State of WV v. M., Jessica
Annotate this CaseJanuary 1994 Term
___________
No. 21920
___________
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
JESSICA M., KENNETH E., JR., AND
ANGELA E., INFANT(S) UNDER THE
AGE OF 18 YEARS,
Defendants Below, Appellants
KENNETH E. AND MARIA E., PARENTS OF
SAID INFANTS,
Appellees
JAMES M. AND CARRIE M.,
Intervenors Below
___________________________________________________
Appeal from the Circuit Court of Marion County
Honorable Fred L. Fox II, Judge
Civil Action No. 92-J-89-F
REMANDED
___________________________________________________
Submitted: May 3, 1994
Filed: May 31, 1994
Darrell V. McGraw, Jr.
Attorney General
L. Eugene Dickinson
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
State of West Virginia
Susan L. Riffle
Fairmont, West Virginia
Attorney for the Appellants
James Zimarowski
Morgantown, West Virginia
Attorney for the Appellee
Maria E.
Patrick N. Wilson
Wilson, Fucillo & Shields
Fairmont, West Virginia
Attorney for Intervenors
James M. and Carrie M.
This Opinion was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "Though constitutionally protected, the right of the
natural parent to the custody of minor children is not absolute and
it may be limited or terminated by the State, as parens patriae, if
the parent is proved unfit to be entrusted with child care." Syl.
pt. 5, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).
2. "Parental rights may be terminated where there is
clear and convincing evidence that the infant child has suffered
extensive physical abuse while in the custody of his or her
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 identified and the parents, even in the face
of knowledge of the abuse, have taken no action to identify the
abuser." Syl. pt. 3, In re Jeffrey R. L., 190 W. Va. 24, 435 S.E.2d 162 (1993).
Per Curiam:
This caseSee footnote 1 was originally presented to this Court on
March 2, 1994,See footnote 2 at which time the appellants, Jessica M.See footnote 3 and
Kenneth E., Jr.See footnote 4, infants under the age of eighteen years, sought
reversal of the April 30, 1993, order entered in Marion County
Circuit Court, which granted their mother, Maria E., a six-month
improvement period and which denied the termination of her parental
rights. By order dated March 15, 1994, we held in abeyance our
decision whether to terminate Maria's parental rights and, instead,
ordered the Department of Health and Human Resources ("DHHR") to
conduct a current investigation and home study of the maternal
grandparents, intervenors James and Carrie M., with whom the
children have resided since January 11, 1993. The order further
directed the DHHR to appear before this Court on May 3, 1994, to
discuss the results of the investigation and home study.
On May 3, 1994, counsel for the parties and the DHHR
appeared before this CourtSee footnote 5, at which time the DHHR presented the
results of the current investigation and home study and its
ultimate recommendation as to the disposition of this case.See footnote 6 Upon
consideration of the petition, the briefs and arguments of counsel
and the results and recommendations of the DHHR's current
investigation and home study of James and Carrie M., we conclude
that this case should be remanded.
I
Seven-week old Angela E. died, according to the autopsy
report, of "blunt force craniocerebral traumatic injuries," the
result of a "homicide." The autopsy report further indicated that
the infant Angela had also sustained five broken ribs, which were
at various stages of healing, a broken clavicle and many bruises.
Though Angela's parents, Maria and Kenneth, Sr., offered several
explanations for Angela's injuries, none of them comported with the
medical evidence.
Maria initially stated that she had placed Angela in her
bassinet and had rolled her over the heating ducts at home. Maria
believed that the jarring of the bassinet could have caused the
extensive head injury. Maria further indicated that she had walked
Angela through the hallways, zigzagging while walking and could
have hit Angela's head on the door frame or wall.
After Angela's death, however, her parents offered the
following explanation: On June 18, 1992, several nights prior to
Angela's death, Maria and Kenneth, Sr. were leaving the home of
Kenneth, Sr.'s parents, when the baby carrier in which Angela was
being carried, broke, jostling Angela around. Though Angela began
to cry, Maria found nothing wrong with her. Angela cried and slept
a good deal after this baby carrier incident, but her parents were
not alarmed because she was a colicky baby who apparently cried a
lot. In the early morning hours of June 21, 1992, Maria got up
with Angela when she began to cry. Maria fed her and put her back
to bed, not noticing any injuries to Angela at that time. Later,
when Angela began to cry again, Kenneth, Sr. got up with her.
