FILED
November 8, 2021
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re H.H., J.H., and S.H.
No. 21-0381 (Hampshire County 19-JA-46, 19-JA-47, and 19-JA-48)
MEMORANDUM DECISION
Petitioner Father T.P., by counsel Jeremy B. Cooper, appeals the Circuit Court of
Hampshire County’s March 25, 2021, order terminating his parental rights to H.H., J.H., and S.H. 1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick
Morrisey and Lee Niezgoda, filed a response in support of the circuit court’s order. The guardian
ad litem, Julie A. Frazer, 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 denying his request for a
competency evaluation and refusing to permit him leave to file a motion for post-termination
visitation. 2
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 September of 2019, the DHHR filed an abuse and neglect petition alleging that petitioner
improperly supervised the children, who have special needs, which resulted in then eighteen-
month-old S.H. being hospitalized after overdosing on prescription medication. The petition set
forth that when petitioner and the mother arrived at the hospital with the child “both [were]
apparently intoxicated and making no sense.” The parents reported that the child ingested the
medication two days prior. According to the petition, if the parents had waited any longer to seek
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).
2
Petitioner does not assign as error the circuit court’s termination of his parental rights to
the children.
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treatment, the child could have died. The DHHR alleged that the parents changed their stories
about how the child obtained the medication, which the parents initially said belonged to the
mother. Petitioner first stated that he witnessed the child “getting into the drugs two days ago and
he figured [the child] was fine just sleeping really good.” The parents then said that they witnessed
the other children crushing the pills on a table and leaving them there, before later explaining that
the pills actually belonged to the children’s grandmother, who also lived in the home. Upon
investigating, the DHHR spoke with the grandmother, who reported that the mother “intentionally
left her medication out for the children to find and overdose on.” It was also reported that this was
the second time the child had been treated for an overdose in a three-month period. Upon receiving
medical records from the hospital, it was confirmed that the child overdosed on a benzodiazepine
on July 15, 2019, and a tricyclic antidepressant on September 1, 2019. Following the child’s
admission in September of 2019, he was in critical condition and had to be transported to the
Pediatric Intensive Care Unit at Ruby Memorial Hospital. Based on the child’s repeated overdoses
and the parents’ decision to wait two days to seek treatment, despite observing the child’s
somnolence and lethargy, the DHHR alleged that the parents engaged in child abuse and/or
neglect. Petitioner thereafter waived his right to a preliminary hearing.
Following the petition’s filing, the parties participated in a multidisciplinary team (“MDT”)
meeting on October 4, 2019. According to the minutes for this meeting, petitioner was admonished
for his “out of control” posts to social media about the case. Petitioner indicated that he was
unaware that he could not make information about the case public and indicated he would not do
so moving forward. Petitioner also stated that he had done nothing wrong, as he was asleep both
times the child overdosed. According to the meeting minutes, petitioner raised his voice and stated
that he was being blamed for something he did not do. Petitioner was then asked to leave.
That same month, petitioner stipulated to the allegations against him, and the court
adjudicated him as an abusive and/or neglectful parent. During the adjudicatory hearing, the
guardian strongly objected to petitioner having visits with the children, which the DHHR had
already suspended. The guardian based this objection on (1) petitioner’s behavior at a recent MDT
meeting; (2) his inappropriate statements to the children during visits; (3) his failure to provide
necessary supplies, such as diapers, at visits; (4) the fact that H.H. displayed negative behavior at
school following visits; (5) J.H. soiling himself the night prior to the last four visits; and (6)
petitioner’s failure to provide proper food to the children during visits, as evidenced by his
providing an ice cream cone for dinner to a lactose intolerant child. The DHHR agreed that
petitioner’s visits should remain suspended. Based on these objections, the court ordered the MDT
to convene and determine the circumstances under which petitioner could receive visits and that,
if an agreement could not be reached, petitioner’s visits would remain suspended pending the next
hearing. The court also admonished petitioner for his behavior during the MDT meeting and
ordered that he submit to a drug screen. Petitioner informed the court that he would likely test
positive for THC, although he claimed not to have abused the drug since his last drug screen.
