### FILED M ar ch 4 , 2019 release d at

3:00 p. m. EDYTHE NA SH GAISER, CLERK SUPR EM E COURT OF APPEALS OF W EST VI RGI NI A IN THE SUPREME COURT OF APPEALS OF W EST VIRGINIA

January 2019 Term

No. 18-0446

In re A.N. and C.N.

Appeal f rom the Circuit Court of

Ham pshire County The Honorable C. Carter William s, Judge Abuse & Neglect Case Nos.: 16-JA-100 and 16-JA-101 AFFIRMED, IN PART; REVERSED, IN PART, AND REMANDED

FOR FURTHER PROCEEDINGS

Subm itted: January

15, 2019 Filed: March 4, 2019 Jeremy B. Cooper, Esq. Patrick Morrisey , Esq. Blackwater Law PLLC Attorney General Kingwood, W est Virginia Lee Niezgoda, Esq. Counsel f or Petitioner Assistant Attorney General Fairm ont, W est Virginia Joy ce E. Stewart, Esq.

. Counsel f or Respondent Mooref ield, W est Virginia Departm ent of Health and Guardian ad Litem Hum an Resources

JUSTICE W ORKMAN delivered the Opinion of the Court.SYLLABUS BY THE COURT

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 f acts without a j u r y , t h e circuit court shall m ake a determ ination based upon the evidence and shall m a k e f indings of f

ac t a n d c o n c l u s ions of law as to whether such child is abused or neglected. These f indings shall not be set aside by a reviewing court unless clearly erroneous. A f inding is clearly erroneous when, although there is evidence to support the f inding, the reviewing
court on the entire evidence is lef t with the def

inite and f

irm conviction that a m is take has been com m itted. However, a reviewing court m ay not overturn a f inding sim

ply because it would have decided the case dif f erently , and it m

ust af f irm a f inding if the ci r c u i t c ourt’s
account of the evidence is plausible in light of the record viewed in its entirety .” Sy l. Pt. 1, In re Tiffany Marie S ., 196 W . Va. 223, 470 S.E.2d 177 (1996).

2. “Although parents have substantial rights that m ust be protected, the prim ary goal in cases involving abuse and neglect, as in all f am ily law m atters, m

ust be the health and welf are of the children.” Sy l. Pt. 3, In re Katie S. , 198 W

. Va. 79, 479 S.E.2d 589 (1996).

3. “‘Parental rights m ay be term inated where there is clear a nd convincing evidence that the inf

ant child has suf

f ered extensive phy sical abuse while in the custody of his or her parents, and there is no reasonable likelihood that the conditions of abuse can be

isubstantially corrected because the perpetrator of the abuse has not been identif ied and the parents, even in the f

ace of kn o w l e d g e o f the abuse, have taken no action to identif y the abuser.’ Syl. pt. 3, In re Jeffrey R. L. , 190 W .Va. 24, 435 S.E.2d 162 (1993).” Sy l. Pt. 5, In re Taylor B. , 201 W . Va. 60, 491 S.E.2d 607 (1997).

4. “‘[ C]ourts are not required to exhaust every speculative possibility of parental im provem ent
. . . where it appears that the welf are of the child will be seriously threatened, and this is particularly applicable to children under the age of three y ears who are m ore susceptible to illness, need consistent close interaction with f ully comm itted adults, and are likely to have their em otional and phy sical developm ent retarded by num erous placem ents.’ Sy l. Pt. 1, in part, In re R.J.M. , 164 W

. Va. 496, 266 S.E.2d 114 (1980).” Sy l. P t
. 4 , I n re Cecil T. , 228 W . Va. 89, 717 S.E.2d 873 (2011).

5. “In cases involving the abuse and neglect of children, when it appears f rom this Court’s review of the record on appeal that the health and welfare of a child m ay be at risk

as a result of the child’s custodial placem ent, regardless of whether that placem ent is an issue raised in the appeal, this Court will take such action as it deem s appropriate and necessary to protect that child.” Sy l. Pt. 6, In re Timber M. , 231 W . Va. 44, 743 S.E.2d 352 (2013).

6. “In a proceeding to term inate parental rights pursuant to W

. Va. Code [ §§ 49- 4-601 to -610 (2015 & 2018 Supp.)], as am ended, a guardian ad litem , appointed pursuant

iito W

. Va. Code [ § 49-4-601(f )], as am ended, m

ust exercise reasonable diligence in carry ing
out the responsibility of protecting the rights of the children. This duty includes exercising the appellate rights of the children, if , in the reasonable judgm ent of the guardian ad litem ,
an appeal is necessary .” Syl. Pt. 3, In re Scottie D. , 185 W

. Va. 191, 406 S.E.2d 214 (1991).

7. “ It is a traum atic experience f or children to undergo sudden and dram a t i c changes in their perm anent custodians. Lower courts in cases such as these should provide, whenever possible, f

or a gradual t r ansition period, especially where y oung children are involved. Further, such gradual transition periods should be developed in a m anner intended
to f oster the em otional adjustm e n t o f t h e c h i ldren to this change and to m aintain as m uch stability as possible in their lives.” Sy l. Pt. 3, James M. v. Maynard , 185 W

. Va. 648, 408 S.E.2d 400 (1991).

iiiW orkm an, Justice: In this appeal of the March 30 , 2 0 1 8 , order entered by the Circuit Court of Ham pshire County , W est Virginia, the petitioner, C.N., who is the f ather of a daughter, A.N., 1 and a son, C.N., argues that the circuit court erred in term inating his parental rights to A.N., when he was otherwise deem ed a f it parent suitab l e t o c a r e f or C.N. Upon review of the parties’ brief

s and argum ents, the appendix record, and all other m atters subm itted bef ore the Court, we f

ind no error in the circuit court’s decision to term inate the petitioner’s parental rights to his daughter and, theref ore, af f irm the circuit court’s order on th a t i s s u e . B u t we recognize plain e rror in the circuit court’s decision to return C.N. to the petitioner’s “care, custody , and control” and, theref ore, reverse the circuit court’s decision and rem and this case to the circuit court f

or f urther proceedings consistent with this opinion.

I. Factual and Procedural Background On Decem

ber 30, 2016, the Departm ent of Health and Hum an Resources (“the DHHR”), f

iled an abuse and ne g lect petition against V.N., the m other of A.N. and C.N., 2

Because this case involves sensitive f acts, we protect the identities of those involved 1 by using only the parties’ initials. See State ex rel. W

. Va. Dep’t of Human Servs. v. Cheryl M. , 177 W

. Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987); see also W

. Va. R. App. P. 40. Further, the petitioner and his son, who is the subject of this appeal, have the sam e initials; we ref er to the f ather as “the petitioner.” V.N. voluntarily relinquished her parental rights to A.N. and C.N. and is not the 2 subject of th e i nstant appeal. According to the DHHR in its brief , the petitioner and the m other are separated but remain legally m arried. 1and the petitioner alleging that they were abusive parents to their children, A.N. and C.N. 3 That allegation stemm ed f rom the m other crashing her car while under the inf luence of drugs. A.N., who was f

ive y ears old at the tim e of the acciden t and a passenger in the m other’s vehicle, was not in a car seat or a booster seat, but was wearing a seatbelt. The DHHR also 4 al l e g ed f acts indicating that the petitioner f ailed to protect his children f rom the m other’s drug abuse. The petitioner allegedly knew of the m other’s drug abuse and still allowed her
to care f or and transport the children in the car. The children were rem oved f rom the hom e 5 and placed into f

oster care.

