In re K.P.

772 S.E.2d 914, 235 W. Va. 221, 2015 W. Va. LEXIS 618
CourtWest Virginia Supreme Court
DecidedMay 15, 2015
DocketNo. 14-0895
StatusPublished
Cited by21 cases

This text of 772 S.E.2d 914 (In re K.P.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re K.P., 772 S.E.2d 914, 235 W. Va. 221, 2015 W. Va. LEXIS 618 (W. Va. 2015).

Opinion

LOUGHRY, Justice:

The joint petitioners, the West Virginia Department of Health and Human Resources (“DHHR”) and Rebecca Tate, guardian ad litem (“GAL”) for all of the minor children in this abuse and neglect ease, appeal the “Amended Final Adjudication Order Dismissing Petitions” entered by the Circuit Court of Marion County on September 3, 2014. The circuit court'dismissed an abuse and neglect petition that was filed against the respondents herein, R.C. and A.C.,1 upon concluding that the DHHR failed to prove the allegations in the petition by the requisite standard of clear and convincing evidence. Based upoh this Court’s thorough review and consideration of the appendix record, arguments of counsel, and applicable precedent, we reverse the circuit court’s order and remand this case for further proceedings consistent with this opinion.

I. Factual and Procedural Background

On July 1, 2013, K.P., a tbirteen-year-old girl, disclosed that her stepfather, the respondent R.C., had engaged in sexual misconduct against her. Following an investigation, the DHHR filed a petition in the circuit court initiating the underlying abuse and neglect ease pursuant to the provisions of West Virginia Code §§ 49-6-1 to -12 (2014).2 The DHHR removed all of the children from the home.3 The initial petition filed in this mátter alleged that R.C. sexually abused K.P., and that KP.’s mother, the respondent A.C., failed to protect K.P. from the abusing parent. Subsequently, after additional information was obtained, the DHHR amended its petition to add allegations that A.C. committed acts of emotional abuse against K.P.

In multiple interviews conducted for purposes of this abuse and neglect proceeding, K.P. consistently made the following assertions.4 On the morning of July 1, 2013, she was texting from her cellular telephone while lying on her bed in the home she shared with her mother, stepfather, and other family members. Her mother was not home. At approximately 10:00 a.m., her stepfather R.C. entered her bedroom and began rubbing her back both over and under her shirt. When she rolled over, he rubbed her stomach, lifted her shirt, and rubbed her breasts. She was not wearing a bra. R.C. also rubbed KP.’s vaginal area over her clothes, going back and [224]*224forth between rubbing her vaginal area and breasts. He then asked if he could lick her breasts, to which K.P. responded “no.” K.P. asked him to leave the bedroom, but he remained for approximately thirty minutes longer and rubbed her back. K.P. communicated via text messages with a friend who told her to lock herself in a room and telephone her parents for help.5 After R.C. left the bedroom, K.P. tried to call her mother, her biological father R.P., and R.P.’s wife A.P. She was able to reach A.P., who agreed to immediately come and remove K.P. from the house. As K.P. was packing some personal belongings and waiting for her stepmother, R.C. returned to her bedroom, begged her not to tell anyone what had happened, and offered to buy her whatever she wanted if she kept the events secret. He followed K.P. into the kitchen, making the same pleas. He said that she would ruin his life, he would go to jail, and he would be unable to see his other kids. When K.P. told him that A.P. was on the way, R.C. said that he needed to get out of there because he was going to jail.

K.P. also revealed that R.C. had touched her in this manner on multiple occasions throughout the previous year.6 She indicated that in the initial occurrences, he had just rubbed her back and she had not realized that the touching was sexual. In later episodes, R.C. rubbed additional areas of her body including her breasts, her buttocks, and her vaginal area both over and under her clothes but without penetration. She reported that this misconduct occurred both at home and when she traveled with her stepfather for his work. K.P. explained that she had not previously disclosed her stepfather’s actions because she was “creeped out” and did not know what to do. She felt that her mother would not believe her and would take her stepfather’s side. She also had some fear that her stepfather might hurt her.7 K.P. explained that the episode on July 1, 2013, was the first time R.C. had ever asked to lick her breasts, and she worried that this request could lead to sexual intercourse. K.P. indicated that it was the request to lick her breasts that convinced her of the need to tell someone.

The stepmother, A.P., testified that when K.P. called her on July 1, 2013, K.P. was crying and unable to speak about what had happened. K.P. agreed to explain the problem in a text message. A.P. testified that after reading the text message, she told K.P. to pack a bag because she would immediately leave work and pick K.P. up. AP. testified that when she arrived at the home, which was about a one-hour drive from her workplace, K.P. was outside and hiding behind a neighbor’s house. A.P. observed that K.P. had been crying, had a shaky voice, and was upset.

AP. drove K.P. to a nearby gas station where she had arranged to meet K.P.’s father, R.P. Meanwhile, the respondent mother A.C., having received calls on her cellular telephone from both R.P. and the respondent R.C., also arrived at the gas station. AC. brought K.P. into her parked car and began questioning K.P. while recording the conversation on her telephone. The recording was later played for the investigating sheriffs deputy and a child protective services (“CPS”) worker, but was not offered into evidence at the abuse and neglect adjudicatory hearing. Reportedly, during this conversation AC. told her daughter that she was going to ruin R.C.’s life, that A.C. herself had been sexually abused, and that sexual abuse “is something you just live with in shame.” K.P. says that A.C. also “fake cried” and expressed concern that the allegations could hurt AC.’s job. A.P. testified that when K.P. got out of the parked ear, K.P. was upset that her mother did not believe her.

After K.P.’s father, R.P., arrived at the gas station, they all proceeded to the Marion [225]*225County Sheriffs Department to file a report. Sheriffs Deputy, now Sheriffs Detective, Jeanette Williamson conducted an initial interview of K.P. At Detective Williamson’s request, R.C. was telephoned and came to the police station. However, he refused to speak with police without a lawyer. Detective Williamson referred the matter to CPS for a further interview of the child.

A CPS worker, Stacy Miller, interviewed K.P. the next day, July 2, 2013. During the adjudicatory hearing Ms. Miller testified about this interview, including K.P.’s description of the sexual abuse and AC.’s reaction to her daughter’s report. Ms. Miller also testified that she observed K.P. lose eye contact and shy away when telling about R.C.’s request to lick her breasts. Ms. Miller did not perceive that K.P. was exaggerating her allegations. Detective Williamson testified that K.P.’s disclosures to Ms. Miller, which were videotaped and which Detective Williamson observed from another room, had no major differences or elaborations from the initial report.

During the course of the abuse and neglect investigation, K.P. underwent an interview and diagnostic testing by psychologist. Dr. Adrienne A. Bean. Dr. Bean testified at the’ adjudicatory hearing and recounted K.P.’s allegations of sexual abuse. Dr. Bean also provided information that K.P. revealed about her mother, including that AC.

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Cite This Page — Counsel Stack

Bluebook (online)
772 S.E.2d 914, 235 W. Va. 221, 2015 W. Va. LEXIS 618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kp-wva-2015.