In Re: D.L.-1 and D.L.-2 ( 2018 )


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  •                                  STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    FILED
    In re: D.L.-1, and D.L.-2
    January 8, 2018
    EDYTHE NASH GAISER, CLERK
    No. 17-0799 (Calhoun County 16-JA-35, & 16-JA-36)                              SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    MEMORANDUM DECISION
    Petitioner Father S.L., by counsel Ryan M. Ruth, appeals the Circuit Court of Calhoun
    County’s August 4, 2017, order terminating his parental rights to D.L.-1, and D.L.-2.1 The West
    Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda,
    filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Tony
    Morgan, 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 adjudicating him as an abusing parent
    when the only evidence was the testimony of a child who had been determined to not be
    competent to testify.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.
    Upon a referral, a DHHR worker interviewed three-year-old E.Y. based upon disclosure
    to her biological father that she was sexually abused by petitioner.3 E.Y. disclosed to the DHHR
    worker that petitioner had touched her “piggy bug,” which she identified as her vagina. She also
    disclosed that the abuse happened when it was dark outside and that it occurred in her bedroom
    at night. Further, E.Y. told the DHHR worker that petitioner hurt her and that she felt he was
    “bad” for hurting her. Following the interview, the DHHR filed an abuse and neglect petition
    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). Additionally, because two of the children share the same
    initials, we will refer to them as D.L.-1 and D.L.-2 throughout this memorandum decision.
    2
    Petitioner makes no specific assignment of error regarding termination of his parental
    rights.
    3
    Although E.Y. is not at issue in this case, petitioner is her step-father and she resided
    with him when she was in her mother’s custody at her mother and petitioner’s home.
    1
    against petitioner and the mother alleging that petitioner sexually abused E.Y. and that the
    mother had knowledge of the abuse, but took no action to protect E.Y. and continued to allow
    petitioner to live in the home and have contact with E.Y., as well as the other two children, then
    one-year-old twins, D.L.-1 and D.L.-2.
    The DHHR worker subsequently interviewed the mother, who stated there was no way
    petitioner could have abused E.Y. because there was never a time E.Y. was left alone with
    petitioner. The mother also admitted to the DHHR worker that after she became aware of the
    allegations of sexual abuse, she asked E.Y. to tell petitioner what she was accusing him of and
    that E.Y. told her mother that they were “bad words” and refused to repeat her disclosure to
    petitioner. The DHHR worker also interviewed petitioner, who denied ever being alone with
    E.Y. In November of 2016, the circuit court held an adjudicatory hearing in which it took in
    camera testimony of E.Y. A transcript of E.Y.’s testimony was prepared and disseminated to
    counsel. Due to E.Y.’s young age, the parties agreed to a competency evaluation. The
    adjudicatory hearing was continued four times in order to receive results of E.Y.’s competency
    evaluation.
    In February of 2017, the adjudicatory hearing was concluded. The DHHR worker
    testified as to the disclosures E.Y. made during her interview with the child, as well as the
    disclosures made by E.Y. to her paternal great-grandmother and father. The circuit court found
    that although the competency evaluator found that E.Y. was not competent to testify because she
    lacked full understanding of truthfulness, such a finding did not preclude the circuit court from
    finding that the child’s statements were indeed truthful. The circuit court noted that the child was
    consistent in her disclosures to multiple people over time, and that there was no motive for the
    child to lie and no evidence of any coercion which would cause her to fabricate the allegations.
    The circuit court found that the mother’s testimony that the sexual abuse could not have occurred
    because petitioner was never alone with E.Y. was not credible. The circuit court found that E.Y.
    consistently disclosed the details of petitioner’s sexual abuse of her to her father, paternal great-
    grandmother, the DHHR worker, and the circuit court, via the child’s testimony. Further, the
    circuit court found that petitioner had sexually abused E.Y. and adjudicated him as an abusing
    parent.
    In July of 2017, the circuit court held a dispositional hearing wherein it took judicial
    notice of the testimony from the adjudicatory hearing. The circuit court found by clear and
    convincing evidence that petitioner sexually abused E.Y. and also found that the mother refused
    to believe petitioner abused E.Y. and continued to reside with and maintain a relationship with
    him, despite his adjudication as an abusing parent. The circuit court also found that the twins,
    D.L.-1 and D.L.-2 were at continued risk of harm in petitioner’s care based upon the abuse of
    E.Y. Furthermore, the circuit court found that there was no reasonable likelihood that the
    conditions of abuse and neglect could be corrected in the near future and that termination of
    petitioner’s parental and custodial rights was in the best interests of the children. Ultimately, the
    2
    circuit court terminated petitioner’s parental rights in its August 4, 2017, order.4 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 proceedings below.
    Petitioner argues that the circuit court erred in adjudicating him as an abusing parent
    when the only evidence was the testimony of a child who had been determined not to be
    competent to testify. He asserts that a competency evaluation determined that E.Y. was not
    competent to testify and that the circuit court acknowledged the evaluator’s finding that E.Y. was
    unable to differentiate between the truth and a lie. He further argues that the in camera testimony
    and other statements of E.Y. should have been disregarded by the circuit court. We find no merit
    to petitioner’s argument.
    Petitioner’s argument misstates the record, as it is clear the circuit court considered
    evidence beyond the in camera testimony of E.Y. In addition to that testimony, the DHHR
    worker testified regarding her interview with E.Y., as well as to E.Y.’s statements to her father
    and paternal great-grandmother. Although petitioner argues that the DHHR worker’s testimony
    constituted hearsay, petitioner makes no reference to any objections to the same.5 Further, in
    regard to the DHHR worker’s testimony, we have held that
    4
    In addition to the termination of petitioner’s parental rights, the parental rights of the
    mother were also terminated. According to the DHHR and the guardian, the children are placed
    in a foster home with a permanency plan of adoption.
