Joseph P. Albright, Jr., Esq.
Darrell V. McGraw, Jr., Esq.
Bradley & Albright, PLLC Attorney General
Parkersburg, West Virginia Rocco S. Fucillo, Esq.
Attorney for the Appellant, Assistant Attorney General
Christina L. Fairmont, West Virginia
Attorneys for the Appellee,
Ira M. Haught, Esq. West Virginia Department of
Harrisville, West Virginia Health and Human Resources
Guardian ad Litem for
the minor children
The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
JUSTICE ALBRIGHT, deeming himself disqualified, did not participate in the decision of this case.
JUDGE EAGLOSKI, sitting by temporary assignment.
1. Although conclusions of law reached by a circuit court are subject to
de novo review, when an action, such as an abuse and neglect case, is tried upon the facts
without a jury, the circuit court shall make a determination based upon the evidence and
shall make findings of fact and conclusions of law as to whether such child is abused or
neglected. These findings shall not be set aside by a reviewing court unless clearly
erroneous. A finding is clearly erroneous when, although there is evidence to support the
finding, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed. However, a reviewing court may not
overturn a finding simply because it would have decided the case differently, and it must
affirm a finding if the circuit court's account of the evidence is plausible in light of the
record viewed in its entirety. Syllabus point 1, In re Tiffany Marie S., 196 W. Va. 223, 470
S.E.2d 177 (1996).
2. A judgment will not be reversed for any error in the record introduced
by or invited by the party seeking reversal. Syllabus point 21, State v. Riley, 151 W. Va.
364, 151 S.E.2d 308 (1966).
3. As a general rule the least restrictive alternative regarding parental
rights to custody of a child . . . will be employed; however, courts are not required to
exhaust every speculative possibility of parental improvement before terminating parental
rights where it appears that the welfare of the child will be seriously threatened[.] Syllabus
point 1, in part, In re R. J. M., 164 W. Va. 496, 266 S.E.2d 114 (1980).
4. Termination of parental rights . . . may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under W. Va. Code § 49-6-5(b) that conditions of neglect or abuse can be substantially corrected. Syllabus point 2, in part, In re R. J. M., 164 W. Va. 496, 266 S.E.2d 114 (1980).
The appellant herein and respondent below, Christina L. (See footnote 1) , appeals from the January 8, 2002, order of the Circuit Court of Wood County terminating her parental rights to her minor children Aaron Thomas M., Delta Dawn M., and Luke Brian M. upon a finding of abuse and neglect. Before this Court, Christina L. asserts that the circuit court erred by (1) finding that she had used controlled substances in her children's presence; (2) concluding that her alleged use of controlled substances in her children's presence constituted abuse; (3) requiring her to testify during the adjudicatory hearing; and (4) terminating her parental rights. Upon a review of the parties' arguments, the record submitted for appellate review, and the pertinent authorities, we affirm the ruling of the circuit court.
An adjudicatory hearing was held, after which the circuit court, on August 27,
2001, entered an order adjudicating the three children to be abused and/or neglected based
upon the above-described allegations. Specifically, the court concluded that not getting
a seven year old child to school so that he can obtain a proper education is neglect and
using a pipe enough times in the presence of a seven-year-old for him to acquire the
information that this seven-year-old has acquired . . . is abuse. The circuit court further
found that Christina L.'s continued use of marijuana has affected the Respondent Mother's
ability to supervise and care for these children and as a result they are abused and neglected
Following the adjudicatory hearing, the DHHR recommended, and the circuit
court granted, on September 20, 2001, Christina L. a six-month post-adjudicatory
improvement period. The terms of this improvement period required Christina L. to attend
in-patient substance abuse treatment, Alcoholics Anonymous/Narcotics Anonymous
meetings, outpatient counseling, and parenting classes; to report such attendance to the
DHHR; to submit to random drug screens; to apply to HUD for housing assistance; to
maintain adequate housing for the children; to cooperate with in-home services designed
to improve her parenting skills; to attend GED classes in order to qualify for the West
Virginia works program; to ensure the children go to school; and to sever her relationship
with a certain Raymond J. if he does not, among other requirements, receive treatment and
counseling for substance abuse and domestic violence. During this improvement period,
Christina L. retained physical custody of her children. Upon Christina L.'s ultimate failure
to comply with the terms of her improvement period, the circuit court, by order entered
November 28, 2001, terminated such improvement period and transferred custody of the
minor children to the DHHR.