At the adjudicatory hearing that occurred on February 16, 2017, the petitioner stipulated to f

ailing “to protect and ensure f or the saf ety and well-being” of his children and,

There was an older child, also with the initials C.N. (“older C.N.”), who w as the 3 subject of the original petition. This child, however, has reached the age of m ajority and is no longer subject to this proceeding. A.N., who is eight y ears old, is severely disabled due to tuberous sclerosis, a disease 4 that causes seizure disorders and blin d n e s s . According to the guardian ad litem , the child suf f ers f rom an unspecif

ied intellectual disability , developm ental delay s and hy perm etropia. Her m entality

is that of a two-y ear-old child. The DHHR also alleged in the petition a history of investigations by Child Protective 5 Services (“CPS”) involving the petitioner, the children’s m other and the petitioner’s ex-wif e, which included the petitioner getting into a f ight and being stabbed in the presence of older C.N.; the y ounger C.N. having bruises; the m other being in and out of the hom e due to being incarcerated; the m other being nonresponsive to calls f rom school about the children or the m other not being able to be aroused by school workers at her hom e when sh e d i d n o t pick up A.N. f rom the school bus; the m other f ailing to pick up the y ounger C.N. at the bus stop; the petitioner being at work and unreachable; and, the petitioner be i n g i n f o r med of the m other’s f

ailure to pick up the y ounger C.N. and taking no action. 2placing them “in imm inent danger of abuse a n d n e g l e c t b y leaving them in the care of

. . .

[ their] Mother . . . when he knew or should have known that she was abusing drugs and/or alcohol.” The circuit court adjudicated the petitioner as an abusing parent and grante d his request f or a post-adjudicatory

im provem ent period.

During the post-adjudicatory im provem ent period, the petitioner participated in parenting and adult lif

e skills training, as well as undergoing a parental f itness evaluation
at the request of the DHHR on May 17, 2017. The prognosis m ade by the psy chologist who evaluated the petitioner was that he

appears to be overly f

ixated on the well-being and actions of his wif e, as opposed to f

ocusing on what tasks he needs to com plete in order to regain custody of his children. H e has f ailed in the past to serve in a protective role by ending his relationship with his wif e or preventing her f

rom having contact with the children, thus exposing them to ongoing neglect. It is questionable as to w hether or not he would be able to f ollow throu g h w i t h a decision to separate f

rom his wif

e or m aintain distance f

rom her in the f uture. For that reason , a f air, but guarded prognosis is of f ered.

A p p r o x i m at e l y fi v e m o nt

h s l at e r , t h e M u lti- D i s c i p l i n a

r y T e am ( “ M D T ” ) a g r e e d
to reunif ication of the petitioner with his children. By August 15, 2017, f ollowing a gradual transition, the children were placed back in the petitioner’s home.

By August 21, 2017, within one week of the children’s reunif ication with the petitioner, a day care worker f or A.N. reported to the CPS t h a t the child had extensive

3bruising to her backside, f rom her buttocks to the thigh area, which appeared, in part, to be the f orm of a handprint. The bruising was described by the CPS worker as dark purple and blue. Both A.N. and C.N. were imm ediately rem oved f

rom the petitioner’s hom e. 6

C.N. and A.N. wer e i n t e r v iewed at the Child Advocacy Center (“CAC”) on Aug u s t 2 3 , 2 0 17. According to the record, A.N. was unable to comm unicate suf

f iciently with the interview e r , due to her disabilities. C.N. told the interviewer that A.N. gets in trouble “[ f

]or doing bad stuf

f [ ,] [ l]ike hitting” and gets spanked “easily with a hand.” When discussing touches, C.N. indicated that he liked being touched on his hand and being hugged. The interviewer asked him whether A.N. had ever gotten a touch that hurt and C.N. answered: “On her butt, I saw a big scratch on her butt, but I don’t know where it cam e f rom and Dad doesn’t know either.” When asked to describe the m ark, C.N. said, “It looked pretty bad.” C.N. stated that he had seen the “scratch” on A. N

. ’ s b u tt during the day tim e at the baby sitter’s house. 7

Pam ela Spiker, a f

oster
- c a r e p r o vider who had previously provided care to A.N., 6 described the photograph of A.N.’s bruising as “a little excessive” and also stated that the description of the bruising “seem s extrem e to m e” in light of what she observed A.N. would som etim es receive during normal activities while the child was in her care. The circuit court f

ound that “the only persons present in the hom e during the tim e that 7

. . . [ A.N.] was injured w[ ere] her siblings

. . . and the

. . . [ p e t i t i o n er].” There was no evidence that even suggests that the injury occurred while A.N. was with the day care worker.

4On August 26, 2017, af ter being r e tu rned to f

oster care, C.N. told his f oster

m other that he had touched A.N. inappropriately in the past and said he could do the sam e thing to his y ounger f

oster siblings because they ca n n o t talk to any one. There were other prior incidents reported regarding C.N. while he was in f oster care, which included the child reportedly putting his head on his f oster sister’s private parts and “try ing to eat” the child and try ing to take a f

oster sister’s clothes of

f to “eat her down there.” Also, C.N., on a dif f erent occasion, had handcuf

f ed his blind f

oster brother to a bed in the middl e of the night. 8

At a status hearing conducted on Septem ber 19, 2017, the circuit court f ound that it was in the children’s best interest to rem ain in the custody of the DHHR. The circuit
court f urther f ound that there e x i s t ed “imm inent danger to [ the] phy sical wellbeing of the

m inor children” and there remained “no reasonable, available, and less drastic alternatives
t o t h e rem oval of the m inor children at the tim e.” The circuit court also f o u n d t h a t continuation in the petitioner’s hom e was contrary to the children’s welf are and best interests “due to the f

indings of abuse and neglect.” The circuit court indicated that it would address in a separate orde r t h e parties’ request f or an order to evaluate C.N. due to the child’s disclosures, which included an evaluation to determ ine whether the juvenile com ports with the psy chological behavioral prof ile of a child sexual abuser and/or victim.

C.N., who is nine y ears old, has been diagnosed with Attention Def icit Hy peractivity 8 Disorder (“ADHD”). 5By agreed order entered Septem ber 26, 2017, based upon allegations that C.N. inf licted “Abuse – Sexual Abuse or Sexual Exploitation and Abuse – Mental or Em otional Injury ” upon other childre n , t he circuit court ordered an independent psy chological evaluation “to determ ine

. . . whether t h e j u v e n ile com

ports with the psy chological behavioral prof ile of a child sexua l a b user and/or victim .” The psy chological evaluator, Dr. Tim othy Saar, was also directed to provide recomm ended treatm ent and placem ent of the child “to

m eet any special needs determined as part of the evaluation.”

