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. 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. 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.
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.
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
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.
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
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]."
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
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
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.
Court has previously established the following standard of
"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 ...