In re E.R., A.W., M.R., and E.W. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
February 7, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
In re E.R., A.W., M.R., and E.W. OF WEST VIRGINIA
No. 19-0443 (Berkeley County 18-JA-192, 18-JA-193, 18-JA-194, and 18-JA-195)
MEMORANDUM DECISION
Petitioner Father B.W., by counsel Nicholas Forrest Colvin, appeals the Circuit Court of
Berkeley County’s April 24, 2019, dispositional order terminating his parental rights to E.R.,
A.W., M.R., and E.W.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, Tracy Weese, filed a response on behalf of the children, also in support of the
circuit court’s order and a supplemental appendix. On appeal, petitioner argues that the circuit
court erred in finding that he sexually abused E.R. and M.R. and denying his motion for post-
termination visitation with the children.
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 2018, the DHHR filed a child abuse and neglect petition alleging that
petitioner abused and neglected the children due to his daily drug use, frequent overdoses, acts of
domestic violence, and sexual abuse of E.R. and M.R.2 Specifically, the petition alleged that E.R.
and M.R. disclosed to their school counselor that petitioner repeatedly entered their bedroom at
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
On appeal, petitioner failed to include the DHHR’s petition in his appendix. However, the
briefs filed by the parties, as well as the transcripts of the hearings below, contain sufficient details
to elucidate the contents of the petition.
1
night and sexually touched their vaginal areas. After the petition was filed by the DHHR, petitioner
waived his preliminary hearing.
In February of 2019, the circuit court held an adjudicatory hearing where petitioner
stipulated to the allegations of drug abuse and domestic violence contained in the petition, but
contested the allegations of sexual abuse. The circuit court accepted petitioner’s stipulation and
began taking testimony in regard to the sexual abuse allegations against petitioner. Petitioner
testified that he worked out of town during the week but was home every weekend. Petitioner
denied touching E.R. and M.R. in a sexual way, but admitted that he touched E.R. in a nonsexual
way when he applied cream to her vaginal area on the rare occasion that she had a yeast infection.
The children’s mother testified that she believed the children’s disclosures that petitioner sexually
abused them.
In March of 2019, the circuit court held two more adjudicatory hearings where it continued
to take testimony concerning the sexual abuse allegations contained in the petition. At the first of
these two hearings, the circuit court heard testimony from the children’s school counselor, a Child
Protective Services (“CPS”) worker, and the children’s maternal grandmother. The school
counselor testified that both E.R. and M.R. disclosed that petitioner repeatedly sexually abused
them by touching their vaginal areas at night when they were in bed. With regard to the disclosures
made by E.R., the school counselor testified that E.R. informed her in October of 2018 that she
had to go to court in November to see if her half-sister, A.R., who lived with her biological father
and grandmother, was going to come back and live with her.3 Without being prompted by the
school counselor, E.R. stated that A.R. was not allowed to live with her and her siblings because
petitioner “played with her in a weird way.” E.R. then stated that petitioner touched A.R. “down
there” and pointed to her vaginal area. E.R. then disclosed that petitioner “played” with her like
that, too. When the school counselor asked E.R. how often this occurred, E.R. replied, “I want you
to think about every weekend that you [have] ever had in your whole life; that is how often he
plays with me like that.” After E.R. disclosed this information, the school counselor reported it to
CPS. The school counselor further testified that in November of 2018, after E.R. returned to school
from Thanksgiving break, E.R. disclosed that petitioner came into her room at night during the
break, her mother caught him, and they started fighting. E.R. further disclosed more details about
petitioner’s touching. E.R. stated that the touching happened at night, she would take off her pants
and underwear, she and petitioner were “very quiet,” and petitioner would feel her and it
sometimes hurt. E.R. also reported that petitioner touched her younger sister, M.R., with whom
she shared a bedroom. E.R. stated that when petitioner came into their room, she was unsure if it
was for her or for her sister. The school counselor again reported the disclosures to CPS. The
school counselor testified that she had no concern about the truthfulness of E.R.’s disclosures and
that she had no indication that E.R. had been coached in any way.
3
Petitioner is not the biological father of A.R. While the petition filed by the DHHR alleged
that petitioner sexually abused A.R. many years earlier, which led to her being placed in the
custody of her paternal grandmother and biological father, the circuit court found that there was
insufficient evidence to establish this allegation. A.R.’s paternal grandmother currently has legal
guardianship of her, and A.R. is not at issue in this appeal.