Maria eventually got up to fix Angela another bottle. When she
took Angela from Kenneth, Sr., Maria noticed dried blood in the
baby's nose, though it is unclear whether Maria noticed the large knot on the left side of Angela's head.See footnote 7 Angela died on June 22,
1992.
James L. Frost, M.D., a forensic pathologist for the
Medical Examiner's Office of the State of West Virginia, performed
an autopsy on Angela and testified at the hearing to determine
Maria's parental rights to Jessica and Kenneth, Jr., on July 6,
1993. According to Dr. Frost, Angela's autopsy revealed that she
sustained recent head injuries, including "contusions of the brain
in multiple locations, swelling of the brain and hemorrhage along
the left optic nerve."See footnote 8 The autopsy further revealed a fracture of
the right clavicle, or collar bone, and fractures of the posterior
portion of the right seventh and eleventh ribs, as well as an
enlargement of the posterior portion of the eight, ninth and tenth
ribs.See footnote 9 Due to the callous formation in the fractures of the ribs
and clavicle, Dr. Frost believed the fractures to be from ten days to three weeks old.See footnote 10 The injury to Angela's head, however, was
recent, occurring one to two days before her death.
The explanations offered to account for Angela's injuries
did not comport with the medical evidence. According to medical
records, Angela's birth was unremarkable, with no complications.
Thus, Dr. Frost had no reason to believe that Angela's injuries
occurred during the birthing process. Furthermore, because Angela
was only seven weeks old, she could not have inflicted the injuries
to her clavicle, ribs and head herself.See footnote 11
As a result of the parents' explanation that Angela's
injury may have been caused by the baby carrier incident, the baby carrier was retrieved from Wal-Mart for examination.See footnote 12 Dr. Frost
indicated that the injury to Angela's head could not have occurred
as described. With the handle of the baby carrier in the position
in which it would be carried, it was shaken violently. Though the
handle moved one notch, the handle did not slide. Thus, in Dr.
Frost's opinion, Angela could not have slid out or otherwise have
been harmed. Furthermore, Dr. Frost found no evidence of trauma
along the side of the seat where Angela's head would have been.
Finally, because the baby carrier is raised, like a wing chair,
Angela's head would have been supported by the padded interior if
the baby carrier were bumped while Angela was in it.See footnote 13
When Angela was admitted to the hospital, on June 21,
1992, and it became evident that a credible explanation for her
injuries was not forthcoming, the DHHR intervened and was granted
custody of Jessica and Kenneth, Jr.See footnote 14 Upon subsequent examination of Jessica and Kenneth, Jr.'sSee footnote 15 medical records, it was revealed
that Kenneth, Jr. had healed anterior rib fractures, though the
date of injury could not be determined. Maria testified that she
was unaware that Kenneth, Jr. had any broken ribs. Medical records
further revealed that Kenneth, Jr. had suffered a broken leg at age
five weeks. Maria's initial explanation to Kenneth, Jr.'s
physician was that she believed the knot that had developed on
Kenneth, Jr.'s leg was the result of an insect bite. Maria later
explained that Kenneth, Jr. had a cyst on the bone, causing it to
break. Hospital records include a notation from Dr. Koay,
suggesting that Kenneth, Jr. was possibly a victim of child abuse.
Jessica, the only child old enough to be interviewed by
the DHHR, recounted the abuse she and her brother and sister
suffered at the hands of Kenneth, Sr. She told counselors and
other interviewers that she believed Kenneth, Sr. had hit Angela in the head with a hammer. She also saw Kenneth, Sr. hitting the
younger Kenneth's head against the bed. However, her mother's only
response to this was to tell her husband to stop. Jessica further
told her counselor that it was Kenneth, Sr. who had broken her
brother's leg.
In addition to describing how Kenneth, Sr. abused her
siblings, Jessica also described the abuse that he inflicted upon
her. If she sucked her fingers, Kenneth, Sr. would pull them back
until they hurt. She also related to DHHR workers how he had hit
her with a spoon and would hold her nose and put his hand over her
mouth so that she could not breathe. Though Maria would sometimes
be present when her husband abused her children, according to
Jessica, her mother's only reaction would be to tell him to stop.
In its April 30, 1993, order, the trial court refused to
terminate the parental rights of Maria, instead, granting her a
six-month improvement period. At the end of the improvement
period, the trial judge ordered a review hearing during which the
court would examine written reports from psychologists and
counselors with the aim towards family reunification if
appropriate. The DHHR was ordered to retain legal custody of the
children, while the maternal grandparents, James and Carrie M.,
were ordered to retain physical custody. Maria was given liberal
visitation with her children on the condition that the visitations
be supervised by at least one of the maternal grandparents.
