Randolph
County 2016-JA-069, 2016-JA-070, & 2016-JA-071
MEMORANDUM DECISION
Petitioner
Father J.A., by counsel G. Phillip Davis, appeals the Circuit
Court of Randolph County's March 27, 2017, order
terminating his parental rights to M.A and
A.A.-2.[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 in support
of the circuit court's order. On appeal, petitioner
argues that the circuit court erred in adjudicating him upon
insufficient evidence and admitting certain medical records
into 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
August of 2016, the DHHR filed an abuse and neglect petition
against the parents that alleged they drank alcohol with
A.A.-1, then sixteen years old, and one of her underage
friends. The petition further alleged that the parents played
a game with the children while drinking that included
"sexual truth or dare." According to the petition,
this game resulted in A.A.-1 and her friend engaging in
various sexual dares wherein the parents urged the children
to wrestle each other's clothing off, kiss, and perform
oral sex on one another. The petition further alleged that
the parents failed to obtain appropriate medical treatment
for A.A.-2, who was born with a cleft palate that resulted in
hindered speech and development. Further, the DHHR alleged
that the parents were eventually incarcerated on related
criminal charges and, therefore, abandoned their children.
The DHHR later filed an amended petition that included
additional allegations, such as drug use in the home; more
specific sexual abuse disclosures from A.A.-1; more specific
information regarding A.A.-2's medical condition; and the
allegation that petitioner was a registered sex offender.
In
December of 2016, the circuit court held an adjudicatory
hearing, during which it heard testimony from multiple
individuals to whom A.A.-1 had disclosed the sexual abuse in
question. The witnesses all testified that A.A.-1
consistently disclosed the details of the abuse, including
her repeated statement that the parents provided alcohol for
her and her underage friend to drink while they played a game
with sexual overtones. However, A.A.-1 testified at the
hearing that she lied about the abuse because petitioner
would not allow her boyfriend to stay overnight with her.
Contrary to her testimony, the circuit court heard other
evidence that A.A.-1 fabricated her recantation, including
A.A.-1's admission that approximately two weeks before
the hearing, she texted the same underage friend who engaged
in the actions giving rise to the petition and told her that
she recanted her testimony so that her siblings would be
allowed to go home. The circuit court also heard testimony
from the friend wherein she stated that A.A.-1 asked her to
lie about the abuse and say it did not happen. A.A.-1's
friend also testified about the abuse consistent with her
statement to law enforcement. Neither parent testified at the
adjudicatory hearing or otherwise presented any evidence. The
circuit court ultimately adjudicated petitioner as an abusing
parent, based on having provided A.A.-1 and her friend
alcohol and engaging in a sexual game with the
children.[3] The circuit court also found evidence of
medical neglect sufficient to adjudicate the parents.
In
January of 2017, the circuit court held a dispositional
hearing, during which petitioner requested an improvement
period. The circuit court denied this motion on a finding
that he failed to establish that he was likely to fully
participate in an improvement period. The circuit court also
found that petitioner failed to acknowledge the abuse and
terminated his parental 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.
First,
petitioner argues that the circuit court erred in
adjudicating him as an abusing parent. In support of this
assignment of error, petitioner argues that the evidence was
insufficient to support his adjudication, due to the fact
that A.A.-1 testified that she fabricated the abuse in
question because petitioner would not allow her boyfriend to
spend the night in the home. We do not find this argument
persuasive. In addressing the burden of proof at
adjudication, we have held as follows:
"W.Va.Code [§] 49-6-2(c) [now West Virginia Code
§ 49-4-601(i)], requires the [DHHR], in a child abuse or
neglect case, to prove 'conditions existing at the time
of the filing of the petition . . . by clear and convincing
[evidence].' The statute, however, does not specify any
particular manner or mode of testimony or evidence by which
the [DHHR] is obligated to meet this burden." Syllabus
Point 1, In Interest of S.C., 168 W.Va. 366, 284
S.E.2d 867 (1981).
Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485
S.E.2d 176 (1997) (citations omitted). Here, the record is
clear that the DHHR met its burden. While petitioner makes
much of A.A.-1's recantation, he fails to acknowledge the
additional evidence that called her credibility into
question. This included evidence of several text messages to
her friend that indicated A.A.-1 was lying about her
recantation in order to protect her siblings. The evidence
also established that A.A.-1 asked her friend to lie about
the abuse, which the friend refused to do. In fact,
petitioner acknowledges that A.A.-1's friend
"testified that alcohol was served" on the night in
question. The record further shows that the friend testified
that, although she could not recall who poured the alcohol,
she was provided with and consumed it in petitioner's
presence. This conduct alone constitutes abuse sufficient
upon which to adjudicate petitioner as an abusing parent.
West
Virginia Code § 49-1-201 defines an "abused child[,
]" in part, as
a child whose health or welfare is being harmed or threatened
by . . . [a] parent, guardian or custodian who knowingly or
intentionally inflicts, attempts to inflict or knowingly
allows another person to inflict, physical injury or mental
or emotional injury, upon the child or another child in the
home. Physical injury ...