Thereafter, a dispositional hearing was held, and, on January 8, 2002, the
circuit court entered a dispositional order terminating Christina L.'s parental rights. In its
order, the circuit court observed that Christina L. exhibited a pattern of continued drug use
. . . and a lack of cooperation to comply with any of the terms or conditions of the
improvement period. The court further found that the Respondent Mother is addicted to
controlled substances or drugs to the extent that proper parenting skills have been
impaired[,] and the Respondent Mother has not responded to or followed through with the
recommended and appropriate treatment which could have improved the capacity for
adequate parental functioning. Accordingly, the circuit court finally concluded that,
pursuant to West Virginia Code, § 49-6-5(b), there is no reasonable likelihood that the
conditions of abuse and neglect can be corrected in the near future, and that it is
necessary for the welfare of the children to terminate the parental rights of Christina L.
From this dispositional order, Christina L. appeals to this Court.
Christina L. first complains that the circuit court erred by finding that there was clear and convincing evidence that she had used controlled substances in the presence of her children. This Court observed in Syllabus point 1, in part, of In re of S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981), that W. Va. Code § 49-6-2(c) requires DHHR, in a child abuse or neglect case, to prove 'conditions existing at the time of the filing of the petition . . . by clear and convincing proof.' See Syl. pt. 3, State v. Julie G., 201 W. Va. 764, 500 S.E.2d 877 (1997). We made clear in Julie G. that [t]he burden of proving that a child is abused or neglected is placed upon the DHHR. Julie G., 201 W. Va. at 774, 500 S.E.2d at 886.
The evidence relied upon by the trial court to find
that Christina L. used drugs in the presence of her children came, in part,
from statements made by Aaron, regarding the marijuana pipe found in his possession.
(See footnote 6) In
its adjudicatory order, the circuit court found that the evidence established
that Aaron had been around the use of that pipe enough times to be able
to demonstrate how to use it, take it apart and clean the pipe[.] In addition,
there was conclusive evidence that Christina L. had a drug problem.
We agree with the trial court's determination that Aaron, at seven years old,
could not learn how to take apart and clean a marijuana pipe, absent repeated exposure to
this. In addition, the fact that Christina L. was a drug user leads to a reasonable inference
that she repeatedly used the marijuana pipe in Aaron's presence, if not all three of the
children. In view of these facts, we have no difficulty in holding that the circuit court was
not clearly erroneous in finding Christina L. used drugs in the presence of her children.
Christina L. next claims that the DHHR failed to prove by clear and convincing evidence that her alleged use of controlled substances in front of her children caused physical, mental, or emotional injury to the children. We have previously noted that W. Va. Code § 49-1-3(a), in pertinent part, defines abused child to mean a child whose welfare or health is harmed or threatened by '[a] parent . . . who knowingly or intentionally inflicts . . . physical injury or mental or emotional injury, upon the child[.]' State ex rel. Diva P. v. Kaufman, 200 W. Va. 555, 566, 490 S.E.2d 642, 653 (1997).
The circuit court's adjudicatory order found that using a pipe enough times
in the presence of a seven-year-old for him to acquire the information that this seven-year-
old has acquired . . . is abuse. The DHHR asserts that Christina L.'s substance abuse
caused emotional injury to her children, evidenced, in part, by a statement Aaron made
concerning whether his mother was still smoking. It was also pointed out by DHHR that
one of the dispositive factors found in the termination of parental rights in W.V.D.H.H.R.
ex rel. Mills v. Billy Lee C., 199 W. Va. 541, 545 n.2, 485 S.E.2d 710, 714 n.2 (1997), was
that both parents drank alcohol and smoked marijuana in the presence of the children.
We believe that the circuit court was not clearly erroneous in finding the children were
emotionally abused by Christina L.'s repeated drug use in their presence.
