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In re S.W.

Supreme Court of West Virginia

September 5, 2017

In re: S.W., J.W., and L.W.

         (Randolph County 16-JA-11, 16-JA-12, & 16-JA-13)

          MEMORANDUM DECISION

         Petitioner Father E.W., by counsel Jeremy B. Cooper, appeals the Circuit Court of Randolph County's February 9, 2017, order terminating his parental rights to S.W., J.W., and L.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 ("guardian"), Heather M. Weese, filed a response on behalf of the children also in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in denying his request for a post-adjudicatory improvement period and in terminating his parental rights based on the recommendations of an expert who was unavailable to testify.

         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 January of 2016, the DHHR filed an abuse and neglect petition against petitioner and the mother. The petition alleged that the parties engaged in domestic violence in the children's presence and abused drugs. The petition also alleged that petitioner and the mother failed to provide the children with safe and stable housing or with proper medical care and education. The petition further alleged that petitioner and the mother exposed the children to sex offenders. In March of 2016, the petition was amended to include allegations that S.W. and J.W. were sexually abused by the mother's brother, a registered sex offender, and by a neighbor. The amended petition also alleged that petitioner and the mother were aware of the sexual abuse but took no action to protect the children.

         In April of 2016, the circuit court held an adjudicatory hearing wherein petitioner stipulated to the allegations that he exposed the children to domestic violence in the home, failed to properly educate or supervise the children, and failed to protect them from sexual abuse. The circuit court accepted petitioner's stipulation and adjudicated him as an abusing parent. Further, the circuit court ordered that petitioner to submit to random drug screening and that his supervised visitation would be contingent on his negative drug screens. Following his adjudication, petitioner filed a written motion requesting a post-adjudicatory improvement period.

         In December of 2016, after a series of continuances, the circuit court held a dispositional hearing. At the hearing the circuit court considered petitioner's motion for a post-adjudicatory improvement period and the DHHR's motion to terminate petitioner's parental rights. The DHHR called the psychologist that evaluated the children to testify but the psychologist failed to appear because of a death in her family. A DHHR worker testified as to the recommendations contained in the psychologist's evaluation. Petitioner objected to the testimony based on his inability to cross-examine the psychologist. The circuit court allowed the DHHR worker's testimony but held a conference with the parties regarding the psychologist's absence. The parties agreed that the guardian would obtain the children's written therapeutic recommendations from the psychologist and counselors and disseminate them to the parties.

         Also at the dispositional hearing, the director of the Community Corrections program in Randolph County, West Virginia testified that petitioner tested positive for methamphetamines in July of 2016, failed to submit to drug screens in September and October of 2016, and admitted to smoking methamphetamines in September of 2016. A DHHR worker testified that petitioner admitted that he and the mother continued to engage in domestic violence throughout the proceedings. The worker also testified that petitioner denied knowing that two of the children were sexually abused but knew that the mother's brother was a registered sex offender. The worker further testified that she had concerns regarding petitioner's ability to fully participate in an improvement period because of his on-going, violent relationship with the mother and his failure to participate in drug screening. Petitioner testified that, despite his positive drug screens, he did not believe that he "needed [rehabilitation] or anything like that." He admitted that he allowed a registered sex offender to live in his home and have access to his children. The circuit court continued the dispositional hearing at the guardian's request.

         In January of 2017, the circuit court held a second dispositional hearing. Petitioner was not present at the hearing, but was represented by counsel. At the hearing, the circuit court noted it had considered the psychologists' written recommendations for the children and had recommended that petitioner and the mother have only therapeutic contact with the children due to the extent of sexual abuse and violence in the home. The circuit court noted that the psychologist did not recommend reunification with the parents. At the conclusion of the hearing, the circuit court found that petitioner and the mother continued to engage in domestic violence throughout the proceedings, that petitioner failed to comply with drug screening, and that he failed to visit with his children for more than one year, due to his non-compliance. The circuit court also found that there was no reasonable likelihood petitioner could substantially correct the conditions of abuse and neglect, terminated his parental rights to the children, and denied his motion for a post-adjudicatory improvement period, by order entered on February 9, 2017.[2] It is from that 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 that the circuit court did not err in denying petitioner's motion for a post-adjudicatory improvement period or in terminating his parental rights.

         On appeal, petitioner argues that the circuit court erred in denying his motion for a post-adjudicatory improvement period and terminating his parental rights because it based the denial and the termination on an expert opinion that was improperly admitted into evidence over his objection. Petitioner contends that because the psychologist's recommendations were based on her "scientific, technical, or other specialized knowledge" as defined in Rule 701 of the West Virginia Rules of Evidence, the circuit court erred in allowing a DHHR worker to testify as to the psychologist's recommendations. Petitioner also argues that the circuit court violated Rule 706 of the West Virginia Rules of Evidence because he was denied the opportunity to cross-examine the psychologist concerning her recommendations for the children. We disagree.

         Regarding the standard of review for evidentiary rulings, we have said

[t]he West Virginia Rules of Evidence . . . allocate significant discretion to the trial court in making evidentiary . . . rulings. Thus, rulings on the admissibility of evidence . . . are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary ...

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