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In re R.A.-1

Supreme Court of West Virginia

March 15, 2019

In re R.A.-1, L.A, and M.C.

          Hampshire County 17-JA-86, 17-JA-87, and 17-JA-88


         Petitioner Mother A.C., by counsel David C. Fuellhart, III, appeals the Circuit Court of Hampshire County's July 31, 2018, order terminating her parental rights to R.A.-1, M.C., 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. On appeal, petitioner argues that the circuit court erred in denying her motion for a post-dispositional improvement period, terminating her parental rights, and denying her post-termination visitation.[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 November of 2017, the DHHR filed a petition alleging that petitioner's step-daughter, G.A., was sexually abused by her father, R.A.-2, and that petitioner failed to protect her children from potential abuse. G.A.'s biological mother is R.A.-2's ex-wife, J.A. Although, G.A. did not live with petitioner and R.A.-2, the DHHR alleged that G.A. visited their home regularly with her mother, J.A. The DHHR alleged that petitioner found R.A.-2 and G.A. in the bathroom during an incident of sexual abuse, but did not disclose the incident to the police or the DHHR. According to the DHHR, R.A.-2 continued to have consistent contact with G.A. following the abuse. Petitioner waived her 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 the child was sexually abused by R.A.-2. In the interview, G.A. stated that she first disclosed to her friend that someone inappropriately touched her. G.A. described a time that R.A.-2 tickled her to the point that she urinated on herself and then he took her inside his home to change her clothes. G.A. was asked what part of the body she was touched on 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 him to stop." When the interviewer asked what made it stop, the child stated that petitioner "walked in and 'caught him.'" The circuit court noted that the child indicated she told her mother, J.A., but "she 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."

         According to the circuit court's findings, petitioner testified that, during the "bathroom incident," she noted that R.A.-2 and the child were gone for a long time and she became concerned. She yelled for R.A.-2 inside the home, but heard no response. Eventually, she went into the bathroom and

observed the minor child, G.A., sitting on the toilet completely naked; that her arms were around [R.A.-2]; that [R.A.-2] 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.

         Petitioner asked R.A.-2 what he was doing and he stated that he was giving the child a hug. Petitioner testified that R.A.-2 "looked as if he had seen a ghost, like he jumped out of his skin" and that G.A. looked terrified. Following that incident, petitioner and J.A. agreed not to allow R.A.-2 around the children alone. However, petitioner admitted that it was not always possible to supervise the children while R.A.-2 was around.

         Further, petitioner stipulated to the allegations that she failed to protect the children from R.A.-2 following the "bathroom incident." Despite her stipulation, petitioner testified that, while she did believe that G.A. was sexually abused, she was unsure that R.A.-2 was the person who abused her. Petitioner explained that she continued to be in a relationship with R.A.-2, but would end the relationship if it would hurt her chances of receiving custody of her children.

         Ultimately, the circuit court found that G.A.'s "disclosure of sexual abuse was credible and consistent with the observations of [petitioner], which were to a degree corroborated with [J.A.]." The circuit court further found that none of the respondents "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 G.A. was sexually abused by R.A.-2 and that petitioner failed to protect the children. The circuit court adjudicated petitioner as 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. The circuit court found that "[petitioner] remains in a relationship with [r]espondent [R.A.-2]. She provided no testimony to dispute this fact at the disposition hearing." Additionally, the circuit court found that petitioner's failure to leave the relationship made her stipulation "disingenuous and incongruous with the best interest and safety of her children" and rendered her unlikely to fully participate in an improvement period. Finally, the circuit court found that there was no reasonable likelihood that petitioner could correct the behaviors that warranted the removal of the children and that termination of petitioner's parental rights was in the best interest of the children. The circuit court also denied petitioner post-termination visitation with the children on the basis that she could not ensure the safety of the children. 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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