On October 13, 1993, an evidentiary hearing was held
wherein expert and lay testimony of the parties' then current
situation was offered.See footnote 16 Dr. Jennifer Cummings, a clinical
psychologist who counseled both JessicaSee footnote 17 and her grandmother,
Carrie M.See footnote 18, testified that Jessica is adjusting well in her current
living situation and that she has no concerns about Carrie M.'s
custodial care of Jessica and Kenneth, Jr. Though Dr. Cummings
originally indicated that Maria failed to protect her children by
not intervening and stopping the abuse of her children by her
husband, Kenneth, Sr., she later testified, at the October 13, 1993
hearing, that the suicide of Kenneth, Sr., on January 23, 1993,
altered her view. She stated that when Kenneth, Sr. was alive and
involved in parenting, the children were at risk. However, Dr.
Cummings believes that the death of Kenneth, Sr. eliminated that
risk. Finally, she opined that it would be in the best interests
of Jessica and Kenneth, Jr. to be returned to their mother.See footnote 19
Similarly, Dr. Ronald Pearse, a psychologist who has
treated Maria since October 1992,See footnote 20 testified at the October 13,
1993 hearing that Maria does not represent a danger to her children
and that it would be in the children's best interest to be returned
to their mother. Dr. Pearse further testified that, though Maria's
husband has been strongly suspected of abusing her children and
causing the death of Angela,See footnote 21 Maria has never identified her
husband as the abuser nor directly acknowledged his abusive
behavior. Nevertheless, Dr. Pearse opined that there is little
risk that Maria would fail to protect her children in the future.
Also testifying at the October 13, 1993 hearing was Mrs.
Joyce Evans, Jessica's kindergarten teacher at Monongah Elementary
School. Mrs. Evans testified that Jessica was one of her best
students and appears to be happy and well-adjusted.
II
As indicated in our order of March 15, 1994, the primary
issues on appeal concern the trial court's refusal to terminate
Maria's parental rights to Jessica and Kenneth, Jr., in light of
her failure to protect her children from the abuse inflicted upon
them and upon Angela, by her husband, Kenneth, Sr., and her refusal
to identify the abuser. We ordered the DHHR to conduct a current
investigation and home study of the children's current living
arrangements, keeping in mind that the results and recommendations
the DHHR makes should protect the best interests of the children.
See John D.K. v. Polly A.S., 190 W. Va. 254, 438 S.E.2d 46 (1993).
In syllabus point 5 of In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973), this Court stated: "Though constitutionally
protected, the right of the natural parent to the custody of minor
children is not absolute and it may be limited or terminated by the
State, as parens patriae, if the parent is proved unfit to be
entrusted with child care." The current investigation and home
study of the children's maternal grandparents, James and Carrie M.,
revealed, according to the DHHR, a caring and loving environment.
The DHHR workers found that James and Carrie M. have adequately
provided for the children's physical, educational and spiritual
needs, with no allegations of abuse or neglect. According to the
DHHR, James and Carrie M. have complied with all aspects of the
April 30, 1993, order.See footnote 22 It is the DHHR's concern, however, that both Maria and her parents have minimized or distorted Kenneth,
Sr.'s abusive behavior towards the children,See footnote 23 thus, suppressing
Jessica's recollection of what occurred. This "potential for
emotional damage to the children" can only be thwarted, in the
DHHR's view, by terminating the parental rights of Maria and by
granting permanent custody of the children to the DHHR.
Jessica and Kenneth, Jr. are apparently thriving in their
grandparents' care. Indeed, a powerful bond has been formed
between them, as well as between the children and their mother, who
has been active in their daily lives. While this Court is aware
of the immeasurable harm which would undoubtedly occur to Jessica
and Kenneth, Jr.See footnote 24 if they were to be abruptly removed from their
grandparents' home, we are infinitely more concerned with the past
abuse of these children, the death of their sister, Angela, Maria's failure to protect them from abuse and her refusal to identify the
abuser.
In In Interest of Darla B., 175 W. Va. 137, 331 S.E.2d 868 (1985), this Court terminated a father's parental rights for
his failure to protect his child. The father argued that he should
be held blameless for his nonaction in protecting his child, even
though he supported his wife's explanation for their 38-day old
infant's life-threatening injuries. In Darla B., as in this case,
the parents' testimony was inconsistent with all of the medical
evidence as to the manner in which the infant's injuries occurred.
