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In re S.F.

Supreme Court of West Virginia

June 12, 2019

In re S.F.

          Berkeley County 17-JA-88

          MEMORANDUM DECISION

         Petitioner Father E.F., by counsel Nicholas Forrest Colvin, appeals the Circuit Court of Berkeley County's December 20, 2018, order terminating his parental rights to S.F.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee A. Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem, Elizabeth Layne Diehl, filed a response on behalf of the child in support of the circuit court's order. On appeal, petitioner argues that the circuit court abused its discretion in terminating his parental rights and denying his motion for post-termination visitation with the child.

         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 July of 2017, the DHHR filed a child abuse and neglect petition against petitioner and the mother of S.F. alleging that another child living in the home died as a result of Benadryl intoxication. The DHHR alleged that petitioner was working out of state when the child died, but was aware of other safety issues in the home, including chemicals and liquor bottles in reach of the children and a pool without proper safety measures. The DHHR also alleged that petitioner was required to register as a sex offender due to his criminal conviction of a sex crime related to fourteen-year-old girl. The DHHR alleged that petitioner neglected S.F. by a "refusal, failure, and inability to provide [her] with necessary food, clothing, shelter, supervision, and medical care." Petitioner waived his preliminary hearing.

         Petitioner filed an answer to the petition and admitted that he failed to provide the child with necessary shelter and supervision. The circuit court adjudicated petitioner as an abusing parent. Petitioner requested a post-adjudicatory improvement period, which the circuit court granted in October of 2017. The circuit court also granted petitioner supervised visitation with the child.

         In November of 2017, a multidisciplinary team ("MDT") meeting was held following a report that S.F. was inappropriately touching a similarly-aged child. According to the child's therapist, S.F. was found underneath a table, touching the genitalia of a peer who had exposed herself to S.F. Additionally, petitioner's visitation supervisor reported concerns that petitioner was overly involved with S.F.'s cleanliness after she used the bathroom. The circuit court temporarily suspended supervised visitations and ordered that S.F. undergo a forensic interview. However, S.F. was unresponsive during the interview. The DHHR implemented therapeutic visitation to address parenting skills during visitation.[2]

         Petitioner sought and participated in a psychosexual risk assessment for the purpose of determining his risk for sexual reoffending and to receive recommendations for treatment in May of 2018. In the evaluation, petitioner gave his narrative of his sexual offense, in which he described an encounter with the fourteen-year-old step-daughter of his "best friend for 35 years." Petitioner admitted that he was "a very intricate part of the family" and that he "considered himself like a big brother to her." Prior to the incident that led to petitioner's sexual offense conviction, petitioner admitted that he "touched [the victim's] breasts and [he] put [his] fingers down her britches" and asserted that "[s]he did not object." Petitioner further asserted that the victim pursued him, but that he "turned her down on numerous occasions." Finally, petitioner described the incident related to his conviction, including details that the victim came to his home, removed her trousers, and that he performed oral sex on her, after turning down her request to have sex. The incident ended after the victim's stepfather knocked on petitioner's door. Further, petitioner admitted he did not complete his sexual offender treatment, but, after three years of participation in treatment, his probation officer did not require him to complete further treatment. In the evaluation, petitioner expressed that his strategy to prevent a subsequent offense was to "never allow[] other girls or women in the house without his supervisor, [the mother] present and not allow[] any kind of inappropriate clothing in his home."

         The evaluator concluded that petitioner fit the profile of a "situational or regressed sex offender," who tend to have a lower risk to reoffend. The evaluator positively noted that petitioner had not reoffended for the past ten years. However, the evaluator also expressed concern that petitioner met the diagnostic criteria for cannabis use disorder and that cannabis use increased the likelihood for re-offense. Further, the evaluation recommended a restriction of petitioner's pornography access because he admitted to viewing pornography prior to his sexual offense. Ultimately, the evaluation predicted petitioner's likelihood of reoffending to be "[b]elow [a]verage" and likely lower because he had not reoffended since his conviction.

         The circuit court held hearings in September of 2018 and November of 2018 regarding disposition. During those hearings, the incident report for petitioner's sexual offense, including the victim's statement, was introduced into evidence. According to the victim's statement, petitioner brought her to his home and then locked the door. The victim stated that petitioner removed her shorts once, and she pulled them back up. Petitioner removed her shorts again, and the victim stated that she "kept saying no and then he licked me." The victim stated that she did not remember him doing anything like this before, except that he asked her and a friend to show him their breasts on one occasion and they declined. Petitioner's psychosexual evaluator testified that she was not provided the victim's statement prior to her evaluation, but that her opinion of petitioner's risk for sexual re-offense was unaffected by the differences in the narratives. The evaluator agreed that petitioner's narrative of his actions, which included multiple sexual incidents with the victim prior to his conviction, constituted a "grooming" of the victim "and finally got her to a point where he could engage in oral sex with her." The circuit court found that petitioner's safety plan, which involved supervision by the mother, was no longer viable due to the mother's relinquishment of parental rights.

         The circuit court also heard evidence regarding an injury that S.F. suffered while in petitioner's care around August of 2018. At that time, petitioner was exercising overnight visitation with S.F. when her elbow was injured. According to the staff members of her daycare, petitioner called the daycare following the incident and explained that S.F. had injured her elbow, but that she was just "milking" the injury and was fine. The staff member explained to petitioner that she would follow up with a call to him later, but petitioner did not answer her call and did not respond until the end of the day. S.F.'s therapist testified that S.F. believed petitioner was angry when he caused the injury because she was jumping on the bed. S.F. told her therapist that she did not want to see petitioner any more after the injury. Petitioner testified that the injury was accidental, caused when the child slid off the bed while he tried to ready her for sleep. Petitioner admitted that he did not answer the call from the daycare. The circuit court found that petitioner caused the injury to S.F. resulting in an injury to her elbow and failed to take reasonable measures to seek treatment. Further, the circuit court found that petitioner failed to protect S.F. by not timely responding to the daycare's call regarding her need for treatment.

         Three witnesses testified regarding S.F.'s bond with petitioner. S.F.'s therapist testified that she did not believe that the child was bonded to petitioner, but that she could see a bond between the child and her foster parents. Petitioner's therapist and the visitation supervisor both testified that S.F. was bonded with petitioner, but the circuit court found that their testimony was "colored by sympathy" for petitioner. The visitation supervisor testified that petitioner continued to blame the DHHR for "the continued separation between him and his daughter" and blamed the mother for the safety concerns in the home at the time of the removal. According to the visitation supervisor, petitioner accepted responsibility for his prior sexual offense only. Petitioner's therapist also testified that he would need six months to one year of additional therapy and agreed that immediate reunification without additional support would not be in the child's best interests. Additionally, both service providers testified that they did not address petitioner's prior sexual offense due to his purported low risk to reoffend.

         The circuit court held a final dispositional hearing in December of 2018. Petitioner did not appear, but was represented by counsel. The circuit court determined that S.F. would be unsafe in petitioner's home because she was too young to be able to distinguish between normal parenting behavior and grooming behavior. The circuit court concluded that the child's interests would not be promoted by preserving the family. Further, the circuit court found that petitioner's testimony lacked credibility and that he failed to accept responsibility for his actions. Based on those findings, the circuit court concluded that there was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future and terminated petitioner's parental rights. The circuit court's decision was memorialized by its December 20, 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 ...

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