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In re J. P.

Supreme Court of West Virginia

February 14, 2018

In Re: J. P., E. P., and S. P.

          Submitted: January 24, 2018

         Appeal from the Circuit Court of Hancock County The Honorable Ronald E. Wilson, Judge Case Nos. 16-JA-49, 50, 51

          Christopher Alan Scheetz, Esq. Follansbee, West Virginia Counsel for Petitioner, F. P. (the father)

          James T. Carey, Esq. Carey Law Office Weirton, West Virginia Counsel for J. P. (the mother)

          Patrick Morrisey, Esq. Attorney General Charleston, West Virginia Lee Niezgoda, Esq. Assistant Attorney General Fairmont, West Virginia Counsel for Respondent, Department of Health and Human Resources

          Cathryn A. Nogay, Esq. Weirton, West Virginia Guardian ad litem for J. P., E. P., and S. P.

         SYLLABUS

         1. "Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous." Syl. pt. 1, In the Interest of: Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

         2. "In cases involving the abuse and neglect of children, when it appears from this Court's review of the record on appeal that the health and welfare of a child may be at risk as a result of the child's custodial placement, regardless of whether that placement is an issue raised in the appeal, this Court will take such action as it deems appropriate and necessary to protect that child." Syl. pt. 6, In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013).

          OPINION

          KETCHUM, JUSTICE

         This abuse and neglect proceeding from the Circuit Court of Hancock County concerns three children, J. P., E. P. and S. P., and their biological parents, F. P. ("the father") and J. P. ("the mother").[1] The father appeals from the December 14, 2016, adjudicatory order which found him to be an abusing and neglectful parent. He also appeals from the April 25, 2017, order which adopted the parenting plan recommended by the children's guardian ad litem.

         This Court has before it the father's petition for appeal, the response of the Department of Health and Human Resources (the "DHHR"), the response of the guardian ad litem, and the record of proceedings below. In addition, the parties have filed updates on the status of the children as required in abuse and neglect appeals under Rule 11(j) of the West Virginia Rules of Appellate Procedure.

          This Court affirms the December 14, 2016, adjudicatory order which found the father to be an abusing and neglectful parent. However, in view of the Rule 11(j) updates, we conclude that the circumstances regarding the children have changed to the extent that the parenting plan is no longer viable in the absence of additional findings by the circuit court. We therefore set aside the April 25, 2017, order which adopted the parenting plan recommended by the guardian ad litem and remand this case to the circuit court for further proceedings consistent with this opinion.

         I. Factual and Procedural Background

         In April 2016, the DHHR's Child Protective Services Division filed an abuse and neglect petition in the Circuit Court of Hancock County against the father and the mother (husband and wife) regarding their three children: J. P., E. P. and S. P.[2] Also included in the DHHR petition was a fourth child, M. C., the biological daughter of the mother and the father's stepdaughter. The father and the mother were separated at the time the petition was filed. However, some of the allegations occurred while the father and the mother were living together with the four children. The DHHR petition alleged that the father and mother "have a history with child protective services dating back to 2007."

          The allegations against the mother concerned illegal drug trafficking and drug addiction in the presence of the children. According to the petition, the mother engaged in the buying and selling of cocaine, leading to her arrest and charges of conspiracy and child neglect creating a risk of injury. A search of her residence and vehicle revealed drug paraphernalia, including needles within the reach of the children.

         The allegations against the father concerned domestic violence. The DHHR petition alleged that on October 5, 2015, the father attacked the mother, injured her wrist, and fled the scene with two of the children. The incident resulted in the father's convictions and incarceration for domestic violence and obstructing official business. In January 2016, the mother was granted a domestic violence protection order against the father. The order provided protection for the four children as well as the mother.

         Finally, the DHHR petition stated that, pursuant to an emergency order, J. P., E. P. and S. P. were placed in foster care in Parkersburg, West Virginia, and that M. C. was in a kinship placement in Newell, West Virginia. The DHHR sought temporary legal and physical custody of the children pending further proceedings. Soon after the petition was filed, the guardian ad litem was appointed for the children, and the father and mother received separate appointed counsel.

          Following a status review in June 2016, the circuit court entered an order requiring the father to comply with a pre-adjudicatory improvement plan. The issue of whether the father was an abusing and neglectful parent remained pending.

         The mother admitted her drug addiction and her resulting inability to safely and appropriately parent the children. As a result, the mother waived her right to an adjudicatory hearing. The circuit court found her to be an abusing and neglectful parent and required her to comply with a post-adjudicatory improvement plan.[3] The circuit court noted that the father and the mother were still married but intended to obtain a divorce. Although J. P., E. P. and S. P. remained in foster care in Parkersburg, West Virginia, the circuit court transferred placement of M. C. to her biological father, M. M., in Salem, Ohio.[4]

         In October 2016, the circuit court granted the guardian ad litem's motion to terminate the father's pre-adjudicatory improvement period, with the grounds for the motion to be included in an amended petition to be filed by the DHHR. The circuit court also scheduled the father's adjudicatory hearing.

          On October 26, 2016, the DHHR filed an amended abuse and neglect petition in the circuit court, alleging, inter alia, that the father missed opportunities to visit with his children, that his home was not safe and suitable for them, and that he had not been forthcoming about various individuals residing in his home.[5]

         The father's adjudicatory hearing began in November 2016. On December 14, 2016, the circuit court entered an order determining the father to be an abusing and neglectful parent and that J. P., E. P., S. P. and M. C., are abused and neglected children. Among the circuit court's findings were the following:

(1) in October 2015, the mother, the father and the four children resided in East Liverpool, Ohio;
(2) at that time, the father was M. C.'s custodian;
(3) on October 5, 2015, the father committed domestic violence against the mother in the presence of M. C.;
(4) based on the October 5, 2015, incident, the father was charged with domestic violence and obstructing official business;
(5) in January 2016, the mother obtained a domestic violence protection order against the father which also covered the four children;
(6) sometime after the October 5, 2015, incident, the mother and the four children moved to Hancock County, ...

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