                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS

                                                                                  FILED
In Re: T.S., T.R., and C.R.                                                       April 19, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
No. 12-1280 (Braxton County 12-JA-1, 2 and 3)                                  OF WEST VIRGINIA




                                MEMORANDUM DECISION

       Petitioner Father filed this appeal, by counsel Daniel Grindo, from the Circuit Court of
Braxton County which terminated his custodial rights by order entered on October 15, 2012. The
guardian ad litem for the children, David Karickhoff, has filed a response supporting the circuit
court’s order. The Department of Health and Human Resources (“DHHR”), by its attorney
Michael L. Jackson, also filed a response in support of the circuit court’s order.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        This family was involved in a prior abuse and neglect case in 2003. In that case, the
petition alleged that the parents failed to protect their children from sexual abuse by two other
individuals, one of them being the children’s uncle. The circuit court eventually ordered
reunification of the parents with two of the children. The third child, T.S., was separately placed
with his biological father. In February of 2012, the DHHR filed the petition that initiated the
instant abuse and neglect case. This petition alleged that the parents failed to protect their
children by permitting T.R. and C.R. to spend weekends with the uncle who previously sexually
abused T.S. Both parents admitted to allowing the children in their uncle’s care after the uncle
had admitted to sexual abuse. The parents thereafter underwent psychological evaluations and,
ultimately, the circuit court terminated both parents’ custodial rights to the children. Petitioner
Father appeals this order.

        Petitioner Father argues two assignments of error. First, he argues that the circuit court
erred by improperly terminating his custodial rights based on finding that he had an inability to
parent due to cognitive ability. He argues that the circuit court incorrectly relied on his
psychologist’s opinions. The children’s guardian ad litem and the DHHR both argue in support
of the circuit court’s termination order. They argue that West Virginia Code § 49-6-5(b)(6)
directs terminating custodial rights when a parent has a mental deficiency that renders him or her
incapable of exercising proper parenting skills or incapable of sufficiently improving the
adequacy of these skills. They argue that here the parents exhibited poor judgment by permitting
their children to stay overnight with their uncle, a registered sex offender.


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       Petitioner Father also argues that the circuit court erred in refusing to hear exculpatory
evidence that the underlying petition was based on a false allegation. The children’s guardian ad
litem and the DHHR contend that the circuit court did not err in terminating Petitioner Father’s
custodial rights, or in its procedural conduct of this case. They assert that throughout the case,
nothing changed the fact that the children’s uncle was a registered sex offender and yet, the
parents allowed the children to spend unsupervised time with him.

       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, the Court finds no clear error with the circuit court’s findings of fact in
its determination to terminate Petitioner Father’s custodial rights to the subject children. A
review of the transcript for the dispositional hearing reflects that the parents’ psychologist
testified that she did not think services would be helpful to Petitioner Father. Our review
indicates that the circuit court was presented with sufficient evidence upon which it based
findings that there was no reasonable likelihood to believe that conditions of abuse and neglect
could be substantially corrected in the near future, and that termination was necessary for the
children’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to
terminate custodial rights upon such findings.


       For the foregoing reasons, we affirm the circuit court’s order terminating petitioner’s
custodial rights to the subject children.


                                                                                          Affirmed.




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ISSUED: April 19, 2013

CONCURRED IN BY:

Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Brent D. Benjamin




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Benjamin, Chief Justice, dissenting:


                I dissent on procedural grounds from the majority decision in this matter that
affirmed the termination of the custodial rights of a mother and father to their two children, T.R.
and C.R., and to a third child who is the son of the petitioner mother and the stepchild of the
petitioner father. The parents of these children were entitled to a hearing under our Rules of
Procedure for Child Abuse and Neglect (hereinafter “Rules”) prior to the termination of their
custodial rights.

                The long history of the present case has its start in 2003, when the petitioner
parents were named in a prior abuse and neglect proceeding regarding these children. At the
time of the filing of the first petition, the petitioners were accused of failing to protect their
children from sexual abuse at the hands of two people, one of whom was the children’s uncle.
The children’s uncle was convicted of sexually abusing T.S. The 2003 proceeding culminated in
the reunification of T.R. and C.R. with their parents. T.S. was placed in the custody of his
biological father.

                The present abuse and neglect proceeding is again related to the failure of the
petitioner parents to protect their children from sexual abuse. In February, 2012, the Department
of Health and Human Resources averred in a new petition that T.R. and C.R. were being allowed
to spend weekends with the very uncle who was convicted in 2003 of sexually abusing their
sibling T.S. The petitioners admitted that the children were allowed to stay overnight with their
uncle, and the children were adjudicated abused and/or neglected because of this. After a
dispositional hearing was held, but prior to the court’s ruling on the disposition of this matter, the
petitioner mother and petitioner father each moved to set aside the adjudication and disposition
based upon the assertion that there was exculpatory evidence in the hands of the State that would
prove that the children’s uncle did not engage in sexual abuse of T.S. Without having a hearing
on that motion, the court entered a dispositional order which terminated the petitioners’ custodial
rights to the children.

              Rule 46 of the Rules of Procedure for Abuse and Neglect addresses the
modification or supplementation of an abuse and neglect order. The rule states, in applicable
part, that

               A child, a child’s parent (whose parental rights have not been
               terminated). . . shall file a motion in the circuit court of original
               jurisdiction in order to modify or supplement an order of the court
               at any time. . .The court shall conduct a hearing and, upon a
               showing of a material change of circumstances, may modify or
               supplement the order. . .




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                The court should have held a hearing on the motions filed by the petitioners
seeking to utilize this exculpatory evidence about the underlying sexual abuse allegations on the
part the children’s uncle. The court erred by summarily denying these motions, without giving
the parents the opportunity to be heard. I would reverse the order, and remand this case to the
Circuit Court of Braxton County for a hearing on the motions for exculpatory evidence filed by
the petitioner parents.




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