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In re B.M.

Supreme Court of West Virginia

June 19, 2017

In re: B.M. and A.M.

         Kanawha County 16-JA-119 & 16-JA-120

          MEMORANDUM DECISION

         Petitioner Father J.M., by counsel Edward L. Bullman, appeals the Circuit Court of Kanawha County's January 9, 2017, order terminating his parental rights to B.M. and A.M.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel S.L. Evans, filed a response in support of the circuit court's order and a supplemental appendix. The guardian ad litem ("guardian"), Sharon K. Childers, 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 (1) admitting the testimony of the counselor who interviewed child C.J.; (2) failing to weigh the evidence of sexual abuse against the other evidence in the case; and (3) denying him 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 March of 2016, the DHHR filed an abuse and neglect petition that alleged petitioner sexually abused C.J., his thirteen-year-old stepdaughter. The DHHR alleged that the abuse occurred in the home and that the other children in the home were also abused and neglected.[2]According to C.J.'s disclosure, on one occasion she was lying in bed with petitioner, her mother, and child B.M., when petitioner penetrated her vagina with his finger and forced her to touch his genitals. On another occasion, petitioner attempted to insert his penis into her rectum. C.J. also indicated that petitioner touched her breasts on multiple occasions and tried to perform oral sex on her. According to C.J., this abuse happened at least twice when the family resided at another location and several incidents occurred in the home she lived in at the time of the disclosure. C.J. also indicated that she previously disclosed this abuse to a pastor and a friend. Finally, C.J. alleged that petitioner viewed pornography in the home. Petitioner thereafter waived his right to a preliminary hearing. The children's guardian also moved for C.J. to receive therapy.

         In June of 2016, the circuit court held an adjudicatory hearing, during which the circuit court heard testimony from Maureen Runyon from the Child Advocacy Center at Women's and Children's Hospital in Charleston, West Virginia. Ms. Runyon previously interviewed C.J. and was qualified as an expert forensic interviewer. Petitioner objected to Ms. Runyon's testimony, but the circuit court overruled the objection. Ms. Runyon then testified to C.J.'s disclosures regarding a number of times that petitioner fondled her vagina and digitally penetrated her, in addition to forcing the child to touch his penis. The child also discussed petitioner's repeated fondling of her breasts and an attempt to perform oral sex on her. Ms. Runyon testified to the child's specificity in her disclosures, as evidenced by her ability to recall the time period during which this abuse occurred. Ms. Runyon also testified to the child's disclosures to other individuals.

         Thereafter, petitioner called his mother to testify. According to petitioner's mother, she was familiar with the signs of sexual abuse given that she raised children who suffered such abuse. Petitioner's mother testified that she did not see any inappropriate acts between petitioner and C.J., although she did admit that she does not spend the night at petitioner's home, which is when several instances of the abuse were alleged to have occurred. Petitioner also testified and denied any sexual abuse. According to petitioner, C.J. would often ask him to lie in bed with her so they could talk about her day. Petitioner further testified to "weird things" C.J. would do, like lick his neck. He also admitted to viewing pornography on his phone, away from the children, although he denied having deleted his phone's memory in an effort to obscure evidence from the police. According to petitioner, he deleted the phone's contents because it wasn't working properly. The child's mother also testified and stated that C.J. was "flirty" with adult men, including petitioner. The mother also testified that she did not believe C.J.'s allegations and chose to remain in a relationship with petitioner. Ultimately, the circuit court found that petitioner "sexually molested" C.J. based on the child's "credible, consistent disclosures of multiple sexual acts, including digital penetration, taking inappropriate photos of her, making her touch his penis, fondling her breasts, and attempting to anally penetrate her." The circuit court additionally found that C.J.'s disclosures concerned "sex abuse [that] occurred over two different residences and covered a significant portion of time." The circuit court further denied petitioner visitation with the children.

         In July of 2016, the circuit court held a dispositional hearing, during which a Child Protective Services ("CPS") worker testified that there were no services that could correct the conditions of sexual abuse in the home, especially given petitioner's failure to acknowledge any wrongdoing. Ultimately, the circuit court terminated petitioner's parental rights to his children, B.M. and A.M., and denied him post-termination visitation with the children.[3] 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.

         To begin, we find no error in the circuit court's admission of the testimony of Maureen Runyon. We have previously held that

"[t]he action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syl. Pt. 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).

Syl. Pt. 1, State v. Payne, 225 W.Va. 602, 694 S.E.2d 935 (2010). Moreover, "'[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)." Id. at 604, 694 S.E.2d at 937, Syl. Pt. 2. It is well settled that "'[r]ulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.' State v. Louk, 171 W.Va. 639, 301 S.E.2d 596, 599 (1983)." Syl. Pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).

         On appeal, petitioner argues that Ms. Runyon's testimony contained inadmissible hearsay in the form of C.J.'s statements regarding petitioner's sexual abuse. According to petitioner, this testimony was inadmissible due to the fact that the child's statements were made to Ms. Runyon for purposes of proceeding against him in the abuse ...


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