                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In Re: J.P.                                                                       FILED
                                                                                May 18, 2015
No. 14-0829 (Jackson County 09-JA-11 & 13-CIGR-9)                            RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Mother, by counsel Seth Harper, appeals the Circuit Court of Jackson County’s
August 1, 2014, order granting Respondent R.N. legal guardianship of the child, J.P. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed
its response in support of the circuit court’s order. The guardian ad litem (“guardian”), Ryan M.
Ruth, filed a response on behalf of the child supporting the circuit court’s order. Respondent
R.N., the child’s legal guardian, by counsel Leah R. Chappell, filed a response in support of the
circuit court’s order. On appeal, petitioner alleges that the circuit court erred in disregarding
testimony from her witnesses and that the evidence was insufficient to establish that she abused
or neglected the child.

        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.

        Prior to February of 2012, the circuit court adjudicated petitioner as an abusing parent in
an abuse and neglect proceeding involving the minor child J.P.1 She was then granted a post­
adjudicatory improvement period that she successfully completed. By order entered on February
16, 2012, petitioner was granted primary custody of the child, J.P. Thereafter, in November of
2013, R.N. filed a petition in the family court seeking guardianship of the child. R.N. is a local
pharmacist who met petitioner and her child at the store at which R.N. was employed, and
subsequently began providing J.P. care. At the initial hearing, the family court found a likelihood
that it would be asked to consider allegations of abuse and/or neglect and ordered the matter
transferred to the circuit court. That same month, the family court entered an interim order
appointing R.N. as the child’s temporary guardian.



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         Petitioner failed to include any substantive orders or other documents from the abuse
and neglect proceeding below. On appeal, petitioner’s appendix contains only (1) transcripts
from the evidentiary hearings held after the abuse and neglect proceeding was consolidated with
the subsequent guardianship proceeding, (2) the exhibits introduced during these hearings, and
(3) the circuit court’s final order on appeal.
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        Around the time the circuit court held its first hearing on the guardianship petition, the
DHHR moved to modify the disposition from the prior abuse and neglect proceedings.
Ultimately, the circuit court consolidated the guardianship and abuse and neglect proceedings.
Thereafter, the circuit court held final hearings on the petition for guardianship on April 11,
2014; May 19, 2014; and May 27, 2014. Petitioner presented witnesses including her treating
medical doctor and a counselor. In support of her petition, R.N. presented several witnesses,
including the child’s maternal grandmother and uncle, the child’s teachers, other pharmacy
employees, and psychologist Jason Weaver, who interviewed petitioner during the proceedings
below. The circuit court also admitted multiple exhibits, including the child’s school records and
petitioner’s mental health treatment records. Ultimately, the circuit court found petitioner to be
an abusing parent based upon her physical, emotional, and mental abuse, and academic neglect
of the child. The circuit court then awarded legal guardianship to R.N., but awarded petitioner
limited supervised visitation with the child. It is from this 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 awarding R.N. legal guardianship of the child.

        To begin, the Court finds no error in the circuit court affording more weight to
respondent’s witnesses than to petitioner’s, especially given the voluminous evidence introduced
below and the circuit court’s well-reasoned, thirty-five page order analyzing the same. Petitioner
specifically takes issue with the circuit court’s credibility determinations in regard her doctor and
her counselor. While petitioner argues that the circuit court should have relied more heavily on
testimony from these witnesses solely because they have been treating her for years, the Court
disagrees. The circuit court expressly found that the testimony from both witnesses contradicted
the other evidence in the matter, including those professional’s own treatment records.

        In regard to petitioner’s counselor, the circuit court specifically found that although J.P.
was listed as the patient in numerous treatment records, the counselor’s “sessions [were]
obviously geared as much toward teaching [petitioner] to parent [the child] as treating [the
child’s] issues.” The circuit court also noted that during their sessions, the counselor made

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“completely unsupported judgments concerning the actions and motivations of . . . personnel” at
the child’s school, and that these unsupported judgments were repeated in the counselor’s
testimony below. Ultimately, the circuit court found that the counselor “has abandoned any
pretense at professional neutrality, and has allowed herself to become somewhat of an advocate
for [petitioner’s] position.” As such, the circuit court stated that her opinions were “not given
substantial weight.”

        Similarly, in regard to petitioner’s doctor’s opinions concerning petitioner, the circuit
court found that her knowledge of petitioner’s parenting abilities was based entirely on
petitioner’s own reports. Further, despite admitting that petitioner was once hospitalized because
of “vague suicidal thoughts,” her doctor testified that petitioner has never been a threat to herself
or others. According to the circuit court, petitioner’s doctor clearly disregarded petitioner’s prior
hospitalization when assessing her mental and emotional condition. Accordingly, the circuit
court gave the doctor’s opinions “only limited weight.” We have previously held that “[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.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531,
538 (1997). Based upon the evidence introduced, including the treatment records from both
petitioner’s doctor and her counselor, and in accordance with our prior holding regarding
credibility determinations, the Court finds no error in this regard. The circuit court appropriately
weighed the available evidence and made corresponding credibility determinations that this
Court declines to disturb on appeal.

        As to petitioner’s remaining assignment of error, the Court finds that the evidence was
sufficient to establish that petitioner abused and neglected the child. In the present matter, the
circuit court specifically found that petitioner’s conduct constituted physical, mental, and
emotional abuse, as well as educational neglect. Specifically, in finding that petitioner physically
abused the child, the circuit court noted that she admittedly withheld the child’s medications
from him and suggested that the child be given a Schedule IV controlled substance to induce a
bowel movement. Petitioner also made repeated comments to her family, R.N., and school
personnel about certain societies in which parents kill their children before committing suicide,
which created concern for the child’s safety.

        As for mental and emotional abuse, the circuit court found that petitioner called the child
insulting and degrading names in his presence and told him that eating the food and drinking the
water at his school would harm him to the point the child exhibited fear in response to drinking
from the water fountain. Moreover, petitioner exposed the child to video images of women’s
genitalia during childbirth, which the circuit court found did not differ substantially from
showing a child pornography. According to the circuit court, petitioner showed the child these
inappropriate videos as punishment for behavior she considered inappropriate. Petitioner also
had a history of threatening to leave the child in public and walking away from him. Further, the
circuit court found that petitioner’s history of mental health treatment demonstrated that the
disorders for which she received treatment still substantially and negatively impacted her ability
to parent the child. Finally, the circuit court found that petitioner educationally neglected the
child based upon sixty absences in a single school year and substantial developmental delay
while in her care, among other factors.

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       Pursuant to West Virginia Code § 49-1-3(1)(A), an abused child is one whose health or
welfare is 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.” Further, pursuant to West
Virginia Code § 49-1-3(11)(A)(i), a neglected child is one

       [w]hose physical or mental health is harmed or threatened by a present refusal,
       failure or inability of the child’s parent, guardian or custodian to supply the child
       with necessary . . . education, when such refusal, failure or inability is not due
       primarily to a lack of financial means on the part of the parent . . . .

Based upon the evidence set forth above, it is clear that petitioner abused and neglected the
subject child in a number of ways, and that the circuit court was presented with voluminous
evidence in this regard. For these reasons, we find no error in the circuit court finding that
petitioner abused and neglected the child.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
August 1, 2014, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: May 18, 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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