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In re H.S.

Supreme Court of West Virginia

May 24, 2019

In re H.S.

          Marion County 17-JA-171

          MEMORANDUM DECISION

         Petitioner Father J.S., by counsel Scott A. Shough, appeals the Circuit Court of Marion County's November 26, 2018, order terminating his parental rights to H.S.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel S.L. Evans, filed a response in support of the circuit court's order. The child's guardians ad litem ("guardian"), Frances C. Whiteman and Rebecca L. Tate, filed responses on behalf of the child in support of the circuit court's order.[2] On appeal, petitioner argues that the circuit court erred in adjudicating him as an abusing parent and in denying his motion to appoint a separate guardian ad litem for H.S.[3]

         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 December of 2017, the DHHR filed a petition alleging that petitioner sexually abused his step-daughter, I.T. I.T.'s mother and non-abusing father, B.T., shared joint custody of I.T. Further, the DHHR alleged that H.S., petitioner and the mother's biological child, lived in their home as well. Petitioner agreed to leave the home following the filing of the petition and H.S. remained in the custody of the mother. Petitioner waived his preliminary hearing. The circuit court ordered the custodial parents to cooperate with the DHHR and allow the DHHR to make announced and unannounced visits to their homes.

         The DHHR filed an amended petition against the mother alleging that she failed to protect H.S. from petitioner "by allowing [petitioner] to reside in the home with [H.S.]" The DHHR alleged the parents inflicted "mental and emotional abuse . . . by their actions leading to [H.S.] hiding under her bed to avoid [Child Protective Services] workers." Petitioner's presence in the home was in direct contravention of a voluntary protection plan the parties executed at the beginning of the proceedings. The mother waived her preliminary hearing.

         The circuit court held six adjudicatory hearings over the next seven months. Petitioner's step-daughter, I.T., age twelve, testified and the circuit court found her testimony was "strong and matter of fact regarding particular experiences to which she was subjected. [I.T.] was able to describe, in detail, the manner in which she had been touched and [the] period of time during which such conduct happened." I.T. testified that she referred to her vagina as a "pee-bug" and her breasts as "boobs." According to the circuit court, I.T. described that petitioner "would touch her 'pee-bug' and sometimes inside her 'pee-bug.'" I.T. testified that this happened more than twenty times sometimes when alone in the home with petitioner and other times when both her mother and H.S. were home. I.T. also testified that petitioner licked her "pee-bug" on one occasion while her sister was at school and the mother was at work. I.T. testified that it felt "very disgusting. It scared me. It freaked me out." I.T. testified that she thought petitioner began touching her "in third grade." Further, I.T. explained that petitioner would keep her home from school and touch her inappropriately while they were alone. Additionally, the circuit court found that I.T's father testified that the child "had been absent or late for school on multiple occasions which led to the modification of custody giving [the father] primary custody." The circuit court found that, although the evidence was unclear as to exactly how many times petitioner touched I.T., the description provided was sufficient to indicate that I.T. "experienced this touching in her genital area" on "many occasions."

         The forensic psychologist who performed an assessment on I.T. testified that the child's testimony was consistent with their initial session together and the child's forensic interview. The circuit court found that the psychologist "stated that [I.T.] was a child of average intelligence and her actions and statements were consistent with a child that had been a victim of sexual assault." The psychologist further opined "that [I.T.]'s confusion about the number of times that she had been 'touched' by [petitioner was] normal for a child who had been sexually abused for a long period of time." A nurse also testified regarding I.T.'s statements during her examination. The circuit court found that testimony "further shows that [I.T.] has been consistent in her allegations, and has not changed or recanted the allegations made against [petitioner]."

         The mother testified in defense of petitioner. The circuit court found that she disregarded the voluntary protection plan as alleged in the amended petition. Thus, the circuit court perceived that the mother was biased in favor of petitioner and her testimony "did little to detract from the testimony" of I.T. and the forensic psychologist. Petitioner also called two character witnesses, which the circuit court found to be credible. Yet, the circuit court noted that these witnesses also did little to detract from the testimony of I.T. Finally, petitioner testified and denied the allegations that he sexually abused I.T. The circuit court found petitioner was unable to rebut the allegations. Ultimately, the circuit court found "that there [was] clear and convincing evidence that [I.T.] suffered sexual abuse by [petitioner] while in the custody of [the mother] . . . and another child residing in the home was [H.S.]" The circuit court adjudicated petitioner as an abusing parent and H.S. as an abused child. Further, the circuit court found that H.S. had "separate interests from [I.T.]" and appointed the child a separate guardian ad litem.

         The circuit court held the final dispositional hearing in October of 2018. The circuit court found that petitioner continued to deny that he sexually abused I.T. The circuit court noted this Court's prior holdings that

[f]ailure to acknowledge the existence of the problem, i.e., the truth of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator of said abuse and neglect, results in making the problem untreatable and in making an improvement period an exercise in futility at the child's expense.

In re In re Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013). Accordingly, the circuit court terminated petitioner's parental rights by its November 26, 2018 order. Petitioner now appeals that order.[4]

         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 ...

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