Christina L. additionally argues that, despite her attempts to assert her constitutional right not to incriminate herself, (See footnote 7) the circuit court nevertheless required her to answer a question during the adjudicatory hearing that she deemed self-incriminating. Christina L. asserts that the circuit court lacked the authority to grant her use immunity (See footnote 8) for the purpose of compelling her to answer the question.
A review of the record indicates that the state asked Christina L. if Aaron had
asked her if she was still smoking (marijuana). Defense counsel initially objected on the
grounds that a response to the question would be self-incriminating. After the objection,
the following exchange occurred between the attorneys and the court:
The Court: Are you willing to offer her immunity in this case?
The State: In regard to the behavior that I'm referring to from the incident yesterday, answering that question I'm not going to use that in future prosecution, no, Your Honor?
The Court: Mr. Albright?
Defense Counsel: I don't know that he spoke the magic words. But if the Court's going to grant immunity based on that, I'm sure that would overcome my objection.
The circuit court went on to grant Christina L. use immunity, and she answered the question by responding that she did tell Aaron she was still smoking. In this appeal, the State correctly points out that any error in requiring Christina L. to answer the question was invited and therefore waived. We agree.
The decisions of this Court have been quite clear in holding that [a] judgment
will not be reversed for any error in the record introduced by or invited by the party seeking
reversal. Syl. pt. 21, State v. Riley, 151 W. Va. 364, 151 S.E.2d 308 (1966). See Syl. pt.
4, State v. Johnson, 197 W. Va. 575, 476 S.E.2d 522 (1996). That is, [a] litigant may not
. . . actively contribute to such error, and then raise that error as a reason for reversal on
appeal. Syl. pt 1, in part, Maples v. West Virginia Dep't. of Commerce, 197 W. Va. 318,
475 S.E.2d 410 (1996). In the instant case, defense counsel expressly approved of Christina
L. waiving her right against self-incrimination, if the circuit court granted her immunity.
Therefore, Christina L. cannot now complain on appeal that the circuit court did not have
authority to grant her immunity.
We agree with Christina L. that no statutory authority existed for the trial court to grant her immunity in a civil abuse and neglect proceeding. (See footnote 9) Further, for the sake of argument, had this issue been properly preserved we would deem the error harmless. (See footnote 10)
The testimony given by Christina L. merely affirmed that she made a statement to Aaron
indicating that she was still smoking. The statement itself was introduced into evidence
independent of Christina L.'s confirmation that it was made by her. Consequently, had
there been no purported grant of immunity and Christina L. had not responded to the
question, our cases permitted the circuit court to consider . . . [her] silence as affirmative
evidence of . . . culpability. Syl. pt. 2, in part, W.V.D.H.H.R. ex rel. Wright v. Doris S., 197
W. Va. 489, 475 S.E.2d 865 (1996). See also Baxter v. Palmigiano, 425 U.S. 308, 318, 96
S. Ct. 1551, 1558, 47 L. Ed. 2d 810, 821 (1976) ([T]he prevailing rule [is] that the Fifth
Amendment does not forbid adverse inferences against parties to civil actions when they
refuse to testify in response to probative evidence offered against them[.]).
Christina L. lastly asserts that the circuit court's termination of her parental rights was improper. She contends that her use of marijuana and her failure to ensure one child's attendance at school during one school year do not amount to child abuse so as to require the termination of her parental rights. This Court has held that [a]s a general rule the least restrictive alternative regarding parental rights to custody of a child . . . will be employed; however, courts are not required to exhaust every speculative possibility of parental improvement before terminating parental rights where it appears that the welfare of the child will be seriously threatened[.] Syl. pt. 1, in part, In re R. J. M., 164 W. Va. 496, 266 S.E.2d 114 (1980). We have made clear that [t]ermination of parental rights . . . may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under W. Va. Code § 49-6-5(b) that conditions of neglect or abuse can be substantially corrected. Syl. pt. 2, in part, In re R. J. M. See In re Emily, 208 W. Va. 325, 337, 540 S.E.2d 542, 553 (2000).
