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In re I.B.

Supreme Court of West Virginia

June 11, 2018

In re I.B., J.B., R.M., and A.J.

          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. ...


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