Jonathan Michael D., In re

• Decision Date: 18 May 1995
• Docket Number: No. 22732,22732
• Citation: 459 S.E.2d 131,194 W.Va. 20
• Court: West Virginia Supreme Court
• Parties: In re JONATHAN MICHAEL D.

Page 131

459 S.E.2d 131

194 W.Va. 20

In re JONATHAN MICHAEL D.

No. 22732.

Supreme Court of Appeals of

West Virginia.

Submitted May 2, 1995.

Decided May 18, 1995.

[194 W.Va. 21] Syllabus by the Court

1. " 'W.Va.Code, 49-1-3(a) (1984), in part, defines an abused child to include one whose parent knowingly allows another person to commit the abuse. Under this standard, termination of parental rights is usually upheld only where the parent takes no action in the face of knowledge of the abuse or actually aids or protects the abusing parent.' Syl. pt. 3, In re Betty J.W., 179 W.Va. 605, 371 S.E.2d 326 (1988)." Syllabus Point 2, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993).

2. "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." Syllabus Point 6, In Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

C. Blaine Myers, Burk, Myers & Zivkovich, Parkersburg, for Jonathan Michael D.

Ernest M. Douglass, Douglass, Douglass & Douglass, Parkersburg, for Jonathan Brett D.

Susan D. Simmons and Berkeley L. Simmons, Elizabeth, for Sherry D.

Michele Rusen, Pros. Atty. for Wood County, Parkersburg, for W.Va. Dept. of Health & Human Resources.

PER CURIAM:

Sherry D., ¹ the respondent below and appellant herein, appeals a final order entered July 25, 1994, by the Circuit Court of Wood County, which terminated her parental rights to her son, Jonathan Michael D. She asserts the circuit court erred because there was no evidence she knowingly allowed her husband, Jonathan Brett D., to abuse their child; the

[194 W.Va. 22] evidence established she complied with the terms of her improvement period; and the West Virginia Department of Health and Human Resources (Department) made no reasonable efforts to reunify the family. After reviewing the record, we find no reversible error and affirm the decision of the circuit court.

I. FACTS

In February, 1993, Karol Walton, a child protective services worker with the Department, filed a petition pursuant to W.Va.Code, 49-6-1 (1992), ² alleging five-month-old Jonathan Michael D. was an abused and/or neglected child according to W.Va.Code, 49-1-3 (1992). ³ The petition set forth the following facts:

"On February 4, 1993, the above-named child was taken to St. Joseph's Hospital and treated for a spiral fracture in right femur which injury was sustained when father was placing the child in a swing and allegedly pulled the child's leg and heard a snap. The respondent father reports that the child has been bruised on three previous occasions. In addition, the father has a history of mental illness and poor impulse control. Further, the respondent-mother is aware of said abuse by the respondent-father and has failed to adequately supervise said child and does nothing to prevent said abuse."

The circuit court determined that Jonathan was in imminent danger and ordered temporary custody placed with the Department. ⁴ The child was placed with his great-aunt and continues to reside in her home.

A preliminary hearing was held on February 11, 1993. Adjudicatory hearings were held on March 26, 1993, and April 26, 1993. At the conclusion of the April 26, 1993, hearing, the circuit court determined the Department had proved by clear and convincing evidence that Jonathan was subject to child abuse: "The totality of the evidence here shows a continuing and reoccurring injuries to a child which are not normal and are inconsistent with the father's explanation of Ms. Walton testified she filed the petition after receiving information from the hospital that Jonathan received a fracture to his right leg. Further examinations were conducted at the hospital because child abuse was suspected, and an old injury to the right arm and three old left rib fractures were revealed. The Department also received telephone calls indicating the child was observed on at least three occasions with bruises on his face, back, and his bottom near his scrotum.