In November of 2019, petitioner underwent a psychological evaluation that did not result
in any concerns about mental illness. In December of 2019 and January of 2020, the court heard
evidence regarding disposition and held petitioner’s motion for visits with the children in
abeyance. At the January of 2020 hearing, the court took petitioner’s motion for an improvement
period under advisement. Later that month, the court issued an order granting petitioner a post-
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adjudicatory improvement period based, in part, upon his ongoing participation in anger
management and counseling, services that petitioner obtained on his own. The court further noted
that petitioner had not tested positive for any drugs since he tested positive for marijuana at the
adjudicatory hearing.
On March 6, 2020, the DHHR filed a report that detailed a recent safety check on
petitioner’s home. After four attempts to gain access, the DHHR and MDT members found
numerous unsafe conditions in the home, including medications that would have been in easy reach
of the children, full alcohol containers on the floor, sexual enhancement pills and pornography in
a box on the floor, a gun in a soft case on the floor, and liquor on the bottom shelf in the door of
the refrigerator. The DHHR asserted that the home was in this condition despite the fact that
petitioner was aware that a safety check would be conducted. According to the DHHR, petitioner
made no effort to correct the unsafe conditions in the home that necessitated the children’s
removal.
Later in March of 2020, the circuit court held a hearing, during which the DHHR expressed
its continued objection to petitioner receiving an improvement period. According to the DHHR, it
received a letter from the individual providing therapy for H.H., who stated that it was his
professional opinion that the child was displaying negative emotional experiences when he saw
petitioner. The guardian and DHHR then moved to again suspend petitioner’s visitation with the
children due to their adverse reactions. The court granted the motion to suspend visits.
In June of 2020, the DHHR filed a motion to terminate petitioner’s improvement period on
the basis that both children were having behavioral problems at school. Specifically, H.H. was
“starting to be more aggressive at school” and the worst instances occurred the day after visits with
petitioner. Similarly, J.H. expressed displeasure over attending visits and questioned whether the
children were required to see petitioner. The DHHR reiterated the opinion of H.H.’s therapist, who
suggested that the child would benefit from a break in visits. The DHHR also pointed to the
conditions of petitioner’s home during the recent emergency check, which caused the DHHR to
believe that petitioner was unable or unwilling to maintain a safe home environment. Based on
these issues, the DHHR alleged that it was detrimental for the children to be returned to petitioner’s
home and that petitioner lacked the insight necessary to remedy the conditions of abuse and
neglect. However, at a hearing on the DHHR’s motion later that month, the DHHR indicated that
it was withdrawing the motion because of a disruption in the children’s foster placement. The court
then granted petitioner a post-dispositional improvement period.
In September of 2020, the court held a review hearing, at which time the DHHR indicated
that, although petitioner was participating in services, the visitation supervisor informed the
DHHR that petitioner’s last visit with the children was “chaotic” and that petitioner did not know
how to discipline the children. Despite the circuit court finding at a status hearing in October of
2020 that petitioner’s visits with the children had improved, the DHHR filed a report in December
of 2020 that indicated the children were “struggling with increased behaviors after visits.” The
DHHR further noted that by this point, the children had been out of the home for fifteen months.
According to the DHHR, even after the safety check in October of 2020 that showed continued
unsafe conditions, petitioner showed “a complete lack of insight.” As such, the DHHR requested
that the matter be set for disposition.