On Novem

ber 28, 2017, the DHHR f iled revised case plans r e c o mm ending
term ination of the petitioner’s parental rights due to concerns f or the saf ety of the children.

Dr. Saar evaluated C.N. on October 3, 2017. In a report dated Decem ber12, 2017, Dr. Saar concluded that C.N. was f unctioning in the very low range f or IQ, but the IQ testing “appeared to be a low estim ate of his ability due to his noncom pliance and inability
to concentrate throughout testing.” Both C.N.’s f oster f ather and teacher f

ound C.N. to have “signif icant sy m ptom s of Hy

peractivity , Aggression, and Conduct Problem s.” C.N. denied that his f ather ever spanked or whipped him or his sister. This response was in conf lict with what C.N. reported during his interview at the CAC. Signif icantly , Dr. Saar concluded: Although it is unclear on the specif ics of the situation in the

. .

. [ petiti o n e r ’ s ] hom e, there are concerns about the lack of supervision along with the disciplinary proc e d u r es that are being f ollowed. It is also concerning the num ber of CPS ref

errals this f am ily has received along with two incidents im ply ing

. . . 6[ C.N.] was being sexually i n appropriate. [ C.N.]

. . . has exhibited sexually inappropriate behaviors and comm ents, leading to his rem oval f

or i n a p p r opriately touching one of the f oster children. Children who exhibit these kinds of behaviors and this level of knowledge of sexual m atters have g e nerally either been sexually abused o r have been exposed to sexual m aterials. As there a re indications of a lack of supervision in the hom e, [ C.N.’s]

. . . behaviors suggest he h a s either been sexually abused or exposed to inappr o p riate sexual m aterials, raising concerns about him or other children being placed back in the home and put at risk for additional abuse

. C h i l d[ ren] who are sexually abused of ten perpetrate on each other and

. . . [ C.N

. ] p r esents a risk to other children in the hom e with him , particularly

a hom e which has inef

f ectual supervision. The f am ily has had a num

ber of CPS r e f

e rrals and the allegations were m ai n l y related to
. . . [ the m other] f ailing to perf orm her duties as a parent due to substance abuse and

. . . [ the petitioner] not be i n g p r e sent in the hom e to supervise and provide care f

or the children. One of

the children [ older C.N.] indicated he was responsible f or not o n l y the other children’s care, but also f

or protecting t h e m f

rom being in a vehicle with their m other. This is very con c e rning as children returning to this household without proof of signif icant change would be at a high risk f

or abus e a n d n eglect. At this tim e, . . . [ C.N.’s] prognosis is considered poor . Based upon the f

oregoing conclusions, Dr. Saar r e c o mme nded, inter alia, that C.N. not be lef t unsupervised and alone with any y ounger children, including his sister, A.N.; that C.N. “requires a structured, stable, and supportive hom e environm ent, of f ering consistent discipline and consequences f or his behaviors, as well as consistent em otional support, and a stim ulating environm ent[ ;]” that C.N. continue to receive indi vidual therapy on a weekly to biweekly

basis; and that C.N. could benef it f rom a psy chiatric consultation f or purposes of determ ining whether m edication would help with his attention def iciencies.

7The issue of the petitioner’s disposition was the subject of hearings held by the

circuit court on Decem

ber 12, 2017, January 22, 2018, and February 5 , 2018. Evidence introduced bef

ore the circuit court included testim ony f rom Dr. Saar, the petitioner, a DHHR

em ploy ee a n d a f

o s ter-care provider. Jessica Deardorf f , a CPS worker with the DHHR, testif ied that she observed the bruising on A.N.’s lower thigh and buttocks, which was dark purple and blue with what appeared to be “a handprint or som e kind of striping m arks.” Ms. Deardorf f stated tha t A .N. was unable to say what happened to her. According to Ms. Deardorf f , when she spoke with C.N., he did not tell her how A.N.’s bruising occurred. Ms. Deardorf f also testif

ied that when she told the petitioner about the bruising on A.N., he told her he did not know what had happened to A.N. Ms. Deardorf f stated that no one has taken any responsibility

f or A.N.’s injuries. 9

Testif y ing consistently with his written report, Dr. Saar stated that C.N. did not cooperate in the evaluation. The psy chologist testif ied that he could not m ake an assessm ent concerning sexual abuse of or by C.N. He f urther stated that C.N. denied having ever been

The DHHR also presented evidence of A.N.’s “sexualized behavior.” Ms. Deardorf f 9 testif ied that she had A.N. on a f ew occasions where the child exhibited sexualized behavior, which included the child lif ting up her shirt while ly ing on the f loor and try in g t o put her hands down her pants in the m iddle of a lobby . Also, A.N. had approached Ms. Deardorf f and tried to lif

t up her shirt and then went f or the button on her pants. T h e s e i n c i d e n t s occurred when A.N. was f irst rem oved f

rom both the m other’s and the petitioner’s care and was placed at the W est Virginia School f or the Deaf and Blind af

ter the abuse and neglect petition was f

iled. The DHHR was aware of the incidents and those incidents did not prevent the DHHR f

rom returning A.N. to the petitioner’s care and custody

. 8touched in any way or having touched any one else inappropriately

. According to Dr. Saar,

the child “a p p e ared som ewhat resistant to talk about that topic.” He testif ied that C.N. required intense supervision, because the child’s behaviors could place other children at risk of harm

. Dr. Saar also indicated that C.N. should be evaluated by a psy chiatrist to determ ine whether m edication m ay be helpf ul f or som e of his attention issues. When questioned about A.N.’s injuries that she received within a week of being returned to the petitioner’s custody , Dr. Saar stated that he did not recall being aware of those injuries at the tim e he ev aluated C.N. Dr. Saar did state tha t i f it turned out the situation surrounding A.N.’s injuries was 10

one where there was a need f or supervision and there was a f ailure to supervise, then that would have im

pacted his opinion. Further, if it was a situation in which the parent caused the injury , the doctor stated that also could have im pacted his opinion. As Dr. Saar testif ied, “if it was som ething done out of anger or poor im pulse control and the child was hurt, then y es, we would have concerns about putting the child back in that parent’s care depending on what that parent’s rationale f or that [ was] . . . .”

Dr. Saar did diagnosis C.N. with “child neglect, ADHD, and oppositional[ .]”

