In Re Faith C.

• Decision Date: 04 June 2010
• Docket Number: No. 35452.,35452.
• Citation: 699 S.E.2d 730,226 W.Va. 188
• Court: West Virginia Supreme Court
• Parties: In re FAITH C., Sophia S. and Madelyn S.

226 W.Va. 188

699 S.E.2d 730

West Virginia.

In re FAITH C., Sophia S. and Madelyn S.

No. 35452.

Supreme Court of Appeals of

Submitted March 31, 2010.

Decided June 4, 2010.

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.” Syllabus Point 1 In the Interest of: Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

2. “Under W.Va.Code, 49-6-2(b) [ (2006) (Repl.Vol.2009) ], when an improvement period is authorized, then the court by order shall require the Department of Human Services to prepare a family case plan pursuant to W.Va.Code, 49-6D-3 [ (1998) (Repl.Vol.2009) ].” Syllabus Point 3 State ex rel. W.Va. Dept. of Human Services v. Cheryl M., 177 W.Va. 688, 356 S.E.2d 181 (1987).

3. “In formulating the improvement period and family case plans, courts and social service workers should cooperate to provide a workable approach for the resolution of family problems which have prevented the child or children from receiving appropriate care from their parents. The formulation of the improvement period and family case plans should therefore be a consolidated, multi-disciplinary effort among the court system, the parents, attorneys, social service agencies, and any other helping personnel involved in assisting the family.” Syllabus Point 4 In the Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

4. “At the conclusion of the improvement period, the court shall review the performance of the parents in attempting to attain the goals of the improvement period and shall, in the court's discretion, determine whether the conditions of the improvement period have been satisfied and whether sufficient improvement has been made in the context of all the circumstances of the case to justify the return of the child[ren].” Syllabus Point 6 In the Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

Matthew A. Victor, Esq., Victor, Victor & Helgoe, LLP, Charleston, WV, Guardian ad Litem.

Barbara Lynn Utt, Esq., Law Offices of Barbara Lynn Utt, Charleston, WV, for Appellee, Sarah S.

PER CURIAM:

This case is before this Court upon appeal of a final order of the Circuit Court of Kanawha County entered on July 30, 2009, which granted a six-month dispositional improvement period to the appellee and respondent below, Sarah S. ¹ in this abuse and neglect proceeding. In this appeal, the guardian ad litem for the children, Faith C., Sophia S., and Madelyn S., ² contends that the circuit court erred by granting the improvement period and not terminating Sarah S.'s parental rights. This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the order of the circuit court is affirmed, and this case is remanded to the circuit court with directions regarding the improvement period as set forth herein.³

I.FACTS

On September 15, 2008, the West Virginia Department of Health and Human Resources (hereinafter “DHHR”) filed an abuse and neglect petition alleging that Faith, Sophia, and Madelyn were abused and/or neglected by their parents. Sarah S. is the mother of all three children. Teddy C. is the father of Faith, and Benjamin S. is the father of Sophia and Madelyn.⁴ In particular, the DHHR asserted that on September 12, 2008, Sophia, who was twenty-two months old, received second-degree burns to her legs and feet as a result of an intentional immersion in scalding water at her home. The DHHR maintained that the perpetrator of the alleged abuse was Sarah S., as there was no dispute that Benjamin S. was not at the residence at the time of the incident.⁵ The only people present in the home at that time were Sophia, Madelyn, and Sarah S. ⁶

As a result of her severe injuries, Sophia was first transported by helicopter to the Burn Center at Cabell Huntington Hospital in Huntington, West Virginia, and then transferred to the Nationwide Children's Hospital in Columbus, Ohio, a few days later. After prolonged treatment which included surgery, Sophia's wounds healed. Although the police responded to the residence at the time of the incident,⁷ no criminal charges were filed against Sarah S. She claimed that Sophia had climbed up onto the bathroom sink, turned on the hot water, and burned herself instantaneously. Sarah S. stated that she was outside of the family residence talking on a cell phone when the incident occurred.⁸ She said she heard a child screaming and did not immediately respond because she thought the screams were coming from her youngest daughter, Madelyn, who needed a nap. When she did go into the residence, she said she found Sophia on top of the bathroom vanity already severely burned.

