In re Steamships

• Citation: 754 S.E.2d 743,233 W.Va. 57
• Decision Date: 05 February 2014
• Docket Number: No. 13–0342.,13–0342.
• Court: Supreme Court of West Virginia
• Parties: In re B.H. and S.S.

233 W.Va. 57

754 S.E.2d 743

In re B.H. and S.S.

No. 13–0342.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 15, 2014.

Decided Feb. 5, 2014.

Syllabus by the Court

1. “ ‘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).

2. “ ‘[C]ourts are not required to exhaust every speculative possibility of parental improvement ... where it appears that the welfare of the child will be seriously threatened....’ Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syl. Pt. 4, in part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

3. “At the conclusion of the improvement period, the court shall review the performance of the parents in attempting to attain the goals of the improvement period and shall, in the court's discretion, determine whether the conditions of the improvement period have been satisfied and whether sufficient improvement has been made in the context of all the circumstances of the case to justify the return of the child.” Syl. Pt. 6, In Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

4. In making the final disposition in a child abuse and neglect proceeding, the level of a parent's compliance with the terms and conditions of an improvement period is just one factor to be considered. The controlling standard that governs any dispositional decision remains the best interests of the child.

5. “ ‘To justify a change of child custody, in addition to a change in circumstances of the parties, it must be shown that such change would materially promote the welfare of the child.’ Syl. Pt. 2, Cloud v. Cloud, 161 W.Va. 45, 239 S.E.2d 669 (1977).” Syl. Pt. 5, In re Frances J.A.S., 213 W.Va. 636, 584 S.E.2d 492 (2003).

Reggie R. Bailey, Esq., Parkersburg, WV, for Petitioner Krista H.

Michael D. Farnsworth, Jr., Esq., Parkersburg, WV, Guardian Ad Litem for B.H. and S.S.

Patrick Morrisey, Esq., Attorney General, Charleston, WV, Lee A. Niezgoda, Esq., Assistant Attorney General, White Hall, WV, for Respondent West Virginia Department of Health and Human Resources.

LOUGHRY, Justice:

The petitioner, Krista H. (“the mother”), appeals from the January 9, 2014, Corrected Disposition Order through which the Circuit Court of Wood County granted primary custodial responsibility of her daughters, B.H. and S.S.,¹ to their biological father, the respondent Randy H., Jr. (“the father”); ² granted her unsupervised visitation with the children; and dismissed the proceeding from the circuit court's docket. ³ Seeking a reversal of the circuit court's order and the entry of a new order making her the primary custodial parent, the mother asserts that the circuit court erred by granting the father primary custody of the children because she had substantially complied with the terms and conditions of her improvement period and by denying her an adequate opportunity to regain primary physical custody of the children through unsupervised visitation. Based upon the record, the parties' briefs, and the arguments presented, we find no error. Accordingly, we affirm the circuit court's award of primary custody of the children to the father and unsupervised visitation to the mother.

I. Factual and Procedural Background

On December 5, 2011, the respondent, the West Virginia Department of Health and Human Resources (“the Department”), filed a verified Petition to Institute Child Abuse and Neglect Proceedings (“Petition”) against the mother in relation to her minor children, B.H. and S.S.⁴ The father was also a named respondent in the proceeding, although there were no allegations of either abuse or neglect against him in the Petition.⁵ The Department alleged that the mother was in a personal relationship with a registered sex offender, John Bailey; that the mother exposed her children to Mr. Bailey, as well as his friend, Andrew Oldaker, a registered sex offender with whom the mother, her daughters, B.H. and S.S., and Mr. Bailey lived for a period of time; and that S.S. and B.H. were sexually abused on multiple occasions by Mr. Bailey and other sex offenders with whom the mother associated.⁶ The Department took emergency custody of the children and, on December 6, 2011, the circuit court ordered that the legal and physical custody of B.H. and S.S. remain with the Department. The mother waived her preliminary hearing and the matter proceeded to adjudication.

During the January 10, 2012, adjudicatory hearing, the circuit court accepted the mother's stipulation wherein she stated, in part, as follows:

3. The father of [B.H. and S.S.] is Randy [H., Jr.] whose whereabouts are unknown.

....

7. The respondent-mother admits to the neglect of the above-named children as follows:

1. No permanent residence at the time of filing the petition.

2. She and her children were residing with John Bailey, a registered sex offender.

3. She was aware that John Bailey and Andrew Oldaker were registered sex offenders, and failed to protect her children by allowing them to be around John Bailey and Andrew Oldaker.

4. That as a result of being around John Bailey and other individuals who are registered sex offenders, her children were subjected to sexual abuse.

8. Based upon these stipulations, the children are neglected children within the meaning of the West Virginia Code 49–6–1 et al.

On January 17, 2012, the circuit court entered an order adjudicating the children abused and neglected and awarding the mother a six-month post-adjudicatory improvement period. The primary goals of the improvement period were to aid the mother in improving her self-esteem; to help her gain insight into how her children had been harmed through their exposure to registered sex offenders; and to teach her how to identify and recognize sex offenders, how to prevent the sexual abuse of her children, and how to provide them with a safe and secure home, free from exposure to sex offenders. The improvement period also allowed the mother to have supervised visitation with her daughters.

Thereafter, periodic review hearings were held before the circuit court to ascertain how the mother was doing in her improvement period. While the mother complied with certain aspects of her improvement period, in other areas she experienced difficulties.⁷ In Child Protective Services (“CPS”) worker Amanda Damron's April 3, 2012, hearing update, she reported that the mother had knowingly started dating and living with another sex offender, Patrick Trembly. CPS worker Damron further reported that the mother indicated that Mr. Trembly was fighting his “wrongful conviction” and that she believed he is innocent.⁸

In CPS worker Damron's update for the July 9, 2012, review hearing, she reported that the mother “seemed to understand what the appropriate boundaries should be with [B.H. and S.S.], but in the next visit, she did nothing that she and the worker [the parenting provider] talked about.” Ms. Damron further reported that the parenting provider was “very uneasy at the thought of unsupervised visitation.”

In late August 2012, the mother filed a motion for a ninety-day extension of her improvement period, which the circuit court granted. Approximately one month into the ninety-day extension, CPS worker Damron reported that the mother had started weekend visitations with her children under the supervision of her maternal aunt. Ms. Damron concluded her October 2012 report by expressing continuing concern that the mother will not be protective of the children based on the parenting provider's impression that the mother still does not believe that John Bailey is a sex offender ⁹ but says that she does so as to appear protective.¹⁰ In late November 2012, CPS worker Damron filed another hearing update in which she reported that while the mother had complied with the terms and conditions of all services,¹¹ she “continue[d] to be concerned that [the mother] will not be protective of the children in the future” and that “the provider's account of [the mother's] diminished decision making skills ... will cause safety concerns for the children if they were to be in [the mother's] complete care.” ¹² In recognition of these continuing concerns, when the circuit court awarded the mother unsupervised visitation by order entered December 10, 2012, the court directed that only the mother and the children's maternal grandmother ¹³ could be present and that “the [Department], provider or the Guardian ad Litem shall follow-up immediately after the visitations to make sure they are appropriate.”

In CPS worker Damron's final report to the circuit court, she advised that the mother's unsupervised visitations began the prior month in the basement apartment of her mother's home where she was residing, and that the visitations went well. Ms. Damron further advised that while the mother had complied with services, the Multi–Disciplinary Team (“MDT”) members continued to be concerned that she had “not changed her behavior enough to ensure that she will not expose her children to inappropriate people.” Ms....