In re C.P.-1 and I.P.

FILED
October 1, 2021
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re C.P.-1 and I.P.
No. 21-0105 (Preston County 19-JA-8 and 19-JA-9)
MEMORANDUM DECISION
Petitioner Mother C.P.-2, by counsel Kristen D. Antolini, appeals the Circuit Court of
Preston County’s January 4, 2021, order adjudicating her as an abusive and neglectful parent in
regard to C.P.-1 and I.P. 1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Patrick Morrisey and Katherine A. Campbell, filed a response in support
of the circuit court’s order. The guardian ad litem, John C. Rogers, filed a response on behalf of
the children in support of the circuit court’s order. On appeal, petitioner argues that the circuit
court erred in adjudicating her of abuse and neglect. 2
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). Additionally, because one of the children and the
mother share the same initials, we will refer to them as C.P.-1 and C.P.-2, respectively,
throughout this memorandum decision.
2
Petitioner briefly raises a second assignment of error in which she alleges that the circuit
court failed to inquire if she wished to appeal her adjudication. Petitioner is correct that West
Virginia Code § 49-4-601(k) requires that “[f]ollowing the court’s [adjudicatory] determination,
it shall ask the parents or custodians whether or not appeal is desired.” However, petitioner fails
to allege how she was prejudiced by the court’s failure, nor does she provide evidence to
establish any such prejudice. On the contrary, petitioner appealed from the circuit court’s
January 4, 2021, order adjudicating her of abuse and neglect. As such, petitioner cannot establish
entitlement to relief as the court’s failure to strictly comply with West Virginia Code § 49-4-
601(k) constitutes harmless error. See Tennant v. Marion Health Care Found., Inc., 194 W. Va.
97, 111, 459 S.E.2d 374, 388 (1995) (“Under West Virginia law, when substantial rights are not
affected, reversal is not appropriate.”).
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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 January of 2019, the DHHR filed an abuse and neglect petition alleging that petitioner
exposed the children to emotional, psychological, and/or physical abuse and neglect. According
to the petition, petitioner and the father were engaged in a contentious custody battle over the
children, and petitioner instructed the children to lie about the father physically and sexually
abusing them. After discovering that C.P.-1 admitted to lying about the father abusing her,
petitioner demanded the child exit her vehicle, which the child refused to do. Petitioner then sped
off, threw the child’s antidepressant medication from the vehicle, and told her she did not need it.
Shortly thereafter, petitioner forced the child to exit the vehicle and retrieve the medication. The
DHHR further alleged that petitioner incentivized the children to fabricate allegations against the
father. Specifically, if the children wanted something, like a candy bar, petitioner would ask
them questions about whether petitioner had “done anything to them or ha[d] been mean to
them.” Reportedly, this behavior caused the children to make false allegations in order to be
rewarded by petitioner.
DHHR personnel interviewed then-eleven-year-old C.P.-1 at school, during which the
child described petitioner “going crazy” after I.C. told petitioner that C.P.-1 informed their father
about petitioner asking C.P.-1 to “tell the counselor that Dad hit you upside the head.” The child
told the DHHR worker that she did not want petitioner to know about her disclosing this incident
because petitioner would “flip out on her.” C.P.-1 also was clear that her past allegations
regarding the father were untrue and that he never touched her and was not mean to her. She
asserted that she felt like she was “addicted to lying” because petitioner “keeps telling me to lie
about my Dad.” This included petitioner instructing the child to post on social media about being
sexually assaulted. The child also disclosed that petitioner would talk to her about the father’s
sex life with inappropriate specificity and once engaged in a physical altercation with the father’s
girlfriend at a baseball game. DHHR personnel also spoke to then-nine-year-old I.C., who
reportedly preferred living with petitioner because she “get[s] whatever [she] want[s]” from
petitioner. DHHR personnel asked I.C. “if everything was good at the [petitioner’s] house,” to
which I.C. responded, “[petitioner] doesn’t coach us.”