2
With regard to the disclosure made by M.R., the school counselor testified that in
December of 2018, M.R.’s teacher expressed concern to her after M.R. urinated on herself in the
classroom. At M.R.’s teacher’s request, the school counselor met with M.R. and used a sand table
as play therapy during their session due to M.R.’s quiet and reserved personality. After the school
counselor asked a general question about what M.R. was going to do after school that day, M.R.
stated that she was going to play, but not with her older cousin because he hurts her.4 After some
conversation about how her cousin hurts her, M.R. pointed to the area between the legs of a play
figurine and stated that she sometimes gets hurt there. When asked who hurts her there, M.R.
replied “my daddy” and stated that it was “sometimes with his hand.”
The CPS worker testified that she investigated both of the referrals made by the school
counselor and interviewed E.R. and M.R. on two separate occasions as part of those investigations.
The CPS worker stated that during her first interview with E.R. in October of 2018, they talked
about body safety, and E.R. understood that there were parts of the body that others were not
supposed to touch, which included the parts of the body covered by a bathing suit. When asked if
anyone touched her on any of those parts of the body, E.R. replied, “dad.” E.R. then disclosed that
this happened a lot at nighttime, and it made her sad when it happened. E.R. also disclosed that
she told her mother what happened, and E.R. expressed fear that petitioner would go to jail. The
CPS worker also attempted to interview M.R., but she barely spoke during the interview.
Subsequently, in November of 2018, all of the children underwent interviews at the Child
Advocacy Center (“CAC”), but made no disclosures. Thereafter, the CPS worker interviewed E.R.
for the second time and asked E.R. if petitioner had touched her “where her bathing suit goes,”
since they last spoke. E.R. responded that he had and that it happened before Thanksgiving when
she was asleep. When asked how she knew this happened if she was asleep, E.R. stated because
her mother came in the room and screamed at petitioner because he was “standing next to the bed
with his hand in the bed.” Additionally, the CPS worker asked E.R. if she remembered talking to
the CAC interviewer. When E.R. responded that she remembered, the CPS worker asked E.R. why
she did not talk about the same things during the CAC interview that she talked to the CPS worker
about. E.R. responded because she did not want to. Thereafter, the CPS worker interviewed M.R.
at school in the school counselor’s room, where they played in the sand table. During this
interview, M.R. picked up a figurine, pointed between its legs, and stated that her cousin punched
her there. When the CPS worker asked if anyone else hurt her there, M.R. replied, “Dad.” M.R.
further disclosed that it happened more than once at night, it did not make her feel good, and her
clothes were on when it happened.
The circuit court also heard testimony from the children’s maternal grandmother, who
testified that E.R. disclosed to her in July of 2018 that she did not like to wear jeans and tight
clothes because her vaginal area hurt because petitioner touched her there all of the time. The
children’s grandmother further testified that right before Thanksgiving, E.R. disclosed to her, the
children’s mother, and the children’s aunt, that she wanted clean underwear and pants because her
vaginal area was really sore because of petitioner. While the children’s grandmother testified that
4
M.R. did not disclose any inappropriate touching by her cousin. After further conversation
about how her cousin hurts her, M.R. responded that her cousin sometimes hits her while they are
playing.
3
she did not like petitioner, she also stated that she would never plant “filthy thoughts” in a child’s
mind in order to get him in trouble.
Again, in March of 2019, the circuit court held a final adjudicatory hearing. Petitioner did
not appear until the end of the hearing, but was represented by counsel. Petitioner presented no
evidence or testimony, and the circuit court made a negative inference regarding his failure to
respond to the allegations of sexual abuse. Additionally, the circuit court found, by clear and
convincing evidence, that petitioner sexually abused E.R. and M.R. The circuit court further found
that petitioner’s adjudication based on sexual abuse constituted aggravated circumstances, thus the
DHHR was not required to make reasonable efforts to reunify petitioner with the children.
Finally, in April of 2019, the circuit court held a dispositional hearing. The DHHR
recommended termination of petitioner’s parental rights based on the circuit court’s finding that
aggravated circumstances existed due to petitioner’s sexual abuse of E.R. and M.R. The DHHR
further recommended that petitioner have no post-termination visitation with the children.
Petitioner moved for post-termination visitation with his children and denied that he sexually
abused E.R. and M.R. On cross-examination, petitioner admitted that despite his prior admission
to drug abuse, he failed to appear for drug screens, continued to abuse marijuana on a daily basis,
and had last used marijuana earlier that morning. Additionally, petitioner admitted that he failed
to request visits with his children at any point during the proceedings. Based on the evidence
presented, the circuit court terminated petitioner’s parental rights and denied petitioner’s motion
for post-termination visitation with the children. In its findings, the circuit court concluded that
there was no reasonable likelihood that petitioner could substantially correct the conditions of
abuse and neglect in the near future, that the best interests of the children required termination of
petitioner’s parental rights, and that post-termination visitation with petitioner was not in the best
interests of the children. It is from the April 24, 2019, dispositional order that petitioner appeals.5
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).
5
According to respondents, the children’s mother successfully completed an improvement
period and the children were returned to her legal custody.
