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In re S.P.

Supreme Court of West Virginia

February 15, 2019

In re S.P.

          (Mingo County 17-JA-107)

          MEMORANDUM DECISION

         Petitioner Father D.P., by counsel Diana Carter Wiedel, appeals the Circuit Court of Mingo County's August 16, 2018, order terminating his parental rights to S.P.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel James Wegman, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Cullen C. Younger, filed a response on behalf of the child in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in adjudicating him as an abusing parent, in denying him further opportunity for improvement prior to disposition, and in denying post-termination visitation with the child.

         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 November of 2017, the DHHR filed a petition alleging that five-year-old S.P. was sexually abused. According to the DHHR, the child's abuser was the brother of the mother's boyfriend who continued to have contact with the child after the alleged abuse. The DHHR alleged that the mother was unconcerned about the abuse and took no action to limit contact between the child and her abuser. Additionally, the DHHR alleged that petitioner had no contact with the child and failed to protect the child from sexual abuse. Although petitioner did not appear for the preliminary hearing, he was represented by counsel, who waived the hearing.

         The circuit court held an adjudicatory hearing in January of 2018. Petitioner did not appear, but was represented by counsel. The DHHR called the investigating DHHR worker who testified about the child's disclosures. According to the DHHR worker, the child indicated that her vagina had been touched through her clothing. Further, the worker testified that the child went to tell her mother, but stated that the mother was "in the shower with her boyfriend and I was left alone and I was scared." The DHHR worker also testified that the mother told her that petitioner had no contact with the child. On cross-examination, the DHHR worker explained that the child knew petitioner's name and expressed that she "cared for him." The DHHR worker was unaware of any steps that petitioner took to protect his child from sexual abuse. Ultimately, the circuit court adjudicated petitioner as an abusing parent.

         In March of 2018, the circuit court held a status hearing. Petitioner did not attend, but was represented by counsel. According to petitioner's counsel, petitioner was aware of the hearing. Further, the guardian indicated that petitioner told a service provider that he did not desire further services and discontinued communication with the DHHR.

         In April of 2018, the circuit court held a dispositional hearing. Petitioner did not appear, but was represented by counsel. The DHHR recommended termination of petitioner's parental rights and presented testimony that petitioner failed drug screens until he ultimately refused services in February of 2018. The DHHR worker explained that she suggested to petitioner that he participate in substance abuse rehabilitation and a psychological examination, but that petitioner failed to follow through with those suggestions. Ultimately, the circuit court found that petitioner was unwilling and unable to correct the conditions of abuse and neglect and that there was no reasonable likelihood that those conditions would be corrected in the near future. Accordingly, the circuit court terminated petitioner's parental rights to the child. Additionally, the circuit court found that post-termination visitation was not in the best interest of the child and denied any visitation with petitioner. The circuit court memorialized its decision in its August 16, 2018, order. Petitioner now appeals that order.[2]

         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, this Court finds no error in the proceedings below.

         On appeal, petitioner first argues that the circuit court erred in adjudicating him as an abusing parent.[3] Petitioner asserts that the DHHR did not present sufficient evidence that he abandoned the child because the child knew him by name and expressed that she cared for him. However, petitioner ignores the evidence regarding his failure to provide proper supervision for the child and, therefore, we find that petitioner is entitled to no relief. West Virginia Code § 49-1-201, in relevant part, defines a neglected child as one "[w]hose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child's parent . . . to supply the child with necessary food, clothing, shelter, supervision, medical care or education . . . ." (emphasis added). Further, this same section defines an "abusing parent" as "a parent . . . whose conduct has been adjudicated by the court to constitute child abuse or neglect . . . ." Id.

         We have held as follows:

"W.Va.Code [§] 49-6-2(c) [now West Virginia Code § 49-4-601(i)], requires the [DHHR], in a child abuse or neglect case, to prove 'conditions existing at the time of the filing of the petition . . . by clear and convincing [evidence].' The statute, however, does not specify any particular manner or mode of testimony or evidence by which the [DHHR] is obligated to meet this burden." Syllabus Point 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).

         Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (citations omitted). Whether or not sufficient evidence exists that petitioner abandoned his child, it is clear from the evidence presented that the child was not adequately supervised and was harmed as a result. Further, the evidence showed that, following her sexual abuse, S.P. could not reach her mother and was "left alone" and "scared." This evidence clearly shows that petitioner was not active in providing appropriate supervision to his child. Additionally, the evidence showed that petitioner took no action ...


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