*1 S.E.2d 607 In the Matter of TAYLOR B.
No. 23997.
Supreme Appeals Court Virginia.
West
Submitted June 1997. July
Decided *3 McGraw, Jr., General, Attorney
Darrell V. Baxter, Attorney Barbara L. Assistant Gen- eral, Charleston, Virginia for West De- partment and Human of Health Resources. Preston, Preston, Cooper Janet D. & Par- sons, for B. Nichols, Nichols, A.
Pat Nichols & Par- sons, for B. James McHUGH, Justice: upon appeal This this case is before Court final order of the Circuit Court Virginia, County, Tucker West entered on 12, March 1996. This is a child and abuse concerning injuries matter suffered B., infant, Taylor a three-month-old while in the care of his James B. and According B.1 to the West Services, and of Health Human injuries consistent with were “shaken baby syndrome,” par- and the However, ents should have been terminated. indicates, as the final order circuit court that, injuries although Tay- concluded B., lor B. “could have” been caused James parents have since been educated con- cerning syndrome baby shaken therefore, parental rights a termination of was not warranted. petition
This Court has before it the appeal, all matters of record the briefs argument Upon of counsel. a careful record, review of the and for the reasons below, expressed this Court is of the circuit court committed error failing parental rights to terminate P., practice 1. We follow our in domestic relations Matter Jonathan 303 n. (1989). involving cases sensitive matters and use initials 538 n. 1 identify parties, rather than full names. B., ship. Regina B. to On We leaving day, picked her employment in view of for the reaсh conclusion clear and up house at her mother’s convincing proof that the arrival, were, fact, Upon returned home. her James B. baby with consistent shaken go house, asked her to her mother’s back to syndrome while in and incurred the sole road, which -wasacross the to borrow a vacu B., explanations presence of James placed Taylor B., um cleaner. contrary to the were inconsis- old, baby swing then three in a months- evidence, tent the medical and that the get left to cleaner. vacuum When she acknowledge failed to have approximately returned five minutes later B. occurred. floor, lying found limp she on Accordingly, reverse the we final order unresponsive. who had been *4 and this ease to the circuit for remand court time, Taylor during alone with B. told (1) entry terminating the an the of order Regina placed Taylor upon B. that B. he had parental rights Regina of B. and B. to James that, working the couch and he was while (2) B., Taylor directing Department the of home, Taylor another area B. of the had Health develop and Human Resources to a ap fallen to the The couch seat was floor. provisions permanency plan under the of W. floor, 12 proximately from the and inches a [1996], permanent for the nearby. coffee table The floor was was car placement Taylor B. in another of home and peted. (3) granting parents supervised visitation. Regina immediately James B. B. ruling, In so not this Court is unmindful that sought Taylor medical B. treatment at Taylor age-and years B. 3 of is now has Emergency County Ambulatory the Tucker Regi- to reside with James B. continued Hospital Center and later at Davis Memorial We, B. throughout litigation. na this there- after, Elkins, Taylor Virginia. West Soon fore, further order the circuit court to ex- Ruby Hospital B. was admitted at Memorial plore, parties, with the assistance of the Morgantown, .Virginia. Taylor West B. permanent placement possibility of the of hospital remained at until his the latter dis- Taylor family par- a relative B. with of the May 11,1994. charge on possibility ents. In event thе of such confirmed, placement family relative is with a discharge summary on As stated from Department develop plan a shall for the Ruby Taylor Hospital, diag- Memorial B. was Taylor removal B. from the home of of James hematoma, nosed with a “interhem- subdural basis, progressive Regina B. and B. a blood,” hemorrhages, ispheric and retinal as subject monitoring by Department particular, a result of the In Dr. incident. Taylor safety. B.’s Schmitt, Taylor Susan A. treated B. at who Center, Ambulatory Emergency later “grave Taylor testified that B. was dan- 4, ger” May suffering disturbing. in this ease are Re on and was from facts Moreover, B., baby gina companion, syndrome. B. her male and James shaken Dr. Parsons, Virginia, lived in did not believe that a home near West Schmitt testified that she B., injuries