3
In January of 2021, petitioner’s visitation was suspended after he missed a series of
scheduled visits. The record shows that the children travelled approximately forty minutes each
way to attend the visits, which petitioner failed to attend. According to the DHHR, petitioner was
also unresponsive to his parenting and adult life skills provider during the period in which he
missed these visits. Later that month, the court held a dispositional hearing and heard testimony
from petitioner’s service providers before ultimately continuing the hearing. The court also heard
testimony from petitioner’s counselor, who indicated that petitioner suffered a mental breakdown
in December of 2020 that was “completely out of character.” According to the counselor, petitioner
worked with him on the issue, and after having spoken with petitioner the day before the hearing
the counselor indicated “it appears [petitioner] is back to being normal.” Petitioner also testified
to this episode, indicating that he could not remember exactly what happened during this time and
he was not thinking clearly. Petitioner indicated, however, that he remained employed throughout
this period and was able to communicate with his employer to call off work.
In March of 2021, the DHHR filed a report indicating that petitioner had recently been
arrested “for two different domestic situations towards his mother” and that he attempted to assault
law enforcement during both altercations. According to the DHHR, “[t]he first incident involved
a machete.” That same month, petitioner filed a motion for a psychological evaluation “to aid the
court in determining an appropriate disposition in this matter.” Petitioner also filed a motion to
have a guardian ad litem appointed for him due to his incarceration and mental state. Finally,
petitioner filed a “Motion for Post-Termination Visitation, or, in the Alternative, if Not Granted,
Motion to Leave Open the Right for the Respondent to Petition the Court at a Later Date for Post-
Termination Visitation.” This motion was filed in the event that the court terminated petitioner’s
parental rights at the continued dispositional hearing.
On March 11, 2021, the court held a hearing, during which law enforcement personnel
testified to petitioner’s recent arrests and the DHHR introduced evidence confirming the charges
against him. According to the officers, petitioner admitted to having abused marijuana prior to one
incident, and marijuana was found in the residence. According to the officers, petitioner’s issues
appeared “to be more due to illicit substance use than mental health related.” The court then denied
petitioner’s motions for an evaluation and the appointment of a guardian but held his motion for
post-termination visitation in abeyance. At the conclusion of the hearing, the court indicated that
an order on disposition would be forthcoming. Counsel for petitioner then stated that “maybe it’s
not appropriate now, but I am always concerned at the dispositional stage, I mean, when, if his
rights are terminated, I should make a motion for post-termination visitation.” The court then
asked, “Do you want to make that now?” Counsel then indicated that he “guess[ed] it would be
deferred, I mean, because you haven’t ruled on” disposition. The court then indicated that it would
“certainly hear from you, if you want to address that today, or if you want to put it in writing for
me to consider, I will let you do that.” Counsel then moved “the court to leave open the right for
him to petition at a later date for post-termination visitation . . . because if his rights are
terminated—of course, under the law he wouldn’t have standing so—but I have heard of judges
leaving that open.” At that point, the court indicated that, although it did not believe that such a
motion was appropriate, it “will consider it . . . [i]f you want to supplement and file a written
motion on why you believe he should have that right, . . . then I will give you leave to do that.”
The court then explained that such a motion would need to be filed within ten days.
4
Ultimately, the court issued its order terminating petitioner’s parental rights on March 25,
2021. In terminating petitioner’s parental rights, the court found it troubling that petitioner alleged
he was unable to contact his visitation providers during his mental breakdown in order to cancel
visits but was able to inform his employer that he would not appear for work. The court also noted
petitioner’s continued substance abuse, his recent arrests, and his inability to sufficiently correct
the conditions of abuse and neglect. Accordingly, the court found that there was no reasonable
likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near
future and that termination of his parental rights was necessary for the children’s welfare. As such,
the court terminated petitioner’s parental rights. 3 The court also denied post-termination visitation
between petitioner and the children, finding that it would be detrimental to the children. The court
further denied petitioner’s request for leave to later file a motion for post-termination visitation
should there be a change of circumstances in the future. 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).
