                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                      FILED
In Re: C.W.                                                                      September 21, 2015
                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
No. 15-0218 (Mercer County 13-JA-122)                                              OF WEST VIRGINIA




                               MEMORANDUM DECISION
        Petitioner Father B.W., by counsel Timothy P. Lupardus, appeals the Circuit Court of
Mercer County’s February 11, 2015, order terminating his parental rights to C.W. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Michael Jackson,
filed its response in support of the circuit court’s order. The guardian ad litem (“guardian”),
William O. Huffman, filed a response on behalf of the child supporting the circuit court’s order.
On appeal, petitioner alleges that the circuit court erred in finding that he feloniously assaulted
the child and that the DHHR was not required to make reasonable efforts to preserve the family.1

        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 December of 2013, the DHHR filed an abuse and neglect petition that alleged the
parents previously had their parental rights to older children involuntarily terminated due to
substance abuse. The petition also alleged that the child, C.W., exhibited signs of drug addiction
following his birth. The petition was amended shortly thereafter to allege that petitioner failed to
provide for the child’s financial and emotional needs by engaging in criminal activity resulting in
his incarceration during the mother’s pregnancy with the child and continuing through the time
of birth. In April of 2014, petitioner stipulated that he had a history of substance abuse that led to
a prior involuntary termination of his parental rights to older children and that he neglected C.W.
by becoming incarcerated and making himself unavailable to care for the child until weeks after
the birth. The circuit court subsequently granted petitioner’s request for a post-adjudicatory
improvement period. As a condition of the improvement period, petitioner was not to be left
alone with the child because of concerns regarding his anger management.



       1
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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        In August of 2014, the DHHR filed a supplemental petition against the parents after the
child was brought to the hospital with injuries consistent with shaken baby syndrome. The child
had three broken ribs and both old and new brain bleeds with detached retinal hemorrhaging
behind both eyes. According to the supplemental petition, the mother had been granted an
extended trial home visit with the child because of her progress, but was told that petitioner was
not to have any unsupervised time with the child. According to petitioner, the child hit his head
on a board two weeks prior when petitioner was playing with him by throwing the child onto the
couch. As for the morning of the child’s hospital admittance, petitioner said the child was in bed
with him, began crying, and then stopped breathing. Petitioner said he shook the child to try to
get him to breathe.

        The circuit court held an adjudicatory hearing on the supplemental petition in November
of 2014, during which medical testimony set forth the extent of the child’s injuries and
established that they were the result of severe non-accidental trauma on two separate occasions.
The circuit court then adjudicated petitioner as an abusing parent due to the severity of the
child’s injuries and the fact that petitioner had sole care of the child during each of the incidents.
The circuit court also found that the mother provided petitioner unrestricted access to the child
and left petitioner to provide childcare while she worked. Further, the circuit court found that
petitioner feloniously assaulted the child. Because of the finding of felonious assault and the
prior involuntary termination of petitioner’s parental rights, the circuit court found that the child
was subjected to aggravated circumstances and that the DHHR was not required to make
reasonable efforts to preserve the family. Thereafter, in January of 2015, the circuit court held a
dispositional hearing and ultimately terminated petitioner’s parental rights to the child. It is from
the dispositional 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
       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). Upon our review, the Court finds
no error in the circuit court’s findings regarding aggravated circumstances in this case. Both of
petitioner’s assignments of error relate to the circuit court’s finding that the DHHR was relieved
of its duty to provide reasonable efforts to preserve the family below. However, the Court finds



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that, even if it was error to find petitioner feloniously assaulted the child, petitioner is still
entitled to no relief.

         First, petitioner argues that he admitted to shaking the child in an effort to revive him the
morning the child was admitted to the hospital, and further, that no evidence established that he
committed any act of aggression toward the child. Simply put, this argument does not entitle
petitioner to relief. Petitioner admits that the evidence below established that he used an
unreasonable amount of force in shaking the child, regardless of whether he shook him out of
concern for the child’s wellbeing or with felonious intent. Further, petitioner admits that he had
sole custody of the child on both occasions the child was injured. As such, and when considering
the severity of the child’s injuries, petitioner’s conduct, as admitted, constitutes abuse and/or
neglect to the child regardless of whether his conduct constitutes felonious assault. According to
West Virginia Code § 49-1-3(1)(A), “‘[a]bused child’ means a child whose health or welfare is
harmed or threatened by . . . [a] parent, guardian or custodian who knowingly or intentionally
inflicts . . . physical injury . . . upon the child or another child in the home.” Based upon this
definition, petitioner’s admission to injuring the child, and the expert medical testimony
concerning the child’s injuries, it is clear that petitioner abused the child.

        Finally, petitioner admitted that he previously had his parental rights to older children
involuntarily terminated. While petitioner argues that the circuit court erred in finding that the
DHHR was not required to make reasonable efforts to preserve the family, West Virginia Code §
49-6-5(a)(7)(C) plainly states that “the [DHHR] is not required to make reasonable efforts to
preserve the family if the court determines . . . [t]he parental rights of the parent to another child
have been terminated involuntarily . . . .” As such, the circuit court clearly did not err in finding
that the DHHR was absolved of this duty below, based upon petitioner’s admitted prior
involuntary termination of parental rights to older children. Accordingly, we find no error in
either of the circuit court’s findings.

       For the foregoing reasons, we find no error in the decision of the circuit court and its
February 11, 2015, order is hereby affirmed.

                                                                                           Affirmed.

ISSUED: September 21, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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