County.2 Taylor Taylor B. had from Tucker born Janu sustained the on addition, ary falling child of off a Dr. John is the sole the relation couch.3 B. moving rhythmically 2. As James B. in Court rolled back from left the brief filed indicates, Regina right. respond B. and verbal James were married He did not com- subsequent question. Specifical- physical to the events in mands .... exam and I did a found ly, parties "The of James B. States: who bulging brief that he had a fontanel which is the soft married, are were not married at time now spot of the head is indicative of some which living together but near Seven were Islands process., an kind of intracranial It meant that County.” Tucker pressure1 there was inside increased his very physical I was brain. I did a exam and testimony, During her Dr. Schmitt stated: [H]e concerned this child.... was in about danger. you respond, If at the [Taylor able to look kinds B.] was not would sustained, thirty percent anything. lying very limp that he chil- not at He was these look die, eyes open eyes thirty percent dren of these children are on the table with his but his Bodensteiner, pediatric neurologist part, acknowledgment by a who ex- Taylor Ruby Hospi- B. at Memorial amined any B. of “conditions and circum- that, tal, incident, as a testified result safety well-being stances” relevant to the B. sustained subdural hematoma However, although they subse- hemorrhages, and retinal consistent with quently parenting attended classes concern- baby syndrome. shaken as did child, ing their both B. and James Schmitt, Dr. Dr. Bodensteiner stated that fact, sign plan. refused to injuries Taylor B. sustained were incon- recognized have never stated or a fall sistent with from couch.4 any B. oc- Upon discharge Ruby his Memorial Specifically, curred. James asserted Hospital, the of Health and Hu- notwithstanding, the medical evidence he emergency custody man Resources obtained any way never shook or harmed B. in B., petition seeking the ter- 4,1994, May on or at other time. More- parental rights mination of the of James B. over, although conceding that B. was filed. W. 49-6- Taylor seriously injured 4,May B. was on time, At about James B. responsible asserted that not was parties’ County Tucker moved out injuries, for the “because that’s what he told residence. On the circuit me.” preliminary hearing, at conducted *5 neglect conclusion of which an order was entered In addition peti- to the abuse and addition, returning Taylor Regina B. to B. against by tion filed B. James B. granted supervised James B. was visitation. Department the of Health and Human Re- Subsequently, the circuit court entered an sources, proceedings criminal were instituted granting Regina improvement order B. an against by County pros- James B. the Tucker period. ecuting attorney concerning the incident of 4,May 29, 1996, 1994. March On the crimi- Department In October the Health proceeding nal upon was resolved James B.’s completed and Human Resources written plea of plan, nolo contendere to the applicable to misdemeanor both presenting parties to assist the circuit in offense of false and the information to disposition attending personnel. the ultimate of the case. W. Va. medical W. Code, plan required, The According [1992]. 61-8D-7 [1988].5 to James B. and seriously birth, damaged, only thirty percent which had been a difficult or could have inju- by babies that have sustained this kind of an ry by been caused an accidental kick to the head neurologically. Nevertheless, have a normal outcome visiting older child an thе home. Taylor Dr. Bodensteiner stated that B.'s medical that, during 4. It be should noted the medical history suggest did not that the older subdural following treatment of the incident of hematoma occurred at birth. Dr. 4, 1994, second, May older subdural hematoma Bordensteiner indicated that the kick to the head was discovered. As in the case of the have pro- would had to have been "severe” to 4, 1994, the cause of the older subdural injury. duce such an during proceed- hematoma was controverted the Bodensteiner, ings Specifically, below. Dr. indi- chapter 8D Article 61 of the West cating injury that the older was nonaccidental Abuse,” Code is entitled "Child and W. testified: [1988], provides: 61-8D-7 present you Q. In the casе where have an Any person presents who false information to, injury injury you old give and a new are able to concerning acts or conduct would con- which likely us an as to whether it's provisions stitute an offense under