Jefferson County 17-JA-11, 12, 33, and 34
MEMORANDUM DECISION
Petitioner
Father D.B., by counsel Christian J. Riddell, appeals the
Circuit Court of Jefferson County's January 9, 2018,
order terminating his parental rights to I.B., J.B., R.M.,
and A.J.[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
and a supplemental appendix. The guardian ad litem
("guardian"), Jared Adams, filed a response on
behalf of the children also in support of the circuit
court's order. On appeal, petitioner argues that the
circuit court erred in adjudicating him as an abusing parent
and in failing to exclude the recorded interview of a minor
victim that had not been disclosed during
discovery.[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 June
of 2017, a law enforcement officer filed a child abuse and
neglect petition against petitioner, alleging that the
children I.B. and J.B. were at risk of abuse based upon
petitioner's sexual abuse of four minor girls.
Specifically, the officer's investigation revealed that
four of J.B.'s friends reported being sexually abused by
petitioner throughout 2015 and 2016 when spending the night
at petitioner's home. Each of the child victims reported
that petitioner would wait until they fell asleep and then
touch their vaginas. The DHHR filed an amended petition in
October of 2017, adopting the allegations contained in the
original petition and adding two more of petitioner's
children, R.M. and A.J., who were previously unknown to the
DHHR.
The
circuit court held two adjudicatory hearings throughout
October of 2017 and November of 2017. The recorded interviews
of the child victims conducted at the local Children's
Advocacy Center ("CAC") were viewed in open court
and admitted into evidence. The CAC interview of one of the
child victims had not been disclosed to petitioner during the
discovery process, but the child victim's allegations
were contained in the petition. Petitioner moved the circuit
court to exclude the undisclosed interview and said motion
was denied. However, the circuit court did grant petitioner
the opportunity to reopen the adjudicatory evidence after he
fully reviewed the recorded interview at his leisure
following the October of 2017 hearing.
Petitioner
presented the testimony of several witnesses, all of whom
testified that they had no knowledge of petitioner having
sexually abused children. Petitioner also testified and
denied sexually abusing the children. Petitioner suggested
that the children made up the allegations of abuse because he
recently told them they would not be permitted to stay
overnight anymore if they continued to misbehave. After
hearing evidence, the circuit court adjudicated petitioner as
an abusing parent based upon sexual abuse of the four child
victims. Specifically, the circuit court found that
petitioner rubbed the vaginal area of one child and tried to
put his penis in her mouth, put his hands underneath the
clothing of three of the children to feel their vaginal
areas, and digitally penetrated one of the children's
vagina. Further, the circuit court found that the child
victims were "prepubescent and their description of the
touching was consistent with their developmental age."
Finally, because petitioner sexually abused four children
while they were in his home, the circuit court found that
petitioner abused I.B. and J.B. Petitioner was adjudicated as
having abandoned R.M. and A.J.
In
January of 2018, the circuit court held a dispositional
hearing wherein petitioner did not contest the termination of
his parental rights, but argued that he had been wrongfully
adjudicated and advised that he intended to appeal his
adjudication. The circuit court incorporated its previous
findings into its dispositional order, in which it also found
that there was no reasonable likelihood that petitioner could
correct the conditions of abuse in the near future and that
termination was necessary for the children's welfare. It
is from the January 9, 2018, dispositional order that
petitioner appeals.[3]
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).
On
appeal, petitioner argues that the circuit court erred in
adjudicating him as an abusing parent based upon allegations
of sexual abuse against the great weight of the
evidence.[4]Petitioner argues that the only evidence of
sexual abuse comes from the CAC interviews of the four
children, with no other corroboration. Petitioner asserts
that the children's statements are rehearsed and too
similar to be genuine. As a specific example, petitioner
states that none of the children could provide a satisfactory
answer to questions about sensory information. Moreover,
petitioner alleges that the children's allegations that
he entered J.B.'s bedrooms to abuse the children
"every five minutes" were particularly
unbelievable, especially in light of the fact that both C.W.
and J.B. were extremely light sleepers and would have awoken
had he repeatedly gone in and out of the bedrooms.
However,
we find petitioner's argument to be without merit. We
have previously noted as follows:
At the conclusion of the adjudicatory hearing, the 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 . . . . The findings must
be based upon conditions existing at the time of the filing
of the petition and proven by clear and convincing evidence.
In re F.S. and Z.S., 233 W.Va. 538, 544, 759 S.E.2d
769, 775 (2014). This Court has explained that
"'clear and convincing' is the measure or degree
of proof that will produce in the mind of the factfinder a
firm belief or conviction as to the allegations sought to be
established." Id. at 546, 759 S.E.2d at 777
(citing Brown v. ...