It is unclear f

rom the appendix record whether Dr. Saar was provided with details 10 surrounding A.N.’s injuries, which prompt ed rem oval of the children f

rom the petitioner’s custody , prior to his evaluation of C.N. There is som e ref

erence in Dr. Saar’s report about A.N. having a scratch on her bottom that was observed by C.N. There is al so ref erence in the report of C.N. being placed back into f oster care in August of 2017 “af ter allegations of his f ather being phy sical with his sister.” But there is no indication in the report that Dr. Saar was provided with com

plete, specif

ic f acts that led to A.N.’s and C.N.’s rem oval f rom the petitioner’s care a week af ter reunif ication with the petitioner. 9The doctor d i d not f eel that C.N. “was giving enough sy m ptom s (inaudible) behaviors characteristic of those children that we know have [ been a] child sexual abuse[ r] or been the victim [ of child sexual abus e ]

. It certainly doesn’t rule it out.” But Dr. Saar testif ied that C.N. ref used to answer questions about that i s s u e. Dr. Saar later testif ied that m ore inf orm ation would have been helpf ul in determ ining whether C.N. com p orted with the psy chological behavioral prof ile of a child s e xual abuser or victim

. As the circuit court 11 observed during the dispositional hearing:

[ W ]e’re asking Dr. Saar a lot of things that in f airness to him he hasn’t been m ade aware of prior to today

. So if we want him

– y ou know, we want him to do an evaluation and give us his best shot at opinions and recomm endations, he’s do n e that, so in f airness to him if we want m ore f rom him then we need to start setting up our order asking f or his evaluation in the param eters that we’re asking so – and to give him the inf orm ation he can do that on . . . . Regarding placem ent of C.N. with the petitioner, the psy chologist testif ied that he had just f

ound out f rom the guardian ad litem the prior evening that the petitioner m ay be getting custody of C.N. as he “thought som ebody else w a s t a k i ng the child.” When asked by the circuit court to give an opinion as to whether C. N

. s hould be placed with the petitioner, Dr. Saar declined, stating

it was my understanding basically that the evaluatio n w a s to f ocus prim arily on . . . [ C.N.][ ;]

. . . I f eel like I wo u l d be

The circuit court, in its f

inal order, f

ound that Dr. Saar’s testim ony “was lim ited to 11 the needs of

” C.N. and that the doctor “was not presented with all the pertinent inf orm ation in this case.” 10overstepping my bounds in m aking a recomm endation to return him to a hom e that I know nothing about f rom the direct source so I think I’m lim ited on w h a t I can say about that particular hom e until I can get som e m ore inf orm ation. I would be happy to review any

additional inf

orm ation – Wh e n a s k e d a second tim e by counsel f or the DHHR as to whether he could m ake a

recomm endation about whether C.N. should be placed back in the hom e, Dr. Saar reiterated his prior testim ony , stating

I f eel like it would be unethical f or m e to m ake a com

m ent about that h o me . . . . [ T]o m ake a specif ic recom m endation like he should return to his f

ather, I don’t really

know m uch about . . . [ the petitioner] (inaudible) besides what was in the records that we received. W e could certainly render that opinion if the Court would like if we had m ore inf orm ation or even the opportunity to m eet with . . . [ the petitioner].

The petitioner also testif

ied at the hearing that the only thing he could think of that caused A.N.’s bruising was him he l p i n g h e r into bed one tim e. The petitioner acknowledged that the photo of A.N.’s injury , which was introduced in evidence during the hearing, looked bad, but that “he had no idea about it” as A.N. never cried. The petitioner denied that he ever spanked A.N. But he later adm itted to accidentally injuring A.N. when he helped to lif

t her into bed. The petitioner also testif ied that he would enlist the help of his ex-wif e, who was not A.N.’s and C.N.’ s mo ther, in caring f or the children if they were returned to him

. During the hearing, however, there was testim ony about his ex-wif e having

a substantiated history with CPS surrounding dom estic violence in the presence of he r children (not the children involved in this case). 11Signif icantly , during the hearing that occurred on February 5, 2018, the DHHR

r e comm ended the term ination of the petitioner’s parental rights as to both children

. T h e guardian ad litem

(“GAL”) recomm ended term ination of the petitioner’s parental rights as
to A.N. and that C.N. be transitioned back to the petitioner’s hom e with services to address C.N.’s needs.

By order entered on M arch 30, 2018, the circuit court term inated the petitioner’s parental rights as to A.N. and ordered that the petitioner retain his parental rights

as to C.N., with reunif

ication to proceed f

ollowing C.N.’s com

pletion of t r e a t me nt as

recomm end by Dr. Saar in C.N.’s psy chological evaluation. The circuit court m ade f indings wherein it recognized that b o t h A.N. and C.N. had engaged in conduct of a sexual nature. The ci r c u i t court f

ound that A.N’s injuries were nonaccidental and the petitioner’s explanation of those injuries was inconsistent with the severity of the injuries and “si m ply
not reasonable, plausible, or credible in the light of the extent of the injur i e s that she sustained.” The circuit court also f ound that the petitioner “has not acknowledged the extent of the injuries sustained by the m inor child, [ A.N

. ]

. . . .” The circuit court then f ound that the petitioner

was af

f orded m ore than am

ple opportunity to explain the nature, circum stances and m echanism causing the child’s injuries, however this Court determ ines that the

. . . [ petitioner’s] explanation and description of how the child’s injuries occurred do not satisf

y comm on sense or experience, and the child’s injuries are indicative of non-accidental m eans. This Court was frankly hopeful that the

. . . [ petitioner] would articulate the 12genuine cause of this child’s injuries; without su c h this Court now finds itself in a posture where this child’s safety and welfare would b e c o m

promised and at risk were this Court to return the child to her father’s custody and care. (Em phasis added). While this f inding was f

ocused on A.N., the circuit court m ade the f ollowing three critical f

indings that were specif

ically applicable to both A.N. and C.N.: 41. The Cour t F

I N D S that to grant the

. . . [ petitioner] a Disposition Improvement Period would be an exercise in futility at the children’s expense in this matter , given the special needs of the m inor child

. . . [ A.N.] and ongoing treatm ent needs of

the m inor child, . . . [ C.N.] 42. The Court FINDS that despite the

. . . [ petitioner] being afforded a post-adjudicatory improv e m e n t p e r iod, he has displayed little insight into underlying issues which gave rise [ to] the Co u rt’s findings of abuse and/or neglect. The

. . . [ petitioner’s] ongoing lack of insight also place said children’s safety and welfare at risk

. 43. The Court FINDS that the

. . . [ petitioner] has failed to acknowledge the existence of the p r o b l e ms in this case, which renders the problems untreatable

. (Em phasis added). Notwithstanding these f in d i ngs, the circuit court determ ined that
term ination of

the petitioner’s parental rights to A.N. was necessary and in the child’s best interest, but that it was in C.N.’s best interest “to be transitioned into the care, custody , and

12

The circuit court ordered p o s t
- t e r m i n at i o n v i s i t at i o n b e t

w e e n A

. N

. and the petitioner. 12 The DHHR stated in its appellate brief that af ter the f irst post-ter mi n ation visit, A.N. exhibited concerning behaviors including slamm ing a dog’s tail in a door so hard the tail had to be am putated, re p e a tedly calling herself an idiot, ref using to eat and spitting f ood. Due to these behaviors, the petitioner’s visits with A.N. were suspended. The m ost recent status update f iled by the DHHR indicates that A.N. began residing with her paternal grandm other in North Dakota on October 16, 2018, with the DHHR retaining legal custody

. The current perm anency plan i s fo r a d o p t i o n b y t h e p at e r n a l g r a n dm other with continued post-term ination contact with the petitioner. The petitioner has engaged in video calls with his daughter and (continued...) 13control” of the petitioner. The circuit court f ound it necessary to separate the siblings and 13 that it was not in their best interests to be returned to the petitioner’s hom e together. It is 14 f rom this order that the petitioner appeals the termination of his parental rights to A.N.

