In re A.W. and J.P. ( 2018 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re A.W. and J.P.
March 12, 2018
EDYTHE NASH GAISER, CLERK
No. 17-0717 (Gilmer County 16-JA-18 and 19) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father C.P., by counsel Todd W. Reed, appeals the Circuit Court of Gilmer
County’s July 17, 2017, order terminating his parental rights to A.W. and J.P.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Mary
Elizabeth Snead, 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 finding that petitioner sexually
propositioned A.W., determining that A.W. was a victim before all evidence had been submitted,
allowing the guardian to file an amended petition, and terminating petitioner’s parental rights
based upon insufficient evidence.
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 DHHR filed an abuse and neglect petition against petitioner in August of 2016,
alleging that A.W. and J.P. were abused and neglected. Specifically, the DHHR alleged that
A.W., nearly sixteen years old at the time, reported to the DHHR and West Virginia State Police
that petitioner, her grandfather and legal guardian, had been propositioning her for sex over the
last few months. A.W. reported that the propositions often occurred while petitioner was
intoxicated and always while they were alone. The DHHR further alleged that petitioner and
J.P.’s mother engaged in domestic violence, including an incident wherein J.P.’s mother picked
up a kitchen knife, threatened to kill herself, petitioner, and J.P., and intended to frame petitioner
for the murders.
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
1
The circuit court held three adjudicatory hearings over the course of September of 2016
and October of 2016. The circuit court heard the testimony of several witnesses, including A.W.,
who testified that petitioner propositioned her for sex on a nearly weekly basis for approximately
one month. A.W. testified that when she refused, petitioner would request that she bring her
friends over to the home so that he could proposition them instead. The propositions usually
occurred when petitioner was drunk and never occurred when other people were nearby. A.W.
also testified that she had not liked living with petitioner since she was placed there in 2015 and
sometimes fought with petitioner and his two girlfriends. A.W. never observed anyone in the
home to be physically violent. Petitioner then testified and denied that he had ever propositioned
A.W. for sex. Petitioner testified that A.W. had behavioral problems and that they often fought.
Petitioner stated that a few nights before A.W. reported the allegations of abuse, they had fought
and he told her he was going to place her in a program such as Mountaineer Challenge Academy.
Petitioner admitted to drinking two to three beers a day but did not believe he was impaired by
them. After hearing evidence, the circuit court found A.W.’s testimony to be credible and
adjudicated petitioner as an abusing parent based upon his inappropriate conduct with the child
by propositioning her for sex.
In November of 2016, the circuit court held a status hearing wherein the guardian moved
to file an amended petition. Over petitioner’s objection, the circuit court granted the guardian
leave to file an amended petition, which included allegations that petitioner and his girlfriends
engaged in domestic violence several times throughout 2005, 2006, and 2014.
The circuit court held two adjudicatory hearings on the amended petition throughout
January of 2017 and February of 2017. One of petitioner’s girlfriends testified that all of her
former allegations of domestic violence against petitioner were false. The circuit court did not
adjudicate petitioner based upon any allegations contained in the new petition.
The circuit court held a dispositional hearing in April 2017, during which petitioner
requested an improvement period. Witnesses testified that petitioner complied with services such
as parenting classes and supervised visitation with J.P., and appeared to have a strong bond with
the child. Petitioner testified that he tested positive for alcohol twice but that he would fully
comply with any requirements set forth by the circuit court, including staying away from his
girlfriends. The circuit court continued the hearing, which was reconvened in June of 2017. At
that hearing, petitioner admitted that he tested positive for alcohol sixteen times throughout the
proceedings. Despite being prohibited from contacting his girlfriends, pictures submitted by the
DHHR showed petitioner’s vehicle in J.P.’s mother’s driveway. The DHHR also submitted
evidence indicating that petitioner and J.P.’s mother had contact or engaged in domestic violence
four times in May and June of 2017. Petitioner testified that the police reports were untrue,
stating he only went to J.P.’s mother’s home two times in order to retrieve personal items.