the of this upon these were accidental or not? Based the attending personnel article to medical shall be you history had in this case? misdemeanor, and, guilty upon of a conviction Well, history A. the we have identifies noth- thereof, shall be fined not less than one hun- ing that would account either of for those I, dred I, whether, mean, dollars nor more than one thousand dol- injuries. say So I can’t I lars, county jail and shall be confined in the say history can the we have corre- doesn’t year. not more than one [injure] age late with it. To twice, a child at this indicates, is, original- badly my As the record opinion, extremely this James was ly charged accidentally. felony difficult to do with a offense under W. Va. hand, Code, On the other James B. 61-8D-3 which statute concerns second, bodily injury” upon asserted that the older subdural hemato- the infliction of "serious birth, ma could have occurred at B.’s child. (who from the CT represent- of the child and attorney was examination prosecuting done, proceeding testing is a circumstance of ‘Shaken- in the criminal ing the State neglect in- Impact Syndrome’ applicable Department the abuse father, plеa handling nolo contendere was .... this proceeding), the fants This result, additionally, child, dismissal of the fussy could have taken him out of the neglect proceeding violently instituted him swing, pushed abuse and have could Nevertheless, objec- couch, put Department. against back of the the soft Department of Health and violently tion both the him down on the soft cushion of guardian activity ad litem Human Resources and could have the couch seat. This damage the circuit court declined to physical in the to the resdlted neglect proceeding, child, dismiss the abuse and hematoma and the with the subdural instead, and, prosecutor ap- special hemorrhages was in the bilatеral retinal Department.6 Fol- pointed represent eyes.... Considering presenting these however, plea, circumstances, lowing the nolo contendere and mother of the father infant, together B. moved back into the residence the maternal necessary B. and action to grandmother, took all assistance_' obtain medical clearer August the circuit court con- On convincing evidence adduced at and more evidentiary hearing upon the ducted hearing knowledge both petition. The evidence knowledge that one of them parents, with consisted, chiefly, of estab- precipitated actions which took certain lishing spite of medicаl evidence child, physical condition of the mental and contrary, B. nor neither James caused now educated as to what been have acknowledged that ever damage. in the evi- B. occurred. Included testimony Department was the dence of the *6 II psychologists, Dr. Allan L. LaVoie and
of two Marstiller, that, in M. who indicated Dr. John matter, preliminary this Court As a by recognition a that the absence of that, response petition the *7 (1996) prosecutors 6-10 that cooper- must case, Department In this of Health and pursue ate with DHHR’s efforts to civil guardian Human Resources and the ad litem neglect abuse and actions. The relation- B., contend that the circuit court ship county prosecu- betweеn DHHR and terminating pa- committed error in not pure attorney- tors under the statute is a rights rental B. James relationship. legislature client has not According guard- to the and the given authority county prosecutors to to litem, ian ad the evidence established that litigate neglect civil abuse and in- actions baby B. was the victim of shaken dependent authority of DHHR. Such is syndrome, threatening, a life nonaccidental granted prosecutors only under State circumstance. admit- neglect criminal abuse statutes. ted that B. sustained serious Therefore, legal prin- all of the and ethical 4,1994, though they on even denied ciples govern attorney-client that rela- neglect. regard, In that thе De- tionship general, applicable are to the partment guardian and the ad litem indicate relationship that exists between DHHR that the failure of James B. to county prosecutors in civil abuse and acknowledge occurred, neglect or neglect proceedings. spite contrary, of medical evidence to the (emphasis provided). parents’ sign and the refusal to
In the plan, framework of In re Jonathan erected a barrier to B’s P., is, therefore, safety. hand, G. and State ex rel. Diva it on the other denies
67
abusing
neglecting Taylor
any way,
glected
a
or
child” as
child who is harmed or
refusal,
supports
“by
present
James B.’s
threatened
a
failure or
version
addition,
question.
