State ex rel. W. Va. Dep't of Health & Human Res. v. Dyer, No. 19-0331

• Court: Supreme Court of West Virginia
• Writing for the Court: WORKMAN, J.
• Citation: 242 W.Va. 505,836 S.E.2d 472
• Parties: STATE of West Virginia EX REL. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES and Erica Brannon Gunn, Guardian Ad Litem, Petitioners v. The Honorable Lora A. DYER, Judge of the Circuit Court of Roane County; and R.B. and T.B., Respondents
• Decision Date: 21 November 2019
• Docket Number: No. 19-0331

242 W.Va. 505
836 S.E.2d 472

STATE of West Virginia EX REL. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES and Erica Brannon Gunn, Guardian Ad Litem, Petitioners
v.
The Honorable Lora A. DYER, Judge of the Circuit Court of Roane County; and R.B. and T.B., Respondents

No. 19-0331

Supreme Court of Appeals of West Virginia.

Submitted: September 4, 2019
Filed: November 21, 2019

Joshua W. Downey, Esq., Roane County Prosecuting Attorney, 200 Main Street, Counsel for Petitioner DHHR.

Erica Brannon Gunn, Esq., 402 Market Street, Spencer, WV 25276, Guardian Ad Litem for A.N.B., N.B.B. J.S.B., B.K.B., E.G.B., and A.D.M.

D. Kyle Moore, Esq., P. O. Box 722, Ripley, WV 25271, Counsel for Respondent R. B.

Ryan M. Ruth, Esq., 418 Goff Mountain Rd., Suite 202, Charleston, WV 25313, Counsel for Respondent T. B.

WORKMAN, J.:

836 S.E.2d 475

Petitioners, West Virginia Department of Health and Human Resources ("DHHR") and Erica Brannon Gunn, guardian ad litem of the minor children A.N.B., N.B.B., J.S.B., B.K.B., E.G.B., and A.D.M. (collectively "petitioners"), seek an order prohibiting the Circuit Court of Roane County from granting a post-adjudicatory improvement period to respondent parents, R. B. and T. B ("respondents").¹ Petitioners assert that the circuit court erred in granting the improvement period by failing to consider the best interests of the children. Respondents maintain that they have demonstrated that they are likely to fully participate in an improvement period and the grant of such an improvement period does not jeopardize the children’s best interests.

After careful review of the parties’ briefs and oral arguments, the appendix record, and the applicable law, we find that the circuit court committed a clear legal error in misapprehending the evidence, failing to consider probative evidence, and failing to consider the best interests of the children. We therefore grant the writ of prohibition and remand this case to the circuit court for entry of an order terminating respondents’ custodial and parental rights.

836 S.E.2d 476

I. FACTS AND PROCEDURAL HISTORY

On January 12, 2018, DHHR filed an abuse and neglect petition, requesting emergency custody due to the threat of imminent danger to the respondents’ five adopted children and one foster child.² By order entered March 23, 2018, the circuit court denied respondents’ individual motions for supervised visitation, a decision based on the in camera testimony of the children, all of whom the court deemed to be credible.

In relevant part, the children’s testimony, as set forth in the circuit court’s order, included allegations of physical and emotional abuse by respondent T. B., as follows: 1) she dragged E.G.B. by her hair to discipline her, as corroborated by B.K.B.; 2) she locked at least two of the children³ inside their room each night, beginning at 7:00 p.m., but would "smack" any of the children if they got out of bed; the two who were locked in nightly testified they urinated on themselves if they had to use the bathroom in the middle of the night; 3) she hit the children with a belt or a metal spatula and "tr[ied] her best not to leave bruises or marks"; 4) she threatened on more than one occasion to "snap [N.B.B.’s] neck if she did not listen," as corroborated by B.K.B., and J.S.B.; 5) she held N.B.B.’s head under water in the bathtub in order to make her "pay attention"; 6) she forcibly put medication, occasionally excessive, in E.G.B.’s mouth when she resisted; and 7) she forcibly "ripped" E.G.B.’s clothing off, causing her to stand naked in the kitchen, as corroborated by J.S.B. Significantly, the children further testified that T.B. instructed them not to talk to certain administrators and teachers at their school about what was going on in the home, instructed them on what to say and what not to say to CPS workers, and told them that CPS would not believe adopted children if their accounts differed from the parents’ accounts.

