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In re I.R.

Supreme Court of West Virginia

April 10, 2017

In re: I.R. and W.R.

         Hampshire County 16-JA-19 & 16-JA-20

          MEMORANDUM DECISION

         Petitioner Father R.R., by counsel Lauren M. Wilson, appeals the Circuit Court of Hampshire County's November 2, 2016, order terminating his parental rights to two-year-olds I.R. and W.R.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee Niezgoda, filed its response in support of the circuit court's order. The guardian ad litem ("guardian"), Joyce E. Stewart, filed a response on behalf of the children also in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in: (1) adjudicating the children as abused and neglected; (2) denying petitioner an improvement period; (3) terminating petitioner's parental rights without considering the less-restrictive alternative; and (4) denying petitioner post-termination visitation.

         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 March of 2016, the DHHR received a referral alleging that petitioner sexually abused A.C., the subject children's half-sister who lived in the same residence as I.R. and W.R. During the investigation, A.C. disclosed that petitioner inappropriately touched her "butt" and "rubbed the outside of . . . and penetrated her vagina" with his fingers. A.C. also admitted that petitioner supplied her with alcohol. Petitioner denied these allegations during the investigation. Based on these allegations, the DHHR filed a petition for abuse and neglect.

         Thereafter, the circuit court held a series of adjudicatory hearings during which the circuit court heard testimony that petitioner sexually abused A.C. on multiple occasions, provided A.C. with alcohol, and tried to convince his ex-wife to lie on his behalf. Despite being warned that his silence could be used against him, petitioner chose not to testify on his behalf. After considering the evidence and the parties' arguments, the circuit court found that A.C. was sexually abused. The circuit court also found that petitioner abused and neglected I.R. and W.R. and that the children were "at great risk of being abused." Petitioner filed a motion for a post-adjudicatory improvement period.

         In October of 2016, the circuit court held a dispositional hearing during which it heard testimony that the DHHR could not offer petitioner services because he failed to admit or acknowledge the issue of abuse or neglect. Accordingly, the circuit court found that the conditions that led to the filing of the abuse and neglect petition could not be corrected because petitioner failed to acknowledge these issues. The circuit court also found that the DHHR was not required to preserve the family because the sexual abuse constituted an aggravated circumstance. Based upon these findings, the circuit court found that there was no reasonable likelihood that the conditions of abuse or neglect could be substantially corrected and that termination was in the children's best interests. As such, the circuit court terminated petitioner's parental rights by order entered on November 2, 2016.[2] This appeal followed.

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.

         On appeal, petitioner argues that the circuit court erred in adjudicating the children as abused and neglected. We have held that "in the context of abuse and neglect proceedings, the circuit court is the entity charged with weighting the credibility of witnesses and rendering findings of fact." In re Emily, 208 W.Va. 325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478, 525 S.E.2d 669 (1999)). "Implicit in the definition of an abused child under West Virginia Code § 49-1-3 (1995) is the child whose health or welfare is harmed or threatened by a parent or guardian who fails to cooperate in identifying the perpetrator of abuse, rather choosing to remain silent." Syl. Pt. 1, W.Va. Dept. of Health and Human Res. v. Doris S., 197 W.Va. 489, 475 S.E.2d 865 (1996). We also bear in mind the following:

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, Id., 197 W.Va. 489, 475 S.E.2d 865 (1996). Here, the circuit court heard testimony that petitioner supplied A.C. with alcohol and touched A.C.'s "butt" and "rubbed the outside of . . . and penetrated her vagina" with his fingers. In addition, petitioner exercised his right to remain silent during the underlying proceedings, which the circuit court appropriately considered as evidence of his culpability.

         Related to this assignment of error, petitioner also argues that the circuit court erred in finding that I.R. and W.R. were at risk of being abused. We strongly disagree. We have previously held that

[w]here there is clear and convincing evidence that a child has suffered physical and/or sexual abuse while in the custody of his or her parent(s), guardian, or custodian, another child residing in the home when the abuse took place who is not a direct victim of the physical and/or sexual abuse but is at ...

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