the incident in
In
inability
parent, guardian
both
of the child’s
or
proved
supply
necessary
contend
the evidence
custodian to
the child with
they
good parents
food,
were
who attended
shelter,
clothing,
supervision, medical
parenting
they cooperated
education,
classes and that
refusal,
care or
when such
failure
with all authorities involved in the case.
inability
primarily
or
is not due
to a lack of
Thus,
assert
part
financial
parent,
means on the
the final order of the circuit court should be
guardian
[.]”
or custodian
affirmed.
particular,
regard
to the termi-
parental rights,
nation of
W.
49-6-
1 of In the Inter
5(a)(6) [1992], provides that a circuit court
S.,
Tiffаny
est
Marie
196 W.Va.
470
of:
may
(1996),
S.E.2d
this Court observed:
[u]pon finding
that there is no reasonable
Although
conclusions of law reached
neglect
likelihood that the conditions of
or
subject
a circuit court are
to de novo re-
substantially
abuse can be
corrected
view,
action,
when an
such as
abuse and
future,
necessary
near
and when
for the
case,
upon
is tried
the facts with-
child,
parental
welfare of the
terminate the
jury,
out
the circuit court shall make a
responsibilities
or custodial
and/or
upon
determination based
the evidence and
abusing parent
and commit the child
findings
shall make
of fact and conclusions
permanent
custody
sole
of the nonа-
of law as to whether such child is abused
one, or, not,
busing parent, if there be
if
neglected.
findings
or
These
shall not be
permanent
either the
guardianship of the
by reviewing
set aside
court unless clear-
department
state
aor
licensed child wel-
ly
finding
clearly
erroneous. A
is
errone-
agency.
fare
when, although
ous
there is evidence to
Moreover, W.Va.Code,
6—5(b) [1992],
support
finding,
reviewing
court on
49—
provides:
the entire evidence is left with the definite
and firm
section,
conviction that a mistake has
As used in this
‘no reasonable
However,
reviewing
been committed.
likelihood that conditions of
may
finding simply
not overturn a
substantially
abuse can be
corrected’ shall
because it would have decided the
ease
mean
based
the evidence before
differently,
finding
and it
affirm a
if
court,
must
abusing
adult or adults have
circuit
court’s account of the evidence
inadequate capacity
demonstrated an
plausible
light
record viewed
problems
neglect,
solve the
of abuse or
on
entirety.
its
help.
their own or with
conditions
Such
following
shall be
to exist in the
deemed
syl. pt.
See also
State ex rel.
M. v.
circumstances, which shall not
exclu-
be
S.,
Virgil Eugene
sive:
(1996).
*8
(2)
abusing parent
or
have
An
child”
“abused
is defined W. Va.
wilfully
presently unwilling
refused or are
Code,
[1994],
49-1-3
as a child who is harmed
cooperate
development
in the
of a rea-
parent, guardian
or
“[а]
threatened
or
plan designed
sonable
to lead
knowingly
intentionally in-
custodian who
or
care, custody
to the child’s return to their
flicts, attempts
knowingly
to inflict or
allows
and control [.]
inflict,
injury
person
physical
another
or
R.L.,
24,
injury, upon
Jeffrey
mental or emotional
the child or
In In re
190 W.Va.
addition,
(1993), guardian
another child in
In
home[.]”7
68
amended,
infant,
49-6-10,
nonpar-
as
where such
rights to an
parental
to terminate
par-
ticipating parent supports the other
numerous
had suffered
the infant
where
injuries
fractures,
ent’s
as to how child’s
physicians
diagnosed
had
version
and
bone-
occurred,
convincing
clear and
child
but there is
suffering from battered
infant as
expla-
inconsistent
the mother’s
that such version is
Noting that
evidence
syndrome.
injuries were incon-
the medical evidence.
the infant’s
with
nations for
and that
medical evidence
sistent with
2,
Darla
syl. pt.
