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In re D.P.-1

Supreme Court of West Virginia

June 11, 2018

In re D.P.-1, M.P., and D.P.-2

          Greenbrier County 17-JA-56, 57, and 58

          MEMORANDUM DECISION

         Petitioner Father R.P., by counsel Martha J. Fleshman, appeals the Circuit Court of Greenbrier County's January 5, 2018, order terminating his parental, custodial, and guardianship rights to D.P.-1, M.P., and D.P.-2.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Brandolyn N. Felton-Ernest, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Kristopher Faerber, filed a response on behalf of the children, also in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in denying him a preliminary hearing on the amended petition; requiring him to leave the courtroom during T.W.'s testimony; denying him an improvement period; terminating his parental, custodial, and guardianship rights to D.P.-1, M.P., and D.P.-2; and discontinuing visitation with the children.[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 July of 2017, the DHHR filed a child abuse and neglect petition against petitioner and his wife, J.P., in regard to four children: T.W., D.P.-1, M.P., and D.P.-2.[3] In its petition, the DHHR specifically alleged that T.W. had significant bruising on her arm and the back of her thigh, which she disclosed was caused by the wife. The DHHR alleged that sixteen-year-old T.W. was afraid to live in the home due to the wife's physical abuse, that the wife had a drinking issue and would get violent after drinking, that T.W. reported her bruises were from punishment, and that T.W. related that she had been similarly punished by the wife before. The DHHR also alleged that the wife was emotionally abusive and wanted to terminate her seven-year guardianship of T.W. The DHHR stated that D.P.-1 was nonverbal and could not disclose abuse, and that M.P. did not disclose any abuse. The DHHR also reported that a Child Protective Services ("CPS") worker spoke to T.W.'s half-sister, J.W., who reported that she had seen bruising on T.W. before and provided a recorded video of the wife coaching M.P. in how to respond to law enforcement and CPS workers. According to the DHHR, T.W. had a history of self-harm and running away in order to escape the major mental, physical, and emotional abuse that she suffered under the care of petitioner and his wife. Finally, the DHHR alleged that petitioner and his wife were the subjects of ten CPS referrals over the preceding eight years and that petitioner failed to protect the children from the wife's abuse. Petitioner waived his preliminary hearing.

         The DHHR filed an amended petition in August of 2017 in order to add the biological parents of T.W. and D.P.-1. However, the DHHR also included new allegations against petitioner. According to the DHHR, M.P. underwent a third interview in which he disclosed that he witnessed a physical altercation between petitioner, the wife, and T.W. in which petitioner held T.W.'s hair while the wife hit her. M.P. also disclosed that petitioner and his wife hit him across the face with their hands and that the wife hit him and D.P.-2 with a spatula.

         Later in August of 2017, the circuit court held an adjudicatory hearing during which petitioner requested a preliminary hearing on the amended petition. However, the circuit court denied petitioner's request and continued the hearing to September of 2017. At the reconvened adjudicatory hearing, petitioner testified that he never abused the children. According to petitioner, T.W. had a history of behavioral issues and had been hospitalized three times, most recently spending a year in a facility in Virginia. Petitioner testified that after being released, T.W.'s bad behavior significantly increased and she ultimately requested that they relinquish their guardianship rights so that she could live with her half-sister. Petitioner and his wife agreed and initiated proceedings to relinquish their guardianship rights. However, the hearing was continued and petitioner explained that T.W. was angry that the issue had not resolved and made the allegations against them the following day. Petitioner also testified that he believed T.W. and M.P. were capable of collaborating on the allegations against petitioner and his wife.

