In re R.M.-1, 22-0087

CourtSupreme Court of West Virginia
PartiesIn re R.M.-1 and R.M.-2
Docket Number22-0087
Decision Date31 August 2022

In re R.M.-1 and R.M.-2

No. 22-0087

Supreme Court of Appeals of West Virginia

August 31, 2022


Ohio County 20-CJA-97 and 20-CJA-98

MEMORANDUM DECISION

Petitioner Mother J.M., by counsel Peter P. Kurelac III, appeals the Circuit Court of Ohio County's January 4, 2022, order terminating her parental rights to R.M.-1 and R.M.-2.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Patrick Morrisey and Katica Ribel, filed a response in support of the circuit court's order. The guardian ad litem, Joseph J. Moses, filed a response on the children's behalf 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.

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 October of 2020, the DHHR filed a child abuse and neglect petition alleging that petitioner exposed the children to domestic violence. The DHHR referenced an incident that occurred earlier in October of 2020, when the children were at the father's house and petitioner appeared unannounced. According to the DHHR, witnesses believed that petitioner was under the influence of controlled substances when she appeared at the home. Petitioner allegedly dragged then five-year-old R.M.-1 and two-year-old R.M.-2 to her car and placed them in the vehicle without age-appropriate car seats. The father and his daughter, A.G., attempted to

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remove the children from the vehicle because they believed petitioner was intoxicated and unable to drive. At that point, petitioner allegedly "began punching and striking [A.G.] and [the father] in the head and face." The pair managed to remove the children from the car. Then, petitioner produced an aluminum baseball bat from inside her vehicle and "began swinging it at everyone." A.G. was struck multiple times, "at least twice in the head;" the father was struck in the right hand; and R.M.-1 was also struck in the head. Petitioner then fled the scene. The DHHR alleged that law enforcement responded to the scene and later charged petitioner with two counts of malicious wounding. R.M.-1 was treated for a concussion following the incident.

The DHHR also alleged that petitioner had a significant criminal history, including arrests or convictions for endangering children in 2010 "in relation to her oldest child;" assault and disorderly conduct in 2012; disorderly conduct in 2014; endangering children in 2016, which involved R.M.-1 "and the drug task force;" and theft in 2016 and 2019.[2] The DHHR alleged that petitioner was required to undergo drug treatment in 2016 due to the endangering children charge. Finally, the DHHR alleged that petitioner had a child protective service history in Ohio. The DHHR concluded that despite petitioner's attempts to remedy her substance abuse issues, she continued to endanger the children. Following the filing of the petition, the DHHR placed the children with the then-nonabusing father.

In February of 2021, the circuit court held an adjudicatory hearing. The DHHR presented testimony from the father, his girlfriend, A.G., law enforcement officers, and a DHHR worker. Petitioner presented the testimony of two witnesses but did not testify herself. Upon that evidence, the circuit court found that while it could not find that petitioner was intoxicated when she appeared at the father's home to take R.M.-1 and R.M.-2, the father and A.G. reasonably believed petitioner was impaired and thought it was necessary to prevent her from leaving the residence with the children. It further found that petitioner "employing blunt force to [A.G.'s] head with an object was not justified and was an outrageous use of force against a [sixteen]-year-old girl, and both young children [R.M.-1 and R.M.-2] were subjected to this." The court then found that petitioner did not intentionally strike R.M.-1 with the baseball bat, but "rather did so with gross negligence." Accordingly, the circuit court adjudicated the children as neglected children and petitioner as an abusing parent based upon "domestic violence at this time and throughout [the father and petitioner's] relationship." The court did not adjudicate petitioner for drug use.

Thereafter, petitioner moved for a post-adjudicatory improvement period, and the circuit court held two hearings on the motion in May of 2021. At the first hearing, petitioner testified. However, on cross-examination, petitioner asserted her Fifth Amendment right against self-incrimination regarding the incidents that occurred in October of 2020, for which she had been indicted on two counts of malicious wounding. The circuit court recessed to research the issue. When it reconvened later in May of 2021 for a subsequent hearing, the court explained to petitioner that her testimony could not be used against her at a subsequent criminal trial except

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for perjury or false swearing, consistent with West Virginia Code § 57-2-3. The circuit court instructed petitioner that she would either be subject to cross-examination regarding the events that occurred in October of 2020 or her direct examination testimony would be stricken from the record. Petitioner rescinded her Fifth Amendment assertion and testified.

During cross-examination, petitioner denied that she struck A.G. or R.M.-1 with the baseball bat. Petitioner testified that the father contacted her earlier in the day and asked her to pick up her two sons from his home. According to her testimony, when she arrived, petitioner and the father were congenial and she began loading the children and their possessions into the car. Suddenly, the interaction "went south." Petitioner claimed that she was physically assaulted by the father and, after a struggle, returned to her vehicle where the children were already in their car seats. According to petitioner, A.G. entered her vehicle, where the two of them struggled over the baseball bat. During the struggle, petitioner alleged that A.G. accidentally struck herself in the mouth with the bat. The court found that petitioner's testimony did not conform with the other testimony in the proceedings, noting that A.G. was struck twice in both the mouth and head.

The court also heard testimony from petitioner's treating psychologist, who testified that petitioner informed her the father had "taken [the children] and [would] not give them back." According to the psychologist, petitioner did not admit that she struck A.G. with a baseball bat and did not indicate that she needed treatment for anger management. The psychologist testified that petitioner presented herself as nonviolent and that she was treating petitioner for her...

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