In re M.S.

• Decision Date: 19 November 2018
• Docket Number: No. 18-0556,18-0556
• Court: West Virginia Supreme Court
• Parties: In re M.S.

In re M.S.

No. 18-0556

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

November 19, 2018

(Nicholas County 17-JA-134)

MEMORANDUM DECISION

Petitioner Mother D.M., by counsel Anthony M. Salvatore, appeals the Circuit Court of Nicholas County's May 24, 2018, order terminating her parental rights to M.S.¹ The West Virginia Department of Health and Human Resources ("DHHR"), by counsel S.L. Evans, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Denise N. Pettijohn, filed a response on behalf of the child in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in adjudicating her as an abusing parent, denying her motion for a post-adjudicatory improvement period, terminating her parental rights instead of utilizing a less-restrictive dispositional alternative, and ordering her to pay child support retroactively.

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 aided by 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 Rules of Appellate Procedure.

On October 13, 2017, the DHHR filed an abuse and neglect petition alleging petitioner physically abused the child. The incident giving rise to the filing of the petition occurred on October 10, 2017, when it was alleged that petitioner appeared at the child's high school with a belt to "beat" the child for getting in trouble at school. The next day, upon her return to school, it was reported that the child had several bruises and marks on her body which caused her difficulty standing and sitting. The child also had "marks on her arms from [petitioner] grabbing her." According to the DHHR, a medical examination revealed that the child "had welts and bruising on her right lower extremity and buttocks stemming [from] this incident, which evidences physical abuse of the [child]." The fifteen-year-old child reported that she had suffered physical and verbal abuse from petitioner since she was in sixth grade. Petitioner waived her preliminary hearing.

On November 9, 2017, the circuit court continued the adjudicatory hearing in order for the parties to seek video surveillance footage from the high school. The circuit court ordered petitioner to participate in a psychological evaluation and allowed her to seek an independent psychological evaluation at her own expense. Petitioner was ordered to participate in services, and a multidisciplinary treatment team meeting was scheduled to discuss visitation. On November 17, 2017, the circuit court held an adjudicatory hearing during which the circuit court decided that it would not be in the child's best interest to testify in petitioner's presence during the hearing. The circuit court concluded that it would be appropriate to review, in camera, the child's forensic interview as well as her prior testimony from a domestic violence protective order hearing that was related to the instant matter. During the domestic violence protective order hearing, the child was subjected to cross-examination by petitioner's counsel. There was no objection to the circuit court conducting an in camera review of the child's interview and prior testimony. The DHHR presented evidence of the incident that led to the filing of the petition. The DHHR also presented evidence that the child disclosed to a DHHR worker that petitioner abused her and punished her for "different things." The child showed the DHHR worker bruising on her arm and the worker observed that the bruising was in the shape of a handprint. Petitioner invoked her right to avoid self-incrimination by invoking the Fifth Amendment to the United States Constitution.

Petitioner called the child's pediatrician, Dr. Greenburg, to testify. He did not examine the child following the October 10, 2017, incident and disagreed with the opinions of his partner, Dr. Shank, who examined the child. Dr. Greenberg testified that, in his opinion, to a reasonable degree of medical probability, there was no child abuse. According to Dr. Greenburg, abuse occurred if "you broke the skin, if you burned, if you had fractures, [those] kind[s] of things." However, Dr. Shank testified that he performed a general physical examination of the child and observed a "large, red, swollen area on her right buttock - or right below her right buttock, approximately six to eight inches in diameter, and she had some tenderness over her wrist." At the conclusion of the testimony, the circuit court continued the adjudicatory hearing. At the November 27, 2017, adjudicatory hearing, the circuit court informed the parties that it had reviewed the child's forensic interview and her testimony from the domestic violence protective order hearing. During the forensic interview and testimony, the child stated that she would be "whipped with a belt," and would be called "worthless" and "trash" by petitioner. She stated that she feared that she would be beaten again by petitioner if she told anyone about the abuse. The child testified that the abuse began when she was in sixth grade. The circuit court found that petitioner utilized excessive corporal punishment on the child, which constituted abuse. The circuit court found clear and convincing evidence of the conditions that existed at the time the abuse and neglect petition was filed. Accordingly, petitioner was adjudicated as an abusing parent.

On January 11, 2018, the circuit court held a dispositional hearing. Petitioner moved for a post-adjudicatory improvement period and stated that she would comply with services. However, petitioner denied using corporal punishment on the child. Due to her failure to acknowledge that her conduct was abusive, the DHHR and the guardian objected to petitioner's motion, which the circuit court ultimately denied. During the dispositional hearing, a Child Protective Services ("CPS") worker testified regarding a "massive amount of emails" from petitioner in which petitioner stated that the child was lying and needed to do a "complete turnaround." Petitioneralso blamed the DHHR, the school, the child, and the child's boyfriend for "the entire situation." The CPS worker further testified that petitioner never took responsibility for her actions and could not benefit from services because she did not think that she did anything wrong. A psychologist testified that petitioner "basically quoted the Bible to justify beating her child. That is very indicative that she is not going to change, that she believes that what she did was right, that it was appropriate, and that's very concerning." The circuit court expressed concerns that petitioner continued to place blame on others rather than acknowledging that her conduct was abusive. The dispositional hearing was continued and subsequent hearings were held in January, February, March, and April of 2018.²

During the final dispositional hearing on April 27, 2018, the DHHR presented evidence of petitioner's psychological evaluation, which revealed that petitioner was not fit to parent and that any course of treatment would take a minimum of six to nine months. An additional psychological evaluation, obtained independently by petitioner, was admitted into evidence. Both evaluations concluded that petitioner had severe personality symptoms associated with narcissistic personality disorder. The circuit court stated that petitioner exhibited no motivation in the matter other than to attack the parties, her experts, and the child. The circuit court found no reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near future and that the termination of her parental rights was in the child's best interests. Ultimately, the circuit court terminated petitioner's parental rights in its May 24, 2018, order.³ It is from this order that petitioner appeals.

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 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 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). Upon our review, this Court finds no error in the proceedings below.

On appeal, petitioner argues that the circuit court erred in adjudicating her as an abusing parent. In support, petitioner lists twenty-five "uncontestable facts that establish clear error in the [circuit c]ourt's decision to adjudicate her." However, petitioner fails to make any citation to the record to show how these alleged errors were preserved for appeal.⁴ Therefore, we will not address the twenty-five individual errors as presented by petitioner.

Moreover, based upon our review of the record, we find that the circuit court had sufficient evidence to adjudicate petitioner as an abusing parent....