In the Interest
Seealso
coop-
nor the father was
the mother
neither
(1985).
137,
tal of abused deny that standing, B. and Doris under 49-6-1 to authorized W. years viously, and is following the child is now 3 old statement found in the brief filed 8. The type injury by susceptible than James B. in this Court raises concern: even less to this hearing. that at the time of the Boyd, pediatrician, a testified that the child Dr. best, months, provides nothing of At that statement hearing, age was at the time of the was, Taylor regard or Syndrome’ to whether susceptible Baby value with to 'Shaken not be, neglect. may yet the victim of abuse or control. Ob- because he now had better head being neglect have re- detrimental to the child’s well any abuse or occurred and family be in the child’s best interest. sign plan case because of fused to the would may have been “con- its indication that there T., supra, See also In re Danielle 195 W.Va. ad- ditions and circumstances” the home at at safety well-being Taylor the verse to above, Accordingly, upon all of the the part conduct on the of the Such final order of the of Tucker Circuit Court however, renders those conditions and cir- County, entered on March is re- cumstances untreatable. As Dr. LaVoie and versed, and this ease is remanded to the stated, Dr. Marstiller in the absence of rec- (1) entry circuit court for the of an order ognition by parent a that child abuse has terminating parental rights the of James B. occurred, Specifi- the child remains at risk. (2) Regina Taylor directing B. to the cally, Dr. LaVoie testified before the circuit Department of Health and Human Resources court as follows: develop permanency plan under the
Q: Even if had went provisions [B.] of W. for through parenting counseling permanent placement if classes and the B. in (3) yet acknowledged granting not another she had that abuse home and the what, person supervised ruling, ever In had occurred who visitation. so it who did would she be safe to have this Court further orders the circuit court to ex- plore, parties,
child back?
with the assistance of the
permanent placement
of the
possibility
my
opinion,
A:
not.
family
par-
B. with a
relative of the
record,
Upon a careful review of the
there-
possibility
ents.
In the event the
of such
fore,
opinion
this Court is of the
confirmed,
placement with a
relative is
injuries
by Taylor B.
sustained
could not
Department
develop plan
shall
for the
have occurred in the manner testified to
removal
from the home of James
B. before the circuit
basis,
progressive
B. and
Rather,
court.
as indicated
the medical
subject monitoring by
testimony,
consistent with
were
safety.
B.’s
baby syndrome,
life-threatening
shaken
cir-
and remanded.
Reversed
cumstance.
neither James B. nor
acknowledged
B. has ever
WORKMAN,
Justice, concurring:
Chief
neglect
B. occurred. Ac-
opinion
majority
of the
is well-written
cordingly, this
cir-
Court concludes that the
absolutely
correct on the law. I
find
failing
cuit
court committed error
to termi-
however,
sufficiently troubling,
result
parental rights
nate the
of James B. and
separately.
compelled
feel
to write
What the
Regina B.
does not reflect is that these
In re
5 of
encouraged by
policy
were almost
L.,
Christina
In the instant there was a remarka- NETWORK, CHRISTIAN ACTION uniformity ble testimony in the Tax-Exempt Virginia Corporation, that the mother in good, this case is a hard- Below, Appellant Defendant working caring parent. The evidence No. 23573. also showed that although he father — very likely seriously abused the child once or Supreme Appeals Court of shaking twice a fit of otherwise a —was Virginia. West loving, decent improving who was Submitted Jan. trying 1997. to do better. it’s been over years shaking injury three since the to this July Decided child, and there’s been no evidence that ev- erything going okay is not with the child in
the mother’s care.
