In Re: J. P., E. P., and S. P.
Submitted: January 24, 2018
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)
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.
"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).
"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
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"). 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.
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.
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.
Factual and Procedural Background
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.
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."
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
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.
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.
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. 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.
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
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.
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
(5) in January 2016, the mother obtained a domestic violence
protection order against the father which also covered the
(6) sometime after the October 5, 2015, incident, the mother
and the four children moved to Hancock County, ...