As to respondent R.B., the children testified that he drank a substantial amount of alcohol every night, resulting in frequent loud, sometimes physical, and often threatening arguments between him and T.B., which frightened the children. The eldest child testified that he did not feel safe in the home when the arguments got "really loud" and that occasionally, respondents would threaten to kill each other. J.S.B. testified that R.B. hit T.B. in the arm and T.B. threw a chair at R.B. during one such argument. R.B. allegedly broke a television set during one such argument.⁴

Additionally, the children testified that three of them—A.N.B., B.K.B. and A.D.M.—were considered the "good children," while N.B.B., J.S.B. and E.G.B.⁵ were considered the "bad children" and were subjected to harsher discipline, deprivation of food, and spartan living conditions with far less clothing

836 S.E.2d 477

and far fewer toys and personal belongings. The children expressed concern that T. M. would "be mad" for disclosing the incidents and their reluctance to return to the home because "they’re mean."

The two eldest children—A.D.M. and E.G.B.—indicated they neither wanted visitation with respondents, nor to return to the home. N.B.B. indicated she would like to visit with respondents, but did not ultimately want to return to the home. Two of the younger boys—J.S.B. and B.K.B.—however, indicated they would like to visit with and return to respondents. The circuit court found that A.N.B.’s "cognitive limitations" made her responses in this regard unreliable.

Adjudicatory hearings were conducted on May 31, 2018 and June 19, 2018. CPS representative Tasha Ruppert testified regarding what she characterized as "profound abuse and neglect" of the children.⁶ She characterized the children’s demeanor as "terrified" when they spoke with her, due to T. M.’s threats about disclosing the abuse to CPS. She noted that the children became more forthcoming after they were assured they were not returning to the home. She described her inspection of the locks on the outside of the bedroom doors and that the shared bedroom of E.G.B. and N.B.B. as being was relatively "bare" without clothing, toys, or comfort items; in contrast, A.N.B.’s room was filled with clothing and toys, consistent with the markedly disparate treatment described by the children.⁷

DHHR case worker, Jessica Bailey, also testified at the adjudicatory hearing. She testified that services had not been offered to respondents because "they have said that they do not think they did anything wrong." Ms. Bailey further testified that she became aware that respondents had previously put in their "ten day notice" to return certain of the children after they were initially placed. However, they rescinded their notice after being advised that no further children would be placed with them if they did so. She agreed that certain of the children were known to have behavioral problems and continued to exhibit those in their post-removal placements. However, she testified that the children were all doing well in their current placements as of the date of the hearing.⁸

Finally, respondents testified on their own behalf, but denied virtually the entirety of the children’s allegations.⁹ R. B. admitted to locking one of the bedroom doors from the outside, but contended that it was to keep certain of the children from tampering with the others’ belongings. He denied the doors were ever locked while the children were in the rooms. R. B. admitted only to "arguing" with T. B. and denied any domestic violence. He admitted to drinking four to six beers nightly, but denied that his drinking affected his parenting. He admitted that he and T. B. spanked the children with their hands, but denied use of any implements. He denied knowledge of any physical or emotional abuse or threats by T. B., other than her threats to "smack the kids’ ass" if they didn’t return to bed. R. B.’s lone concession was that his arguments with T.B. caused emotional harm to the children, "if you look back to what they’ve been through growing up."

T. B. similarly denied any wrongdoing and offered differing explanations for the specific allegations of abuse. For example, she denied ripping off E.G.B.’s clothing; she insisted

836 S.E.2d 478

that she merely assisted E.G.B. in taking off her cheerleading uniform, but that E.G.B. was upset and came into the kitchen before putting on other clothes. She denied "forcibly" making her take her medication, explaining that she merely "coached" her through it, otherwise she would spit it across the floor. She denied that she pulled E.G.B. by the hair and insisted that she suffered from alopecia, a medical condition causing hair loss. She denied threatening the children if they spoke with CPS, but admitted she instructed the children not to speak to two specific school employees who she alleged had "manhandled" N.B.B. Further, T. B. insisted that N.B.B. was merely afraid of water and that N.B.B. was not attempting to accuse her of "drowning" her, but rather could not properly articulate the word "grounding." Finally, T. B. denied the existence of anything other than a "tiny little hook lock" on the doors that E.G.B. could easily access, and insisted the locks were actually on the inside of...