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In re D.L.-1

Supreme Court of West Virginia

January 8, 2018

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

         Calhoun County 16-JA-35, & 16-JA-36)

          MEMORANDUM DECISION

         Petitioner Father S.L., by counsel Ryan M. Ruth, appeals the Circuit Court of Calhoun County's August 4, 2017, order terminating his parental rights to 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 him as an abusing parent when the only evidence was the testimony of a child who had been determined to not be competent to testify.[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.

         Upon a referral, a DHHR worker interviewed three-year-old E.Y. based upon disclosure to her biological father that she was sexually abused by petitioner.[3] E.Y. disclosed to the DHHR worker that petitioner had 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 petitioner hurt her and that she felt he was "bad" for hurting her. Following the interview, the DHHR filed an abuse and neglect petition against petitioner and the mother alleging that petitioner sexually abused E.Y. and that the mother had knowledge of the abuse, but took no action to protect E.Y. and continued to allow petitioner 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 the mother, who stated there was no way petitioner could have abused E.Y. because there was never a time E.Y. was left alone with petitioner. The mother also admitted to the DHHR worker that after she became aware of the allegations of sexual abuse, she asked E.Y. to tell petitioner what she was accusing him of and that E.Y. told her mother that they were "bad words" and refused to repeat her disclosure to petitioner. The DHHR worker also interviewed petitioner, 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 the mother's testimony that the sexual abuse could not have occurred because petitioner was never alone with E.Y. was not credible. The circuit court found that E.Y. consistently disclosed the details of petitioner's sexual abuse of her to her father, paternal great-grandmother, the DHHR worker, and the circuit court, via the child's testimony. Further, the circuit court found that petitioner had sexually abused E.Y. and adjudicated him as an abusing parent.

         In July of 2017, the circuit court held a dispositional hearing wherein it took judicial notice of the testimony from the adjudicatory hearing. The circuit court found by clear and convincing evidence that petitioner sexually abused E.Y. and also found that the mother refused to believe petitioner 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 the abuse of 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 and custodial rights was in the best interests of the children. Ultimately, the circuit court terminated petitioner's parental rights in its August 4, 2017, order.[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.

         Petitioner argues that the circuit court erred in adjudicating him as an abusing parent when the only evidence was the testimony of a child who had been determined not to be competent to testify. He asserts 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. He further argues that the in camera testimony and other statements of E.Y. should have been disregarded by the circuit court. We find no merit to petitioner's argument.

         Petitioner's argument misstates the record, as it is clear the circuit court considered evidence beyond the in camera testimony of E.Y. In addition to that testimony, the DHHR worker testified regarding her interview with E.Y., as well as to E.Y.'s statements to her father and paternal great-grandmother. Although petitioner argues that the DHHR worker's testimony constituted hearsay, petitioner makes no reference to any objections to the same.[5] Further, in regard to the DHHR worker's testimony, we have held that

[t]he West Virginia Rules of Evidence declare that parties must object to the wrongful offer of evidence at a particular time and with reasonable specificity. The failure to object at the time and in the manner designated by Rule 103(a) of the West Virginia Rules of Evidence is treated as a procedural default, with the result that the evidence, even if erroneous, becomes the facts of the case. West Virginia practice imposes the same duty of diligence in regard to nonjury cases. Silence in the circuit court typically constitutes a waiver of objection. See W.Va.R.Evid. 103(a)(1).

Tiffany Marie S., 196 W.Va. at 234, 470 S.E.2d at 188. Therefore, because petitioner failed to object to the DHHR worker's testimony, petitioner waived the ...


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