II. Standard of Review This Court applies the f ollowing s t a n dard of review to dispositional determ inations m ade by

the circuit court in abuse and neglect cases: 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 t r i ed upon the f acts without a jury , the circuit court shal l m ake a determ ination based upon the evidence and shall m ake f

indings of f

act and conclu s i o ns of law as to whether such child is abused or neglected. These f indings shall not be set aside by a rev i e w i n g 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 d

e finite and firm conviction that a mistake has been committed

. However, a reviewing court m ay not overturn
(...continued) 12 visited with her over Christm as under the supervision of the paternal grandmother. According to the status update f iled by the DHHR and the petitioner, C.N. has been 13 transitioned back into the p e t i t i o n e r’s custody

. The GAL did not m ention C.N.’s status in the m ost recent reports submi tted to this Court. Even though not assigned as error, we f ind the circuit court correctly decided t hat 14 it was in both children’s best inte r est to separate the siblings in light of the evidence regarding C.N.’s behavior and Dr. Saar’s recomm endation that he not be in the sam e hom e with y ounger children. See Sy l. Pt. 4, In re Carol B. , 209 W

. Va. 658, 550 S.E.2d 636 (2001) (recognizing statutory

sibling pref

erence, but that it can be disregarded where circuit court determ ines, by clear and convincing evidence, that placem ent of child with sibling is not in best interest of

one or m ore children). 14a f inding sim

pl y b e c ause it would have decided the case dif f erently , and it mu s t af

f irm a f inding if the circuit court’s account of the evidence is plausible in light of the record viewed in its entirety

. Sy l. Pt. 1, In Interest of Tiffany Marie S ., 1 9 6 W. V a . 223, 470 S.E.2d 177 (1996) (som e

em phasis added). W e are f

urther guided in our review of abus e a nd neglect cases by the polestar of what is in the child’s best interest , h a ving held in sy llabus point three of In re Katie S. , 198 W

. Va. 79, 479 S.E.2d 589 (1996), that “[ a]lthough parents have s u b s t a n tial rights that m

ust be protected, the prim ary goal in cases involving abuse and neglect, as in all f am ily law m atters, m

ust be the health and welf are of the children.” It is under this standard of review that we examine the parties’ argum ents.

III. Discussion The issue raised by the petitioner i s whether the circuit court erred in
term inating hi s p a r e n tal rights to A.N. “when he was otherwise f ound to be a f

it parent through reunif

ication with” C.N. The petitioner f irst argues that the circuit court f ound him
to be a f it parent and that the “no reasonable likelihood” test set f orth in W est Virginia Code § 49-4-604 (b) (2018 Supp.) was not m et because the circuit court placed C.N. back in his

care. Consequently , the petitioner contends that the circuit court erred by term inating his parental rights to A.N. He asserts that there should have been a dif f erent disposition f

or A.N. short of term ination of his parental rights, f or instance placing his daughter into the custody of a “suitable caretaker,” such as a guardianship with another person or e ntity

.
15Conversely , the DHHR argues that the circuit court did not err in term inating

the petitioner’s parental rights to A.N., because it was in her best interests as her saf ety could
not be assured under the petitioner’s care. The DHHR argues that the circuit court’s denial of other dispositions was proper in ligh t o f A

. N .’s injuries and the petitioner’s inability to reasonably explain those injuries that occurred af ter the return o f A

. N

. t o his care f or one week f ollowing a post-adjudicatory im provem ent period. See Sy l. Pt. 2, In re Scottie D. , 185 W

. Va. 191, 406 S.E.2d 214 (1991) (“Term ination of parental rights of a parent of an abused child is authorized under W

. Va. Code, 49-6-1 to 49-6-10, as am ended, where such parent 15 contends nonparticipation in the acts giving rise to the term ination petition but there is clear and convincing evidence that such nonparticipating parent knowingly took n o a c t ion to prevent or stop such acts to protect the child. Furtherm ore, term ination of parental rights of

a parent of an abused child is authorized under W

. Va. Code, 49-6-1 to 49-6-10, as am ended, wh e r e s u c h nonparticipating parent supports the other parent’s version as to how a child’s injuries occurred, but there is clear and convincing evidence that such version is inconsistent with the m edical evidence.” (f ootnote added)).

Pursuant to W est Virginia Code § 49-4-604(b)(6), [ u]pon a f

inding that there i s no reasonable likelihood t h a t t h e conditions of neglect or abuse can be substantially

The abuse and neglect procedural statutory schem e was am ended and reenacted by 15 the Legislature in 2015 and is now codif ie d as W est Virginia Code §§ 49-4-601 to -610 (2015 & 2018 Supp.). 16corrected in the near f uture and, when necessary f or the welf

are of the child, term inate the parental, custodial and guardianship rights and responsibilities of the abusing parent and com m it the child to the perm anent sole custody of the nonabusing parent, if there be one, or, if not, to either the perm anent guardianship of the departm ent or a licensed child welf are agency . The statute f

urther provides that “no reasonable likelih ood that conditions of neglect or abuse can be substantially corrected” m eans that, based upon the evidence bef ore the court, the abusing adult or adults have dem onstrated an inadequate capacity to solve the problem s of abuse or neglect on their own or with h e l p . T hose conditions exist in the f ollowing circum stances, which are not exclusive:

. . . . The abusing parent or pare n t s have not responded to or f ollowed through with a reasonable f am ily case plan o r o t h e r rehabilitative e f

f o r t s of social, m edical, m ental health or other rehabilitative agencies designed to reduce or prevent the abuse or neglect of th e c h i l d, as evidenced by the continuation or insubstantial dim inution of conditions which threatened the health, welf

are or lif e of the child . . . . Id . § 49-4-604(c)(3). Finally , this Court has held that:

“Parental rights m ay be term i n a t e d where there is clear and convincing evidence th at the inf ant child has suf

f ered e x t ensive phy sical abuse while in the custody of his or h e r parents, and there is no reasonable likelihood that the conditions of abuse can be substantially corrected because the perpetrator of the abuse has not been identif ied and the parents, even in the f ace of knowledge of the abuse, have taken no action to identif y the abuser.” Sy l. pt. 3, In re Jef f r e y R

. L

. , 190 W .Va. 24, 435 S.E.2d 162 (1993). Sy l. Pt. 5, In re Taylor B. , 201 W . Va. 60, 491 S.E.2d 607 (1997).

17Based upon a review of the record, the circuit court f ound that the petitioner’s explanation of the circum stances of A.N.’s nonaccidental injury to her thigh and bu t tocks was not credible; that the petitioner’s f ailure to explain the cause of A.N.’s injuries placed A.N.’s “saf

ety and welf

are” at risk if the court were to return her to the petitioner’s custody and care; that the petitioner had f ailed to recognize the problem s in the case, rendering the problem s “untreatable;” and that the petitioner’s “ongoing lack of insight” placed his

c h ildren’s “saf

ety and welf

are at risk.” These f

indings em anate not only f rom the unexp l a i n e d injury to A.N., but also f

rom the petitioner’s testim ony that he planned to have his ex-wif e, who has a substantiated history with child protective services, to m ove into his hom e to help

care f or his children. The evidence of f ered f ully supports the circuit court’s f indings that the petitioner does not or will not recognize his f ailings when it com es to protecting the saf ety and welf are of his children. W ithout recognition of the problem s, the circuit court correctly f ound that the problem s were not treatable. We , t h eref ore, f ind that the circuit court had suf f i c i e n t e vidence upon which to f ind there was no reasonable likelihood the petitioner could substantially correct the conditions of abuse and neglect, w a r r anting term ination of his parental rights to A.N. Id

. The term ination of his parental rights was in the best interests of A.N. See In re Katie S ., 198 W . Va. at 81, 479 S.E.2d at 591, Sy l. Pt 4.