4
On appeal, petitioner first argues that the circuit court erred in finding, by clear and
convincing evidence, that he sexually abused E.R. and M.R. because this finding was based solely
on inadmissible hearsay evidence from the DHHR’s witnesses.6 Petitioner further argues that the
circuit court’s reliance on Rule 803(3) of the West Virginia Rules of Evidence to justify the
admittance of the hearsay statements was in error. Although petitioner asserts these arguments,
petitioner makes no reference to any objections to the same.7 While the transcript from the March
15, 2019, adjudicatory hearing shows that petitioner stated that the DHHR’s witnesses’ testimony
presented at the March 8, 2019, hearing likely constituted inadmissible hearsay, the transcript from
the March 8, 2019, hearing shows that petitioner failed to contemporaneously object to such
testimony at the time it was offered. This Court has held that
[w]hen a litigant deems himself or herself aggrieved by what he or she considers to
be an important occurrence in the court of a trial or an erroneous ruling by a trial
court, he or she ordinarily must object then and there or forfeit any right to complain
at a later time. The pedigree for this rule is of ancient vintage, and it is premised on
the notion that calling an error to the trial court’s attention affords an opportunity
to correct the problem before irreparable harm occurs.
State v. LaRock, 196 W. Va. 294, 316, 470 S.E.2d 613, 635 (1996). Further, we have also held that
[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
6
As part of this assignment of error, petitioner also asserts that because the circuit court
erred in finding that he sexually abused the children, the circuit court also erred in finding that
aggravated circumstances existed and terminating his parental rights. However, petitioner fails to
cite to any authority on aggravated circumstances or the termination of parental rights in abuse and
neglect proceedings. Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires that
[t]he 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,
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.
(Emphasis added). Accordingly, we decline to address these issues on appeal because petitioner’s
passing reference to them fails to comply with the applicable rules regarding appellate briefs.
7
Petitioner’s brief fails to include citations to the record that pinpoint when and how he
objected to the testimony of the DHHR’s witnesses below, which is in direct contravention of Rule
10(c)(7) of the West Virginia Rules of Appellate Procedure.
5
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).
In Interest of Tiffany Marie S., 196 W. Va. at 234, 470 S.E.2d at 188. Moreover, “‘[o]ur general
rule is that nonjurisdictional questions . . . raised for the first time on appeal, will not be
considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W. Va. 333, 349 n. 20, 524 S.E.2d 688, 704
n. 20 (1999).” Noble v. W.Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 679 S.E.2d 650 (2009).
As stated above, petitioner failed to contemporaneously object to the testimony of the DHHR’s
witnesses at the March 8, 2019, hearing when the testimony was presented. At a subsequent
hearing before the circuit court, petitioner asserted that this testimony likely constituted
inadmissible hearsay, which prompted the circuit court to make the finding that the testimony fell
within the hearsay exception in Rule 803(3) of the West Virginia Rules of Evidence. Although
petitioner did assert that the testimony of the DHHR’s witnesses was likely hearsay, this assertion
was not made until seven days after the testimony was presented. Simply put, because petitioner
failed to contemporaneously object to the testimony of the DHHR’s witnesses at the time the
testimony was offered, petitioner waived the issue on appeal and is entitled to no relief in this
regard.
Finally, petitioner argues that the circuit court erred in denying his motion for post-
termination visitation with the children because the circuit court failed to consider whether such
visitation would be in the children’s best interests.8 We disagree.
In regard to post-termination visitation, we have previously held that
“[w]hen 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).
8
Petitioner also argues that the circuit court ignored the testimony of the children’s mother
that was provided at an early hearing, which petitioner believed established that there was a bond
between himself and the children. However, there is nothing in the record to indicate that the circuit
court failed to consider this testimony in its conclusion that there was insufficient evidence to show
that petitioner had a strong bond with the children and that post-termination visitation with
petitioner was not in the children’s best interests.
6
Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002). Here, contrary to petitioner’s
assertion that the circuit court failed to consider whether post-termination visitation was in the
children’s best interests, the circuit court found that there was insufficient evidence to support a
finding that post-termination visitation was in the best interests of the children given that petitioner
sexually abused E.R. and M.R. Additionally, on cross-examination, petitioner admitted that he
used marijuana daily, had last used marijuana that morning, and failed to request visits with his
children during the pendency of the case. Moreover, when asked why petitioner thought post-
termination visitation with the children was in their best interests, petitioner was unable to
articulate a reason other than because he was their father. Accordingly, we find no error in the
circuit court’s denial of petitioner’s motion for post-termination visitation with the children.
For the foregoing reasons, we find no error in the decision of the circuit court, and its April
24, 2019, order is hereby affirmed.
Affirmed.
ISSUED: February 7, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
7