Christina L.

CLECKLEY, Justice:

In this child abuse and neglect case, the Circuit Court of Wood County terminated the parental rights of Bonita L. ¹ to her children, Christina L. and Kenneth J.L., and authorized their adoption. The parental termination was based on evidence that Bonita L.'s live-in boyfriend, James R., sexually abused Christina L. for many years. Furthermore, Bonita L. knew of such abuse and aided James R. in performing some of the acts. Bonita L. and the guardian ad litem for Kenneth J.L. join in this appeal ² and cite as error: (1) the circuit court's refusal to allow the mother's counsel and the guardian ad litem for the children the opportunity to submit their proposed dispositional alternatives; and (2) the authorization for the children's adoption since the children's father is not a respondent to the proceedings. Bonita L. raises an additional assignment of error that her parental rights should not be terminated because she had no knowledge the abuse was occurring. ³ For reasons discussed below, we remand this case to the circuit court for action consistent with this opinion.

I. FACTS AND PROCEDURAL BACKGROUND

Bonita L. and Paul David L. are the natural parents of Christina L., who was born October 9, 1981, and Kenneth J.L., who was born January 12, 1983. Mr. and Mrs. L. divorced shortly after Kenneth's birth, and Bonita L. was awarded custody of the children. Christina and Kenneth have had very little contact with their natural father since the divorce. Bonita L. has lived as husband and wife with her boyfriend, James R., for more than a decade. The children refer to James R. as their father.

The investigation into this matter began after twelve-year-old Christina told a friend at school and a teacher that James R. had sexual contact with her. The evidence shows the sexual abuse began at approximately the time Christina was in the third grade and continued to the time it was reported. She stated James R. touched her breasts, vagina, and anus with his hands and penis. Furthermore, he attempted to penetrate her vagina and anus with his penis. Christina testified the abuse usually occurred in her parents' bedroom in the middle of the night or before school began.

Karol Payne, a child protective services worker with the West Virginia Department of Health and Human Resources (Department), testified at the November 10, 1993, hearing that Christina told her that her mother knew the abuse was occurring because Bonita L. would sometimes hold her arms and tell her to be quiet. Christina testified that Bonita L. would tell her to hold still and not to "squirm." Christina also stated that Bonita L. and James R., on occasion, took Polaroid pictures of these sex acts.

Based on this evidence, the circuit court ordered the removal of Christina and Kenneth from their home. Temporary custody was vested in the Department.

Dr. Joan Phillips, a pediatrician, performed an examination on Christina at the Sexual Assault Clinic of Women and Children's Hospital in Charleston. Dr. Phillips "an indentation or V-ed area into the tissue of the hymen. That is significant in that it was deep which would indicate that it had perhaps been a healed tear. It was also at the 8:00 position. We look at the vaginal opening as we would a clock from 12:00 all of the way around. Any notch between the 3:00 and 9:00 position is strongly indicative of trauma or healed trauma."

[194 W.Va. 450] testified at the February 25, 1994, hearing that her findings supported Christina's disclosure of sexual abuse. Upon examination, she noticed a notch in the vagina indicative of a penetration-type forced trauma. Dr. Phillips described the old injury as

Dr. Phillips stated a straddle-type injury would not produce this result. Furthermore, it was highly unlikely the injury was caused by masturbation or tampon use.

Bonita L. and James R. vehemently denied any sexual abuse occurred. They speculated that Christina conjured up this story because she was jealous of the attention James R. began paying to his grandson. Furthermore, James R. stated that Christina's allegations were physically impossible because medical problems had prevented him from maintaining an erection for approximately three years. However, no medical evidence was submitted to support his claim.

Kenneth testified he was never sexually abused and no evidence was submitted to show he was abused or exposed to Christina's abuse. He testified he wanted to return to his mother's custody. ⁴ Kenneth also testified his mother and other family members did not believe Christina and put pressure on her to rescind the allegations.

By order entered May 23, 1994, the circuit court found by clear and convincing evidence that Christina was sexually abused by James R. and that her mother failed to protect her from the abuse even though she was aware that the abuse occurred. No findings were made in regard to Kenneth. The matter was set for a dispositional hearing.

At the dispositional hearing held May 31, 1994, Cynthia Beck, a psychologist, testified that she had conducted therapy for both Christina and Kenneth on a weekly basis for over a five-month period. Ms. Beck stated she originally diagnosed Christina as having a post-traumatic stress disorder. Christina had made progress in decreasing her anxiety level and was doing well in foster care. She recommended that Christina not return to her mother's custody because James R. was still in the home and Bonita L. never acknowledged the abuse occurred. Ms. Beck testified that it made Christina very angry and frustrated that her mother did not support her.

Ms. Beck diagnosed Kenneth as suffering from depression, although she admitted the depression may have been due to his placement in foster care. She stated that Kenneth wavers back and forth in deciding whether he believes Christina was sexually abused. He wants to believe his parents, but he also has a close bond to Christina and does not want to conclude she is lying....