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In re A.M.

Supreme Court of West Virginia

October 23, 2017

In re: A.M.

         Webster County 16-JA-72


         Petitioner Mother L.M., by counsel Christopher G. Moffatt, appeals the Circuit Court of Webster County's March 20, 2017, order terminating her parental rights to 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"), Mary Elizabeth Snead, filed a response on behalf of the child in support of the circuit court's order and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in relying on improper evidence to form the basis of adjudication and disposition.

         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 September of 2016, the DHHR filed an abuse and neglect petition against petitioner. According to the DHHR, A.M., then eleven years old, disclosed sexual abuse by petitioner dating back to between August of 2008 and August of 2010. At the time of the disclosure, the child lived with her father. According to the child's interview at the Child Advocacy Center ("CAC"), petitioner engaged in multiple instances of sexual abuse during this period. The child disclosed that petitioner inserted objects into the child's vagina and her own vagina while watching pornography, inserted her fingers into the child's vagina, attempted to force the child to insert her fingers into petitioner's vagina, and attempted to perform oral sex on the child, among other disclosures. According to the child, when petitioner attempted to perform oral sex on her, the child resisted and kicked petitioner, which resulted in petitioner slapping the child. In addition to her disclosures regarding sexual abuse, the child also stated that petitioner abused alcohol and drugs while caring for her. During an investigation by law enforcement, petitioner admitted to masturbating in bed with the child when the child was approximately one year old, but she denied the other allegations. As a result of the investigation, petitioner was charged criminally with sexual crimes. Based on these disclosures, the DHHR alleged that petitioner abused and/or neglected the child. At a subsequent preliminary hearing, the circuit court found probable cause to support the child's removal.[2]

         The circuit court held a series of adjudicatory hearings beginning in November of 2016 and concluding in January of 2017. During one of the hearings, petitioner requested leave to rebut the presumption that testifying would be harmful to the child. The circuit court then permitted both petitioner and the child's maternal grandmother to provide testimony on this issue. Ultimately, the circuit court found that, pursuant to Rule 8 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, the potential harm to the child in testifying outweighed the necessity of the testimony. This was especially true in light of the child's recorded interview containing the disclosures at issue being admitted into evidence. As such, the circuit court ordered that the child would not be required to testify in the proceedings. The circuit court further directed the DHHR to obtain additional records, including a prior evaluation of the child, in order to provide the records to the parties. Ultimately, the circuit court ruled that certain records, including a prior interview the child gave at the CAC in 2008, were neither relevant nor exculpatory and ordered them sealed. Ultimately, the circuit court adjudicated petitioner of having sexually abused the child, in addition to other findings.

         Thereafter, the circuit court held a dispositional hearing, during which it addressed its prior ruling on the documents regarding the child's past disclosures. According to the circuit court, it "reviewed both CAC interviews of the infant respondent from 2008" and again found that there was no relevant evidence contained therein. As such, the circuit court again ordered the records sealed and declined to revisit petitioner's adjudication. In regard to petitioner's request for an improvement period, the circuit court found that she presented no evidence that she would be likely to fully comply with the same and denied her request. The circuit court further found that petitioner refused to accept responsibility for the abuse in the home and terminated her parental rights.[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.

         On appeal, petitioner alleges that both adjudication and disposition below were erroneous because they were predicated on the admission of the child's most recent CAC interview. She further alleges that these rulings were erroneous because the circuit court failed to require disclosure of two prior CAC interviews with the child from 2008. Upon our review, however, the Court finds no error in the proceedings. We have held

"[t]he West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural 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 and procedural rulings of the circuit court under an abuse of discretion standard." Syl. Pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).

Syl. Pt. 3, In re J.S., 233 W.Va. 394, 758 S.E.2d 747 (2014). In support of her argument that the circuit court should have required disclosure of the child's 2008 CAC interviews, petitioner fails to cite to any authority that would have required disclosure of the same, aside from her general assertion that she requested such documents in the discovery process. We find, however, that the circuit court did not err in denying the production of these documents to the parties. In its dispositional order, the circuit court specifically addressed both 2008 CAC interviews and plainly stated that they did not contain any relevant information. Based upon this finding, the circuit court declined to release the documents to the parties. While petitioner argues that she "should have at least been afforded the opportunity to review what the [S]tate reviewed, " she fails to explain how her review of irrelevant evidence would have impacted the proceedings. Accordingly, we find no abuse of discretion.

         Further, we find no error in either the circuit court's acceptance of the child's most recent CAC interview into evidence or in its ruling denying petitioner's request for the child to testify. On appeal, petitioner argues, confusingly, that the circuit court "merely accepted that a 'rebuttable presumption' against the child testifying existed, and this presumption was unrebuttable." On the contrary, the circuit court properly applied Rule 8 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings. In the context of child testimony in abuse and neglect proceedings, this Court has held as follows:

In a child abuse and neglect civil proceeding held pursuant to West Virginia Code § 49-6-2 (2009) [now West Virginia Code § 49-4-601], a party does not have a procedural due process right to confront and cross-examine a child. Under Rule 8(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, there is a rebuttable presumption that the potential psychological harm to the child outweighs the necessity of the child's testimony. The circuit court shall exclude ...

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