1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

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. 

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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.”).

FILED

October 1, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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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. BerryHarris’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