However, a Child Protective Services (“CPS”) worker testified that J.P.’s mother called the
DHHR requesting assistance in submitting documentation to law enforcement because petitioner
continued to contact her. The CPS worker testified that the DHHR recommended termination of
petitioner’s parental rights due to continued instances of domestic violence and his inability to
abstain from alcohol when ordered to do so, which led to the suspension of supervised visitation.
After visitation was suspended, petitioner failed to provide any alcohol screens.
2
After hearing evidence, the circuit court found that petitioner had not complied with its
orders from the initiation of the matter, continued to consume alcohol despite orders to remain
alcohol free, remained in contact with J.P.’s mother, and continued to engage in domestic
violence, including four times throughout May of 2017 and June of 2017. The circuit court
denied petitioner’s request for an improvement period and terminated his parental rights based
upon findings that termination was in the children’s best interests.2 It is from the July 17, 2017,
dispositional order that petitioner appeals.
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).
Petitioner first argues on appeal that the circuit court erred in finding that he
propositioned A.W. for sex. According to petitioner, the circuit court was presented with ample
evidence demonstrating that A.W. was not a credible witness and had motive for accusing
petitioner. We find petitioner’s argument meritless. We have previously held “[a] reviewing
court cannot assess witness credibility through a record. The trier of fact is uniquely situated to
make such determinations and this Court is not in a position to, and will not, second guess such
determinations.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997).
Based on a review of the record, we find no error in the circuit court’s credibility determination
regarding A.W. The circuit court was presented evidence of inconsistencies in A.W.’s story, as
well as the testimony of both petitioner and A.W. As the trier of fact, the circuit court weighed
the evidence and ultimately found that A.W. was a credible witness and that petitioner had
propositioned her for sex. Accordingly, this Court will rely on the assessment of witness
credibility made by the circuit court below and finds that petitioner is entitled to no relief in this
regard.
2
A.W.’s mother’s parental rights were terminated in 2006 and her father is deceased.
J.P.’s mother voluntarily relinquished her parental rights during the proceedings below.
According to the guardian, the children are in a relative placement with a permanency plan of
adoption into that home.
3
Petitioner next argues that the circuit court erred in determining that A.W. was a victim
before the closure of evidence during the adjudicatory hearing.3 Petitioner argues that at least
two times before the end of the adjudicatory hearing, the circuit court referred to A.W. as a
victim, demonstrating that it predetermined that she was a victim of abuse before the close of
evidence. Petitioner maintains that pursuant to West Virginia Code § 49-4-601(i), it is the circuit
court’s obligation to make a determination at the conclusion of the adjudicatory hearing based
upon clear and convincing evidence. This Court finds petitioner’s argument unpersuasive. As
previously mentioned, this Court determined that the evidence presented at the adjudicatory
hearing on the initial petition was sufficient to adjudicate petitioner as an abusing parent and we
decline to disrupt the circuit court’s finding that A.W. was a credible witness. In light of the
sufficient evidence presented, we fail to see how the circuit court twice calling A.W. a victim
before the closure of evidence at the adjudicatory hearing prejudiced petitioner in any way.
Accordingly, we find no error.
Petitioner also argues on appeal that the circuit court erred in permitting the guardian to
file an amended petition when no new evidence was included as required by the Rule 19 of the
West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings. Rule 19(b) states
that “[i]f new allegations arise after the final adjudicatory hearing, the allegations should be
included in an amended petition . . . and the final adjudicatory hearing shall be re-opened for the
purpose of hearing evidence on the new allegations in the amended petition.” (emphasis added).
According to petitioner, no new information was contained in the amended petition as the
allegations surrounded instances of domestic violence that occurred in 2005, 2006, and 2014.
Further, petitioner argues that these allegations were not based upon conditions existing at the
time of the filing of the petition, as required by West Virginia Code § 49-4-601(i). As this Court
has recognized, “[m]ost errors, including constitutional ones are subject to harmless error
analysis.” State ex rel. Waldron v. Scott, 222 W.Va. 122, 126, 663 S.E.2d 576, 580 (2008)
(internal quotations and citation omitted). Here, assuming that the circuit court committed an
error for the purpose of petitioner’s argument, it is clear that the alleged error was harmless as
the circuit court did not adjudicate petitioner based upon the amended petition. Accordingly, we
find that petitioner was not prejudiced by the filing of an amended petition and, therefore, is
entitled to no relief in this regard.