W e f urther reject the petitioner’s argument that he should have been granted

a post-term ination im

provement period bef

ore his parental rights were term inated sim ply because he had f

iled a m otion f

or one, indicated he would participate f ully in one if granted, 18and argued t h e re had been a substantial change in circum stances justif y ing a second im provem ent period. See W

. Va. Cod e 4 9

- 4-610(3)(A), (B) and (D) (relating to 16 im provem ent periods in abuse and neglect cases and establishing that circuit court “m ay ” grant post-dispostional im pr o v e me n t period where respondent m oves in writing f or im provem ent period, respondent dem onstrates by clear and convincing evidence that he or she “is likely

to f ully participate in im

provem ent period” and respondent “has experienced

a substantial change in circ u m stances” if not the f irst im provem ent period granted by the circuit court). The DHHR counters tha t t h e c i r c uit court correctly denied the petitioner’s

m otion f or a post-dispositional im provem ent period, because after com ply ing with his f

irst (post-adjudicatory) im

provem ent period, within one week of reunif ication with both of

his children, A.N. suf

f ered f rom a nonaccidental injury f or which the petitioner f

ailed to explain and/or take responsibility

.

W e have previously

held that “[ c]ourts are not required to exhaust every speculative possibility of parental im

provem ent
. . . where it appears that the welf are of the c h i l d will be seriously threatened, and this is particularly applica b le to children under the age of three y ears who a r e m ore susceptible to illness, need consistent close interaction with f

ully comm itted adults, and are like ly to have their em otional and phy sical developm ent retarded by num erous
According to the petitioner, the change in cir c u mstances stem s f rom the “newly

16 discovered [ sic] treatm ent needs of both children, and the tim e it would tak e to integrate a care-taking plan in light of that new inf

orm ation.” 19placem ents.” Sy l. P t
. 1 , i n part, In re R.J.M. , 164 W

. Va. 496, 266 S.E.2d 114 (1980). Sy l. Pt. 4, In re Cecil T. , 228 W .Va. 89, 717 S.E.2d 873 (2011). Based upon the f acts bef ore us, the circuit court d i d n o t e r r in term inating the petitioner’s parental rights without af f ording him

a post-dispositional im

provem ent period. 17

Having concl u d e d that term ination of the petitioner’s rights to A.N. was appropriate, we are lef

t wit h a n i s s u e n o t raised by the parties to this appeal – whether the circuit court was correct in its decision to allow the petitioner to retain his f ull parental rights
to C.N. As we held in sy llabus point six of In re Timber M. , 231 W

. Va. 44, 743 S.E.2d 352 (2013), [ i]n cases in v o lving the abuse and neglect of children,

when it appears f

rom this Court’s review of the record on appeal that the h e a l t h a n d welf

are of a child m ay be at risk as a result of the child’s custodial placem ent, regardless of wh e t h er that placem ent is an issu e r aised in the appeal, this Court will take such action as it deem s appropriate and necessary to protect that child. Accord Sy l. Pt. 8, In re Lilith H ., 231 W

. Va. 170, 744 S.E.2d 280 (2013). W e f urther stated that

W e likewise reject the petitioner’s argum ent that the circ u i t court should have placed

17 A.N. “into the custody of a suitable caretaker without term inating the Petitioner’s parental rights to her[ .]” Like the petitioner’s argum ent f or a post-dispositional im

provem ent period, this argum ent is based upon the prem ise that there is a reasonable likelihood the petitioner could substantially correct the conditions of abuse and neglect. The circuit court, however, r e j e c t ed this prem ise when it f ound the petitioner’s problem s were not correctable. T h i s Court agrees with the circuit court’s f indings on this issue. 20[ s]uch action m ay include vacating the circuit court’s order of disposition with respect to the custodial placem ent, rem anding the case f or f urther proceedings, and directing the en t r y o f an order f ully explaining the propriety of the custodial placem ent. The thoroughn e s s o f s u c h a n o r der becom es extrem ely im portant i f a circuit court were to determ ine on rem and that its init i a l custodial placem ent was, in f act, appropriate. In re Timber M

. , 2 31 W

. Va. at 60, 743 S.E.2d at 368. This Court’s recognition that

som etim es there is a need to sua sponte apply the plain error doctrine i n c a s e s i n v olving 18 issues that directly im

pact the saf

ety and welf

are of a c h ild em anates f

rom our signif

icant body of case law directing our decisions be guided by the child(ren)’s best interest and our duty to saf eguard the child(ren). As we stated in In Timber M. , “it is clear f rom our [ child abuse and neglect] procedural rules, as well as our prior case law, that ‘[ t]here cannot be too

m uch advocacy f

or children.’ State ex rel. Diva P. v. Kaufman , 200 W

. Va

. 5 5 5, 570, 490 S.E.2d 642, 657 (1997) (W orkm an, C.J., concurring).” 231 W

. Va. at 59, 743 S.E.2d at 367. Succinctly stated, it is virtually im poss ible to “conceive of a case m ore appropriate f or the exercise of our authority to notice plain error ‘in the intere st of justice’ than one in which children m ay [ be] in danger as a result of an inappropriate placem ent.” Id

. at 63, 743 S.E.2d at 371 (W orkm an, J., concurring).

See Sy l. Pt. 2, In re K.L. ,233 W. V a . 5 4 7 , 759 S.E.2d 778 (2014) (“‘[ This Court] 18 m ay , sua sponte, in the i n t e r e s t of justice, notice plain error.’ Sy l. pt. 1, in part, State v. Myers , 204 W .Va. 449, 513 S.E.2d 676 (1998).”); Syl. Pt. 3, In re K.L. , 233 W

. Va. at 449, 759 S

. E.2d at 780 (“‘To trigger application of the “plain error” doctrine, there m ust be (1) an error; (2) that is plain; ( 3 ) that af f ects substantial rights; and (4) seriously af f ects the f airness, integrity , or public reputation of the judicial proceedings.’ Sy l. pt. 7, State v. Miller , 194 W .Va. 3, 459 S.E.2d 114 (1995).”). 21Apply ing the f oregoing principles, we undertake an exam ination of the circuit court’s decision to transition C.N. back into the petitioner’s custody

. Our f ocus on the circuit court’s order is two-f

old. First, we address the inconsistencies between the f actual f indings

m ade by the circuit court and the conclusions reached based upon those f indings. The circuit
court m ade specif

ic f indings regarding the petitioner’s f ailure to recognize his problem s as

a parent, the petitioner’s fa i l u r e r endering the problem s untreatable, the petitioner’s “ongoing lack of insight . . . plac[ ing]

. . . [ his] children’s saf ety and welf are at risk[ ,]” and the grant of a post-dispositional im provem ent pe r i o d b e i ng “an exercise in f utility at the children’s

e x p e n s e given the special needs” of A.N. and the “ongoing treatm ent needs of C.N.” T h e circuit court also f

ound that the petitioner had adm ittedly injured A.N., but was unwilling to recognize and take responsibility f or the injury

. Based upon these f indings, the circuit court term inated the petitioner’s parental rights to A.N., then ine x p licably concluded that these precise f indings did not require a term ination of the petitioner’s parental rights to C.N. W e

are bef uddled by these conclusions which are totally inconsistent with the dispositions, with neither reasoning nor examination of relevant case law.

