Searching over 5,500,000 cases.


searching
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 P.P.

Supreme Court of West Virginia

May 24, 2019

In re P.P.

          Upshur County 18-JA-01

          MEMORANDUM DECISION

         Petitioner Father C.P.-1, by counsel Brian W. Bailey, appeals the Circuit Court of Upshur County's November 5, 2018, order terminating his parental rights to P.P.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel S.L. Evans, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Hunter D. Simmons, filed a response on behalf of the child, also in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in denying him an improvement period and terminating his parental rights.

         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.

         The parents have an extensive and egregious history of Child Protective Services ("CPS") intervention dating back over a decade. In 2007, the parents gave birth to their first child together, C.P.-2. Shortly thereafter, petitioner physically abused then-ten-week-old C.P.-2 such that the child suffered two skull fractures, a subdural hematoma, two rib fractures, fingerprint bruising to the forehead and top of the head, and bruising to the back. C.P.-2's injuries were so severe that he required a partial lobotomy to relieve pressure in the skull, leaving him permanently impaired. The DHHR filed a child abuse and neglect petition against the parents, which ultimately resulted in the involuntary termination of the mother's parental rights. Petitioner voluntarily relinquished his parental rights to C.P.-2, pled guilty to child abuse resulting in bodily injury, and was sentenced to not less than one nor more than five years of incarceration.

         Following petitioner's release from incarceration in 2010, he and the mother reunited and had two more children together. The DHHR filed child abuse and neglect petitions against the parents based upon their prior abuse. Petitioner voluntarily relinquished his rights to one of the children in 2011, and his parental rights to the other child were terminated in 2013 after the circuit court found that he failed to acknowledge the abuse perpetrated against C.P.-2 or remedy the circumstances of abuse. Of note, petitioner had three other children from prior relationships and his rights to those children were not terminated as they lived with their respective mothers and had no contact with petitioner.

         Petitioner and the mother conceived a fourth child, P.P., who was born in December of 2017. P.P. is the only child at issue on appeal. The DHHR filed the instant child abuse and neglect petition against the parents in January of 2018, alleging aggravated circumstances and their continued failure to remedy the circumstances that resulted in the prior termination of their parental rights. Petitioner waived his preliminary hearing.

         In August of 2018, the circuit court held an adjudicatory hearing. Testimony established that the parents' home was clean and appropriate for the child, and that the parents were employed. Further, petitioner appeared concerned about the child, called the DHHR often to inquire about the child's wellbeing, provided care items for the child, and previously completed a domestic violence program. However, during the investigation following P.P.'s birth, petitioner denied responsibility for C.P.-2's injuries and stated that his prior termination of parental rights was the result of having been "railroaded by the State" and that he "didn't do anything wrong." Indeed, petitioner testified that, on the night C.P.-2 received his injuries, petitioner had taken medication that caused grogginess before going to bed. Upon waking up to feed C.P.-2, petitioner, under the effects of the medicine, failed to turn on the light and sat down on a couch while holding the child in the crook of his arm, unintentionally hitting the child's head on the wooden arm of a couch. He failed, however, to explain C.P.-2's broken ribs or fingerprint bruises. Further, in 2016, petitioner was convicted of domestic battery second offense, a lesser included offense to the original charge of domestic battery third offense, in which the mother was the victim. As such, although petitioner completed a domestic violence program following this conviction, it was in no way related to his prior abuse of C.P.-2.

         After hearing evidence, the circuit court found that the parents remained untruthful nearly eleven years later regarding the injuries sustained by C.P.-2 and further found that they

failed to demonstrate that they have remedied the problems which led to the prior involuntary terminations sufficient to parent a subsequent-born child as they both continue to fail to acknowledge the prior abuse and neglect of their child and fail to accept any responsibility for the severe physical injury inflicted upon their son.

         Accordingly, the circuit court determined that P.P. had been abused and neglected by her parents due to their failure to correct the conditions that led to the prior termination of their parental rights and adjudicated them as abusing parents.

         A dispositional hearing was held in October of 2018. The DHHR recommended termination of the parents' parental rights given their failure to acknowledge the abuse perpetrated against C.P.-2 and their resulting inability to address the conditions of abuse that led to the instant petition's filing. Both parents requested post-adjudicatory improvement periods and testified that they would comply with the terms and conditions of the same. After hearing evidence, the circuit court denied the parents' request for improvement periods and terminated their parental rights. In making its findings, the circuit court stated that the facts that the parents were employed, maintained clean and appropriate housing, and provided for the child were not dispositive issues in this matter. Rather, the issues in the prior abuse and neglect proceedings, and which ultimately led to the instant petition's filing, were domestic violence and the continued denial of severe physical abuse of C.P.-2. The circuit court found that petitioner was convicted of a domestic-violence-related incident as recently as 2016, and further found that the remedial measures argued by the parents, such as domestic violence counseling and related courses, failed to address the issues in this case. Based upon the parents' failure to acknowledge the abuse perpetrated upon C.P.-2, the court opined that they were unable to "remedy a problem that they continue to deny exists." Ultimately, the circuit court determined that there was no reasonable likelihood that the parents could correct the conditions of abuse in the near future and that termination was in the child's best interest. It is from the November 5, 2018, dispositional order that petitioner appeals.[2]

         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 ...

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.