    5
    Pursuant to Rule 10(c) of the West Virginia Rules of Appellate Procedure, 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 in the lower
    (. . . continued)
    3
    [t]he West Virginia Rules of Evidence declare that parties must object to the
    wrongful offer of evidence at a particular time and with reasonable specificity.
    The failure to object at the time and in the manner designated by Rule 103(a) of
    the West Virginia Rules of Evidence is treated as a procedural default, with the
    result that the evidence, even if erroneous, becomes the facts of the case. West
    Virginia practice imposes the same duty of diligence in regard to nonjury cases.
    Silence in the circuit court typically constitutes a waiver of objection. See
    W.Va.R.Evid. 103(a)(1).
    Tiffany Marie S., 196 W.Va. at 
    234, 470 S.E.2d at 188
    . Therefore, because petitioner failed to
    object to the DHHR worker’s testimony, petitioner waived the hearsay issue on appeal.
    Furthermore, contrary to his assignment of error, petitioner does not argue that the circuit
    court erroneously considered the in camera testimony of E.Y., but argues that the circuit court
    “seemingly justified the adjudication of the [p]etitioner based upon statements made by E.Y. to
    other individuals.” Petitioner is correct that E.Y. was incompetent to testify, which the circuit
    court recognized. However, the record on appeal shows that the circuit court found the child’s
    consistent statements to her father, paternal great-grandmother, DHHR worker, and the circuit
    court regarding the sexual abuse committed by petitioner were inherently relevant and reliable.
    “A trial court’s evidentiary rulings, as well as its application of the Rules of Evidence, are
    subject to review under an abuse of discretion standard.” Syl. Pt. 4, State v. Rodoussakis, 204 W.
    Va. 58, 
    511 S.E.2d 469
    (1998). We have also held that
    “[a]lthough Rules 401 and 402 of the West Virginia Rules of Evidence
    strongly encourage admission of as much evidence as possible, Rule 403 of the
    West Virginia Rules of Evidence restricts this liberal policy by requiring a
    balancing of interests to determine whether logically relevant is legally relevant
    evidence. Specifically, Rule 403 provides that although relevant, evidence may
    nevertheless be excluded when the danger of unfair prejudice, confusion, or
    undue delay is disproportionate to the value of the evidence.” Syllabus point 9,
    State v. Derr, 192 W.Va. 165, 168, 
    451 S.E.2d 731
    , 734 (1994).
    Syl. Pt. 5, State v. Trail, 236 W.Va. 167, 
    778 S.E.2d 616
    (2015). Here, the circuit court found the
    child’s statements relevant and reliable due to their consistency over time when made to different
    people. The circuit court found no motive for the child to lie or any evidence of coercion which
    would cause her to fabricate the allegations. However, petitioner did not raise any issues of
    unfair prejudice, confusion, or undue delay in the circuit court or on appeal. Moreover, to the
    extent the circuit court did consider the child’s in camera testimony, the record further shows that
    this same evidence was also introduced through the testimony of a DHHR worker. Accordingly,
    petitioner can establish no undue prejudice in such consideration. Therefore, we find that the
    circuit court did not abuse its discretion by considering the child’s statements.
    Petitioner admits that he declined to testify on his own behalf at the adjudicatory hearing
    and acknowledges that his failure to testify may be held against him. However, he does not
    tribunal. Petitioner makes no reference to the record on appeal wherein he objected to the
    testimony of the DHHR worker.
    4
    allege that an error occurred and states that he did not believe his testimony would have changed
    the circuit court’s ruling. We have held that
    Because the purpose of an abuse and neglect proceeding is remedial,
    where the parent or guardian fails to respond to probative evidence offered against
    him/her during the course of an abuse and neglect proceeding, a lower court may
    properly consider that individual’s silence as affirmative evidence of that
    individual’s culpability.
    Syl. Pt. 2, W.Va. Dep't of Health & Human Res. ex rel. Wright v. Doris S., 
    197 W. Va. 489
    , 
    475 S.E.2d 865
    (1996).
    West Virginia Code § 49-1-201 provides that an abused child means a child “whose
    health or welfare is being harmed or threatened by . . . [s]exual abuse or sexual exploitation[.]”
    Further, we have described the “clear and convincing” standard as one in which
    the evidence in an abuse and neglect case does not have to satisfy the stringent
    standard of beyond a reasonable doubt; the evidence must establish abuse by clear
    and convincing evidence. This Court has explained that “‘clear and convincing’ is
    the measure or degree of proof that will produce in the mind of the factfinder a
    firm belief or conviction as to the allegations sought to be established.” Brown v.
    Gobble, 196 W.Va. 559, 564, 
    474 S.E.2d 489
    , 494 (1996)
    In re F.S. and Z.S., 233 W.Va. 538, 546, 
    759 S.E.2d 769
    , 777 (2014). As discussed above, the
    child’s statements, as well as the testimony of the DHHR worker regarding the same statements
    provided sufficient evidence to find that petitioner sexually abused E.Y. Therefore, the circuit
    court did not err in adjudicating petitioner as an abusing parent.
    For the foregoing reasons, we find no error in the decision of the circuit court, and its
    August 4, 2017, order is hereby affirmed.
    Affirmed.
    ISSUED: January 8, 2018
    CONCURRED IN BY:
    Chief Justice Allen H. Loughry II
    Justice Robin Jean Davis
    Justice Margaret L. Workman
    Justice Menis E. Ketchum
    Justice Elizabeth D. Walker
    5