In the instant case, the circuit court found that the children were abused and
that it was in their best interest to terminate Christina L.'s parental rights. The parental
termination decision was made from a combination of evidentiary factors. For instance, the
circuit court found that Christina L. is addicted to controlled substances or drugs to the
extent that proper parenting skills have been impaired[.] It was found that Christina L.
failed to follow through with the recommended and appropriate treatment which could
have improved the capacity for adequate parental functioning. The circuit court also
determined that Christina L. has not responded to or followed through with a reasonable
family case plan or rehabilitative efforts . . . designed to reduce and prevent the abuse and
neglect of the children[.] The DHHR correctly points out that under W. Va. Code § 49-6-
5(b) (1998) (Repl. Vol. 2001), drug abuse and failure to comply with a family case plan are grounds for terminating parental rights.
(See footnote 11) See In re of Micah Alyn R.,
202 W. Va. 400, 406, 504 S.E.2d 635, 641 (1998) ([I]f the abusing parent
willfully refused or is presently unwilling to cooperate in the development
of a family case plan, a finding of 'no reasonable
likelihood that the conditions of neglect or abuse can be substantially corrected' under the
statute is warranted.); Nancy Viola R. v. Randolph W., 177 W. Va. 710, 713, 356 S.E.2d
464, 467 (1987) ([T]he legislature has stated expressly that the 'conditions of neglect or
abuse' which constitute grounds for termination of parental rights include . . . '[t]he abusing
parent or parents have habitually abused or are addicted to alcohol . . . to the extent that
proper parenting skills have been seriously impaired[.]'). Insofar as the evidence
supported a statutory basis for terminating Christina L.'s parental rights, we affirm the trial
In a criminal prosecution other than for perjury or
false swearing, evidence shall not be given against the
accused of any statement made by him as a witness
upon a legal examination.
Id. Christina L. correctly points out that we have held that [t]he language of [the statute] addresses only the admissibility of a statement in court, and does not address a statement's possible 'use' for other purposes related to a criminal investigation or prosecution. State ex rel. Wright v. Stucky, 205 W. Va. 171, 174-75, 517 S.E.2d 36, 39-40 (1999), disapproved on other grounds, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002).
The actual general immunity statute in this State is applicable only to testimony given in a criminal proceeding. See W. Va. Code § 57-5-2 (1923) (Repl. Vol. 1997) (In any criminal proceeding no person shall be excused from testifying or from producing documentary or other evidence upon the ground that such testimony or evidence may criminate or tend to criminate him, if the court in which he is examined is of the opinion that the ends of justice may be promoted by compelling such testimony or evidence. And if, but for this section, the person would have been excused from so testifying or from producing such evidence, then if the person is so compelled to testify or produce other evidence and if such testimony or evidence is self-criminating, such self-criminating testimony or evidence shall not be used or receivable in evidence against him in any proceeding against him thereafter taking place other than a prosecution for perjury in the giving of such evidence, and the person so compelled to testify or furnish evidence shall not be prosecuted for the offense in regard to which he is so compelled to testify or furnish evidence, and he shall have complete legal immunity in regard thereto. (emphasis added)). See also Syl. pt. 1, Committee on Legal Ethics of West Virginia State Bar v. Graziani, 157 W. Va. 167, 200 S.E.2d 353 (1973) (It is generally held that immunity statutes apply only to criminal prosecutions.).
(b) As used in this section, no reasonable likelihood
that conditions of neglect or abuse can be substantially
corrected shall mean that, based upon the evidence before the
court, the abusing adult or adults have demonstrated an
inadequate capacity to solve the problems of abuse or neglect,
on their own or with help. Such conditions shall be deemed to
exist in the following circumstances, which shall not be
(1) The abusing parent or parents have habitually abused or are addicted to alcohol, controlled substances or drugs, to the extent that proper parenting skills have been seriously impaired and such person or persons have not responded to or followed through [with] the recommended and appropriate treatment which could have improved the capacity for adequate parental functioning;
(2) The abusing parent or parents have willfully refused or are presently unwilling to cooperate in the development of a reasonable family case plan designed to lead to the child's return to their care, custody and control;
(3) The abusing parent or parents have not responded to or followed through with a reasonable family case plan or other rehabilitative efforts of social, medical, mental health or other rehabilitative agencies designed to reduce or prevent the abuse or neglect of the child, as evidenced by the continuation or insubstantial diminution of conditions which threatened the health, welfare or life of the child[.]