As this Court has previously f ound, ‘[ i]n order to rem edy the ab u s e and/or neglect problem , the problem m

ust f irst be acknowledged. Failure to a c k nowledge t he existence of the problem , i.e., the truth of the b a s i c allegation pertaining to th e alleged abuse and neglect or the perpetrator of said abus e and neglect, results in m aking the problem untreatable and in m ak i n g an im provem ent period an exercise in f

utility at the child’s expense.’

22In re: Charity H. , 215 W

. Va. 208, 217, 599 S.E.2d 631, 640 (2004) (quoting W

. Va. Dept. of Health and Human Res. v. Doris S. , 197 W . Va. 489, 498, 475 S.E.2d 865, 874 (1996)). Moreover, as previously m entioned concerning the term ination of the petitioner’s parental rights to A.N., circuit courts are directed by W est Virginia Code § 4 9-4-604(b)(6) to t e r m inate an abusing parent’s parental rights “[ u]pon a f inding that there is no reasonab l e likelihood that the conditions of neglect or abuse can be substantially corrected in the near f uture and, when necessary f or the welf

are of the child.

. . .” Id .; see In re S.W

. , 233 W

. Va. 91, 99-100, 755 S.E.2d 8, 16-17 (2014) (reversing circuit court’s decision that child be reunited with f

ather when “overwhelm ing evidence supported the term ination of his parental rights[ ,]” stating that “[ t]his Court has consistently articulated and adh e red to the statutorily -m andated standard f o r the term ination of parental rights. W est Virginia Code § 49-6-5(a)(6) authorizes the term ination of parental rights ‘[ u]pon a f inding that there is no 19 reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near f

uture and, when necessary f or the welf

are of the child. ’ ” (f

ootnote added)); In

re J.F. , No. 12-1444, 2013 W L 2631307 (W

. Va. June 12, 2013) (m em orandum decision) (reversing circuit court’s decision to term inate parental rights to J.F.’s older siblings, a f t er circuit court determ ined that instances of abuse and neglect could not be corrected within a reasonable tim e, but allowing parents to retain their rights to eighteen-m onth-old J.F.); In re Isaiah , 228 W

. V a . 1 7 6 , 718 S.E.2d 775 (2010) (reversing and rem anding circuit court’s

Now W . Va. Code § 49-4-604. 19 23f

ailure to term inate m other’s parental rights where circuit court f ound that m ot h e r d e nied having a drug problem , had not c o r r e c ted conditions of abuse and neglect, and return to

m other’s hom e was not in child’s best interest). Here, the circuit court expressly f ound that
t h e c onditions of abuse exhibited by the petitioner could not be corrected and that t h e f a c t that the conditions were not treatable placed the saf ety and welf

are of both children at risk. But despite our statutory and case law, which directs the circuit court to term inate a parent’s parental rights under these circum stances, the circuit court’s order is devoid of any f indings

or explanation supporting its decision not to term inate the parental rig h t s t o C .N. and to return C.N. to the petitioner.

W e next address the lack of evidence bef ore the circ uit court and how that underm ines its decision to return legal and phy sical custody of C.N. to the petitioner by f irst f ocusing on the circuit court’s determ ination that sim ply treating C.N., as recomm ended by Dr. Saar, will im

plicitly resolve the issues surrounding the petitioner’s parental f itness. The appendix record reveals that there was a com plete la c k o f e vidence introduced at the dispositional hearings that established the petitioner’s parental f itness to parent C.N. As Dr. Saar testif ied, he was not asked to perf orm a parental-f

itness evaluation of the petitioner and he was not provided with all the inf orm ation needed to assess the petitioner’s parental f itness

24regar d i n g C

. N

. The circuit court even m ade a specif ic f inding that the doctor “was not 20 presented with all pertinent inf orm ation in this case.” In addition, there was a lack of f actual developm ent regarding why both A.N. a n d C.N. had exhibited sexualized behavior. Specif ically concerning C.N, there was evidence presented that the child stated that he had i n a p propriately touched a f oster sister and said that he could do the sam e to other y oung e r children. C.N. reportedly put his head on his f oster sister’s private parts when“trying to eat” the child and try ing to t a k e a f o s t e r sister’s clothes of

f to “eat her down there.” And C.N. handcuf f ed his blind f

oster brother to a bed in the m iddle of the night. Dr. Saar testif ied that he was unable to gather inf orm ation f

rom C.N. about these instances and, theref ore , t h e doctor was not able to m ake any conclusion as to whether C.N. had been a victim of sexual abuse or had perpetrated sexual abuse on other children. Dr. Saar did testif y , however, that because of the a l l e g a t i ons, C.N. should not be in the sam e hom e as A.N., or any child that is y ounger and m ore vulnerable, “unless we can guarantee intense supervision

. . . at least not in the short term .” As Dr. Saar stated in his written report:

Children who exhibit these kinds of behaviors and this level of knowledge of sexual m atters have generally either been sexually abused or have been exposed to sexual m aterials. As there are indications of a lac k o f supervision in the hom e, . . . [ C.N.’s] behaviors suggest he has either been sexually abused or exposed to inappropriate sexual m aterials, raising concerns about him or

The prior parental f

itness e v aluation of the petitioner occurred m onths bef ore the 20 children’s rem oval f

rom the petitioner’s hom e af

ter reunif ication. Further, inf

orm ation on neither A.N.’s injuries nor C.N.’s sexualized behavior was an issue at the time of the prior parental f itness evaluation, which was not perf orm ed by Dr. Saar. 25other children being placed back in the hom e and put at risk f or additional abuse. The doctor f

urther testif

ied that m ore inf

orm ation would have been helpf ul in determ ining whether C.N. com

ported with the psy chological behavioral prof ile of a child sexual abuser

or victim

. But the dispositional hearing bears no developm ent of any f acts about what m ay have caused the children, and particularly C.N., to exhibit this ty pe of behavior. We, theref ore, are lef

t w i t h a r ecord bef

ore us with unresolved critical issues that undeniably im pact whether return of C.N. to t h e petitioner’s care and custody was appropriate f or the child.

