In re Timber M.

• Citation: 231 W.Va. 44,743 S.E.2d 352
• Decision Date: 05 June 2013
• Docket Number: No. 12–1138.,12–1138.
• Parties: In re TIMBER M. and Reuben M.
• Court: Supreme Court of West Virginia

231 W.Va. 44

743 S.E.2d 352

In re TIMBER M. and Reuben M.

No. 12–1138.

Supreme Court of Appeals of West Virginia.

Submitted May 15, 2013.

Decided June 5, 2013.

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 evidenceand 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. “Although parents have substantial rights that must be protected, the primary goal in cases involving abuse and neglect, as in all family law matters, must be the health and welfare of the children.” Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

3. “ ‘ “In a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided.” Syl. pt. 1, State ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972).’ Syllabus Point 4, State ex rel. David Allen B. v. Sommerville, 194 W.Va. 86, 459 S.E.2d 363 (1995).” Syl. Pt. 2, In the Interest of Kaitlyn P., 225 W.Va. 123, 690 S.E.2d 131 (2010).

4. “ ‘ “ ‘Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, W.Va.Code, 49–6–5 [1977] may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under W.Va.Code, 49–6–5(b) [1977] that conditions of neglect or abuse can be substantially corrected.’ Syllabus Point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syllabus point 4, In re Jonathan P., 182 W.Va. 302, 387 S.E.2d 537 (1989).' Syl. Pt. 1, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993).” Syl. Pt. 6, In re Isaiah A., 228 W.Va. 176, 718 S.E.2d 775 (2010).

5. “ ‘[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).

6. In cases involving the abuse and neglect of children, when it appears from this Court's review of the record on appeal that the health and welfare of a child may be at risk as a result of the child's custodial placement, regardless of whether that placement is an issue raised in the appeal, this Court will take such action as it deems appropriate and necessary to protect that child.

Eric M. Francis, Esq., Kristopher Faerber, Esq., Lewisburg, WV, Attorney for Petitioner Norma G.

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

Joshua L. Edwards, Esq., Lewisburg, WV, Guardian Ad Litem for Timber M. and Reuben M.

LOUGHRY, Justice:

This case is before this Court upon the appeal of the petitioner, Norma G.,¹ from the Circuit Court of Greenbrier County's August 16, 2012, order terminating her parental rights to her children, Timber M. and Reuben M. The petitioner asserts that her due process rights have been violated, that no imminent danger existed at the time her children were taken into custody, that she should have been granted an improvement period, and that the lower court failed to impose the least restrictive alternative disposition so as to protect the best interests of her children. Based upon the record, the parties' briefs, and the arguments presented, we find no error. Accordingly, we affirm the termination of Norma G.'s parental rights; however, we remand for a determination of whether the permanent placement of the children with their biological father is appropriate.

I. Factual and Procedural Background

On August 9, 2011, Timber M., born on December 25, 2002, disclosed to her mother, the petitioner, Norma G. (“the mother”), that her stepfather, Jack G., had been showing her pornographic movies on a portable DVD player when she was with him in his truck. Timber also disclosed that Jack G. had exposed his genitals to her in a shed where the family kept their bicycles and that he attempted to coerce her into watching him masturbate. The mother testified below that on August 10, 2011, she instructed Timber on how to use her cell phone to make an audio recording. She then encouraged the eight-year-old Timber to go with Jack G. in his truck in hopes that Timber would be able to record his sexual abuse of her. The mother further testified that Timber did record a conversation with Jack G. regarding the pornographic videos.

The mother also testified that on August 12, 2011, she sent a text message to the cell phone of Corporal Roger Baker of the Greenbrier County Sheriff's Department ² regarding Timber's recent disclosures and arranged to meet with him on August 15, 2011. The mother testified that the day before she was to meet with Cpl. Baker, she confronted Jack G., who admitted his misconduct with regard to Timber. The mother alleges that she told Jack G. to leave the home, but that he refused. She further testified that the following day, Cpl. Baker did not appear for their meeting. Cpl. Baker testified below that he did not remember receiving a text message from the mother on August 12, 2011.

The mother alleges that she protected Timber M. and Reuben M.³ by moving her mother and her stepfather into the home and by ensuring the children were never alone with Jack G. However, the testimony of the mother's stepfather revealed that he and his wife moved into another structure on the property—not into the family home. Further, the children revealed during these proceedings that contrary to the mother's testimony, they were left alone with Jack G. following Timber's disclosure.⁴

On December 20, 2011, more than four months after Jack G. admitted to the mother that he had abused Timber, the mother contacted Cpl. Baker to report the abuse and the fact that she could not get Jack G. to leave the home. On this same day, Jack G. gave a statement to Cpl. Baker during which he confessed to showing Timber pornographic movies and to exposing his genitals to her. Cpl. Baker made arrangements for Timber to undergo a forensic interview at the Child and Youth Advocacy Center (“CYAC”) in Greenbrier County, and he also contacted Child Protective Services (“CPS”) of the West Virginia Department of Health and Human Resources (“the Department”). The forensic interview of Timber was conducted on December 21, 2011, during which she disclosed the same allegations of sexual abuse by her stepfather, Jack G.

Also, on December 21, 2011, the mother was interviewed by a Department employee and CYAC workers during which she admitted that she had known about the sexual abuse of Timber since August 9, 2011. She explained that she had taken matters into her own hands due to what she perceived were prior failures of the Department ⁵ and law enforcement to take action. The mother admitted that she had provided Timber with a cellular telephone so that the child could record Jack G.'s abuse of her, and that she then used the recording to persuade Jack G. to convey his real property ⁶ to her and to leave the home. Although Jack G. conveyed the property to her, he refused to leave.

On December 20, 2011, Jack G. was arrested and admitted to the sexual abuse of Timber. The following day, the Department removed the children from the home and an order ratifying emergency custody was entered in the Greenbrier County Magistrate Court.⁷ On December 22, 2011, the Department filed a verified Petition to Institute Child Abuse and Neglect Proceedings in the Circuit Court of Greenbrier County.⁸ The Department alleged, inter alia, that the conduct constituting abuse and/or neglect ⁹ included that the mother knew of the sexual abuse of Timber by Jack G. but failed to protect her daughter and allowed her to be alone with the stepfather. The Department also alleged that

[i]t is not in the best interest of the children to remain in the home due to the sexual abuse in the home and [the mother's] blatant failure to protect her daughter and to continue to place her in danger by allowing the sexual abuser to have unsupervised access to Timber [M.].

A preliminary hearing was held on January 4, 2012. At this hearing, the mother stipulated that at the time the children were removed from her home, probable cause existed that they were in imminent danger due to the distribution of obscene matter by the children's stepfather, Jack G., and due to her failure to protect the children.

In a Social Summary dated January 24, 2012, which was filed in the circuit court, CPS worker Davina Agee stated, as follows:

The psychological and emotional well being of these children are paramount.... At this point, Timber [M.] has been sexually groomed by Jack [G.]. After telling her mother, Norma, about the abuse, the child was forced to live in the same house every day with her abuser for three ¹⁰ months, while Norma extorted Jack for property. That during the past three months, the children were not just made to live in the same house with Jack,...