         T.W. testified regarding the abuse perpetrated against her and stated that she had seen petitioner and his wife hit M.B. as well.[4] T.W. stated that she had not collaborated with M.P. to make false allegations against petitioner and his wife and had not spoken to M.P. since the day they were removed from the home. A CPS worker testified regarding her investigation and stated that she did not consider evidence of T.W.'s wanting to leave petitioner's home in reaching her conclusion that the children were abused. Rather, the CPS worker testified that T.W.'s bruises led her to file the petition due to their size and location, which indicated abuse. The CPS worker admitted that she observed no evidence of abuse apart from T.W.'s bruises. T.W.'s biological grandmother testified that she had custody of T.W. until she was nine years old when, due to T.W.'s false allegations of abuse against her, T.W. was removed from the home. Child abuse and neglect proceedings were initiated against the grandmother but ultimately dismissed. The grandmother was unable to take T.W. back into her home for unrelated reasons but testified that she often visited T.W. in petitioner's home over the years and never observed any abuse. After hearing evidence, the circuit court adjudicated petitioner and his wife as abusing parents. Petitioner subsequently filed a motion for a post-adjudicatory improvement period with regard to the remaining children.

         The circuit court held an initial dispositional hearing in October of 2017. Petitioner testified that he would participate in an improvement period. However, petitioner continued to deny that the children were abused or that domestic violence occurred in the home, despite admitting that he restrained T.W. by holding her hair during an argument between T.W. and his wife. Further, petitioner stated that he did not know of any aspect of his parenting upon which he could improve. The circuit court held its ruling with regard to the improvement period in abeyance until petitioner could undergo a psychological evaluation.

         In January of 2018, the circuit court held a final dispositional hearing. The circuit court ultimately denied petitioner's motion for a post-adjudicatory improvement period, finding that, despite his professed willingness to participate, petitioner failed to acknowledge his abuse of the children and instead blamed T.W. Specifically, petitioner denied abusing the child, but then later admitted that he "held" T.W.'s hair in an effort to calm her down. Notwithstanding this admission, petitioner continued to deny that the child was abused. The circuit court also noted that petitioner underwent a psychological evaluation after the last hearing and continued to blame T.W. for the allegations of abuse. During the evaluation, petitioner alleged that T.W. "had been coached intensively by the CPS worker" and that her bruises were "self-inflicted." The psychologist opined that petitioner's prognosis for attaining minimally adequate parenting skills within the timeframe of the case was poor. As such, the circuit court found that petitioner did not demonstrate that he was likely to meaningfully participate in an improvement period given that he failed to accept responsibility for his actions. The circuit court further found there was no reasonable likelihood that petitioner could substantially correct the conditions of abuse in the near future and that termination of petitioner's parental, custodial, and guardianship rights was necessary for the children's welfare.[5] It is from the January 5, 2018, dispositional order that petitioner appeals.[6]

         The Court has previously established the following standard of review in cases such as this:

"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).

         On appeal, petitioner first argues that the circuit court erred in denying him a preliminary hearing on the amended petition, as it contained additional allegations and he was prohibited from challenging probable cause as to those allegations. We disagree. Rule 19(d) of the Rules of Procedure for Child Abuse and Neglect Proceedings sets forth that "[i]f the petition is amended after the conclusion of a preliminary hearing in which custody has been temporarily transferred to the [DHHR] or a responsible person, it shall be unnecessary to conduct another preliminary hearing." Here, petitioner waived his initial preliminary hearing, at which custody was transferred to the DHHR. Therefore, a second preliminary hearing on the amended petition was unnecessary and petitioner is entitled to no relief in this regard.

         Petitioner next argues that the circuit court erred in requiring him to leave the courtroom during T.W.'s testimony. According to petitioner, he was unable to hear the testimony due to technical difficulties with the listening device and was unable to advise his counsel regarding the statements made against him. As such, petitioner contends that he was unable to assist his counsel in formulating a defense. We find petitioner's argument to be meritless. First, petitioner cites to no authority that grants him the right to be present during the child's testimony. Second, we have held that "[i]n a child abuse and neglect civil proceeding held pursuant to West Virginia Code § 49-6-2 (2009) [now West Virginia Code § 49-4-601], a party does not have a procedural due process right to confront and cross-examine a child." Syl. Pt. 7, in part, In re J.S., 233 W.Va. 394, 758 S.E.2d 747 (2014). Moreover, Rule 8(b) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings provides that "the court may conduct in camera interviews of a minor child, outside the presence of the parent(s). ...


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