The DHHR also spoke with Liz Smailes, the children’s counselor who had been treating
the children for over one year. According to Ms. Smailes, C.P.-1 disclosed that petitioner
instructed the children to say negative things about the father and that C.P.-1 felt as if “a weight
had been lifted off of her by finally admitting this” because she no longer wanted to lie about her
father. C.P.-1 also disclosed to Ms. Smailes that petitioner became upset at C.P.-1 for not telling
lies shortly before Christmas, resulting in petitioner buying I.C. “a lot more Christmas presents,
including an ATV.” Ms. Smailes stated that C.P.-1 had been disclosing suicidal ideations over
the prior months and was prescribed Prozac. In her professional opinion, Ms. Smailes believed
that the C.P.-1’s problems were caused by petitioner requiring the child to fabricate allegations
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against the father. Ms. Smailes indicated that I.C. was more guarded in therapy, although she
opined that I.C. was also coached to make disclosures about the father.
According to the DHHR, petitioner blamed the children’s behavior on alleged sexual
abuse that occurred at the father’s home and indicated that C.P.-1 reported she would kill herself
if she had to return to the father’s home. The DHHR also interviewed the father, who reported
that petitioner made up allegations against him, including filing multiple petitions for domestic
violence protective orders that were all ultimately dismissed. The DHHR’s petition contained no
allegations against the father.
Given the detailed facts and the various medical experts and records at issue, the court
held a series of adjudicatory hearings between February of 2019 and October of 2020. During
one hearing in April of 2019, petitioner addressed the court and made additional allegations
against the father, claiming that he previously physically and sexually abused the children. Based
on these allegations, the court threatened to remove the children from the father’s care and place
them in a foster home. However, both the guardian and the DHHR objected to the children’s
removal so the court permitted them to stay with the father.
In July of 2019, the court conducted in camera interviews with the children after the
parties submitted proposed questions for them. During her interview, C.P.-1 disclosed that she
was afraid of petitioner because petitioner screamed at her, petitioner would frequently ask her to
lie about her father sexually abusing her, and she wanted petitioner to participate in therapy to
become stable. The child also confirmed the allegation that petitioner threw her antidepressants
from a moving vehicle and forced her to retrieve them from alongside the highway. I.P. also
confirmed the incident regarding the medication but stated that she wished to live with petitioner.
At a hearing in September of 2019, Dr. Traci Berry-Harris testified that she conducted
psychological evaluations on the children. According to Dr. Berry-Harris, C.P.-1 denied physical
or sexual abuse by her father and again disclosed that petitioner instructed her to lie about the
alleged incidents. Dr. Berry-Harris testified that C.P.-1 appeared credible during her evaluation.
According to the witness, C.P.-1 was diagnosed with generalized anxiety disorder with depressed
mood and I.P. was diagnosed with depressed mood. The witness further explained that the
children have different perceptions of the incidents and of petitioner’s motives.
At an adjudicatory hearing in December of 2019, Elizabeth Smailes, the children’s
therapist, testified that C.P.-1 told her that the allegations against her father were untrue.
According to Ms. Smailes, C.P.-1 “was finally getting relief by telling the truth” and appeared to
be a “new person.” According to Ms. Smailes, petitioner’s continued emotional abuse of the
child caused her mental health to deteriorate to the point that C.P.-1 suffered from hallucinations.
The child also reportedly contemplated suicide, which Ms. Smailes attributed to extreme
emotional stress.
Petitioner testified at a hearing in December of 2019, at which time she confirmed that
she did not raise concerns of abuse by the father during their divorce proceedings. She also stated
that C.P.-1 was a liar, which she had just realized that as a result of these proceedings. According
to petitioner, she was “never . . . emotionally or mentally abusive to [her] children.” Petitioner
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also indicated that she did not believe that her conduct caused C.P.-1 to contemplate suicide.
Petitioner further acknowledged that she filed four separate petitions for protective orders against
the father, all of which were dismissed. Finally, petitioner testified that she was never made
aware of multidisciplinary team (“MDT”) meetings which she did not attend; however, the court
noted that petitioner’s counsel had previously stated on the record that she provided petitioner
notice of the meetings.
At an adjudicatory hearing in February of 2020, the guardian informed the court that I.P.
recently disclosed to him that petitioner asked her to lie about her father and that she wished for
the proceedings to be over. Petitioner then called witnesses who testified that they never heard
her coach the children to make allegations, although at least one witness acknowledged that
petitioner was often alone with the children and had the opportunity to coach them. Petitioner’s
boyfriend testified that C.P.-1 alleged that her father would punish her for making allegations
against him. The children’s babysitter also testified that the children told her that they were
scared to go to the father’s home. Petitioner called the children’s school principal to testify.
