In re A.R.-1
| Decision Date | 31 August 2022 |
| Docket Number | 22-0092 |
| Parties | In re A.R.-1, A.R.-2, and E.R. |
| Court | West Virginia Supreme Court |
Lewis County 21-JA-46, 21-JA-47, and 21-JA-48
Petitioner Mother L.G., by counsel Jamella Lockwood, appeals the Circuit Court of Lewis County's January 12, 2022, order terminating her parental rights to A.R.-1, A.R.-2, and E.R.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Patrick Morrisey and Lee Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Brian W. Bailey, filed a response on behalf of the children also in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in denying her motion for an improvement period and in terminating her parental rights instead of employing a less restrictive alternative disposition.
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.
In April of 2021, the DHHR filed a child abuse and neglect petition against the father based upon domestic violence. Specifically, the DHHR alleged that petitioner and the father had recently separated and that, during Easter festivities held at the father's parents' house, the father jumped on the hood of a car in which petitioner and the three children were seated. The father had a large knife and began trying to stab petitioner through the windshield of the car. Petitioner began driving the car and the father continued to try to stab her through the windshield and driver's window until she rounded a curve in the road, causing the father to fall off. The father fled into the woods with the knife but was later arrested and charged with child abuse creating risk of injury. A Child Protective Services ("CPS") worker spoke to petitioner, who described the incident and further reported that the father's behavior had been extremely erratic in the weeks leading up to the incident. Petitioner was considered a nonabusing parent at that time.
At an adjudicatory hearing held in June of 2021, the father stipulated to abusing and neglecting the children, and the circuit court accepted the father's stipulation and adjudicated him as an abusing parent. The DHHR filed an amended petition against petitioner at that time, alleging that she failed to protect the children from the father, that she engaged in a pattern of behavior designed to protect the father at the expense of the safety of the children, and that she and the father had a prior CPS history that had previously resulted in the removal of the children based upon domestic violence between petitioner and the father. However the DHHR allowed the children to remain in petitioner's care at that time.
The circuit court held an adjudicatory hearing on the amended petition in October of 2021. The DHHR called petitioner to testify and questioned her regarding her prior history of domestic violence with the father. Petitioner admitted that her children had previously been involved in proceedings in the State of Pennsylvania in 2018 or 2019, but claimed that she had never lived there. She admitted, however, that she participated in counseling in those proceedings. Petitioner testified that the incident "was so long ago" and that she could not remember what occurred or whether the father was criminally charged, repeatedly stating that she needed time to "go over the records." Petitioner also acknowledged that she was involved in a prior abuse and neglect proceeding in Lewis County, West Virginia in 2013 based upon allegations of domestic violence. Petitioner denied that she remembered what occurred to initiate those proceedings, again saying "[t]hat was so long ago."
The DHHR also questioned petitioner regarding the incident wherein the father attempted to stab her through the windshield and window of her car. Petitioner testified that she could not remember what occurred and that she had "been working with my counselor" to remember the event. Petitioner stated that although she heard the father yelling, she "did not physically see him there." Petitioner claimed it was a traumatic experience and that she could not remember anyone stabbing her car (although she could describe the damage to the windshield after the incident) and refused to name the father as the person on the hood of her car. Petitioner stated that she needed a continuance and time to work with her counselor so that "[i]n due time" she could remember the incident. The DHHR further questioned petitioner about phone calls between she and the father that were recorded due to his incarceration. The DHHR specifically asked petitioner why she had apologized to the father, and she replied "[b]ecause I should never have went down" to the father's parents' house. During this questioning, petitioner became extremely agitated and essentially refused to directly answer any questions, leading the circuit court to instruct the DHHR to call its next witness because they were "not getting anywhere here right now."
The father's sister, R.R., testified that she observed several instances of domestic violence between petitioner and the father, including an instance in approximately March of 2021, when she received an unintentional phone call from petitioner wherein she could hear petitioner yelling at the father to "stop." R.R. stated that petitioner sounded scared during the incident. Later, petitioner told R.R. that she moved herself and the children into a hotel to protect them from the father. R.R. also described the incident leading to the instant petition's filing and stated that she observed the father jump on the hood of petitioner's car and attempt to stab her. R.R. stated that she and another relative called 9-1-1 and noted that petitioner did not want to give a statement to the police because she wanted the father to get help. The father's brother, C.R., also testified and corroborated R.R.'s testimony.
A police officer testified that he responded to the scene after the father attempted to stab petitioner through the windshield and the open side window of the car. The officer testified that petitioner refused to provide a statement at that time. The officer spoke to petitioner on a later date and tried to take a statement, but petitioner advised that she did not know who was on the hood of her car and was not sure who was yelling at her. The officer stated that petitioner never provided a statement of what occurred that day. Following this testimony, the circuit court continued the hearing.
The circuit court reconvened the adjudicatory hearing later in October of 2021. The DHHR introduced recordings of the 9-1-1 calls made regarding the incident, as well as a recording of a phone call between petitioner and the father. Petitioner testified regarding the calls and stated, Petitioner admitted that she continued to talk to the father until September of 2021 so that he would have support to address his issues. Petitioner denied that she had done anything wrong and stated that she had left the father prior to the stabbing incident to protect her children.
Ultimately, the circuit court found that the father jumped on petitioner's vehicle while she and the children were inside and began stabbing her windshield and an open side window. The circuit court found that there was "a credibility issue" with petitioner's testimony, that she could not remember who jumped on her car or what happened, especially given the recording of petitioner's phone call with the father wherein she referenced the incident and her windshield. The circuit court found that petitioner was trying to protect the father, did not want to disclose what the father had done, and, based on the phone call between petitioner and the father, petitioner planned to manipulate C.R. into changing his testimony. The circuit court further found that the evidence demonstrated that petitioner spoke to the father 219 times after his arrest and that she paid approximately $400 in expenses related to those calls. The circuit court considered the prior cases against petitioner and found that "this has been a pattern that's been going on" and that petitioner "fail[ed] to protect the children from incidents of domestic violence." Accordingly, the circuit court adjudicated petitioner as an abusing parent.
In December of 2021, the circuit court held a dispositional hearing. The DHHR presented the testimony of a CPS worker, who testified that she had contacted petitioner when the amended petition was filed and advised her that neither she nor the children were to have contact with the father, but that petitioner continued contact with the father and claimed that "she just wanted to help" the father. The CPS worker further testified that petitioner failed to acknowledge the incident leading to the petition's filing and "went around the subject a lot." The worker opined that petitioner should not be granted an improvement period as she failed to acknowledge her issues with domestic violence and continued to have contact with the father.
Petitioner testified that she had last talked with the father the day prior to the dispositional hearing, claiming that the circuit court previously...
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