2. Under W.Va.Code, 49-6-2(b) [(2006) (Repl. Vol. 2009)], when an improvement period is authorized, then the court by order shall require the Department of Human Services to prepare a family case plan pursuant to W.Va.Code, 49-6D-3 [(1998) (Repl. Vol. 2009)]. Syllabus Point 3, State ex rel. W.VA. Dept. of Human Services v. Cheryl M., 177 W. Va. 688, 356 S.E.2d 181 (1987).
3. In formulating the improvement period and family case plans, courts and social service workers should cooperate to provide a workable approach for the resolution of family problems which have prevented the child or children from receiving appropriate care from their parents. The formulation of the improvement period and family case plans should therefore be a consolidated, multi-disciplinary effort among the court system, the parents, attorneys, social service agencies, and any other helping personnel involved in assisting the family. Syllabus Point 4, In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).
4. At the conclusion of the improvement period, the court shall review the performance of the parents in attempting to attain the goals of the improvement period and shall, in the court's discretion, determine whether the conditions of the improvement period have been satisfied and whether sufficient improvement has been made in the context of all the circumstances of the case to justify the return of the child[ren]. Syllabus Point 6, In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).
This case is before this Court upon appeal of a final order of the Circuit Court of Kanawha County entered on July 30, 2009, which granted a six-month dispositional improvement period to the appellee and respondent below, Sarah S. (See footnote 1) in this abuse and neglect proceeding. In this appeal, the guardian ad litem for the children, Faith C., Sophia S., and Madelyn S., (See footnote 2) contends that the circuit court erred by granting the improvement period and not terminating Sarah S.'s parental rights. This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the order of the circuit court is affirmed, and this case is remanded to the circuit court with directions regarding the improvement period as set forth herein. (See footnote 3)
During the abuse and neglect proceedings below, the DHHR presented testimony from two experts, Eduardo Pino, M.D., and David Henchman, M.D., both doctors at the Burn Center at Cabell Huntington Hospital. They testified that the nature of Sophia's burns indicated that she had been immersed and held down in scalding water. According to these doctors, no other explanation of the child's injuries could be consistent with the type of burns she sustained. Specifically, Drs. Pino and Henchman testified that the glove and stocking circumferential burns encompassing the entire area around the child's legs could only lead to the singular conclusion that the child had been immersed in scalding water and held down. Dr. Pino opined that this was a classic example of an immersion burn. During his testimony, Dr. Pino stated:
The nature of the burns being circumferential, particularly higher or one side then [sic] on the other, really to me signifies that this child was more or less dumped into hot water.
. . . .
. . . I don't know what the water temperature of the sink was. But the fact that both extremities are burned, nobody steps into a bathtub or sink or whatever, with both feet at the same time.
The fact that it's circumferential means that it was just an immersion, just going like this. Certainly one foot versus the other is that one foot was probably picked up and so that's why it only burned to one leg, and the other one burned further down.
Similarly, Dr. Henchman testified that he could not imagine any other scenario to explain Sophia's injuries other than someone just holding her down in the water. He testified:
I can't imagine another scenario that would give that result. I would think that anytime a child or anyone's foot touched hot water that much, instinctively pull it away. To put both feet inside up to the calf in scalding water, I can't imagine another scenario.
The DHHR also submitted into evidence a medical report from the Nationwide Children's Hospital which included the following statement from Gail E. Besner, M.D., the attending physician:
Child Assessment Team was consulted and evaluation revealed bilateral circumferential burns to both feet extending to the mid calf on the right and to the ankle on the left (i.e. in an asymmetric stocking distribution). The mechanism of production of these burns was immersion into a scalding hot liquid. Child Assessment Team consultant indicated this pattern of burn injury was frequently inflicted. The patient also had an unexplained long linear bruise to the right thigh, which added concern for physical abuse . . . Child Assessment Team agreed with the filing of a report of suspected physical abuse to Children's Services.
In contrast to the evidence presented by the DHHR, Sarah S. offered the testimony of Gregory Porter, P.A., who indicated that he had participated in approximately twenty-five water submersion cases. Mr. Porter was qualified as an expert in emergency medicine, primary health care, and emergency medicine for children. Mr. Porter opined that Sophia's injuries were accidentally self-inflicted. He testified as follows in response to questions from counsel for Sarah S.:
Q: Is a stocking glove appearance the only thing that you look at when you are trying to determine if one has had an immersion burn or not?
A: Absolutely not.
Q: What is a stocking glove appearance to a burn?
A: Stocking glove, I mean if you think about it, has [sic] a female wearing knee highs, that sort of thing. Stocking glove usually refers to that. It is very, you know, clear from the foot all the way up to a level. It is sort of like a stocking.
. . . .
Q: But would that be dispositive that it's an immersion burn or would it be a possibility?
A: It rises the_raises the suspicion for immersion burn.
Mr. Porter explained that in addition to the appearance of the burn, the depth of the burn had to be considered. He stated:
Q: Okay. Is there anything about them, the depth of an immersion burn that is important?
Q: What is that?