On appeal, petitioner first argues that the circuit court erred in denying his motion for a
mental evaluation and appointment of a guardian ad litem after he had a mental breakdown in
December of 2020 and displayed bizarre behavior during his arrests thereafter. Petitioner fails,
however, to include any authority that would have required the circuit court to order a second
psychological evaluation based on petitioner’s conduct. Instead, petitioner simply cites a prior
decision from this Court in which we indicated that circuit courts have “inherent discretion in
ordering such evaluations.” In re L.B., 20-0203, 2020 WL 5652429, at *4 (W. Va. Sept. 23,
2020)(memorandum decision). Petitioner argues that the court abused its discretion, but we
disagree given the extensive evidence both before and after the incidents in question that
demonstrated an additional evaluation and a guardian were unnecessary.
3
The mother voluntarily relinquished her parental rights during the proceedings below. The
permanency plan for the children is adoption in the current foster home.
5
As set forth above, petitioner’s initial psychological evaluation did not contain any
concerns about mental illness. Further, petitioner testified at the January of 2021 hearing following
his mental breakdown that the episode lasted “[p]robably about two weeks” but that he did not
believe there was a possibility of another breakdown. Additionally, petitioner’s therapists testified
at the January of 2021 hearing that petitioner had corrected the situation and was “back to the
[individual] that [he] had worked with prior.” As such, there was no evidence in the record
following petitioner’s mental breakdown to suggest that he required an additional evaluation or a
guardian. Further, the fact that petitioner displayed what he describes as bizarre behavior during
his arrests in March of 2021 is insufficient to entitle him to relief. According to the record,
petitioner admitted to abusing a controlled substance prior to at least one of the arrests, leading the
court to find that petitioner’s behavior was “more due to illicit substance use than mental health
related.” Accordingly, petitioner simply cannot establish an abuse of the circuit court’s discretion
in denying his motions.
Finally, petitioner argues that the court erred in denying him leave to file a motion for post-
termination visitation with the children. This argument, however, is wholly disingenuous and
completely unsupported by the record. In support, petitioner cites the following:
A parent whose rights have been terminated pursuant to an abuse and
neglect petition may request post-termination visitation. Such request should be
brought by written motion, properly noticed for hearing, whereupon the court
should hear evidence and arguments of counsel in order to consider the factors
established in Syllabus Point 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692
(1995), except in the event that the court concludes the nature of the underlying
circumstances renders further evidence on the issue manifestly unnecessary.
Syl. Pt. 5, In re Marley M., 231 W. Va. 534, 745 S.E.2d 572 (2013). Petitioner argues that the
circuit court’s express denial of his motion for leave to file a motion for post-termination visitation
violates this holding, but petitioner ignores the fact that he not only filed a motion for post-
termination visitation but that the circuit court expressly instructed petitioner to file an additional
motion on the issue at the conclusion of the March of 2020 hearing. Further, the court also invited
petitioner to file a motion explaining why he believed he should be entitled to file a motion at some
point in the future if he believed that the issue of post-termination visitation should be revisited.
In short, the record does not support petitioner’s assertion that he was denied the right to file a
motion for visitation.
In denying petitioner’s request for post-termination visitation, the court found that such
continued contact would be detrimental to the children. This finding was based on voluminous
evidence of the negative impact that visitation with petitioner had on the children throughout the
proceedings. Accordingly, we find no error in the denial of petitioner’s motion for post-termination
visitation. Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002) (holding that post-
termination visitation should only be granted when “[t]he evidence . . . indicate[s] that such
visitation or continued contact would not be detrimental to the child’s well being and would be in
the child’s best interest”). Further, insomuch as the court refused to grant petitioner leave to file a
motion for post-termination visitation in the future, Marley M. does not stand for the proposition
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that a parent can wait indefinitely before filing such a motion in the distant future at a time when
a child may have already achieved permanency. As such, petitioner is entitled to no relief in regard
to this assignment of error.
For the foregoing reasons, we find no error in the decision of the circuit court, and its March
25, 2021, order is hereby affirmed.
Affirmed.
ISSUED: November 8, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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