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In re M.A.

Supreme Court of West Virginia

October 23, 2017

In re: M.A., A.A.-1, and A.A.-2

         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 ...

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