1 

### STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

In re C.P.

- 1 and I.P

.

No. 21

- 0 105 ( Preston County 19

- JA

- 8 and 19

- JA

- 9 )



### MEMORANDUM DECISION

Petitioner Mo ther C.P

. - 2 , by counsel Kristen D. Antolini , appeals the Circuit Cour t 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 child ren in support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in adjudicating h er of abuse and neglect

. 2

1 Consistent with our long

- sta nding practice in cases with sensitive fa cts, we use initi als 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, 62 4 S.E.2 d 76 1 (200 5); 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 in itials, we will refer to them as C.P.

- 1 and C.P.

- 2, respectively, throughout this memorandum d ecision

.

2 Petit ioner br ie fly raise s a second assignment o f error in which she alleges that the circuit court failed to inquire if she wished to app eal her adjudication . Petitioner is correct that West Vir ginia Code § 49

- 4

- 601(k) requires that “ [f] oll owin g the court ’ s [ad j udicatory] determi nation, it shall ask the parents or custodians whether or not appeal is desire d

. ” However , petitioner fails
to al lege h o w she was prejudiced by th e court ’ s failure, nor does she provide e vidence to establish any such pre judice. On the co ntrary, petitione r appealed from the circuit court ’ s January 4, 2021, order adjudicati ng her of abuse and negle ct. As such

, petitioner cannot establish entitlement to relief as th e court ’ s failure to strictly comply wi th West Virginia Code § 49

- 4

- 601 (k) co nstitutes 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, whe n substantial rights are not affected, reversal is not appropriate

. ” )

. 

### FILED October 1, 2021

EDYTHE NASH GAISER , CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA2 This Court has considered the pa rties’ 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 s tandard 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 o f App e llate 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 wer e eng a ged in a contentious cust ody battle o ve r the children

, and petitioner instructed the children to li e about the father physically and sexuall y abusing them. After discovering th at C.P.

- 1 admitted to lying about the fa ther abusing her, petitioner deman ded t h e c hild exit her vehic le, which the child refused to do. Petitioner t hen sped off, thre w the child ’ s an tidepress ant medication from the vehi cle, and told her she did not need it

. Shortly thereafter, petitioner forced the child to exit the vehicle and retr i e ve the medication . The DHHR furt her alleged that petitioner incentivi zed the children to fabricate allegations against th e father. S pecifical ly, if the children wanted something, like a candy bar, petitioner would ask th em questions about whether pe titi o n e r had “ done anything to them or ha[d] been mean to them. ” Report edly, this behavior caused the children to make false allegations in order to be rewarded by pet itioner.

DHHR personnel interviewed then

- eleven

- year

- old C.P.

- 1 at school , during which the

c hild 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 counsel or that Dad hit you up side the h ead. ” The child told the DHHR wor ker that she did not want petitio ner t o know about her disclosing this incident because petitioner would “ flip out on her. ” C.P.

- 1 also was clear that her past allegations
regar ding the father were untr ue and that he never touche d her and was not mean to her . She asserted that she felt li ke sh e was “ addicte d to lying ” because petitioner “ keep s telling me to lie about my Dad. ” Th is incl uded petitioner instructing the child to post on social media about being sexually assaulted

. The child also disclosed tha t petitio ner would talk to her abou t the father ’ s

sex life with inappropriate specificity and once en gaged in a physical altercation with the fat her ’ s girlfriend at a baseball game. DHHR personnel al so spoke t o then

- nine

- year

- old I.C ., who reporte dly p referred living with petitioner becaus e she “ get[s] whatev er [she ] want[ s] ” from petitioner. DHHR personnel asked I.C. “ if everything was good at the [petitioner ’ s] house, ” to which I

. C. responde d, “ [ petitioner] doesn’t coach us

. ”

The DHHR also spoke with Liz Smailes, the children ’ s coun selo r who h ad been treatin g the children for over one year. According to Ms. Smailes , C.P.

- 1 disclosed that petition er instructed the children to say negative things about the father and that C.P.

- 1 felt a s if “ a weight had been lifted off of her b y final ly adm ittin g this ” becaus e 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 Christma s , resulting in petitioner buy ing I.C. “ a lot more Christmas pr es ents , inc l uding an ATV. ” Ms . Smailes stated that C.P.

- 1 had been discl osing suici dal ideations over the prior months and was prescribed Prozac. In h er pro fessional opin ion, Ms. Sma iles believed that the C.P.

- 1 ’ s problems were c aused by petitioner re quiring the chil d to f abri cate a llegations3 against the father. Ms. Smailes indicated that I.C. was more guarded in therap y, although she opined that I.C. was al so c oached to make discl osures about the father.

According to the DHHR, pet itioner blamed the children ’ s beh av i or on allege d sexual abuse that occurred at th e father ’ s home and indicated that C.P.

