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In re G.A.

Supreme Court of West Virginia

March 15, 2019

In re G.A., R.A.-1, and L.A.

          Hampshire County 17-JA-84, 17-JA-86, and 17-JA-87


         Petitioner Father R.A.-2, by counsel Jeremy B. Cooper, appeals the Circuit Court of Hampshire County's July 31, 2018, order terminating his parental rights to G.A., R.A.-1, and L.A.[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"), Marla Zelene Harman, filed a response on behalf of the children in support of the circuit court's order. Petitioner filed a reply brief. On appeal, petitioner argues that the circuit court based his adjudication as an abusing parent and the termination of his parental rights on insufficient evidence and that his trial counsel was ineffective.

         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 November of 2017, the DHHR filed a petition alleging that petitioner sexually abused G.A. The DHHR alleged that petitioner's wife, A.C., knew of the abuse, but failed to report it to the police or the DHHR. According to the DHHR, petitioner continued to have consistent contact with G.A. following the incident of sexual abuse.[2] Petitioner waived his preliminary hearing.

         The circuit court held three adjudicatory hearings in January, March, and April of 2018. The forensic interview of G.A. was admitted into evidence without objection. The circuit court found that the forensic interview of G.A. was reliable, credible, and probative as to the question of whether petitioner sexually abused the child. In the interview, G.A. stated that she first disclosed to her friend that someone touched her inappropriately. G.A. described a time that petitioner tickled her to the point that she urinated on herself and then he took her inside to change her clothes. G.A. was asked where petitioner touched her and she responded by circling the vagina on an anatomically correct female drawing. The interviewer asked G.A. what she was touched with and she circled the penis on a male drawing. The circuit court found that G.A. stated that "she felt horrible, she felt sick, and she told [petitioner] to stop[.]" When the interviewer asked what made it stop, the child stated that A.C. "walked in and 'caught him.'" The circuit court noted that the child indicated she told her mother, J.A., but "[J.A.] didn't say anything about it." The circuit court further noted that the child "had a difficult time discussing what happened to her in the Child First Interview and broke out in a rash and/or hives during the process." G.A. was subjected to a second forensic interview. However, in that interview, she refused to repeat her disclosures and stated multiple times that she did not want to talk about the events.

         All of the minor children were examined for signs of sexual abuse and three forensic examiners testified regarding various abnormalities of the children's genitalia. The examiners explained that the abnormalities could have been naturally occurring or the result of sexual abuse. Although these examinations were essentially inconclusive, the circuit court found that the examiners indicated that "some red flags were evident[.]"

         According to the circuit court's findings, A.C. testified that, during the "bathroom incident," she noted petitioner and the child were gone for a long time and she became concerned. She yelled for petitioner, but heard no response. Eventually, she went into the bathroom. The circuit court found that A.C. next testified that she,

observed the minor child, G.A., sitting on the toilet completely naked; that her arms were around [petitioner]; that [petitioner] was crouched down in . . . front of the child; that he had one arm around the child; that his other hand was in . . . front of him, but his hand was not visible to her[.]

         A.C. asked petitioner what he was doing and he stated that he was giving the child a hug. A.C. testified that petitioner "looked as if he had seen a ghost, like he jumped out of his skin" and that G.A. looked terrified. Following that incident, A.C. and J.A. agreed not to allow petitioner around the children alone. During his testimony, petitioner denied the allegations of sexual abuse and asserted that the "bathroom incident was a misunderstanding." Petitioner explained that he was hugging the child because she was distraught. The circuit court found that petitioner's explanation was "incredulous."

         Ultimately, the circuit court found that G.A.'s "disclosure of sexual abuse was credible and consistent with the observations of . . . [A.C.], which were to a degree corroborated with [J.A.]" The circuit court further found that none of the parents "could articulate a reason as to why [G.A.] would in any way fabricate any allegations of sexual abuse" and that there was "no indication or evidence" that she was coached to make the disclosures. The circuit court concluded that petitioner sexually abused G.A. and that petitioner was an abusing parent.

         In July of 2018, the circuit court held the final dispositional hearing. The DHHR presented evidence to support the termination of petitioner's parental rights. Petitioner did not testify, but, through counsel, continued to deny the allegations of sexual abuse. The circuit court found that petitioner took no responsibility for his actions and that there was no reasonable likelihood that the behaviors warranting the removal of the children from petitioner's home could be corrected. Accordingly, the circuit court terminated petitioner's parental rights by its July 31, 2018, order. Petitioner now appeals that order.[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). Upon our review, this Court finds no error in ...

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