In re L.P.

• Decision Date: 23 November 2015
• Docket Number: No. 15-0704,15-0704
• Court: West Virginia Supreme Court
• Parties: In re: L.P.-1, R.P., J.P. Jr., N.P., I.P., & L.P.-2

In re: L.P.-1, R.P., J.P. Jr., N.P., I.P., & L.P.-2

No. 15-0704

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

November 23, 2015

(Mingo County14-JA-108, 14-JA-109, 14-JA-110, 14-JA-111, 14-JA-112, & 14-JA-113)

MEMORANDUM DECISION

Petitioner M.V., by counselDiana Carter Wiedel, appeals the Circuit Court of Mingo County's May 29, 2015, order terminating his custodial rights to fifteen-year-old L.P.-1, fourteen-year-old R.P., twelve-year-old J.P. Jr., eleven-year-old N.P., nine-year-old I.P., and six-year-old L.P.-2.¹The West Vir ginia Department of Health and Human Resources("DHHR"), by counselS.L. Evans, filed its response in support of the circuit court's order.The guardian ad litem ("guardian"), Susan J. Van Zant, 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 (1) terminating his custodial rights when the DHHR failed to prove that he abused the children; (2) terminating his custodial rights without granting an improvement period to him or the children's mother when they both had fully complied with services; (3) terminating his custodial rights when the children, some of whom were older than fourteen years of age, did not want his custodial rights terminated; and (4) in denying him post-termination visitation.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 November of 2014, the DHHR filed an abuse and neglect petition against the children's mother and her live-in boyfriend, petitioner, alleging that petitioner physically abused the children and the mother failed to protect her children from that continued abuse.According to the DHHR, petitioner committed acts of excessive punishment and other physical abuse, suchas grabbing a child by the throat and choking her, slapping one of the children, making at least one of the children drink "pickle juice" as punishment, and generally making the children feel afraid and unsafe.The DHHR also asserted that the children were only allowed to eat crackers and drink water if their room was dirty.The DHHR further alleged that the children's mother sought an emergency protective order ("EPO") for the children against petitioner in October of 2014 based on his physical abuse, but she later recanted her allegations against him and the EPO was either not entered or dismissed.The DHHR claimed that petitioner was back in the home with the children by November 10, 2014.

Later that month, the circuit court held a preliminary hearing.At that hearing, the circuit court found that all of the children disclosed physical abuse by petitioner.The court found probable cause for removal of the children and set the matter for adjudication.

Between December of 2014 and February of 2015, the circuit court held several adjudicatory hearings, which were continued on at least one occasion to complete in-camera review of interviews conducted with the children.The DHHR presented its evidence in support of the allegations in the petition, and the circuit court interviewed the children in camera.Petitioner did not testify on his own behalf, but he presented witnesses to testify to his good behavior around the children.At the conclusion of these hearings, the circuit court found that "the children revealed horrible abuse at the hands of [petitioner];" that petitioner abused these children; and that it was in the children's best interests to remain in the DHHR's custody pending a dispositional hearing.

In March of 2015, the circuit court held a dispositional hearing.The DHHR presented evidence that, although petitioner admitted placing his hands on the children in pleadings to the circuit court, he failed to understand that his conduct was unacceptable.The Child Protective Services ("CPS") worker testified that there was no reasonable likelihood that services could correct the problems at issue.Ultimately, the circuit court found that petitioner emotionally and physically abused the children and participated in other at-risk behaviors.Further, the circuit court found that petitioner failed to recognize the extent of his wrongdoing.Finding that there was no reasonable likelihood that petitioner could substantially correct the conditions of neglect in the near future and that the children's welfare required termination, the circuit court terminated petitioner's custodial rights to the children.The circuit court noted the children's wishes to reside with their mother, but countered that, despite their wishes to return to their mother's home, the same was not in their best interests.The circuit court also denied petitioner post-termination visitation with the children.The final order was entered on May 29, 2015.This appeal followed.

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).

On appeal, petitioner's first assignment of error is that the circuit court erroneously terminated his custodial rights because the DHHR failed to satisfy its burden that he abused the children.West Virginia Code § 49-1-3(1)(A) states that " '[a]bused child' means a child whose health or welfare is harmed or threatened by . . . [a respondent] . . . who knowingly or intentionally inflicts [or] attempts to inflict . . . physical injury or mental or emotional injury, upon the child or another child in the home[.]"As to the finding of abuse in an abuse and neglect proceedings, we have held that

[i]n 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.

In re Kasey M., 228 W.Va. 221, 225, 719 S.E.2d 389, 393(2011)(citingSyl. Pt. 1, State v. T.C., 172 W.Va. 47, 303 S.E.2d 685(1983));see alsoState v. C.N.S., 173 W.Va. 651, 656, 319 S.E.2d 775, 780(1984)(stating that "[o]nce there has been a proper finding of abuse or neglect, the proceedings move into the dispositional phase, which is governed by W.Va. Code § 49-6-5.").

In addressing the burden of proof at the adjudicatory hearing, we have explained that

"W.Va. Code[§]49-6-2(c)[] requires the State Department of Welfare[now the Department of Human Services], in a child abuse or neglect case, to prove 'conditions existing at the time of the filing of the petition . . . by clear and convincing proof.'The statute, however, does not specify any particular manner or mode of testimony or evidence by which the State Department of Welfare 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)(internal citations omitted).The burden of proof in abuse or neglect proceedings does not shift from the DHHR to a child's parent, guardian, or custodian.Syl. Pt. 5, in part, In re George Glen B., Jr., 207 W.Va. 346, 532 S.E.2d 64(2000)(holding that even in cases arising from a prior termination, "the Department of Health and Human Resources continues to bear the burden of proving that the subject child is abused or neglected. ")(emphasis added);Syl. Pt. 4, In re: K.L., 233 W.Va. 547, 759 S.E.2d 778(2014)(holding that "[t]he burden of proof in a child neglect or abuse case does not shift from the State Department of [Health and Human Resources] to the parent, guardian or custodian ofthe child.It remains upon the State Department of [Health and Human Resources] throughout the proceedings.").

In this case, the record on appeal provides ample evidence that the DHHR met its burden of clear and convincing proof that petitioner abused the children herein.While petitioner argues that the circuit court failed to consider the evidence he presented of good behavior around the children, we find no indication in the record that the circuit court failed to "consider" this evidence.Instead, the circuit court weighed the evidence in favor of the DHHR and against petitioner's argument, which is consistent with the circuit court's authority in these matters.In re Emily, 208 W.Va. 325, 339, 540 S.E.2d 542, 556(2000)(stating that "in the context of abuse and neglect proceedings, the circuit court is the entity charged with weighing the credibility of witnesses and rendering findings of fact.")(citation omitted));see alsoMichael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538(1997)...