In Re: Z.N., D.N., and A.P.
17-0421
| W. Va. | Sep 25, 2017Background
- DHHR filed abuse and neglect petitions after Z.N. presented with bruising to face and genitals; CAC interviews later disclosed physical and sexual abuse by petitioner’s boyfriend of Z.N. and D.N.
- Petitioner initially agreed to keep the boyfriend away and children were returned in July 2016, but the children were removed again in October 2016 after further disclosures that the boyfriend continued to abuse them and petitioner allowed his contact.
- CAC testimony and a State Trooper recounted disclosures that the boyfriend grabbed children’s genitals and forced oral sex; children had bruises on multiple body areas.
- Petitioner remained silent at adjudicatory and dispositional hearings, failed to acknowledge the abuse, and continued contact with the alleged abuser during proceedings.
- Circuit court adjudicated petitioner abused/neglected the children, denied a post-adjudicatory improvement period, and terminated petitioner’s parental rights on March 3, 2017; permanency plan is adoption in the foster home.
Issues
| Issue | Plaintiff's Argument (M.P.) | Defendant's Argument (DHHR/Court) | Held |
|---|---|---|---|
| Whether termination was improper because a less-restrictive alternative should have been used | Termination was too severe; court should have used a less-restrictive dispositional alternative | No reasonable likelihood conditions could be corrected; termination is authorized when correction is unlikely and necessary for children’s welfare | Court affirmed termination: petitioner’s failure to acknowledge abuse and continued relationship with abuser supported finding no reasonable likelihood of correction and necessity of termination |
| Whether petitioner was entitled to a post-adjudicatory improvement period | Requested improvement period after adjudication | DHHR argued termination warranted based on petitioner’s conduct and lack of remediation | Court denied improvement period because petitioner did not acknowledge abuse, presented no evidence, and maintained contact with abuser, making rehabilitation unlikely |
| Whether holding a post-termination visitation hearing without petitioner’s counsel and relying on a therapist’s letter was error | Petitioner contends the court held the hearing in absence of her counsel and based denial solely on therapist’s letter | Court and DHHR relied on existing record, statutory rule prohibiting contact after termination, and that visitation would not be in children’s best interest | Court found no reversible error: visitation properly denied given termination, lack of evidence petitioner could rebut detriment, and statutory prohibition on contact after termination |
Key Cases Cited
- In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996) (standard of review for circuit-court factual findings in abuse and neglect cases)
- In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011) (restating applicable standard of review)
- In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (termination may be used without intermediate less-restrictive alternatives when correction is unlikely)
- In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013) (failure to acknowledge abuse undermines treatability and rehabilitation)
- In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995) (factors to consider when post-termination visitation is requested)
- In re Marley M., 231 W.Va. 534, 745 S.E.2d 572 (2013) (procedural expectations for post-termination visitation requests)
- In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002) (court may consider visitation after termination if it is in the child’s best interest)