According to the principal, petitioner would frequently travel to the school to report allegations
of sexual abuse allegedly perpetrated by the father, but he indicated that neither child ever
corroborated these allegations. Petitioner also called as a witness an individual who performed a
polygraph examination on her. Although this witness ultimately concluded that petitioner was
not deceitful in her assertion that she did not coach the children, the court noted its skepticism
based on different outcomes for the same question during the examination.
In October of 2020, the court held a status hearing so that it could announce its findings
of fact and conclusions of law concerning adjudication. Based on the evidence, the court found
that the DHHR established by clear and convincing evidence that petitioner abused and
neglected the children. 3 It is from the adjudicatory order that petitioner appeals.
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
3
Subsequent to her adjudication, the court granted petitioner disposition under West
Virginia Code § 49-4-604(c)(5) upon the agreement of all parties, including the guardian for the
children. According to the parties, the children’s permanency plan is to remain in the legal and
physical custody of the nonabusing father. Petitioner enjoys visitation with the children at the
father’s discretion.
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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 alleges only that the circuit court erred in adjudicating her of abuse
and neglect of the children. Petitioner’s argument on appeal cannot entitle her to relief, however,
because she focuses only on the testimony of one witness and ignores the voluminous evidence
that the circuit court heard in support of adjudication over a period of twenty months and
multiple hearings. Indeed, petitioner would have this Court overturn the circuit court’s detailed
findings as to her adjudication simply because Dr. Berry-Harris deferred her diagnosis of Child
Psychological Abuse in regard to both children. We find this insufficient to overturn the circuit
court’s adjudication, because a formal psychological diagnosis is in no way required to find that
a child has been abused or neglected.
According to West Virginia Code § 49-1-201, an “abused child” is one “whose health or
welfare is being harmed or threatened by . . . [a] parent . . . who knowingly or intentionally
inflicts, attempts to inflict, or knowingly allows another person to inflict, physical injury or
mental or emotional injury, upon the child or another child in the home.” (Emphasis added). In
arguing that Dr. Berry-Harris deferred a diagnosis of Child Psychological Abuse, petitioner
ignores testimony from Ms. Smailes in which the therapist emphatically concluded that “C.P.[-1]
and I.P. have been emotionally abused and manipulated by [petitioner] and as a result this has
caused a gradual deterioration of the mental state of C.P.-1 specifically.” The therapist further
concluded that it was not until C.P.-1 admitted to petitioner’s abuse “that she was able to
stabilize and no longer present as traumatized, agitated[,] and severely depressed.” Further, the
court heard evidence from multiple sources, including the child herself, that C.P.-1 fabricated the
allegations against her father at petitioner’s direction. While petitioner points to Dr. Berry-
Harris’s testimony that it could be possible the child did, in fact, tell petitioner she was abused,
the question of whether the court erred in discounting this possibility in favor of the ample
evidence that the child admitted to petitioner requiring her to make these allegations is a
credibility determination that we decline to disturb on appeal. Michael D.C. v. Wanda L.C., 201
W. Va. 381, 388, 497 S.E.2d 531, 538 (1997) (“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.”). In short,
the record contains extensive, clear evidence that petitioner required the children to make these
disclosures and that her conduct had an extremely negative impact on C.P.-1.
As we have explained,
“[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
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[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). Further,
[a]t the conclusion of the adjudicatory hearing, the 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 . . . . The
findings must be based upon conditions existing at the time of the filing of the
petition and proven by clear and convincing evidence.
In re F.S., 233 W. Va. 538, 544, 759 S.E.2d 769, 775 (2014). This Court has explained that
“‘clear and convincing’ is the measure or degree of proof that will produce in the mind of the
factfinder a firm belief or conviction as to the allegations sought to be established.” Id. at 546,
759 S.E.2d at 777 (citation omitted). However, “the clear and convincing standard is
‘intermediate, being more than a mere preponderance, but not to the extent of such certainty as is
required beyond a reasonable doubt as in criminal cases.’” Id. (citation omitted). Based on the
evidence set forth above, which petitioner fails to address on appeal, it is clear that there was
sufficient evidence to support the court’s adjudication.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 4, 2021, order is hereby affirmed.
Affirmed.
ISSUED: October 1, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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