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In re E.Y.

Supreme Court of West Virginia

January 8, 2018

In re: E.Y., D.L.-1, and D.L.-2

         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, ...


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