I certainly think strong that there is rea- pay extremely
son for DHHR to close atten-
tion to this situation. It would make sense to
require parenting the father to continue edu- indefinitely.
cation But I think complete it is
overkill to terminate the mother’s and the parental rights simply
father’s because the point
mother refuses to accusing finger
her husband and acknowledge he will not his
acts of abuse. judge,
Like trial I think that
weight of the evidence in this case at this
time is that this situation can salvaged, be protected
and the child completely—without
using the step terminating parental drastic
rights. wise,
Because I don’t think it necessary legally required preclude all
who do not admit being or accuse abuse from judge because I think the trial —and right particular made the call in this case—I
respectfully dissent. notes in to occurred, the child remains child abuse has Department of Health and Hu appeal of the at risk. Resources, that the man James B. asserts him petition against filed neglect and hand, abuse denying in the other addition to On been dismissed as and B. should have neglect B. had that plea to the part of his nolo contendere occurred, Regi- B. and the evidence of James information to presenting offense of false establishing they were na B. consisted of According personnel. to attending medical they successfully com- good parents, had conviction re B. that misdemeanor by required the pleted parenting the classes bargain, part which plea sulted from they cooperated and that had prosecuting attor promise included a case, in short all involved authorities neglect pro ney the abuse and to terminate stating neglect had taken that abuse and however, concludes, ceeding. This Court place. merit. B.’s assertion is without that James evidentiary hearing, the cir- Following the G., the final order of March cuit court entered In re Jonathan 198 In the case of custody (1996), returning' 716, full Court 893 W.Va. 482 S.E.2d language, county prosecu- B. In to James B. and role of recognized the dual however, Court, to be and appears which to this “in the area abuse tors civil/eriminal uncertain, court stated: Citing provisions the circuit of W. neglect rather cases.” [1984], requires hematoma, which 49-6-10 acute As to this recent and attorneys “fully promptly prosecuting appears evidence from there sufficient seeking in child those relief upon physical cooperate” with activity seen expert that this judges presided in those although separate circuit noted both It should be neglect proceeding abuse and criminal and the matters. county, proceeding in Tucker were instituted 66 matters, court, case, neglect stated in that we clear the circuit in this ruled abuse attorney prosecuting correctly declining that “the stands to dismiss the abuse lawyer repre- role of a when neglect petition against the traditional senting abuse and Regina DHHR connection with appointing special prose- B. and in 732, neglect proceedings.” 198 at 482 W.Va. represent Department. cutor to Accord- Thus, observing at 909. cases, S.E.2d ingly, corollary aas to those this Court prosecutor’s authority limited is more within that a holds civil child abuse and neglect proceed- the civil arena of abuse and petition instituted the West De- ings, compared to the criminal side of such as partment of Health Human Resources proceedings, opinion, in In re Jonathan pursuant to W. et G., holds: “Based on our conclusion that the subject pursuant seq., is not to dismissal prosecuting attorney’s role as related to plea bargain county the terms of a between a neglect proceeding in an DHHR prosecutor and a criminal defendant attorney-client, that of a traditional we fur- prosecution. Contrary related child abuse prosecuting attorney ther determine that a the assertion of James civil abuse and right independent has no to formulate and neglect proceedings directly upon focus positions separate advocate from its client in safety well-being child and are not these cases.” 198 W.Va. at simply “companion prose- to сriminal cases” at 909. syllabus cutions. As this Court stated in S., point 3 of In re Katie 479 principle expressed The above thus (1996): “Although parents S.E.2d 589 have comports in In re Jonathan G. with the protected, substantial that must be recent decision of this Court in ex rel. State primary goal in involving cases abuse and Kaufman, Diva P. v. 200 W. Va. matters, neglect, inas all law must be (1997). P., S.E.2d State ex rel. Diva the health and welfare of the children.” we stated 4: Here, quite properly the circuit court stated: neglect cases, In civil abuse and going “I still am not accept plea legislature has made DHHR the State’s bargain agreement in this civil case. At this representative. litigations that are con- time, finding I’m it is the best interest of ducted under State civil abuse and proceed the child that [.]” statutes, county DHHR is the client of prosecutors. legislature specifi- has cally W.Va.Code, through § indicated 49- Ill