As we indicated earlier, it is further troubling to this
Court that Maria has failed to acknowledge Kenneth, Sr.'s abusive
behavior towards her children and to identify him as the abuser.
In our recent decision of In re Jeffrey R. L., __ W. Va. __, 435 S.E.2d 162 (1993), we held in syllabus point 3 that "[p]arental
rights may be terminated where there is clear and convincing
evidence that the infant child has suffered extensive physical
abuse while in the custody of his or her 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 identified and the parents, even in the face of knowledge
of the abuse, have taken no action to identify the abuser."See footnote 25
Guardian ad litem Susan Riffle acknowledged, before this
Court, that Jessica and Kenneth, Jr. have formed important
attachments to their mother, Maria, and to their grandparents,
James and Carrie M. It is, thus, her concern that these young
children may be irreparably harmed if they were to be removed from
their present environment. It is the recommendation of the DHHR,
however, that it be granted permanent custody of Jessica and
Kenneth, Jr., that physical custody of the children be returned to
it, that the parental rights of Maria be terminated, that a hearing
be set to determine the parental rights of Jessica's biological
father, Frank Z., and that the permanent plan for the children be
adoption.
The record of this case does not prescribe a simple
solution. Considering the current living arrangements, which, for
the most part, have been favorable to the children, vis-a-vis the
past abuse of the children by Kenneth, Sr. and Maria's failure to
acknowledge such abuse, and her potential to enter into another
abusive relationship, we are unable to determine the placement that
would best serve the interests of Jessica and Kenneth, Jr. We
shall, therefore, require the DHHR to update its current
investigation and home study of the maternal grandparents, James
and Carrie M., within six months from the date of this opinion, for
trial court review and decision. In the interim, legal custody of
Jessica and Kenneth, Jr. shall remain with the DHHR. The maternal
grandparents, James and Carrie M., shall retain physical custody of the children, with liberal visitation of the children given to
their mother, Maria, with the stipulation that the visitations
shall be supervised by one or both of the maternal grandparents.
Based upon the above, this case will be remanded to the
Circuit Court of Marion County for further proceedings in
accordance with W. Va. Code, 49-6-1, et seq. Upon receipt of the
updated current investigation and home study, the circuit court
shall promptly ascertain appropriate custody of Jessica and
Kenneth, Jr., based upon current considerations.
Footnote: 1 Though Angela E. and Kenneth E., Sr.'s names appear in the style of the case, they are deceased. Angela died on June 22, 1992, while Kenneth, Sr. died on January 24, 1993. Footnote: 2 Appearing before this Court on March 2, 1994 were Susan Riffle, guardian ad litem, on behalf of Jessica and Kenneth, Jr., James B. Zimarowski, on behalf of Maria E., and Patrick N. Wilson, on behalf of James and Carrie M. The DHHR did not appear. Footnote: 3 Jessica apparently has no contact with her biological father, Frank Z. His whereabouts are unknown and his paternal rights are presently not at issue. Footnote: 4 We adhere to our traditional practice of styling domestic relations and juvenile cases involving sensitive matters and do not use the last names of the parties. See In re Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991); David M. v. Margaret M., 182 W. Va. 57, 385 S.E.2d 912 (1989). Footnote: 5 Senior Assistant Attorney General L. Eugene Dickinson appeared on behalf of the DHHR. Footnote: 6 Also submitted and considered by this Court were Maria E.'s Objection to Department of Health and Human Services' Home Study and Narrative Opinion Report and James and Carrie M.'s Objection to the Department of Health and Human Services Home Study and Investigative Report, which, among other things, questions the objectivity of the DHHR in this case and challenges the validity of the report in that neither Maria nor James nor Carrie M. were given the opportunity to cross-examine the DHHR workers who prepared the report. We emphasize that the DHHR's current investigation and home study were not dispositive of this Court's ruling. Rather, it was merely one of many factors considered by this Court. Footnote: 7 While the hospital admissions records indicate that Maria told the nurses that she did not see the knot on Angela's head, Maria told police the next day that she did see the knot. Footnote: 8 Dr. Frost further testified that a great deal of force would be necessary to cause the skull fractures sustained by Angela: "It would be not as much force as would be needed to do the same thing in an adult, because of an infant's skull being much thinner, but it's not a light tap or a light slap. It's a good, substantial blow." Footnote: 9 Though the eighth, ninth and tenth ribs were not excised for histological study, Dr. Frost testified that they were also healing fractures. Footnote: 10 Dr. Frost testified that the cause of the injuries to the clavicle and ribs was
a blunt force applied to that area of the body
causing the rib fractures. It could be a blow
or it could be -- of the ribs. It could be a
blow to the body over those areas, the
clavicle and the ribs, or those to the ribs
could be to the body being held in the hand
and the chest squeezed, or it could be
pressure applied with the body on a hard
surface, but I think I would favor the chest
being held and squeezed.
