Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re A.P.-1

Supreme Court of West Virginia

March 14, 2019

IN RE A.P.-1, A.P.-2, A.P.-3

          Submitted: January 15, 2019

          Appeal from the Circuit Court of Raleigh County The Honorable Robert A. Burnside, Jr., Judge Case Nos. 2017-JA-154-B, 2017-JA-155-B, 2017-JA-156-B

          Gavin Ward, Esq. Beckley, West Virginia Counsel for Petitioner D.P.

          Stanley I. Selden, Esq. Beckley, West Virginia Guardian ad litem of A.P.-1, A.P.-2, and A.P.-3

          Patrick Morrissey, Esq. Attorney General Brandolyn N. Felton-Ernest, Esq. Assistant Attorney General Charleston, West Virginia Counsel for Respondent Department of Health and Human Resources

          Sidney Bell, Esq. Beckley, West Virginia Counsel for Respondent J.B.

          Sarah F. Smith, Esq. Public Defender Corporation Beckley, West Virginia Counsel for Respondent T.W.

          JUSTICE WORKMAN concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.


         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. 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." Syllabus Point 1, In Interest of Tiffany Marie S., 196 W.Va. 223');">196 W.Va. 223, 470 S.E.2d 177 (1996).

         2. "Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Syllabus Point 1, Appalachian Power Co. v. State Tax Dep't of W. Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995).

         3. "In a child abuse and neglect hearing, before a court can begin to make any of the dispositional alternatives under W.Va.Code, 49-6-5, it must hold a hearing under W.Va.Code, 49-6-2, and determine 'whether such child is abused or neglected.' Such a finding is a prerequisite to further continuation of the case." Syllabus Point 1, State v. T.C., 172 W.Va. 47');">172 W.Va. 47, 303 S.E.2d 685 (1983).

         4. "When no factors and circumstances other than incarceration are raised at a disposition hearing in a child abuse and neglect proceeding with regard to a parent's ability to remedy the condition of abuse and neglect in the near future, the circuit court shall evaluate whether the best interests of a child are served by terminating the rights of the biological parent in light of the evidence before it. This would necessarily include but not be limited to consideration of the nature of the offense for which the parent is incarcerated, the terms of the confinement, and the length of the incarceration in light of the abused or neglected child's best interests and paramount need for permanency, security, stability and continuity." Syllabus Point 3, In re Cecil T., 228 W.Va. 89');">228 W.Va. 89, 717 S.E.2d 873 (2011).

          WALKER, Chief Justice.

         Petitioner D.P. is serving a lengthy prison sentence for first-degree murder and is ineligible for parole until 2029. He is also father to three minor children: A.P.-1, A.P.-2, and A.P.-3. In April 2018, the Circuit Court of Raleigh County terminated Petitioner's parental rights to the three children, despite concluding three months earlier that Petitioner had not abused or neglected them. Petitioner now challenges the termination of his parental rights. Because our law is clear that a circuit court may not terminate a parent's rights to his child without first finding that the parent abused or neglected his child, we vacate the circuit court's April 2018 order and remand this matter to the circuit court for further proceedings.


On June 12, 2017, the West Virginia Department of Health and Human Resources (DHHR) filed a "Petition for Finding of Abuse and/or Neglect and/or Abandonment" with the Circuit Court of Raleigh County (the Petition) regarding Petitioner's three minor children: A.P.-1, A.P.-2, A.P.-3.[1] In the Petition, DHHR alleged that Petitioner was incarcerated at Mount Olive Correctional Facility, sentenced to life with mercy, and ineligible for parole until 2029. DHHR asked the circuit court to find that Petitioner had abandoned his children and, based upon that finding, terminate his parental rights to A.P.-1, A.P.-2, and A.P.-3. DHHR did not allege that Petitioner had otherwise neglected or abused the children.[2]

         The circuit court held an adjudicatory hearing on October 3, 2017.[3] There, DHHR argued that Petitioner had abandoned his children due to his lengthy incarceration. The circuit court was not convinced, and stated in its October 6, 2017 order that it "was of the opinion that the Department's interpretation of the definition of abandonment was not correct." The circuit court then ordered the guardian ad litem and Petitioner to provide additional authority on that issue.[4]

         The adjudication hearing continued on December 12, 2017. Petitioner testified to his ongoing relationship with A.P.-1, A.P.-2, and A.P.-3, stating that he was with them nearly every day before his incarceration in March 2014, and that he had provided for their physical and emotional needs. Petitioner further testified that, since entering prison, he talked to the children by telephone at least twice each week and sent his prison wages to his sister E.P., with whom the children were placed, for their maintenance.

         The circuit court again continued the adjudication hearing to January 30, 2018, when the children's mother, T.W., testified and confirmed Petitioner's earlier statements: that he provided emotional and financial support to his children before his 2014 incarceration and that he remained involved in the children's lives through telephone conversations and cards, post-incarceration. Petitioner's sister, E.P., also confirmed that he maintained meaningful contact with A.P.-1, A.P.-2, and A.P.-3 from prison and supported them financially, to the best of his ability. Following argument from the parties, and the State's concession that there was no "factual basis in good faith for the Court to make any finding of abandonment," the circuit court concluded that the facts did not support a finding that Petitioner had abandoned A.P.-1, A.P.-2, and A.P.-3 and adjudication was "not supported and [was] refused."

         The circuit court then held a disposition hearing on April 17, 2018. Petitioner's counsel "object[ed] to any type of termination on the record considering that there's been no finding of abuse and neglect," and directed the circuit court to this Court's decision in State v. T.C.[5] The guardian ad litem for A.P.-1, A.P.-2, and A.P.-3 presented the opposite view, stating, "[t]he law does not say that because there was no finding of abuse, neglect, or abandonment at the adjudicatory phase that [Petitioner's] parental rights can't be terminated at a dispositional phase. It's exactly the opposite of that." Then, the guardian ad litem drew upon this Court's decision in In re Cecil T.[6] to assure the circuit court that it could "terminate [Petitioner's] parental rights at a dispositional hearing solely on the basis of him being incarcerated[.]"

         Ultimately, the circuit court adopted the guardian ad litem's view, concluding that, although it explicitly found that Petitioner had not abandoned his children at the earlier adjudicatory hearing, it was not precluded from "considering the circumstances of the parties and devising a-or coming to a resolution of the question of disposition in the best interests of the child, or the children." Relying on In re Cecil T., the court found that "the lengthy incarceration of [D.P.] does support the finding of termination to allow the Department the options to take care of [A.P.-1, A.P.-2, and A.P.-3]." The court's written order, entered on April 24, 2018, reflected that termination ruling:

[T]hat [D.P.] has a lengthy prison sentence which includes his ineligibility for parole until March 16, 2029; that the opportunity for contact with his children is clearly limited; that the children's interests control at disposition; that while the Court recognizes [D.P.'s] interests the same are outweighed by the children's interests; In Re: Cecil T[.], . . . controls this matter; and that the children's best interests require termination of [D.P.'s] parental rights.

         Petitioner now appeals the circuit court's April 24, 2018 order terminating his parental rights.[7]


         In abuse and neglect appeals, this Court reviews a circuit court's conclusions of law de novo.[8] "Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review."[9] This Court only sets aside a circuit court's factual findings in an abuse and neglect case when those ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.