Finally , as an ancilla r y ma t ter, we are troubled by the lack of advocacy on behalf of C.N. by both the GAL an d t h e D H H R i n light of the evidence and the f indings

m ade by the circuit court. There is no clear explanation of f ered by the GAL as to why returning custod y o f C.N. to the petitioner was warranted and in C.N.’s best interests, particularly in light of the circuit court’s determ ination that the petitioner has problem s that

are untreatable and place both C.N.’s a n d A .N.’s saf ety and welf

are at risk. The GAL indicated during the disposition hearing that she had “a bit of a problem there with separating

. . . [ C.N.] f

rom h i s f a t h e r [ ,]” and stated that C.N. is going to require “extensive treatm ent that m ay take m onths.” The GAL also recognized that C.N. took another vulnerable child in a hom e and handcuf f ed or tied that child to a bed. His actions just speak t o a l ot of concerns psy chologically in

. . .[ C.N.]; however, my hope was that

. . . [ the petitioner] with the devotion that he’s shown to
. . . [ C.N.] 26going down to visit hom e, learning about his treatm ent, that in the f uture
. . . [ C.N.] could be placed back with his f ather so that he would have a t least the com f ort of one biological parent being available f

or his continued care. This recomm endation, however, ignores the signif icant problem s of abuse a n d neglect exhibited by

the petitioner, which led to the removal of both C.N. and A.N. f rom his hom e

– twice. I t a lso ignores the f act that the petitioner never accepted responsibility f or the nonaccidental i njury suf

f ered by A.N. and the im

pact that f

ailure has on C.N. if returned to the petitioner’s custody . This Court has held:

In a proceed ing to term inate parental rights pursuant to W. Va. Code [ §§ 49-4-601 to -610 (2015 & Supp. 2018)], a s am ended, a guardian ad litem , appointed pursuant to W

. V a . Code [ § 49

- 4 -601(f

)], as am ended, must exercise reasonable diligence in carrying out the re s ponsibility of protecting the rights of t h e c h i ldren

. This duty includes exercising the appellate rights of the children, if , in the reasonable judgm en t o f t h e guardian ad litem , an appeal is necessary

. In re Scottie D. , 185 W . Va. at 191, 406 S.E.2d at 214, Sy l. Pt. 3 (em phasis added).

L ikewise, even though the DHHR recomm end e d t e r m i n at i o n o f t

h e p e t i t i o n e r ’ s parental rights to both A.N. and C.N. at the f inal dispositional hearing, when the circuit court entered a n order only term inating the petitioner’s rights to A.N. and not C.N., there was nothing done by the DHHR to challenge that ruling. The DHHR recognized in oral argum ent bef ore this Court that it had “grave concerns” about C.N. being returned to the petitioner’s custody

. Incongruously , the DHHR argues in its appellate brief i n s u p port of the circuit court’s term ination of parental rights as to A.N., but not C.N. The DHHR contends that the 27circuit court was justif ied in rendering two dif

f erent and separate dispositions f or each child

as “the court m

ust look at the individual needs and best interests of each child under the f acts and circum stances.” The D H H R also argues that our law “requires that each child be evaluated separately to determ ine the r i s k o f h a r m to each.” Critically , the DHHR f ails to of f er any explanation f

or how returning C.N. to his f ather’s custody is in the best interest of the child. See In re Jonathan G. , 198 W

. Va. 716, 731, 482 S.E.2d 893, 908 (1996), modified

on other grounds as stated in State ex rel. C.H. v. Faircloth , 240 W

. Va. 729, 815 S.E.2d 540 (2018) (recognizing t

hat “DHHR, as a party to this case . . . has the right and responsibility
to advocate whatever position it determ ines proper under the law and in the best interests of the child.”).

Our review of the appendix record leads us to the inescapable conclusion that the circuit court’s order term inating the petitioner’s parental rights to A.N., but not to C.N.,
cont a i ns critical inconsistencies between specif ic f actual f indings and the dispositions ordered. These inconsistencies m ust be resolved in a m anner that com plies with our statutes,

see W

. Va. Code § 49-4-604(b)(6), and relevant case law. Morever, the circuit court’s order,

as well as the appendix record, show that the circuit court was lacking im portant evidence necessary f

or determ in i n g t h e petitioner’s parental f itness to parent C.N. Sim ilar to our decision to reverse and rem and in In re Timber M. , we are lef t “with the f

irm conviction” that

no one adequately considered the petitioner’s parental f itness to have custody

of C.N. 231 W

. Va. at 60, 743 S.E.2d at 368; see also In re Emily , 208 W

. Va. 325, 339, 540 S.E.2d 542, 28556 (2000) (reversing and rem anding f or f inal disposition o f a buse and neglect by circuit court, f inding, in part, that “in the context of abuse and neglect proceedings, the circuit court is the entity c h a r g e d with weighing the credibility of witnesses and rendering f indings of f act.”).

W e, there f

o r e , r e verse the circuit court’s decision to allow the petitioner to retain f ull parental rights to C.N. and rem and this case to the circuit court f o r f urther p r o c e e d i n g s c o n s i s t e nt w i t h t h i s opinion, including re-examini ng the disposition, estab l i s h i n g

an intensive plan of therapy f or thi s c h i l d , a nd directing the DHHR to m onitor C.N.’s progress. In reaching this decision, we rem ind the c ircuit court that it should begin by requiring m onitoring of the petitioner’s current custody of C.N. imm ediately

. Additionally , any decision to rem ove C.N. will necessitate a gradual transition period f or the child, given the em otional im

pact that com es f

rom changing custody . As we have held: I t is a traum atic experience f or children to underg o sudden and dram atic changes in their perm anent c u s t o dians. Lower courts in cases such as these should p r o v i de, whenever possible, f

or a gradual transition period, especially where y oung children are i n v o l v ed. Further, such gradual transition periods should be developed in a m anner intended to f oster the em otional adjustm ent of the children to this chan ge and to m aintain as m

uch stability

as possible in their lives. Sy l. pt. 3, James M. v. Maynard , 185 W .Va. 648, 408 S.E.2d 400 (1991). However, if this child rem ains in the phy sical custody of his f ather, the circuit court m ust see that h e is

29protected. Moreover, if the circuit court determ ines that the petitioner’s parental rights

should be term inated, it m ay direct post-term ination visitation with C.N. if in the child’s best interest. See In re Emily , 208 W . Va. at 343, 540 S.E.2d at 560 (recognizing that if circuit court f inds suf f icient em otional bond between respondent f ather and his children, but also concludes that parental rights should be term inated, that court can grant pos t -term ination visitation children, provided such a continued relationship is in children’s best interests and “‘would not unreasonabl y interf ere with their perm anent placem ent.’ State ex rel. Amy M.

v. Kaufman , 196 W .Va. 251, 260, 470 S.E.2d 205, 214 (1996).”). In the context of continued visitation the circuit court m ust determ ine whether such visits should be supervised.

IV. Conclusion Based upon the f

orgoing, the order of the Circuit Court of Ham pshire County is af f irm ed with regard to the term ination of the petitioner’s parental rights to A.N., but reversed and rem anded with regard to C.N. f or f urther proceedings consi s t e n t with this opinion. The proceedings regarding C.N. are directed to occur on an expedited b a sis. To f acilitate the comm encem ent of the proceedings on rem and, the Clerk is directed to issue the

m andate of

the Court contem

poraneously

with the issuance of

this opinion.

Af f irm ed, in part; Reversed, in part, and remanded

f or f u r t h e r p r o c e e d i n g s .

30