Footnote: 11 Dr. Frost indicated that a child with injuries such as
Angela's would cry a lot due to pain, tend to favor one side over
the other and would try to protect the injured area. However, if
the child was not taken to the doctor immediately, the pain would
subside as healing of the injury progressed and it would be more
difficult for the physician to find the injury. According to
Maria, Angela saw a physician when she was three weeks and four
weeks old.
Footnote: 12 Maria and Kenneth, Sr. returned the baby carrier to Wal-
Mart, where it was purchased, believing it was defective.
Footnote: 13 Dr. Frost actually positioned Angela's body in the baby
carrier during the autopsy.
Footnote: 14 W. Va. Code 49-6-3(c) [1992] provides, in relevant part:
If a child or children shall, in the
presence of a child protective service worker
of the division of human services, be in an
emergency situation which constitutes an
imminent danger to the physical well-being of
the child or children, as that phrase is
defined in . . . [§ 49-1-3], . . . and if such
worker has probable cause to believe that the
child or children will suffer additional child
abuse or neglect or will be removed from the
county before a petition can be filed and
temporary custody can be ordered, the worker
may, prior to the filing of a petition, take
the child or children into his or her custody
without a court order: Provided, That after
taking custody of such child or children prior
to the filing of a petition, the worker shall
forthwith appear before a circuit judge or a
juvenile referee of the county wherein custody
was taken . . . and shall immediately apply
for an order ratifying the emergency custody
of the child pending the filing of a
petition[.]
Footnote: 15 Jessica was born on October 27, 1987 and Kenneth, Jr.
on June 16, 1991.
Footnote: 16 The trial judge deferred ruling on further placement of
the children until this appeal is decided.
Footnote: 17 Jessica's counseling sessions with Dr. Cummings have
ceased. According to Dr. Cummings, Jessica is no longer in need of
therapy.
Footnote: 18 Dr. Cummings believed that Kenneth, Jr. was too young
to benefit from psychotherapy. Carrie M. accompanied Jessica to
her sessions with Dr. Cummings and participated in parent training,
or parent education. According to Dr. Cummings, Carrie M. did
everything asked of her.
Footnote: 19 Dr. Cummings testified that Maria's failure to
adequately explain the cause of the injuries to her children
"raises questions" and that she would have inquired into those
issues had Maria been her patient. While Dr. Cummings'
recommendation that Jessica and Kenneth, Jr. be returned to their
mother was based on conversations with Maria's mother, Carrie M.,
Jessica, and one meeting with Maria herself, Dr. Cummings did not
consult with Maria's therapist before making this recommendation.
Footnote: 20 Dr. Pearse first began treating Maria and her husband,
Kenneth, Sr., both individually and jointly. Following Kenneth,
Sr.'s death, Maria continued individual counseling sessions.
Footnote: 21 According to Marion County Sheriff Ron Watkins,
initially, Maria and Kenneth, Sr. were suspects in the
investigation of Angela's death. However, following the suicide of
Kenneth, Sr., Maria was no longer a focus of any investigation into
Angela's death.
Footnote: 22 As we noted earlier, Maria was granted liberal
visitation of her children, on the condition that her visits be
supervised by at least one of the maternal grandparents. The
record indicates that Maria visits her children daily and has fully
complied with the conditions of visitation.
Footnote: 23 For instance, in the DHHR's interview with Jessica, she
stated that Kenneth, Sr. "didn't know how to play" when he would
choke her and when he banged Kenneth, Jr.'s head against the baby
bed.
Footnote: 24 The tender age of Kenneth, Jr., who is now two years and
eleven months old, is of particular concern to this Court. As we
noted in In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991)
(citing White, The First Three Years of Life at v. (1985)), the
experiences of the first three years of a child's life form the
foundation for all his later development. Id. at 375. It cannot
be ignored that Kenneth, Jr. has been in his grandparents' care
since he was one and one-half years old.
Footnote: 25 Notably, our decision in In re Jeffrey R.L. was rendered
June 14, 1993, after the trial court's April 30, 1993 order, which
granted Maria a six-month improvement period.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.