During the abuse and neglect proceedings below, the DHHR presented testimony from two experts, Eduardo Pino, M.D., and David Henchman, M.D., both doctors at the Burn Center at Cabell Huntington Hospital. They testified that the nature of Sophia's burns indicated that she had been immersed and held down in scalding water. According to these doctors, no other explanation of the child's injuries could be consistent with the type of burns she sustained. Specifically, Drs. Pino and Henchman testified that the “glove and stocking” circumferential burns encompassing the entire area around the child's legs could only lead to the singular conclusion that the child had been immersed in scalding water and held down. Dr. Pino opined that this was a “classic” example of an immersion burn. During his testimony, Dr. Pino stated:

The nature of the burns being circumferential, particularly higher or one side then [sic] on the other, really to me signifies that this child was more or less dumped into hot water.

....

... I don't know what the water temperature of the sink was. But the fact that both extremities are burned, nobody steps into a bathtub or sink or whatever, with both feet at the same time.

The fact that it's circumferential means that it was just an immersion, just going like this. Certainly one foot versus the other is that one foot was probably picked up and so that's why it only burned to one leg, and the other one burned further down.

Similarly, Dr. Henchman testified that he could not imagine any other scenario to explain Sophia's injuries other than someone just holding her down in the water. He testified:

I can't imagine another scenario that would give that result. I would think that anytime a child or anyone's foot touched hot water that much, instinctively pull it away. To put both feet inside up to the calf in scalding water, I can't imagine another scenario.

The DHHR also submitted into evidence a medical report from the Nationwide Children's Hospital which included the following statement from Gail E. Besner, M.D., the attending physician:

Child Assessment Team was consulted and evaluation revealed bilateral circumferential burns to both feet extending to the mid calf on the right and to the ankle on the left (i.e. in an asymmetric stocking distribution). The mechanism of production of these burns was immersion into a scalding hot liquid. Child Assessment Team consultant indicated this pattern of burn injury was frequently inflicted. The patient also had an unexplained long linear bruise to the right thigh, which added concern for physical abuse ... Child Assessment Team agreed with the filing of a report of suspected physical abuse to Children's Services.

In contrast to the evidence presented by the DHHR, Sarah S. offered the testimony of Gregory Porter, P.A., who indicated that he had participated in approximately twenty-five water submersion cases. Mr. Porter was qualified as an expert in emergency medicine, primary health care, and emergency medicine for children. Mr. Porter opined that Sophia's injuries were accidentally self-inflicted. He testified as follows in response to questions from counsel for Sarah S.:

Q: Is a stocking glove appearance the only thing that you look at when you are trying to determine if one has had an immersion burn or not?

A: Absolutely not.

Q: What is a stocking glove appearance to a burn?

A: Stocking glove, I mean if you think about it, has [sic] a female wearing knee highs, that sort of thing. Stocking glove usually refers to that. It is very, you know, clear from the foot all the way up to a level. It is sort of like a stocking.

....

Q: But would that be dispositive that it's an immersion burn or would it be a possibility?

A: It rises the-raises the suspicion for immersion burn.

Mr. Porter explained that in addition to the appearance of the burn, the depth of the burn had to be considered. He stated:

Q: Okay. Is there anything about them, the depth of an immersion burn that is important?

A: Absolutely.

Q: What is that?

A: During my research of the case, I think that's the most striking piece of evidence. If you are immersed in a body of water that is a consistent temperature say that this child, I think the water heater was 147, 150 degrees; if you take a child and you emerge [sic] in that water, you are going to have the same depth of burn everywhere that the water was. The only thing that would change that is the time of exposure. But so random, that you just draw a

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