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In re J.S.

Supreme Court of West Virginia

September 25, 2017

In re: J.S., T.S., W.S. and C.S.

         Braxton County 16-JA-34, 16-JA-35, 16-JA-36, & 16-JA-37

          MEMORANDUM DECISION

         Petitioner Mother A.S., by counsel Daniel R. Grindo, appeals the Circuit Court of Braxton County's March 2, 2017, order terminating her parental and custodial rights to J.S., T.S., W.S., and C.S.[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"), David Karickhoff, 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 her upon insufficient evidence.[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.

         In July of 2015, the DHHR filed an abuse and neglect petition against the parents in the Circuit Court of Calhoun County that alleged they left the children in the care of inappropriate caregivers. According to the petition, petitioner and the father left the children with their maternal grandmother and uncle despite their knowledge of sexual abuse issues and unsafe home conditions related to those individuals. The petition further alleged that the parents engaged in domestic violence and inappropriate discipline in the home, and that the children lacked appropriate housing and clothing. The following month, the DHHR filed an amended petition to include additional information about the parents' behavior.

         In October of 2015, the circuit court held an adjudicatory hearing. Petitioner stipulated to adjudication by admitting that she failed to protect the children by knowingly placing them in her family's care. Petitioner also admitted to using inappropriate discipline on the children. In March of 2016, the DHHR filed a second amended petition that included disclosures from W.S. According to the new petition, the child indicated that she witnessed the parents having sex and that her brother, J.S., sexually abused her. The petition further alleged that the father instructed the children not to speak to anyone, including DHHR personnel and therapists, about the conditions in the home. Thereafter, the circuit court granted petitioner a post-adjudicatory improvement period.

         In May of 2016, the circuit court held a hearing on the second amended petition. During the hearing, the DHHR moved the circuit court to transfer the matter to the Circuit Court of Braxton County because of additional disclosures of sexual abuse that occurred in that county. Petitioner moved for the dismissal of the second amended petition upon allegations that it was vague. Ultimately, the circuit court dismissed the second amended petition and ordered the matter transferred to the Circuit Court of Braxton County. The circuit court also ordered that any subsequent petition filed to address allegations of sexual abuse be consolidated with the ongoing proceedings transferred to Braxton County.

         In June of 2016, the DHHR filed a new petition in the Circuit Court of Braxton County that included allegations of sexual abuse of the children. The circuit court consolidated this new petition with the ongoing abuse and neglect case transferred from Calhoun County. Petitioner moved to dismiss the new petition based on res judicata. The circuit court, however, permitted the DHHR to proceed on the petition.

         In August of 2016, the circuit court held an adjudicatory hearing on the new petition. The DHHR presented evidence from a psychologist who opined that the significant amount of sexualized behavior exhibited by most of the children and the family, in addition to the children's consistency in identifying the parents as the perpetrators of sexual abuse, led him to believe that the children were sexually abused. An interviewer from the Child Advocacy Center further testified to her interview of W.S., then seven years old, during which the child indicated that the father touched her vagina, inserted his penis into her vagina, and inserted other objects into her vagina. Two foster parents provided testimony concerning the children's sexualized behavior, including simulating oral sex and humping other children. One foster parent also testified to the fact that W.S. inserted several objects into her vagina on multiple occasions. Ultimately, the circuit court found that the father sexually abused the children and that petitioner was aware of the abuse. As such, the circuit court adjudicated petitioner as an abusing parent.[3]

         In January of 2017, the circuit court held a dispositional hearing. A psychologist who performed a psychological and parental fitness evaluation on petitioner testified that petitioner never acknowledged the sexual abuse in the home. The psychologist also opined that petitioner's prognosis for improved parenting was extremely poor, given her failure to acknowledge the pervasive and serious nature of the abuse. Moreover, testimony established that petitioner never addressed the sexual abuse in therapy and other services, despite attending the same, because she never acknowledged the abuse therein. Ultimately, the circuit court terminated petitioner's parental and custodial rights to the children.[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.

         On appeal, petitioner argues that the circuit court erred in adjudicating her as an abusing parent upon unreliable and inadmissible evidence. According to petitioner, several individuals, including foster parents, the forensic interviewer who spoke to W.S., and the psychologist, testified to statements from the children that constituted inadmissible hearsay. Petitioner also argues that the psychologist submitted a report after the hearing and that she was not permitted to cross-examine him. The Court, however, finds no error. 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 ...

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