In re V.E. and U.E. ( 2021 )

FILED
October 13, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re V.E. and U.E.
No. 21-0303 (Lewis County 20-JA-25 and 20-JA-26)
MEMORANDUM DECISION
Petitioner Father E.E., by counsel Betty Clark Gregory, appeals the Circuit Court of Lewis
County’s March 23, 2021, order terminating his parental rights to V.E. and U.E. and denying him
post-termination visitation with the children. 1 The West Virginia Department of Health and
Human Resources (“DHHR”), by counsel Patrick Morrisey and Mindy M. Parsley, filed a response
in support of the circuit court’s order. The guardian ad litem, Hunter D. Simmons, 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 him post-termination visitation with the children and failing to
provide him proper discovery. 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 June of 2020, the DHHR filed a child abuse and neglect petition against petitioner and
the mother alleging that the children were sexually abused by family members and friends in the
parents’ home. It further alleged that the home was unsanitary, lacked running water, did not have
a working toilet, and was filled with animal feces and urine. Specifically, the DHHR alleged that
the mother allowed her brother, nineteen-year-old J.K., to stay in the home, where he sexually
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 challenge the termination of his parental rights to the children on
appeal.
1
abused the children. The DHHR asserted that J.K. had shown his penis to at least one of the
children in the home, twelve-year-old R.B., who is not at issue on appeal. 3 The DHHR alleged that
J.K. took pictures of R.B.’s breasts, became intoxicated, and had sex with the child.
According to the petition, a Child Protective Services (“CPS”) worker and a West Virginia
State Police trooper visited petitioner’s home in June of 2020 and interviewed J.K. about the sexual
abuse allegations. The DHHR alleged that the CPS worker and trooper also spoke to the children
inside the home, although sixteen-year-old V.E. was not in the home at the time and the mother
refused to provide V.E.’s location to the CPS worker. The DHHR alleged that the trooper later
interviewed J.K. at the Lewis County State Police detachment, where J.K. admitted to engaging in
sexual intercourse with twelve-year-old R.B. A CPS worker interviewed R.B., who confirmed that
J.K. engaged in sexual intercourse with her in petitioner’s home. The child also disclosed that
another man, C.F., a registered sex offender, had stayed in petitioner’s home and had sex with her
on numerous occasions there. Upon further inquiry, R.B. disclosed that petitioner and the mother
were sleeping in their bed, less than three feet away, when the incidents of abuse took place.
After the disclosures of abuse, the DHHR enacted a temporary protection plan. The DHHR
alleged that as R.B. was gathering her belongings to leave the residence, the CPS worker observed
the mother instructing the child to “keep [her] f*cking mouth shut.” Later that month, the CPS
worker interviewed V.E. at her grandmother’s residence. V.E. disclosed that she did not stay at
petitioner’s home often because there were so many visitors to the residence and the home lacked
running water.
Finally, the CPS worker interviewed petitioner, who advised that he witnessed R.B. and
C.F., a registered sex offender, always laying on top of each other. Petitioner claimed that he
confronted the mother and told her that C.F. needed to move out of their home. Petitioner alleged
that the mother defended C.F. and asked petitioner to leave the home, instead of C.F. Petitioner
told the CPS worker that he moved to Indiana for three months beginning in February of 2020.
The DHHR further alleged that J.K. was charged with sexual abuse by a parent or guardian in June
of 2020.
In June of 2020, the circuit court held a preliminary hearing wherein it found that the
parents allowed a registered sex offender, C.F., to reside at their home and have access to R.B. The
court found that the parents also failed to protect R.B. from C.F. and J.K. and allowed C.F. and
J.K. to sexually abuse the child.
The DHHR filed an amended petition in September of 2020 alleging that the parents
allowed another registered sex offender, D.P., into their home with access to V.E. The DHHR
further alleged that the parents allowed D.P. to sexually abuse the child.
3
According to the petition, the mother filed a petition in 2017 to gain temporary
guardianship of R.B., which was denied. Nevertheless, R.B. resided with the mother and
petitioner—without any legal relationship or custody—for several years. The DHHR also alleged
that R.B. referred to petitioner and the mother as “mom and dad.” During the instant proceedings,
the circuit court terminated R.B.’s parents’ parental rights, as well.
2
Thereafter, the circuit court convened multiple adjudicatory hearings over several months.