- 1 report ed she would kill herself if she had to return to the father ’ s h ome. The DHHR also inte rviewed t he father, who re ported that petitioner made up a llegatio ns again s t him, inc ludi ng filing multipl e petitions for dom estic violenc e protective orders that were all ultimat ely dismissed. T he DHHR ’ s petition contained no allegations against the father

.

Given the detailed fact s a nd th e var ious m edical experts and re cords at issue, the court held a series of adju dicatory hearings between Febr uary of 2019 and Octo ber of 2020 . Du ring one hearing in April of 2019, petition er addressed the court and made additiona l allegations against the f ath er, clai ming that he previous ly ph y sically and sexually abused the children. Based on these allegations, the cour t threatened to remove the children from the father ’ s care and place them in a foster home. However, both the gua rdian and the DHHR objected to the chi ldren ’ s removal so th e cou r t permitted the m to s tay with the father.

In July of 2019, the court co n ducted in camera interviews with the children after the parties submitted pr oposed questions for them. During her int erview, C.P.

- 1 discl osed th at she was afra id of petitioner becau s e petitioner screamed at her

, petitioner would frequently ask her to lie about her father sexually abusing her, and she wanted petitioner to partic ipate in therapy to bec ome stable . The child also confirmed t he allegat ion that pet itioner threw her an tidep r essants from a moving vehicle and forced her to retrieve them from alongside the highway. I.P. also confirmed the i nci dent regarding the medication but st ated that she wished to live with pe t itione r.

At a hearing in Septem ber o f 2 019, Dr. Traci Be rry

- H a rris testified that she con ducted psychological eval ua tions on the children. Ac cording to Dr. Berr y

- Harris, C.P.

- 1 deni ed physical or sexual abuse by her father and again disclosed that petit ioner in structed her to lie about the all eged incidents. Dr . Ber r y

- Harris testified that C.P

. - 1 appeared credible during her evaluation. According to the witness, C.P

. - 1 was diagnosed with generalized an xiety disorder with depressed mood and I.P. was diagn osed with de pressed mo od. T he witness further explained tha t the children have different perceptions o f the incidents and of petitioner ’ s motiv es.

At an adjudicatory heari ng in December of 2019, Elizabeth Smailes, the children ’ s therap ist , testified tha t C.P.

- 1 t old her that the allegations agains t her father w ere u n true. 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 menta l health to deteriorat e to the p oint t hat C.P.

- 1 suffered f rom hallucinations. The child also reportedly contemplated suicide , which Ms. Smailes attributed to extreme emotional stre ss

.

Peti tion er testified at a hearing in Decem ber of 2019, at which time she confirmed that sh e did not r aise c oncerns of abuse by the father during th ei r divorce proceed ings. 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 “ nev er . .

. emotionally or mentally abus ive to [h e r] child ren. ” Peti tioner4 also indic ated that she di d not believe that her cond uct caused C.P.

- 1 to contemplat e suicide. P etitioner furt her acknowledged that she filed four separate petition s for pro tective orders against the fathe r , all of which were dism i ssed. Finally , petitioner testified that she was never made aware of multidisciplinary te am ( “ MDT ” ) meetings wh ich she did not attend ; howeve r , the court noted that petitio ner ’ s coun sel had previously stated on the recor d that she provided petitioner noti c e of the meetings.

At an adjudicatory he aring in February of 2020, the guardian in formed the cou rt that I.P. recentl y disclosed to him that petitioner asked her to lie about her f ather and that she wished for the proceedings to be over. Petitioner then call ed witnesses wh o testified t hat they never heard her coach the children to make allegations , alth ough at least one witness acknow ledged that petitioner was often alone with the children and had the op portunity to coach them . Pe titioner ’ s boyfrie n d tes t ifie d that C.P.

- 1 a lleged that her father would punish her for making allegat ions against him . The children ’ s babysitter also testified that the children told her that the y were scared to go to the f ather ’ s home. P e titioner called the children ’ s scho ol pr i ncipal to testif y. Accordin g to the principal, petition er would frequently travel to the school to report allega tions of sexual abuse allegedly perpetrated by the fath er, but he indicated that neither child ever

corro borated these allegations. P e titi oner a lso ca lled as a wit ness an individua l who performed a polygraph examination on her . Although this witness ultima tely concluded that petitioner was

no t deceitful in her assertion that she did not coach the ch ildren, the court noted its skepticism base d on d iffere nt outco me s f or the same questi on during the examination

.

In October of 2020, the court held a status he a ring so that it could announce its findings of fact a nd con clusions of la w concernin g adju dication. Based on the evidence, the court fou nd th a t the DHHR estab lis hed by cle ar and convincing evidence that petitioner abused and neglected the children

. 3 It is from the adjudicatory order that petitioner appeals.

