In re D.P. and G.P. and In re A.O., D.P., and G.P.

West Virginia Supreme Court·Decided November 9, 2021·No. 20-0631 and 20-0632·Published

Opinion

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA FILED

September 2021 Term November 9, 2021 _______________ released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS

No. 20-0631 OF WEST VIRGINIA

IN RE D.P. AND G.P.

AND

No. 20-0632

IN RE A.O., D.P., AND G.P.

Appeals from the Circuit Court of Mercer County The Honorable Mark E. Wills, Judge Case Nos. 17-JA-124-MW, 17-JA-125-MW, 18-JA-186-MW

AFFIRMED

Submitted: September 14, 2021 Filed: November 9, 2021

Ward Morgan, Esq. Patrick Morrisey, Esq. Law Office of Ward Morgan Attorney General Bluefield, West Virginia Mindy M. Parsley, Esq. Counsel for Petitioner/Respondent T.P. Assistant Attorney General S. L. Evans, Esq.

John G. Byrd, Esq. Assistant Attorney General Public Defender Corporation Charleston, West Virginia Princeton, West Virginia Counsel for Respondent West Virginia Counsel for Petitioner/Respondent K.O. Department of Health and Human Resources

Andrea Powell, Esq.

Law Office of Andrea Powell

Princeton, West Virginia

Guardian ad Litem for the Minor Children

JUSTICE WOOTON delivered the Opinion of the Court.

SYLLABUS BY THE COURT

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.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).

2. “As a general rule, the least restrictive alternative regarding parental rights to custody of a child under [West Virginia Code § 49-4-604 (2020)] will be employed; however, courts are not required to exhaust every speculative possibility of parental improvement before terminating parental rights where it appears that the welfare of the child will be seriously threatened, and this is particularly applicable to children under the age of three years who are more susceptible to illness, need consistent close interaction with fully committed adults, and are likely to have their emotional and physical

i

development [delayed] by numerous placements.” Syl. Pt. 1, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980).

3. “Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, [West Virginia Code § 49-4-604 (2020)] may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under [West Virginia Code § 49-4-604(c)] that conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 2, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980).

ii

WOOTON, Justice:

In May 2017, the West Virginia Department of Health and Human Resources (“DHHR”) removed the minor children A.O. and D.P. 1 from the home they shared with their parents. The DHHR then filed an abuse and neglect petition against Petitioner Father T.P. 2 and Petitioner Mother K.O. 3 (“Petitioner Father”, “Petitioner Mother”, collectively “Petitioners”) alleging neglect due to inadequate supervision as to A.O. and D.P.; an amended petition was filed in September 2018 to include G.P., who was born during the pendency of these proceedings. Petitioners stipulated to having neglected the children, and the circuit court granted them post-adjudicatory improvement periods. These improvement periods continued well past the statutory time limits despite Petitioners’ minimal improvement. At disposition, the circuit court found that, while Petitioners had started to improve, their progress was insufficient to regain custody of their children. The circuit court then terminated Petitioners’ parental rights.

On appeal, Petitioners argue the circuit court erred in terminating their parental rights rather than imposing a less restrictive alternative, insofar as the circuit court should have permitted them to retain custody of one or two of the children. The DHHR

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).

2 Petitioner Father is the biological father of D.P. and G.P. A.O.’s biological father is N.B., who is not a party to this appeal, but whose rights have also been terminated.

3 Petitioner Mother is the biological mother of all three children.

and the guardian ad litem (sometimes “guardian”) respond that Petitioners demonstrated an overall lack of improvement in their lengthy improvement periods and the circuit court correctly determined there was no reasonable likelihood the conditions of abuse or neglect could be substantially corrected in the near future, necessitating the termination of their parental rights. Because we find that the circuit court did not err in so finding, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND On May 15, 2017, Mercer County law enforcement was informed that an unsupervised child had been found wandering beside a congested stretch of U.S. Route 52. The child, A.O., was then three years old and suffered from severe autism. A tenant in a nearby apartment complex retrieved A.O., and, before law enforcement could arrive, Petitioner Mother picked the child up from that tenant’s apartment. A police officer arrived shortly after and spoke with Petitioner Mother, who explained that she had fallen asleep and awoken to find A.O. missing. She said this was the first time A.O. had gotten out of the house and that Petitioner Father must have left the front door unlocked when he left for work that morning. The officer advised Petitioner Mother to ensure the door was locked moving forward and suggested that she rotate the orientation of the chain lock to prevent the door from opening wide enough for a child to pass through. 4

4 The officer also noted that the home was unsanitary at the time of his visit, and that A.O. appeared not to have been bathed in several days. Later the same day, a Child Protective Services (“CPS”) worker observed the same conditions, and also noted there

Two days later, A.O., once again, was found wandering by the road unsupervised. Law enforcement retrieved the child, contacted the DHHR, and returned to Petitioners’ apartment. Upon their arrival, the officers found Petitioners asleep, entirely unaware that A.O. had again left the home. At this time, the DHHR determined that Petitioners were unable to adequately supervise the children and implemented an emergency protection plan, thereby removing A.O. and D.P. from the home and temporarily placing them with a relative. The DHHR filed an abuse and neglect petition in the Circuit Court of Mercer County two days after the removal alleging neglect due to lack of supervision. 5

At the adjudicatory hearing, Petitioners stipulated to the neglect allegation.

The circuit court accepted Petitioners’ stipulations and adjudged the children as neglected. Petitioners then moved for post-adjudicatory improvement periods, and the circuit court granted those motions.

Free access — add to your briefcase to read the full text and ask questions with AI

In re D.P. and G.P. and In re A.O., D.P., and G.P., (W. Va. 2021).

In re D.P. and G.P. and In re A.O., D.P., and G.P. (In re D.P. and G.P. and In re A.O., D.P., and G.P.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

In Interest of Tiffany Marie S.
470 S.E.2d 177 (West Virginia Supreme Court, 1996)
In the Interest of Carlita B.
408 S.E.2d 365 (West Virginia Supreme Court, 1991)
In Re K.H.
773 S.E.2d 20 (West Virginia Supreme Court, 2015)
In re: J.G., II
809 S.E.2d 453 (West Virginia Supreme Court, 2018)
In re R.J.M.
266 S.E.2d 114 (West Virginia Supreme Court, 1980)