In re A.M.
| Decision Date | 05 November 2020 |
| Docket Number | No. 19-0492,19-0492 |
| Citation | 849 S.E.2d 371 |
| Parties | IN RE A.M. and N.M. |
| Court | West Virginia Supreme Court |
Courtney L. Ahlborn, Parkersburg, West Virginia, Guardian ad Litem for the Petitioners, Minor Children, A.M. and N.M.
Jeffrey B. Reed, Parkersburg, West Virginia, Attorney for the Respondent Father, S.M.
Patrick Morrisey, Attorney General, Lee Niezgoda, Assistant Attorney General, Fairmont, West Virginia, Attorneys for the Respondent, West Virginia Department of Health and Human Resources.
F. John Oshoway, Grantsville, West Virginia, Attorney for the Respondent Mother, J.M.
The Petitioner herein, the Guardian ad Litem ("Guardian") for the minor children A.M.1 and N.M., appeals from an amended2 adjudicatory order entered May 15, 2019, by the Circuit Court of Wood County in the underlying abuse and neglect case. By that order, the circuit court determined the Respondent Father, S.M. ("Father"), to be an abusive and/or neglectful parent as a result of his substantial abuse of alcohol and other substances and concluded that the Respondent Mother, J.M. ("Mother"), had committed no abuse and/or neglect of her children. On appeal to this Court, the Guardian contends that the circuit court erred by failing to also adjudicate Father of sexual abuse of the oldest child, A.M., and by not finding Mother to be an abusive and/or neglectful parent based upon her failure to protect the children from such sexual abuse. The West Virginia Department of Health and Human Resources ("DHHR"), which filed the underlying abuse and neglect proceeding, joins in the Guardian's arguments. Upon a review of the parties’ arguments, the briefs, the appendix record, and the relevant law, we conclude that the circuit court erred by refusing to find both that Father had committed sexual abuse of A.M. and that Mother was an abusive and/or neglectful parent because she had failed to protect both of her children from such abuse. Accordingly, we reverse the circuit court's May 15, 2019 amended adjudicatory order and remand this case with instructions to conduct further proceedings consistent with this Opinion, to include the entry of a new3 amended adjudicatory order finding that (1) Father sexually abused A.M. and (2) Mother was an abusive and/or neglectful parent because she failed to protect the children from such abuse. Additionally, the circuit court also should (1) vacate that portion of its amended adjudicatory order granting a gradual reunification of the children with Mother and (2) proceed to disposition to achieve a final resolution of the status of the parents’ rights and to determine the permanent placement of the subject children.
The underlying abuse and neglect case began in March 2018 when A.M.’s friend, H.L., disclosed to A.M., her teacher, and her school's resource officer that Father had placed his hand under her shirt and rubbed her breasts while they were lying on Father's bed and watching movies. H.L. frequently spent the night at the home A.M. shared with her parents, Father and Mother, and her younger sister, N.M. A.M. was not home at the time of the alleged incident because she had gone to the hospital with Mother for the birth of A.M.’s older sister's child. Other individuals who were in the home at the time of the alleged incident were N.M., A.M.’s younger, grade-school age sister, and the toddler child of A.M.’s pregnant older sister. Both H.L. and A.M. were fifteen years old at the time of this alleged incident, and while Father has been indicted on criminal charges with respect to H.L.’s allegations, the criminal case allegedly has been stayed pending the resolution of this abuse and neglect proceeding, including the instant appeal before this Court.
The DHHR's initial abuse and neglect petition recounted H.L.’s allegations as well as H.L.’s comments that, after she disclosed this incident to A.M., A.M. reportedly told H.L. that Father had "engaged in similar abuse with her," without further elaboration.4 The petition further alleged that Mother had obtained a domestic violence protective order against Father, on behalf of A.M., after H.L.’s revelations, but that she later requested that it be dismissed. Ultimately, the petition alleged that Father had sexually abused A.M. and that Mother had failed to protect her from such abuse. The petition also referenced Father's extensive use of alcohol and marijuana.
Following forensic interviews of the children, including H.L., the DHHR amended its petition to include additional details about the alleged incident reported by H.L. and to allege further that Father had sexually abused A.M. and that Mother had failed to protect both A.M. and N.M. from such sexual abuse. In support of its allegations of sexual abuse by Father against A.M., the DHHR recounted several of A.M.’s interview disclosures, including (1) that Father had applied medicine to her chafed breasts when she was thirteen years old and that this encounter had made her feel uncomfortable; (2) that Father shaved her legs, that she wore denim shorts to prevent him from shaving any further up her legs, and that this practice had made her feel uncomfortable; (3) that she had to sit next to Father, or on his lap, when they attended gatherings at friends’ or families’ homes; (4) that Father was very strict and would not let her go out with friends, have a boyfriend, or talk to boys on her cell phone; (5) that Father would enter the bathroom while she was showering and watch her, however other family members testified that Father entered the bathroom while A.M. was showering only if she asked him to bring her hygiene items like shampoo; (6) that if Father fell asleep on her bed, he would put his legs over hers to prevent her from getting up; (7) that Father watched pornography on his phone; had downloaded thousands of pornographic images onto his phone, many of which were from incestuous-themed websites; and tried to show these images to A.M.; and (8) that Father recited an incestuous-themed poem about her. The amended petition additionally alleged that Father's substance abuse impaired his ability to care for the children and that he had engaged in domestic violence with Mother in front of the children.
By amended5 adjudicatory order entered May 15, 2019, the circuit court adjudicated Father as an abusive and neglectful parent as a result of his excessive alcohol (approximately 30 cans of beer per day) and marijuana (every evening) use, but did not find that Father had sexually abused either H.L., based upon conflicting testimony about the alleged incident, or A.M. The circuit court additionally dismissed the petition as to Mother, and ordered that the children be returned to her care, which reunification has been stayed pending the outcome of this appeal. Additionally, the circuit court has deferred rendering a final disposition as to Father pending the outcome of this appeal. The children's Guardian now appeals to this Court to challenge the circuit court's rulings that (1) Father did not sexually abuse A.M. and (2) Mother was not abusive and/or neglectful.
In abuse and neglect cases such as the one presently before us, we have established the standard of review by which we consider the correctness of the circuit court's order as follows:
[a]lthough 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 re Tiffany Marie S. , 196 W. Va. 223, 470 S.E.2d 177 (1996). Guided by this standard, we proceed to consider the parties’ arguments.
On appeal to this Court, the children's Guardian, as well as the DHHR, contend that the circuit court erred by failing to adjudicate Father of sexual abuse and failing to adjudicate Mother as an abusive and/or neglectful parent in the first instance. Upon our review of the record in this case, we agree that the circuit court's failure to render such rulings based upon the record evidence before it constitutes reversible error.
When prosecuting an abuse and neglect proceeding, the DHHR is required to prove the allegations set forth in its petition by clear and convincing evidence:
" ‘ Syllabus Point 1, In re Beth , 192 W. Va. 656, 453 S.E.2d 639 (1994).
Syl. pt. 3, In re Christina L. , 194 W. Va. 446, 460 S.E.2d 692 (1995) (footnote added). Clear and convincing evidence means that more than a mere scintilla of evidence has been presented to establish the veracity of the allegations of...
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