At one hearing, the DHHR entered C.F.’s criminal conviction order and sex offender registry
documents into evidence. The DHHR also entered forensic interviews with children R.B., V.E.,
and U.E. into evidence. At another hearing, S.L., the daughter of J.K.’s ex-girlfriend, testified that
J.K. lived at petitioner’s home. S.L. testified that she witnessed J.K. speak to twelve-year-old R.B.
as if they were dating. S.L. further testified that she once looked at J.K.’s phone and found explicit
pictures of R.B. After she found the photographs, S.L. testified that she contacted CPS and sent
CPS the photographs. S.L. stated that she also told the mother about the pictures of J.K. and R.B.,
but that the mother responded that J.K. “would not do something like that.”
At another adjudicatory hearing, D.M.—petitioner’s stepdaughter and a biological
daughter of the mother—testified that the parents’ home was “hoarded” and “full of boxes and
items stacked from floor to ceiling.” D.M. also testified that the home had lacked running water
for several years. According to D.M., this was in spite of the fact that several family members
offered to help fix the waterlines at the home. D.M. stated living conditions in the home strained
her relationship with the parents, as she believed her younger sisters deserved better. D.M. also
stated that petitioner received social security disability benefits and the mother received
compensation from ResCare to care for U.E., a fifteen-year-old special needs child. D.M. testified
that V.E. explained to her that C.F. was a registered sex offender while he lived in the home. D.M.
stated that she informed the parents about C.F.’s status and explained that it was inappropriate for
him to be around or live with the children. D.M. further testified that the mother argued with her
and stated that C.F. was “wrongfully convicted.” However, D.M. also testified that the mother
admitted to her that she was aware that J.K. was having sexual intercourse with R.B. The mother
also admitted to D.M. that she had seen pornographic images of J.K. and the child. Finally, D.M.
testified that V.E. admitted to the parents that she was having sexual intercourse with J.K.
Next, petitioner testified that he was the biological father of V.E. and U.E. and stated that
he had no biological relationship with R.B. Petitioner testified that he did not want J.K. living at
their home and spent time living on his own outside of the home due to J.K.’s presence. However,
petitioner acknowledged that he made no effort to remove the children from the home and admitted
he could have done so. Petitioner also acknowledged that adults resided in his home and had sex
with V.E. when she was as young as fifteen years old. Petitioner further admitted that he witnessed
C.F. and R.B. laying on a bed together despite knowing C.F. was a registered sex offender.
Petitioner stated that he took no action to stop it, other than notifying the mother. After considering
the evidence and testimony, the circuit court adjudicated the parents as abusing and neglecting.
The circuit court held a dispositional hearing in March of 2021 wherein the DHHR moved
to admit the parents’ psychological evaluations. The DHHR presented evidence that although
petitioner had previously admitted to knowing about the sexual abuse of the children in his home,
he denied knowledge of any sexual abuse during his psychological evaluation conducted after
adjudication. After considering the evidence, the circuit court found that petitioner exposed the
children to numerous sex offenders and allowed the abusers to have unfettered access to the
children. The circuit court further found that petitioner made no effort to protect any of the children
from the sex offenders. The court found that petitioner’s psychological evaluation noted that
petitioner lacked the parental capacity to care, protect, or change in order to provide for the
children. The circuit court noted that V.E. and U.E. did request visitation with petitioner. However,
3
the court found that children’s request for visitation was “relative in nature to their feelings and
requests toward [the mother],” and that permitting visitation between petitioner and the children
“will only serve to keep the memories of years of sexual abuse and neglect alive.” Accordingly,
the court terminated petitioner’s parental rights to the children and denied post-termination
visitation. Petitioner now appeals from the circuit court’s March 23, 2021, dispositional order. 4
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’s first assignment of error concerns the circuit court’s denial of his
request for post-termination visitation. According to petitioner, the circuit court did not properly
consider the children’s wishes by denying visitation with him. Petitioner argues that he had close
emotional bonds with the children, both children requested visitation with him, and it would be in
the children’s best interests to have visits with him. As such, petitioner asserts that post-termination
visitation would be appropriate. We disagree.
In addressing post-termination visitation, the Court has directed as follows:
“When parental rights are terminated due to neglect or abuse, the circuit
court may nevertheless in appropriate cases consider whether continued visitation
or other contact with the abusing parent is in the best interest of the child. Among
other things, the circuit court should consider whether a close emotional bond has
been established between parent and child and the child’s wishes, if he or she is of
appropriate maturity to make such request. The evidence must indicate 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.” Syl. Pt. 5, In re Christina L., 194 W.Va.
