Calhoun
County 16-JA-34, 16-JA-35, & 16-JA-36
MEMORANDUM DECISION
Petitioner
Mother D.L.-3, by counsel Daniel Minardi, appeals the Circuit
Court of Calhoun County's August 4, 2017, order
terminating her parental rights to E.Y., D.L.-1, and
D.L.-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"), Tony Morgan,
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 as an abusing
parent and terminating her parental rights based upon the
incompetent testimony of E.Y. and the hearsay testimony of
the DHHR worker.
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.
Upon a
referral, a DHHR worker interviewed three-year-old E.Y.
concerning her disclosure to her biological father that she
was sexually abused by her step-father, S.L. E.Y. disclosed
to the DHHR worker that S.L. touched her "piggy bug,
" which she identified as her vagina. She also disclosed
that the abuse happened when it was dark outside and that it
occurred in her bedroom at night. Further, E.Y. told the DHHR
worker that S.L. hurt her and that she felt S.L. was
"bad" for hurting her. Following the interview, the
DHHR filed an abuse and neglect petition against petitioner
and S.L. alleging that S.L. sexually abused E.Y. The petition
further alleged that petitioner had knowledge of the abuse,
took no action to protect E.Y., and continued to allow S.L.
to live in the home and have contact with E.Y., as well as
the other two children, then one-year-old twins D.L.-1 and
D.L.-2.
The
DHHR worker subsequently interviewed petitioner, who stated
there was no way S.L. could have abused E.Y. because there
was never a time E.Y. was left alone with S.L. Petitioner
also admitted to the DHHR worker that after she became aware
of the allegations of sexual abuse, she asked E.Y. to tell
S.L. what she was accusing him of and that E.Y. told
petitioner that they were "bad words" and refused
to repeat her disclosure to S.L. The DHHR worker also
interviewed S.L., who denied ever being alone with E.Y. In
November of 2016, the circuit court held an adjudicatory
hearing in which it took in camera testimony of E.Y. A
transcript of E.Y.'s testimony was prepared and
disseminated to counsel. Due to E.Y.'s young age, the
parties agreed to a competency evaluation. The adjudicatory
hearing was continued four times in order to receive results
of E.Y.'s competency evaluation.
In
February of 2017, the adjudicatory hearing was concluded. The
DHHR worker testified as to the disclosures E.Y. made during
her interview with the child, as well as the disclosures made
by E.Y. to her paternal great-grandmother and father. The
circuit court found that although the competency evaluator
found that E.Y. was not competent to testify because she
lacked full understanding of truthfulness, such a finding did
not preclude the circuit court from finding that the
child's statements were indeed truthful. The circuit
court noted that the child was consistent in her disclosures
to multiple people over time, and that there was no motive
for the child to lie and no evidence of any coercion which
would cause her to fabricate the allegations. The circuit
court found that petitioner's testimony that the sexual
abuse could not have occurred because S.L. was never alone
with E.Y. was not credible. Further, the circuit court found
that petitioner neglected E.Y. by "allowing her to be
physically and mentally harmed by an intentional refusal and
failure to keep her away from [S.L], " and also noted
that petitioner "chose her husband over her child."
Finally, the circuit court found that E.Y. consistently
disclosed the details of S.L.'s sexual abuse to her
father, paternal great-grandmother, the DHHR worker, and the
circuit court and adjudicated petitioner and S.L. as abusing
parents.
In July
of 2017, the circuit court held a dispositional hearing
wherein it took judicial notice of the testimony presented at
the adjudicatory hearing. Petitioner testified that she
refused to believe S.L. abused E.Y. and continued to reside
with and maintain a relationship with him, despite his
adjudication as an abusing parent. The circuit court also
found that the twins, D.L.-1 and D.L.-2 were at continued
risk of harm in petitioner's care based upon
petitioner's failure to address the abuse which occurred
to E.Y. Furthermore, the circuit court found that there was
no reasonable likelihood that the conditions of abuse and
neglect could be corrected in the near future and that
termination of petitioner's parental rights was in the
best interests of the children. Ultimately, the circuit court
terminated petitioner's parental and custodial rights in
its August 4, 2017, order.[2] 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.
Petitioner
argues that the circuit court erred in relying on the
incompetent testimony of E.Y. and the hearsay testimony of
the DHHR worker at both adjudication and disposition. She
argues that a competency evaluation determined that E.Y. was
not competent to testify and that the circuit court
acknowledged the evaluator's finding that E.Y. was unable
to differentiate between the truth and a lie. Further,
petitioner asserts that the only other person to testify as
to E.Y.'s statements was a DHHR worker and argues that
the DHHR worker's testimony was inadmissible hearsay
evidence. We disagree.
Petitioner
is correct that a psychological examiner found E.Y.
incompetent to testify. The circuit court acknowledged the
fact that the evaluator reported that E.Y. was not competent
to testify because of her inability to differentiate between
telling the truth and a lie. However, the circuit court
further found that the child's disclosures were relevant
and reliable, given the fact that her recollection of the
abuse remained consistent in her statements to her father,
paternal great-grandmother, the DHHR worker, and the circuit
court. "A trial court's evidentiary rulings, as well
as its application of the Rules of Evidence, are subject to
review under an abuse of discretion standard." Syl. Pt.
4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d
469 (1998). We have also held that
"[a]lthough Rules 401 and 402 of the West Virginia Rules
of Evidence strongly encourage admission of as much evidence
as possible, Rule 403 of the West Virginia Rules of Evidence
restricts this liberal policy by requiring a balancing of
interests to determine whether logically relevant is legally
relevant evidence. Specifically, Rule 403 provides that
although relevant, evidence may nevertheless be excluded when
the danger of unfair prejudice, confusion, or undue delay is
disproportionate to the value of the evidence." Syllabus
point 9, State v. Derr, 192 W.Va. 165, 168, 451
S.E.2d 731, 734 (1994).
Syl. Pt. 5, State v. Trail, 236 W.Va. 167, 778
S.E.2d 616 (2015). Here, the circuit court found the
child's statements relevant and reliable due to their
consistency over time when made to different people. The
circuit court found no motive for the child to lie or any
evidence of coercion which would cause her to fabricate the
allegations. However, petitioner did not raise any issues of
unfair prejudice, confusion, or undue delay in the circuit
court proceedings or on appeal. Moreover, to the extent the
circuit court did consider the child's in camera
testimony, the record further shows that this same evidence
was also introduced through the testimony of a DHHR worker.
Accordingly, ...