IN RE CHARITY H.

• Decision Date: 16 April 2004
• Docket Number: No. 31563.,31563.
• Citation: 215 W.Va. 208,599 S.E.2d 631
• Parties: In re: CHARITY H., Courtney H. and Victoria H.
• Court: West Virginia Supreme Court

599 S.E.2d 631

215 W.Va. 208

In re: CHARITY H., Courtney H. and Victoria H.

No. 31563.

Supreme Court of Appeals of West Virginia.

Submitted: February 10, 2004.

Filed: April 16, 2004.

Kevin C. Sponaugle, Franklin, for the Appellant Wanda S.

Marla Zelene Harman, Franklin, Guardian Ad Litem for the children, Charity H., Courtney H. and Victoria H.

Darrell V. McGraw, Jr., Attorney General, Charleston, C. Carter Williams, Assistant Attorney General, Petersburg, for the Appellee, State of West Virginia, Department of Health and Human Resources.

Marvin L. Downing, See & Downing, Moorefield, for the Appellee, Henry H.

PER CURIAM.

This is an appeal by Wanda S.¹ (hereinafter "Appellant") from a denial of motions for an improvement period and a decision to terminate parental rights to three children, Courtney H., Victoria H., and Charity H. The Appellant alleges that the lower court erred by denying her motions for a post-adjudicatory improvement period and a dispositional improvement period. Based upon this Court's review of the record, briefs, arguments of counsel, and pertinent authorities, we affirm the decision of the lower court and remand with directions to determine whether post-termination visitation between the Appellant and the children should be ordered.

I. Factual and Procedural History

The Appellant and Henry H. are the biological parents of the three children at issue in this appeal, Courtney H., Victoria H. and Charity H.² On December 29, 2001, the Appellant transported the children to the State Police barracks in Pendleton County to report allegations of sexual abuse by Henry H., the biological father of the children.³ Troopers Teter and Kingery of the West Virginia State Police informed the Appellant that she should seek medical and psychological examinations of the children; thus, the Appellant states that she took the children to Rockingham Memorial Hospital in Harrisonburg, Virginia, to be examined for evidence of sexual abuse on or about December 31, 2001. Although the Appellant alleges that a nurse informed her that an examination would be untimely since the children last visited with their father during Thanksgiving 2000, the hospital has no record of the visit. The Appellant next took the children to Winchester Medical Center for a physical examination on April 22, 2002. Forensic Nurse Brenda Adams examined the children and found evidence of sexual abuse and sexual assault in all three children.

On May 6, 2002, the Department of Health and Human Resources (hereinafter "DHHR"), through its Child Protective Services worker Cary Waybright, filed an abuse and neglect petition against the Appellant, Henry H., and John S., the Appellant's husband at that time. The petition alleged sexual abuse by Henry H. and further alleged that the Appellant was aware of the abuse but continued to permit the children to visit Henry H. The petition also alleged that the Appellant allowed the children to maintain contact with another known sexual offender, Jackie W., the Appellant's own father. Further, physical abuse, parental abuse of alcohol, and domestic violence were included in the petition.

The children were removed from their mother's custody and placed in foster care in Randolph County, where they have remained during the pendency of this action.⁴ The DHHR amended the petition on July 24, 2002, to include allegations that John S. physically abused the children, that the Appellant failed to protect the children from that abuse; that the Appellant refused to pay for eye glasses for Courtney; that the Appellant threatened to commit suicide in front of the children; that the Appellant refused to treat the children's head lice; that there were fleas in the carpeting of the Appellant's place of residence; that John S. forced the children to sit of their hands for several hours as punishment for routine offenses;⁵ that Henry H. forced the children to watch pornographic movies; that Henry H. engaged in sexual intercourse with the children; and that both Henry H. and Jackie W. are registered sexual offenders with whom the children have regular contact.