446, 460 S.E.2d 692 (1995).
4
The mother’s parental rights were also terminated below. The permanency plan for V.E.
is to complete an independent living program before reaching the age of majority. U.E. has
achieved permanency through a legal guardianship with her adult sister, D.M.
4
Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002). While petitioner is correct that
the children requested visitation with him, the circuit court specifically found that continued
visitation would not be in the children’s best interests, which is, ultimately, the controlling
determination on this issue. See Kristopher O. v. Mazzone, 227 W. Va. 184, 192, 706 S.E.2d 381,
389 (2011) (“[T]he best interests of the child is the polar star by which decisions must be made
which affect children.”). Indeed, the disturbing facts surrounding the many findings of sexual
abuse inside petitioner’s home, including his knowledge of some of these incidents, support the
circuit court’s denial of post-termination with the children. As the circuit court found below,
petitioner “repeatedly and intentionally [] exposed the infant [children] to numerous sex offenders
and gave the sex offenders unfettered access to the children.” This finding was based on the fact
that petitioner testified that he “had concerns and wanted certain sex offenders to get out of the
house.” However, the court found that petitioner “made absolutely no effort to protect any of the
[children] from any of the sex offenders.” Given that petitioner, the children, and other witnesses
testified about multiple episodes of sexual abuse occurring while the children were in petitioner’s
care, the circuit court’s findings in this regard are well supported.
Although petitioner contends that the children requested post-termination visitation with
petitioner, we find that there is nothing in the record to indicate that the court did not properly
consider this request. According to West Virginia Code § 49-4-604(c)(6)(C), “the court shall give
consideration to the wishes of a child [fourteen] years of age or older or otherwise of an age of
discretion as determined by the court regarding the permanent termination of parental rights.” Both
V.E. and U.E. were sixteen and seventeen years old, respectively, at the time of the dispositional
hearing. This statute does not, however, bind a circuit court to follow such wishes, especially in
circumstances such as those presented below where a parent has demonstrated a total inability to
protect the children. Based on the circuit court’s extensive findings regarding petitioner’s inability
to protect the children from repeated acts of sexual abuse, we find no error in the circuit court’s
denial of his motion for post-termination visitation.
Finally, petitioner asserts that the circuit court erred in failing to require the DHHR to
provide him adequate discovery, which prohibited him from making arguments using that
information. He argues, without any support from the record, that the DHHR failed to provide him
with family functioning assessments, the mother’s psychological evaluation, and other reports it
possessed. He concludes that he was denied an opportunity to present this evidence to the court.
Petitioner’s brief on appeal is inadequate, both in terms of complying with this Court’s
rules and in terms of attempting to establish this alleged error by the circuit court. Specifically,
petitioner fails to cite to the points of fact relied upon that would entitle him to relief, which is in
violation of Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure. 5 As this Court has
5
Rule 10(c)(7) provides as follows:
The brief must contain an argument exhibiting clearly the points of fact and law
presented, the standard of review applicable, and citing the authorities relied on,
(continued . . . )
5
held, “[a] skeletal ‘argument,’ really nothing more than an assertion, does not preserve a claim . .
. . Judges are not like pigs, hunting for truffles buried in briefs.” State v. Kaufman, 227 W. Va.
537, 555 n.39, 711 S.E.2d 607, 625 n.39 (2011) (citation omitted).
Even in hunting for support of petitioner’s argument, none can be found in the record.
Indeed, the appendix includes both family functioning assessments and the mother’s psychological
evaluation report. It is unclear from petitioner’s argument why he purportedly did not have access
to documents that were made part of the record by the circuit court. As we have previously held,
[a]n appellant must carry the burden of showing error in the judgment of which he
complains. This Court will not reverse the judgment of a trial court unless error
affirmatively appears from the record. Error will not be presumed, all presumptions
being in favor of the correctness of the judgment.
Syl. Pt. 4, State v. Myers, 229 W. Va. 238, 728 S.E.2d 122 (2012) (citations omitted). As petitioner
has failed to point to or cite to any portion of the record demonstrating that the family functioning
assessments or the mother’s psychological evaluation were not made part of the record below, we
find no error in the proceedings in this regard.
For the foregoing reasons, we find no error in the decision of the circuit court, and its March
23, 2021, order is hereby affirmed.
Affirmed.
ISSUED: October 13, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
under headings that correspond with the assignments of error. The argument must
contain appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal. The Court may disregard errors that are not
adequately supported by specific references to the record on appeal.
6