In re L.J., 16-0646

• Decision Date: 12 December 2016
• Docket Number: No. 16-0646,16-0646
• Court: West Virginia Supreme Court
• Parties: In re: L.J. and C.L.

In re: L.J. and C.L.

No. 16-0646

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

December 12, 2016

(Barbour County 15-JA-32 & 15-JA-39)

MEMORANDUM DECISION

Petitioner Mother K.W., by counsel Erika Klie Kolenich and Melissa T. Roman, appeals the Circuit Court of Barbour County's June 1, 2016, order terminating her parental rights to eighteen-year-old L.J. and twelve-year-old C.L.¹ The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Allison C. Iapalucci, filed a response also in support of the circuit court's order. Petitioner filed a reply. In her appeal, petitioner raises the following five assignments of error: (1) error in terminating her parental rights without allowing her to testify and present additional witnesses at the dispositional hearing; (2) error in denying her motion for a post-adjudicatory improvement period without allowing her to testify and present additional witnesses in support of that motion; (3) violations of the West Virginia Code of Judicial Conduct by the presiding circuit court judge; (4) error in the circuit court's admission of and reliance on a sentencing transcript from a 2005 criminal proceeding against a third party; and (5) error in failing to develop the record and make a ruling on the issue of post-termination visitation with C.L.²

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 aidedby 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 West Virginia Rules of Appellate Procedure.

In August of 2015, the DHHR filed an abuse and neglect petition against petitioner and the children's fathers regarding C.L. and L.J. In its petition, the DHHR alleged that multiple acts of abuse and/or neglect occurred over a period of many years and continued at the time of the petition's filing. Specifically, the DHHR alleged that petitioner repeatedly exposed the children to inappropriate people including M.L., whom she married and brought into her home knowing that he was a registered sex offender for committing incest against his minor daughter. Further, the DHHR alleged that, while in a relationship with petitioner, M.L. committed attempted incest against petitioner's oldest daughter, S.W.³ In approximately 2005, M.L. was arrested, convicted, and sentenced to prison for one to three years for his attempted sexual crime against S.W. According to the DHHR, petitioner sided with M.L. and not S.W. during the 2005 criminal proceedings, and petitioner invited M.L. back into her home after his release from prison in approximately 2006. Reportedly, M.L. sexually abused L.J. in 2008 while residing in petitioner's home. The DHHR further alleged that L.J. had "run away" at the time of the petition's filing, but, without having yet found her child, petitioner moved to the State of Ohio. Before moving, petitioner was said to have changed the locks on her West Virginia home and to have placed a "No Trespassing" sign on the home that specifically referred to L.J. The DHHR's allegations also included claims that petitioner "yell[ed] and cuss[ed]" at C.L., which frightened the child, and that petitioner would slam doors and throw things in anger.

In September of 2015, the circuit court held an adjudicatory hearing. At that hearing, petitioner stipulated to the abuse and neglect of her children in that (1) after M.L. sexually abused S.W., petitioner allowed him to move back into the home with her children at which time he sexually abused L.J.; and (2) L.J. was missing when petitioner moved to Ohio. At that hearing, petitioner also admitted that when M.L. was released from prison for molesting S.W., petitioner "took S.W. to the prison to pick him up to bring him back to her home[.]" In its adjudicatory order, the circuit court found petitioner to be an abusing parent. The circuit court also found that petitioner was present at M.L.'s sentencing hearing in 2005 and that she argued that M.L. should not be sent to prison at that time.

Thereafter, petitioner moved for a post-adjudicatory improvement period and moved for a psychological evaluation. In October of 2015, the circuit court granted petitioner's motion to be evaluated by a psychologist. In December of 2015 and January of 2016, petitioner was evaluated by Dr. Bobby Miller, a licensed psychiatrist. In his report, Dr. Miller found that petitioner suffered from Borderline Personality Disorder and stated that she had suffered trauma in her prior relationships. Dr. Miller concluded that petitioner was capable of parenting her children if provided the proper treatment.

In January of 2016, the DHHR filed a motion to terminate petitioner's parental rights to the children. From January to early March of 2016, petitioner filed witness/exhibit lists and supplemental witness/exhibit lists including descriptions of the evidence to be presented which focused on petitioner's psychological assessment and whether services could be rendered to improve petitioner's parenting. On March 3, 2016, the week prior to the dispositional hearing, the guardian filed a disclosure of exhibits for the dispositional hearing, a motion to admit M.L.'s 2005 sentencing transcript, and a report regarding the children's best interests. In her report, the guardian recommended that the children's best interests required termination of petitioner's parental rights.

On March 8, 2016, the circuit court held a dispositional hearing. At that hearing, the circuit court acknowledged that it had directed petitioner's counsel the day before the hearing not to bring certain witnesses subpoenaed to attend and, potentially, present evidence. The circuit court granted petitioner's motion to admit certain exhibits, including a transcript from a separate proceeding and other documents. Based on the circumstances of the case, the circuit court stated as follows:

It is unfathomable that a mother would engage in this type of behavior. There is nothing, no set of circumstances that can condone [petitioner's behavior]. . . . There are no services that the Department could possibly render to change what is an absolute inability or lack of empathy or understanding . . . there are no services that could ever be put in place to ensure that the youngest child, [C.L.], would be safe . . . . And it's for those reasons that the Court ordered that the witnesses be cancelled because they would have served no purpose. It's a case of aggravated circumstances of subjecting these children to sexual assault and abuse knowingly on a repeated[,] long[-]term[,] chronic basis. And the Department is not obligated to provide services. And as a result[,] it's now ordered . . . that [petitioner's] parental rights to the two children . . . be terminated and held for naught.

Petitioner objected to the circuit court's rulings on several grounds. On June 1, 2016, the circuit court entered an order terminating petitioner's parental rights to C.L. and L.J. The circuit court also ordered the multidisplinary team ("MDT") to decide whether petitioner's post-termination visitation with C.L. was in the child's best interests.⁴ This appeal followed.

The Court has previously established the following standard of review:

"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 entireevidence 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). Further, "in the context of abuse and neglect proceedings, the circuit court is the entity charged with weighing the credibility of witnesses and rendering findings of fact." In re Emily, 208 W.Va. 325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478, 525 S.E.2d 669 (1999)); see also Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997) (stating that "[a] reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely situated to make such determinations and this Court is not in a position to, and will not, second guess such determinations."). "Absent a few exceptions, this Court will review evidentiary . . . rulings of the circuit court under an abuse of discretion standard.' Syl. Pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995)." Syl. Pt. 9, in part, Tudor v. Charleston Area Medical Center, Inc., 203 W.Va. 111, 506 S.E.2d 554 (1997).

On appeal, petitioner argues that the circuit court erred in terminating her parental rights without allowing her to testify and present additional witnesses at the dispositional hearing. Petitioner correctly notes that she is entitled to due process of law and a meaningful opportunity to be heard and present evidence in these proceedings. See Syl. Pt. 3, Lindsie D...