In a July 3, 2002, psychological report, Dr. Thomas Stein observed that his examination revealed that the Appellant suffered from post-traumatic stress originating from the sexual abuse she endured in her early adolescence. Although Dr. Stein noted that the Appellant had received some treatment from a licensed professional counselor and earlier treatment following the abuse in Braxton County, Dr. Stein concluded that "it is obvious to this psychologist that those treatments were ineffective in adequately addressing her post-traumatic stress condition." Dr. Stein opined that the Appellant's inability to protect her children originated in her underlying personality which developed from the sexual abuse she suffered as a child. Dr. Stein further explained that the Appellant had sufficient intellectual capacity to benefit from appropriate psychotherapeutic intervention and that the "in-home services related to child management would do nothing to address the issues of [the Appellant's] own previous sexual abuse and concomitant personality tendencies...." Dr. Stein concluded that the "likelihood of [the Appellant] fully and completely discharging her parenting responsibilities in an appropriate manner would be dramatically enhanced" after effective treatment. Unfortunately, Dr. Stein did not identify a time span in which improvement could be expected for the Appellant.

An adjudicatory hearing was held on August 5, 2002,⁶ and the lower court issued an adjudicatory order on October 8, 2002,⁷ finding that each of the children had been neglected and abused by the Appellant, Henry H., and John S. Specifically, the lower court found that Henry H. had sexually abused the children; that John S. had repeatedly physically abused the children; that the Appellant had consistently failed to take protective safety measures by exposing the children to sex offenders, by failing to timely submit the children for medical examinations, and by failing to seek appropriate psychological treatment for the children after the sexual abuse was revealed. The lower court further found that the Appellant had failed to protect the children from the harsh discipline and physical and emotional abuse inflicted by John S., their step-father. The court further emphasized that the Appellant had failed to acknowledge the extent of the abuse or its impact on the children. In an October 16, 2002, child case plan prepared by the DHHR, it was noted that the Appellant had previously failed to cooperate with offered services and that she had repeatedly denied that she or John S. abused the children.⁸

On October 24, 2002, the Appellant divorced John S., and he was thereafter dismissed from these proceedings. On November 6, 2002, the lower court conducted a hearing on the Appellant's motion for a post-adjudicatory improvement period. The DHHR and the guardian ad litem opposed such motion. The Appellant testified with regard to her ability to fully participate in such improvement period. The lower court also heard the testimony of Ms. Toni Walters, the individual supervising the visits between the Appellant and her children. It appears from the record that Ms. Walters was affiliated with Try Again Homes and was not an employee of the DHHR. Ms. Walters supervised the visitations for approximately five to six months, and her reports indicated that the visitations had been successful and that the Appellant had behaved very appropriately. During the November 6, 2002, hearing, Ms. Walters testified that Cary Ours⁹ of the DHHR expressed disapproval of the positive remarks made by Ms. Walters concerning the Appellant and indicated to Ms. Walters that "your reports are killing us." Ms. Walters was subsequently removed as the visitation supervisor.

Upon conclusion of the evidence on November 6, 2002, the lower court denied the motion for the post-adjudicatory improvement period, finding that the Appellant had received services for several years to little avail. Specifically, the lower court found that the Appellant failed to keep the children away from their grandfather, a registered sexual offender; failed to keep the children away from their father, a registered sexual offender; and failed to protect the children from the severe physical discipline imposed by John S., even after a "safety agreement" was entered into with the DHHR in August 1999 as a result of John S.'s unreasonable punishment of the children.

A dispositional hearing was conducted on December 9, 2002, and the lower court considered and denied the Appellant's motion for a dispositional improvement period based upon the absence of evidence that she could comply with the requirements of an improvement plan.¹⁰ On January 6, 2003, the lower court entered a dispositional order, finding that the Appellant was unwilling or unable to provide for the children's needs and that she had failed to protect the children from abuse. The court further found that continuation in the home was contrary to the welfare of the children, that the DHHR had made numerous reasonable efforts to preserve the family, and that there was no reasonable likelihood that the conditions of neglect and abuse could be substantially corrected in the near future. The lower court consequently terminated the parental rights of both the Appellant and Henry H.

The Appellant appeals that determination to this Court, contending that the lower court committed reversible error by denying her motions for post-adjudicatory and dispositional improvement periods. The guardian ad litem and DHHR maintain that the lower court's decision was correct and in the best interests of the children since there is no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future. The guardian ad litem and DHHR further argue that the Appellant has...