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In re T.T.

Supreme Court of West Virginia

May 22, 2017

In re: T.T. and B.P.

         Mercer County 15-JA-002-DS & 15-JA-003-DS

          MEMORANDUM DECISION

         Petitioner Father F.T., by counsel Gerald R. Linkous, appeals the Circuit Court of Mercer County's November 4, 2016, order terminating his parental, custodial, and guardianship rights to T.T. and B.P.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel S.L. Evans, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Elizabeth A. French, filed a response on behalf of the children in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in terminating his parental, custodial, and guardianship rights without requiring the DHHR to determine if he could care for the children with long-term services and without considering a less-restrictive dispositional alternative.[2]

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In January of 2015, the DHHR filed an abuse and neglect petition against the parents based on a referral regarding infant T.T.'s recent emergency room visits. According to the petition, the child, born in October of 2014, had been to the emergency room three times with upper respiratory infections that required x-rays. During a visit when the child was roughly two months old, medical staff identified a healing fracture on the ninth rib that was not present during the child's previous visit. Thereafter, at a visit shortly before the petition's filing, staff identified the same fracture in addition to a new healing fracture on the child's tenth rib with a potential fracture on the eleventh rib.

         Initially, the parents were unable to explain how the child sustained these injuries. Moreover, the paternal grandparents, with whom the parents lived, similarly could not explain the injuries. As such, the DHHR implemented a protection plan whereby the parents were not to be left alone with the child. Eventually, the parents explained the injuries by stating that in late November/early December of 2015, petitioner fell asleep with the child on his chest and the child fell off. According to petitioner, he grabbed the child to keep him from falling. The parents also indicated that, as a result of the child's respiratory infection, he stopped breathing on another occasion which required the grandmother to shake him. Ultimately, the West Virginia State Police consulted Dr. Joan Phillips, who recommended that the child be taken to a hospital to be evaluated for potential physical abuse.

         According to the petition, the child was admitted to the hospital on January 7, 2015, and the DHHR later received a report that the child sustained fractures to his ninth, tenth, and eleventh ribs. The report further concluded that these injuries were suspicious for non-accidental trauma, with a pediatric abuse expert indicating that there was a ninety-five percent predictability that the injuries were due to abuse. The expert further opined that the parents' explanations were not reasonable in light of the injuries. The DHHR also learned that petitioner had another child, B.P., who lived with a different mother. According to the DHHR, petitioner sought neither custody of, nor visitation with, B.P., and he stated that he wished to voluntarily relinquish his parental rights to that child.

         In June of 2015, the circuit court held an adjudicatory hearing, during which petitioner stipulated to injuring T.T. in a physical altercation with the mother. Specifically, petitioner indicated that he and the mother were fighting over who would get to hold the infant when the child sustained the injuries. The circuit court also granted petitioner a post-adjudicatory improvement period. As part of his improvement period, petitioner underwent a psychological evaluation.

         During his evaluation, petitioner indicated that Child Protective Services ("CPS") became involved in the matter because he took his child to the emergency room. He also told the psychologist that he threw the infant up in the air a few times. According to the psychologist, petitioner did not know an infant cannot be thrown in this manner and similarly did not know that an infant needed to be held in such a way as to support its neck. He additionally told the psychologist that the mother slammed the child on the bed. Following the evaluation, the psychologist listed the diagnostic impressions of petitioner as child neglect, mild intellectual disability, and antisocial personality disorder. The evaluation detailed petitioner's long-term history of violence and aggression and concluded that his tendencies were concerning, given the child's injuries. According to the psychologist, petitioner indicated that "he has had rages with blackouts in which he was violent toward others." Petitioner also disclosed that he was suspended from high school more than thirty times, including an incident in which he assaulted the school's principal. Based upon these issues, the psychologist expressed "significant doubt about [petitioner's] ability to care for himself or for a child." Moreover, the psychologist was concerned by the fact that petitioner believed that he was a competent and capable parent, while he viewed "his children in extremely negative terms."

         Ultimately, the psychologist concluded that petitioner's "history of aggression and violence, uncontrollable anger, drug abuse and criminal activity" rendered him unfit to care for children. Specifically, the psychologist stated that "there is nothing . . . to recommend [petitioner] as a parent and much to indicate he is incapable of effectively caring for a child and likely represents a danger to a child." According to the psychologist, petitioner's issues impeding his ability to care for a child were "all but insurmountable" and his prognosis for improved parenting was "virtually non-existent."

         Thereafter, petitioner retained a separate psychologist to review his evaluation and render his own conclusions. By letter dated December 17, 2015, this second psychologist stated that "[t]he fact that [the first psychologist] did not offer any recommendations is not entirely surprising given [petitioner's] reported highly problematic history." The second psychologist then offered a list of actions petitioner could take that would show he is more suitable to raise a child. This list included, among other requirements, that petitioner display no aggressive or violent behavior toward another person and participate in social skills training classes with no unexcused absences. According to this second psychologist, if petitioner complied with the requirements regarding sustaining responsible and adaptive behavior, "he could be ready to start interacting with his son in six months to a year."

         The circuit court held a dispositional hearing in October of 2016. During the hearing, the ongoing CPS worker testified that petitioner had not improved during the proceedings. He failed to visit child B.P. at all and he indicated that he did not want to continue complying with services such as parenting and adult skills education. The DHHR also expressed concerns over the paternal grandparents because of the grandfather's prior involuntary termination of parental rights to children and the grandmother's violent and aggressive behavior toward service providers. The CPS worker also testified to an incident in which petitioner scared T.T by screaming in a car they were traveling in, in addition to engaging the mother in an altercation over a cell phone. Ultimately, the CPS worker testified that petitioner did not have the capacity to parent the child, especially given the child's special needs as a result of his cleft palate that required multiple surgeries. Petitioner's parenting provider testified that he made no progress in making the home safer for the children as he displayed no improvement in his ability to understand the parenting information conveyed to him. The provider also testified to instances in which petitioner would swear because he found it difficult to change the child's diaper. Moreover, the circuit court heard evidence that petitioner attended only half of his scheduled visits with the child. Petitioner also testified to his ongoing reporting to the local day report center over charges of domestic battery related to B.P.'s mother. Ultimately, the circuit court terminated petitioner's parental, custodial, and guardianship rights to the children because of his inability to parent them.[3] It is from the dispositional order that petitioner appeals.

         The Court has previously established the following standard of review:

"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." Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, the Court finds no error in the circuit court's termination of petitioner's ...


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