In re T.S.

In re T.S.

No. 19-0863

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 24, 2020

(Preston County 17-JA-6)

MEMORANDUM DECISION

Petitioner Father R.S., by counsel Justin Gregory, appeals the Circuit Court of Preston County's September 4, 2019, order terminating his parental, custodial, and guardianship rights to T.S.¹ The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Brandolyn N. Felton-Ernest, filed a response in support of the circuit court's order. The guardian ad litem, Richard M. Gutmann, filed a response on behalf of the child in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in terminating his parental, custodial, and guardianship rights and failing to take evidence to determine whether he successfully completed his improvement periods.²

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.

The facts relevant to petitioner's current appeal were largely laid out in his prior appeal to this Court. See In re T.S., 241 W. Va. 559, 827 S.E.2d 29 (2019). In January of 2017, the DHHR initiated abuse and neglect proceedings against petitioner upon allegations of domestic violence in the home. Id. at 30-31, 827 S.E.2d at 560-61. According to the DHHR, V.A.—another child in the home who is not at issue on appeal—witnessed petitioner "punch her mother in the face 'causing bruises and marks,'" among other allegations. Id. at 31, 827 S.E.2d at 561. V.A. gave other detailed statements regarding the domestic violence in the home. Id. As to T.S., the DHHR alleged that he was home during the domestic violence and was observed to be distressed and covered in coal dust, which the DHHR alleged was emotionally harmful. Id. When the DHHR attempted to implement a temporary protection plan for the children, both parents refused to cooperate or otherwise name a relative with whom the children could be placed. Id.

The record shows that the circuit court granted petitioner a preadjudicatory improvement period. At the conclusion of this improvement period, despite the fact that the circuit court held a hearing and "the parties did not have any witnesses to call," petitioner later asked that "the adjudicatory hearing be 'repurposed' into an evidentiary hearing" to determine if his preadjudicatory improvement period was successfully completed. Id. The circuit court granted that request and set the matter for a hearing on June 22, 2017.

Before the hearing convened, the guardian filed an amended petition alleging that petitioner and the mother "subjected the children to medical abuse and neglect and to physicalabuse." Id. Essentially, the allegations concerned the parents providing medical histories of the children's alleged behaviors in order to obtain diagnoses and medications for both children that, once the children were placed in foster care, were deemed inaccurate and unnecessary. Id. According to the record on appeal in this matter, as a result of the parents' descriptions to medical professionals, T.S. was diagnosed, among many other things, as autistic. The record further shows that both children were unnecessarily prescribed multiple medications, including antipsychotic drugs. According to the amended petition, the parents "sought out diagnoses for the children in order to reduce the children's energy levels and to provide income," as the petition further alleged that "due to T.S.'s diagnosis of autism, the [parents] were able to secure a large award from the State of West Virginia, which allowed the [parents] to purchase the family home." Again, as noted above, once removed from petitioner's care, medical personnel determined that "the children did not suffer from most of the diseases with which they had been diagnosed" and "most of the children's medicines [were] drastically reduced or discontinued." Id. Further, the amended petition included new disclosures by V.A. regarding petitioner's physical abuse of both children. Id.

On June 22, 2017, the circuit court held an evidentiary hearing "in order to determine the question of whether the [parents] had successfully completed their respective improvement periods." According to the order on appeal in this matter, the circuit court heard testimony from the children's psychologist and found that neither parent had successfully completed their improvement period.³

At the subsequent adjudicatory hearing, petitioner stipulated that

the infant respondents have been exposed to neglect and/or abuse due to the following deficiencies:

a. He [the petitioner] admits that the DHHR, the Guardian ad Litem, and . . . [V.A.'s] therapist all have addressed concerns regarding the need for [petitioner] to make therapeutic admissions during family counseling sessions, recognizing that his prior actions have traumatized . . . [V.A.].

b. He admits that . . . [V.A.] has suffered emotional harm due to his actions.

Id. at 561-62, 827 S.E.2d at 31-32. As such, petitioner was adjudicated as an abusing parent and granted a post-adjudicatory improvement period. Petitioner agreed to participate in services "to alleviate and improve his areas of deficiencies" set forth in his stipulation, including that he continue with domestic violence courses, among other services.

Thereafter, the matter proceeded to a series of dispositional hearings during which the circuit court also heard petitioner's motion for an extension of his post-adjudicatory improvement period. During the hearings, the DHHR presented testimony from its employees that provided petitioner with services throughout the proceedings and the children's psychologist. At the close of the DHHR's case, the circuit court did not permit petitioner to call a specific witness or to testify himself. Id. at 562, 827 S.E.2d at 32. Petitioner appealed the circuit court's subsequent dispositional order and, based certain procedural issues, this Court remanded the matter with instructions to forthwith hold a new dispositional hearing for the limited purpose of affording petitioner "a full and complete opportunity to present witnesses and to testify on his own behalf." Id. at 565, 827 S.E.2d at 35.

Upon remand, the circuit court held a dispositional hearing in July of 2019 in compliance with this Court's directives. During the hearing, petitioner presented testimony from the children's psychologist, his therapist, a DHHR employee, and himself. Based upon the evidence presented,⁴ the circuit court found that, "[t]hroughout the case, [the parents] have denied that any domestic violence occurred in the home." This was in spite of V.A.'s consistent, detailed disclosures of witnessing domestic violence in the home, in addition to her disclosures of physical abuse of the children. Further, the children's therapist testified that she witnessed bruising to the mother's face and that, based on her interactions with the child, she believed that "V.A. suffered significant domestic violence" in the home. In fact, given how traumatic petitioner's abuse of V.A. was, the multidisciplinary team had to develop a schedule for how the mother would arrive at the psychologist's office with V.A. in order to keep the child from seeing petitioner. Despite this instruction, the mother nonetheless brought petitioner with her to one of her sessions and, when questioned as to why she brought petitioner with her, indicated that she "didn't have a choice, that [petitioner] had threatened to shoot himself" if the mother did not bring him.

During petitioner's meeting with the psychologist, he was confronted with V.A.'s specific disclosures of domestic violence in the home but "continually shook his head and denied that the incidents occurred." More specifically, petitioner "denied that he and his wife were involved in any activity which would have caused V.A. emotional harm." According to the psychologist, the session with petitioner caused V.A. to regress in her own therapy. The psychologist did not continue therapy with petitioner "because she did not believe that any progress could be made." Although the psychologist indicated that petitioner did not specifically need to admit that domestic violence occurred in the home, she did say that he needed to "be able to demonstrate empathy to the point that it could be productive for [V.A.] to meet with him without being shut down emotionally and in her recovery." Petitioner's therapist also testifiedthat petitioner "stated he was attending therapy because of a Child Protective Services referral that involved domestic violence but . . . denied engaging in any domestic violence."

An individual who provided petitioner with services, including individualized parenting education, adult life skills education, and supervised visitation, testified to her involvement in petitioner's improvement period. Although the provider reported that petitioner was compliant with services, the provider testified that he denied any domestic violence in the home and that, because of his failure to "admit to [his] role in the case," petitioner did not receive a certificate for completing individualized parenting services. According to this provider, petitioner displayed controlling behavior during services, "which is a possible sign of domestic violence." Additionally, during one supervised visit, petitioner instructed V.A. to stop running. The provider observed V.A. display a strong reaction to petitioner's request, including "cowering," "appearing scared," and stating that she did not "want to get [her] butt beat." Another DHHR employee testified...