                [194 W.Va. 23] any of the things that happened according to the medical testimony."   A dispositional hearing was held May 21, 1993, and a twelve-month improvement period was granted.  On November 18, 1993, the circuit court reviewed the progress of the improvement period and determined temporary custody should remain with the Department.  A final hearing was held on July 14, 1994.  By order entered July 25, 1994, Sherry D.'s and Jonathan Brett D.'s parental rights were terminated. 5  The evidence taken at the hearings is summarized as follows
                

Jonathan Brett D. testified his son was fussy the night before the incident occurred and he had awakened very early the next morning. He took Jonathan downstairs and put him in the child swing. The baby's legs were folded up and he had to pull them down through the leg holes in the swing. He testified he heard the leg crack when he pulled it through. He stated that he asked Sherry D.'s stepmother, a registered nurse, to examine the baby and she believed his leg was alright. ⁶ Jonathan Brett D. explained the rib injuries probably occurred when he fell down a flight of stairs while holding the baby and they both hit the wall. He attributed the arm injury to an accident that occurred when he lifted the baby out of a playpen and the baby fell back against the side of the playpen and fell to the floor. He went on to relate the bruises to Jonathan's bottom to an incident where he bounced the baby on his knee. He explained that other bruises may have occurred when the baby rolled around on their waterbed. Jonathan Brett D. denied ever intentionally hitting his son.

Of particular significance is the fact that Jonathan Brett D. admitted he was a victim of child abuse. He had undergone counseling sessions with James D. Wells, a counselor at the Worthington Center in Parkersburg, to help him work through his anger toward his mother and father. He discontinued seeing Mr. Wells when he lost his medical card because he could not afford the therapy. Mr. Wells testified he counseled Jonathan Brett D. briefly when the baby was approximately two months old. Mr. Wells identified impulse control problems and diagnosed Jonathan Brett D. as experiencing major depression.

At the April 26, 1993, hearing, Sherry D. testified she never witnessed her husband abusing their son. She supported his explanation for the baby's injuries. She testified again at the final hearing held July 14, 1994, and admitted that Jonathan's injuries were serious. However, she denied any responsibility for the injuries. Sherry D. went so far as to say it may have been possible her husband intentionally caused the injuries, but she was not certain. She still maintained it was possible the baby was injured accidently. Eventually, she claimed to have separated from Jonathan Brett D. and filed for divorce because she could not be absolutely sure her son would be safe in the same house as his father.

Jonathan's foster mother, Elizabeth M., testified Sherry D. told her she was going to "play the game" with the Department and tell them what they wanted to hear in order to get her son back. The couple then planned to reunite and move to Ohio. Sherry D. denied making those particular statements Dr. Min Liu, a pediatrician, testified the skeletal survey report showed a nondisplaced spiral fracture of the right leg, ⁷ old fractures of the left 5th, 6th, and 7th ribs, and evidence of a healing right upper arm bone. It appeared to Dr. Liu that the bone scan only evidenced a broken leg; however, she admitted a radiologist is better trained to interpret these results. She testified these injuries were suspicious and may be an indication of child abuse. Otherwise, her examination revealed a healthy, well-nourished baby.

[194 W.Va. 24] although she admitted she would do anything to regain custody. Sherry D. testified Elizabeth M. offered her $10,000 to relinquish her parental rights to Jonathan. Elizabeth M. denied such offer.

Dr. Anthony Twite, an orthopedist, testified the bone scan showed abnormalities only in the leg and the X-rays showing prior injuries to the ribs and upper right arm "may be called into question" because the bone scan is a more accurate method of detecting fractures. ⁸ However, his conclusions were discredited by Dr. Paul VanDyke, a diagnostic radiologist who possessed more training and experience in evaluating bone scans and X-rays.

Dr. VanDyke testified the X-ray skeletal survey illustrated an old injury to the right humerus (upper arm) which indicated a "good manifestation of trauma to the bone that didn't result in fracture but resulted in injury to the bone[.]" He opined the baby's rib injuries and right arm injury were in the process of healing and could have been sustained anywhere from weeks to months earlier. Furthermore, the spiral fracture of the right femur was the type of injury that would require "significant trauma" to inflict because an infant's bones are more flexible than an adult's. When questioned about the difference in the bone scan and X-ray results, Dr. VanDyke explained the two reports were actually consistent. A close examination of the bone scan revealed the type of injuries more readily apparent from the X-ray. The rib fractures were not as apparent from the bone scan because the injury occurred much earlier and the ribs were in a later stage of healing. Therefore, one would not expect to see heavy activity at that site.

Dr. VanDyke further testified that the parents' explanation for the baby's leg injury would be inconsistent with the medical evidence because the amount of force used to effectuate the fracture would necessarily be much more momentous...