3
In support of his argument, petitioner also alleges that the circuit court denied his request
for additional discovery, compelled the testimony of another respondent at the adjudicatory
hearing on the amended petition, and incorrectly considered alleged instances of domestic
violence which occurred several years before the filing of the petition. However, petitioner’s
arguments are tangentially related, at best. At no point in his argument does petitioner
sufficiently explain how these alleged procedural errors demonstrate that he was prejudiced by
the circuit court referring to A.W. as a victim before the close of evidence at the adjudicatory
hearing. In an Administrative Order entered December 10, 2012, Re: Filings That Do Not
Comply With the Rules of Appellate Procedure, then-Chief Justice Menis E. Ketchum
specifically noted in paragraph two that “[b]riefs that . . . fail to structure an argument applying
applicable law [or] fail to raise any meaningful argument that there is error” are not in
compliance with this Court’s rules. Accordingly, we decline to address the unstructured sub-
arguments that petitioner failed to adequately connect to his assignment of error.
4
Finally, petitioner argues that the circuit court erred in terminating his parental rights
based upon insufficient evidence. Specifically, petitioner argues that although he tested positive
for alcohol against court orders at least sixteen times throughout the proceedings below, no
evidence was presented that his parenting skills were impaired due to alcohol consumption.
Further, petitioner argues that there was insufficient evidence presented that he engaged in
domestic violence throughout May of 2017 and June of 2017. Petitioner’s argument is
unpersuasive. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate
parental rights upon findings that there is “no reasonable likelihood that the conditions of neglect
or abuse can be substantially corrected in the near future” and that termination is necessary for
the child’s welfare. Pursuant to West Virginia Code § 49-4-604(c)(3), a situation in which there
is no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected
include one in which
[t]he abusing parent . . . [has] not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts of social, medical,
mental health or other rehabilitative agencies designed to reduce or prevent the
abuse or neglect of the child, as evidenced by the continuation or insubstantial
diminution of conditions which threatened the health, welfare or life of the child.
The record demonstrates that there was no reasonable likelihood that petitioner could
correct the conditions of abuse and neglect. Petitioner’s argument regarding the sufficiency of
the evidence is not supported by the record and ignores the issue at hand. Per the circuit court’s
order, petitioner was prohibited from consuming alcohol, ordered to participate in alcohol
screens, and prohibited from contacting either of his girlfriends. However, petitioner failed to
comply with these conditions. By his own admission, petitioner continued to consume alcohol
throughout the proceedings below and tested positive for alcohol sixteen times. Testimony at the
dispositional hearing established that petitioner failed to comply with this order because he did
not believe that he had a problem with alcohol or that he needed to stop drinking. Further, the
record indicates that petitioner or members of his family went to J.P.’s mother’s house four times
throughout May of 2017 and June of 2017. While petitioner attempts to argue that these
instances do not meet the definition of domestic violence, the fact remains that petitioner was
ordered not to have contact with J.P.’s mother and she was forced to contact law enforcement
officers multiple times due to petitioner’s continued unwanted presence at her apartment.
Petitioner’s continued alcohol consumption and contact with J.P.’s mother occurred despite
having been provided with services such as parenting classes and alcohol screens. As such,
petitioner did not follow through with rehabilitative efforts designed to reduce or prevent further
abuse and neglect. We have held that
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, W. Va.Code [§]
49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the
use of intervening less restrictive alternatives when it is found that there is no
reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code
§ 49-4-604(c)] . . . that conditions of neglect or abuse can be substantially
corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).
5
Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Based on the evidence outlined
above, it is clear that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and/or neglect and that termination was necessary for the children’s welfare.
Therefore, the circuit court did not err in terminating petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 17, 2017, order is hereby affirmed.
Affirmed.
ISSUED: March 12, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
6