Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re A.M.

Supreme Court of West Virginia

June 12, 2019

In re A.M.

          Randolph County 2018-JA-109

          MEMORANDUM DECISION

         Petitioner Father J.M., by counsel J. Brent Easton, appeals the Circuit Court of Randolph County's December 12, 2018, order terminating his parental rights to A.M.[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"), Melissa T. Roman, filed a response on behalf of the child also in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in adjudicating him as an abusing parent based upon insufficient evidence and terminating his parental rights.

         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.

         The DHHR filed a child abuse and neglect petition against petitioner and the mother in September of 2018. According to the DHHR, the mother called 9-1-1 to report sexual abuse perpetrated by petitioner against their child. The mother reported that petitioner helped the child out of the bathtub and accompanied her into the bedroom to assist her in getting ready for bed. After an "awkward silence," the mother entered the room and observed petitioner thrusting his erect penis over the child, who was clothed only in a diaper. The mother took the child to the hospital for evaluation, but subsequently retracted her statements and returned to the family home after leaving the hospital. The child remained with DHHR personnel at that time.

         An amended petition was subsequently filed in October of 2018. The amended petition added allegations that on the night of the incident, petitioner confessed that his penis became a "little erect" while playing with the child and "popped out" of his boxers at the same time the mother walked into the room. According to petitioner, this was not the first time he had an erection while playing with the child and further stated "this is not a big deal, and he can't control it." Approximately two weeks later, petitioner again admitted to "bouncing [the child] on the bed while humping her diaper, leg, and the comforter on the bed with an erect penis." Petitioner was arrested following his confession.

         At an adjudicatory hearing held in November of 2018, recordings of petitioner's confession and the mother's call to 9-1-1 were played in open court, and the DHHR presented the testimony of several witnesses, including the 9-1-1 operator, a law enforcement officer, a Child Protective Services ("CPS") worker, and the mother. The recording of the 9-1-1 call established that the mother reported observing petitioner "humping [the child] through her diaper." The mother also reported that, upon seeing her, he "got off [the child] and his [penis] was hard." The mother reported to the 9-1-1 operator that petitioner had tried to minimize the situation, but she stated "I didn't want [petitioner] to tell me I didn't see what I saw. I swear to God I can show you what I saw." Testimony established that, on the night of the incident, petitioner conceded to having an erection while playing with the child, but stated that the conduct was "not intentional" and further stated that the mother had overreacted in reporting abuse. However, the recording of petitioner's confession[2] established that he later confessed to sexually abusing the child. As heard by the recording, petitioner reported that, upon bouncing the child on the bed, "I was getting into the motion a little bit" and "humping something, the blanket[, ] her leg, her diaper. It could have been all three of them." Petitioner also confessed to touching the child's leg and/or diaper with his erect penis. The testimony of the police officer corroborated the recording of the confession. After hearing evidence, the circuit court found that petitioner engaged in inappropriate sexual contact with the child and adjudicated him as an abusing parent.

         Later in November of 2018, the circuit court held a dispositional hearing wherein the DHHR moved the court to take judicial notice of the testimony presented at the adjudicatory hearing, which it granted without objection. After hearing argument, the circuit court found that there was no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near future and that termination was necessary for the child's welfare, and, accordingly, terminated his parental rights. It is from the December 12, 2018, dispositional order that petitioner appeals.[3]

         The Court has previously established the following standard of review in cases such as this:

"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).

         On appeal, petitioner argues that the circuit court erred in adjudicating him as an abusing parent based upon insufficient evidence that he sexually abused the child. According to petitioner, the evidence presented to the circuit court was conflicting at best. Petitioner argues that the mother's testimony established that she fabricated the story and further notes that she was described as having a "histrionic personality disorder" in her psychological evaluation report, which causes her to "assume the worst in situations and incorrectly ascribe the worst motives to others." Further, his confession, while incriminating, was suggested by the interviewer rather than "spontaneously provided" by petitioner. We find petitioner's arguments to be without merit.

         We have previously noted as follows:

At the conclusion of the adjudicatory hearing, the 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. . . . The findings must be based upon conditions existing at the time of the filing of the petition and proven by clear and convincing evidence.

In re F.S., 233 W.Va. 538, 544, 759 S.E.2d 769, 775 (2014). This Court has explained that "'clear and convincing' is the measure or degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the allegations sought to be established." Id. at 546, 759 S.E.2d at 777 (citing Brown v. Gobble, 196 W.Va. 559, 564, 474 S.E.2d 489, 494 (1996)). However, "the clear and convincing standard is 'intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases.'" Id. at 546, 759 S.E.2d at 777 (quoting Cramer v. W.Va. Dep't of Highways, 180 W.Va. 97, 99 n.1, 375 S.E.2d 568, 570 n.1 (1988)). Pursuant ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.