A: During my research of the case, I think that's the most striking piece of evidence. If you are immersed in a body of water that is a consistent temperature say that this child, I think the water heater was 147, 150 degrees; if you take a child and you emerge [sic] in that water, you are going to have the same depth of burn everywhere that the water was. The only thing that would change that is the time of exposure. But so random, that you just draw a line and you stick them in the same amount of water you will have same thickness burn all the way from start to finish.
Q: Did this child have the same thickness burns?
A: No, they did not.
Q: Were her burns then mixed?
A: That's a good way to describe it, mixed depth.
Q: And if you would, talking about mixed depth, are you saying that the burns are different on her foot or top of the foot or back of her leg or what?
A: Yes. On different parts of her body are different depths.
Q: The medical records support mixed depth injuries?
A: The initial medical records did not. But in burn cases you really don't know what a burn looks like for several hours or even days after a burn. There is continued damage that goes on even after the burn. Both nerves vascularly and dermis.
A burn can look very bad initially, and as it starts to heal, the next couple of days you will see the true character of the burn.
It's worth mentioning that the burns from the mid-calf distally and spontaneously healed. It was a second degree burn that spontaneously healed. And this child unfortunately had to be grafted on the dorsal of the feet, the top of the feet.
Mr. Porter further explained that the fact that the burns on the top of Sophia's feet were deeper than her other burns was consistent with her standing in the sink, turning on the faucet, and allowing the hot water to hit the top of her feet. He testified:
So to me if the story was she was in a basin and there was hot water running from above on top of the feet, that makes perfect sense in my opinion.
Q: So there was mixed depth. And the place that had to be grafted was the top of the feet?
Q: Did the bottom of the feet heal?
Q: Did the back of the leg heal?
Q: Did the front of the leg heal?
A: Yes, spontaneously.
Mr. Porter also testified that typically in burns that are of immersion only and forced immersion, that line is very straight, it would be more cross both sides. Referencing photographs of Sophia's injuries, he stated, This one is a very irregular line. This one is not burned up very far, and also an irregular angle. He concluded:
My opinion is an accidental burning. I think they-an adult was not around to supervise this child. I think this child, in my opinion, made it to the toilet, made it to the vanity, switched on the hot water. And then could not as the water rose-as I understand it, it's a slow draining vanity. As the water rose this child had nothing-nowhere to go. And I think she, you know, sustained the injuries that she sustained during that process.
Sarah S., Benjamin S., and Rosetta S., the paternal grandmother, all testified about Sophia's propensity to climb. Specifically, Benjamin S. stated that he had observed Sophia climb from the commode to the vanity just one month before she was injured.
Detective Snuffer, one of the investigating police officers, also testified. He stated that Sarah S. was cooperative during the investigation and firm in her resolve that she did not intentionally harm her child. According to the police report, the police officers found standing water in the vent in the bathroom floor where the injury occurred; water-soaked bathroom rugs in the bathroom floor where the injury occurred; dry bathtubs, kitchen sink and master bathroom sink; a rapidly filling and slow draining bathroom sink where the injury occurred; and no drain stopper in the bathroom sink where the injury occurred. The officers concluded that Sarah S.'s claim that there was no intentional wrongdoing on her part was consistent with the evidence they found during their investigation. As previously noted, no criminal charges were filed against Sarah S.
Full evidentiary adjudicatory hearings were held on March 5, 2009, and May 11, 2009. On June 24, 2009, the Court entered an adjudicatory order finding by clear and convincing evidence that Sarah S. did not intentionally inflict physical or emotional harm upon any of the minor children, particularly Sophia. The circuit court further found, however, that Sarah S. had neglected the children, particularly Sophia, by her own admission, because she was outside the family home when Sophia was injured. Thus, the circuit court concluded that Sarah S. was an abusing parent within the meaning of W. Va. Code § 49-1- 3(b) (2007) (Repl. Vol. 2009). (See footnote 9)
The disposition hearing was held on June 24, 2009. Both the DHHR and the guardian ad litem moved for the termination of Sarah S.'s parental rights. Sarah S. requested an improvement period. The court concluded that there were no statutory grounds for terminating Sarah S.'s parental rights and that she ha[d] demonstrated through her acceptance of responsibility for neglect of the minor child an adequate capacity to solve the problems of neglect with a reasonable likelihood that the conditions of neglect which led to the filing of the petition in this action can be corrected substantially in the near future. See W. Va. Code § 49-6-5 (2006) (Repl. Vol. 2009). The circuit court further found that Sarah S. had demonstrated, by clear and convincing evidence, that she is likely to fully participate in an improvement period. See W. Va. Code § 49-6-12(b)(2) (1996) (Repl. Vol. 2009). Accordingly, the court granted Sarah S. a six-month dispositional improvement period. The court directed the DHHR to develop a plan of improvement to begin reunification of the
minor children with their parents. The final order was entered on July 30, 2009, and this appeal followed. (See footnote 10)
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 the Interest of: Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). With these standards in mind, the issue presented in this case will be considered.