The Court has pre viously established the following standar d of r eview:

“Although c onc lusions 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 fac ts without a jury, the circuit court shall make a determination based upon the evid ence a nd sha ll make findi ngs of fact and conclusions of law as to whether such child is abus ed or neglected. These findings shall not be set aside by a reviewing court unles s clearly erroneous. A finding is clearly erroneous when, although there is evidenc e to s upport the finding, th e reviewing court on the entire evidence is left with the defini te and firm conviction that a mistake has been

3 S ubsequent to he r adjudicat ion, t he court granted pe titioner disposition unde r West Virginia Code § 49

- 4

- 604 (c)(5) upon the agreement of all parties , including the guardian for the children. Accordin g to the parties, the chil dren ’ s perman ency plan is to r emain in the l ega l and
p hysi cal cu stody of the nonabu sing father . Petit ione r enjoys visitation with the children at the father ’ s discretion.5 committed. However, a reviewing co urt may not overturn a finding simply beca use it would have decided the case differ ently

, and i t must affirm a finding if the circuit court’s account of the evidence is plausi ble in light of the record viewed in its entirety.” Syl. Pt. 1, In Interest of Ti ffany 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 all eges only that the circuit court erred in adjudicating her of abuse and neglect of the children. P e tition er ’ s argument on appeal cannot entitle her to relief, however, because she focuses on ly o n the testimony of one witness and i gnores the voluminous evidence that the circuit court heard in support of adjudication over a per iod of twenty months and multiple hearings. Indeed, pet itione r would have th is Court overturn the circuit court ’ s det ailed fin din g s as to her adjudication simply because Dr. Berry

- H arris deferred her diagnosis of Ch ild Psychological Abuse in regard to both children. We find this in suf ficient to overturn the circu it
court ’ s adjudication

, because a for mal psychologi cal dia gnosi s is in no way requi red to find that a child has been abused or neglected.

According to West Virgin ia Code § 49

- 1

- 2 01, an “ abused child ” is one “ whose health or welfare is being harmed or t hreatened by . . . [a] parent

. . . who knowingly or intent ional l y inflicts, attempt s 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

. ” (E mphasis added). In arguing that Dr. Berry

- Harris deferred a diagnosi s of Ch ild P s ychological Abuse, petitioner ignores testimony from Ms. Smailes in which the therapist emp hatically concluded that “ C .P. [

- 1] and I.P. have been emotionally abused and mani pulated by [ petitioner] and as a result this has caused a gradual deter ioratio n of t he mental state of C.P.

- 1 specifically. ” The ther apist f urther concluded that it was not until C.P.

- 1 admitted to petitioner ’ s abuse “ that she wa s able to stabilize and no longer present as traumati zed, agitated [,] and severely d epressed. ” Furthe r, t he

co u rt hea rd evidence f rom multipl e sources, including the child herself, that C.P.

- 1 fab ricated the allegations against her father at petitioner ’ s d irection. While petitioner points to Dr. B e rry

Har ris ’ s testimony that it could be possible the child did , in f act, tell petitione r 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 re quiring her to make these allegations is a credibility determinati on t hat w e 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 witn ess credibility through a record. The trier of fac t is uniquely si tuated to make such determinations and this C ourt is not in a po sition to, and will not, second guess such determinations.”). In short, the record contain s exten sive, clear evidence that pet itioner required the child ren to make these disclo sures and that her cond uct had an e xtremely negativ e im pact o n 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 p rove ‘conditi ons existing at the time of the filing of the petitio n . . . by clear and convincing [evidence].’ The sta tute, however, does not

s pecify any particular manner or mode of testimony or evidence by which the6 [DHHR] is obligated to meet this burde n.” 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. , 19 9 W. Va. 4 38, 485 S.E.2d 176 (1997) (citations omitted). Further,

[a] t the conclusion of the adjudicatory hearing, the court shall make a determination b ased upon the evidence and shall mak e findings of fac t and conclusions of law as to whether such chil d is abus e d or neglected

. . . . The findings must be based upon conditions existing at the time of the filing of the petition and proven by clear and conv incing evidence.

In re F.S. , 233 W. Va. 538, 544, 75 9 S.E.2d 769, 775 (2014). This Court has explain ed t hat

“ ‘ clear and convincin g’ is the measure or degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the all egations sought to be established.” Id . at 546, 759 S .E.2d at 777 (citation omitted). However, “the c lear and c onvincing standard is ‘intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reason able doubt as in criminal cases.’ ” Id . (citation omit ted). B a sed on the eviden ce set forth above, whi ch p etiti o ner fails to addres s on appeal, it is clear that there was sufficient evidence t o 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 affir med.

Af f irmed.

ISSUED : October 1, 2021

CONCURRED IN BY :

Chief Justice Evan H. Jenkins Justice Elizabeth D. Walker Justice Tim Armstead Justice John A. Hutchison Jus tice William R. Wooton