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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 Mother J.P., by counsel R. Grady Ford, appeals the Circuit Court of Greenbrier County's January 5, 2018, order terminating her 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. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in adjudicating her as an abusing parent and in terminating her parental, custodial, and guardianship rights to D.P.-1, M.P., and D.P.-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 her husband, R.P., in regard to four children: T.W., D.P.-1, M.P., and D.P.-2.[2] 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 petitioner. The DHHR alleged that then sixteen-year-old T.W. was afraid to live in the home due to petitioner's physical abuse, that petitioner 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 petitioner before. The DHHR also alleged that petitioner 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 petitioner 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 her husband. Finally, the DHHR alleged that petitioner and her husband were the subjects of ten CPS referrals over the preceding eight years, that petitioner perpetrated domestic violence against T.W. through her physical and verbal abuse, and that she failed to protect the children by coaching M.P. in how to respond to law enforcement and CPS. Petitioner waived her 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, her husband, and T.W. in which the husband held T.W.'s hair while petitioner hit her. M.P. also disclosed that petitioner and her husband hit him across the face with their hands and that petitioner hit him and D.P.-2 with a spatula.

         In September of 2017, the circuit court held an adjudicatory hearing during which petitioner testified that she never abused the children. According to petitioner, T.W. had a history of behavioral issues and had been hospitalized multiple 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 her husband agreed and initiated proceedings to relinquish the 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 she believed T.W. told M.P. that she was "going to get him taken away" and stated that T.W. often blamed others when things did not go her way.

         T.W. testified regarding the abuse perpetrated against her and stated that she had seen petitioner and her husband hit M.B. as well. T.W. stated that, contrary to the husband's assertions, she had not collaborated with M.P. to make false allegations against petitioner and her husband 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 her husband as abusing parents. Petitioner subsequently filed a motion to dismiss the petition with regard to D.P.-1 and a motion for a post-adjudicatory improvement period.

         The circuit court held an initial dispositional hearing in October of 2017. Petitioner admitted that she raised her voice at the children and testified that she would participate in an improvement period. However, petitioner continued to blame T.W. for the issues in the home. In fact, when specifically asked whether the issues occurring in the home were a result of T.W.'s behavior, petitioner responded in the affirmative. Petitioner admitted that the husband restrained T.W. by holding her hair during an argument but denied that she hit T.W. When asked what aspects of her parenting she could improve upon, petitioner responded that she could use training in how to handle the children's behaviors and "issues." 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 her professed willingness to participate, petitioner failed to acknowledge her abuse of the children and instead blamed T.W. 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. The psychologist opined that petitioner's prognosis for attaining minimally adequate parenting skills within the timeframe of the case was poor "largely due to the seriousness and pattern of the alleged abuse, [petitioner's] denial of responsibility for it, and apparent scapegoating of the children." As such, the circuit court found that petitioner did not demonstrate that she was likely to meaningfully participate in an improvement period given that she failed to accept responsibility for her 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.[3] It is from the January 5, 2018, dispositional order that petitioner appeals.[4]

         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 argues that the circuit court erred in adjudicating her as an abusing parent against the weight of the evidence. According to petitioner, T.W. was a troubled youth "who was dead set on being freed from the custodial grasp of [petitioner.]" Petitioner argues that T.W. created a plan to leave petitioner's home by sending pictures of bruises to T.W.'s sister and claiming petitioner made them. Petitioner asserts the evidence demonstrates that she did not abuse and neglect the children and should not have been adjudicated as an abusing parent. We disagree. We have previously noted as follows:

At the conclusion of the adjudicatory hearing, the 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. . . . The findings must be based upon conditions existing at the time of ...

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