Sarah S. acknowledges that she was negligent in the supervision of her child. However, she maintains that the evidence outlined above shows that she did not intentionally harm Sophia. Therefore, she asserts that circuit court did not err by granting her a six-month improvement period and refusing to terminate her parental rights.
As noted in the preceding standard of review section of this opinion, this Court should not overturn the findings of the circuit court in an abuse and neglect proceeding simply because [we] would have decided the case differently, and [we] 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, Tiffany Marie S., supra. Under Rule 52(a) of the West Virginia Rules of Civil Procedure, [i]n all actions tried upon the facts without a jury . . . the court shall find the facts specially and state separately its conclusions of law thereon . . . . Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous[.] Furthermore, due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. Id. Accordingly, this Court has observed that
[w]hen findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court's findings . . . . Deference is appropriate because the trial judge was on the spot and is better able than an appellate court to decide whether the error affected substantial rights of the parties.
Id. at 231, 470 S.E.2d at 185 (citation and internal quotation omitted). Finally, this Court has explained that
[d]etermining whether a parent or guardian has neglected or abused his or her children, like most adversarial-oriented explorations, is a predominantly factbound enterprise. It follows that, absent a mistake of law, an appellate tribunal should disturb a circuit court's determination only if it is clearly erroneous. This means, of course, that if there are two or more plausible interpretations of the evidence, the circuit court's choice among them must hold sway.
Id. at 237, 470 S.E.2d at 191.
This is an extremely close and difficult case. The circuit court was presented with two plausible interpretations of the evidence and acting as the finder of fact, determined that Sarah S. did not intentionally inflict physical or emotional harm upon any of the minor children and more specifically, the minor child, [Sophia]. The circuit court did find, however, that Sarah S. was negligent in failing to supervise Sophia resulting in her being physically injured and that such action constituted neglect warranting a six-month dispositional improvement period. Having carefully examined the record in this case, this Court does not find the circuit court's findings of fact to be clearly erroneous. The circuit court had before it sufficient evidence to support its determination, and this Court is not left with a definite and firm conviction that a mistake has been committed.
While this Court finds no clear error and affirms the decision of the circuit court, we once again believe it is necessary to stress the importance of a promptly prepared case plan aimed at providing a meaningful improvement period and reunification of the family. See In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996). Under W.Va.Code, 49-6-2(b) [(2006) (Repl. Vol. 2009)], when an improvement period is authorized, then the court by order shall require the Department of Human Services to prepare a family case plan pursuant to W.Va.Code, 49-6D-3 [(1998) (Repl. Vol. 2009)]. Syllabus Point 3, State ex rel. W.VA. Dept. of Human Services v. Cheryl M., 177 W. Va. 688, 356 S.E.2d 181 (1987).
In formulating the improvement period and family case plans, courts and social service workers should cooperate to provide a workable approach for the resolution of family problems which have prevented the child or children from receiving appropriate care from their parents. The formulation of the improvement period and family case plans should therefore be a consolidated, multi-disciplinary effort among the court system, the parents, attorneys, social service agencies, and any other helping personnel involved in assisting the family.
Syllabus Point 4, In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991). This
is especially important in a case such as this where ensuring a child's safety is so vital.
The record in this case indicates that the only service that the DHHR provided to Sarah S. during the course of the proceedings below was supervised visits. (See footnote 12) Also, the permanency plan filed by the DHHR prior to the disposition hearing contemplated termination of parental rights. Obviously, in light of our decision, the permanency plan must be revised and an improvement period plan formulated. At the outset of the improvement period, the circuit court has an obligation to facilitate communication between the parties to ensure Sarah S. and the DHHR are aware of what is expected during the improvement period. Carlita B., 185 W. Va. at 625-26 n.15, 408 S.E.2d at 377-78 n.15. The parties should make the court aware of any foreseen obstacles that would prevent compliance with the parenting plan so that they may be resolved prior to commencement of the improvement period. Id. Most importantly, however, the court should make sure that the children have been informed of the changes that are about to occur in their lives (See footnote 13) and that they are receiving counseling or any other services that are necessary to achieve stability in their lives. Id.
While the circuit court found that Sophia may not have been intentionally harmed, the fact remains that she suffered very serious injuries because a lack of parental supervision. Clearly, services should be devised to address the conditions of neglect that resulted in Sophia's injuries. Furthermore, during the improvement period, the circuit court should monitor the status of the children and the progress of Sarah S. in satisfying the goals of the parenting plan on a monthly basis. See Carlita B., 185 W. Va. 625, 408 S.E.2d 377 (establishing monthly reviews to monitor improvement periods). (See footnote 14) At such monthly reviews, the parties, attorneys, and social workers should appear before the court so that Sarah S.'s progress can be closely monitored to ensure compliance with the conditions of the improvement period, and a record of such proceedings should be made and filed.
At the conclusion of the improvement period, the court shall review the performance of the parents in attempting to attain the goals of the improvement period and shall, in the court's discretion, determine whether the conditions of the improvement period have been satisfied and whether sufficient improvement has been made in the context of all the circumstances of the case to justify the return of the child[ren].
Syllabus Point 6, Carlita B.
Affirmed and remanded with directions.