                                  STATE OF WEST VIRGINIA

                                SUPREME COURT OF APPEALS


                                                                                    FILED
In Re: B.C., H.C., and K.C.                                                       November 26, 2013
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
No. 13-0547 (Kanawha County 12-JA-185 through 12-JA-187)                         OF WEST VIRGINIA




                                   MEMORANDUM DECISION

         Petitioner Father, by counsel Clinton Smith, appeals the Circuit Court of Kanawha
County’s April 25, 2013 order adjudicating the children as abused and neglected. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Michael Jackson,
filed its response in support of the circuit court’s order. The guardian ad litem, W. Jesse Forbes,
filed a response on behalf of the children also supporting the circuit court’s order. On appeal,
Petitioner Father alleges the circuit court erred in terminating his parental rights because the
State failed to prove that the children were abused and neglected by clear and convincing
evidence.

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

        In August of 2012, the DHHR filed its initial petition to institute abuse and neglect
proceedings against Petitioner Father. The petition alleged that he sexually abused K.C. for
several years and failed to provide the children with the necessary food, clothing, supervision,
and housing. Prior to the preliminary hearing, a forensic interview was conducted with K.C.
During the preliminary hearing, the circuit court heard testimony from Cynthia Waddell and
Detective Don Scurlock. Ms. Waddell, a forensic interviewer for “Just For Kids,” testified that
K.C. disclosed that Petitioner Father had penetrated her vagina and anus with his middle finger
and his penis. Ms. Waddell also testified that K.C. disclosed oral penetration.

        In December of 2012, the circuit court held an adjudicatory hearing where it incorporated
the testimony from the preliminary hearing. The circuit court heard additional testimony from
Dr. Joan Phillips and Petitioner Father. Dr. Phillips, co-medical director of the Child Advocacy
Center, testified that while K.C.’s physical exam was normal, ninety-five percent of children
who have been victimized by sexual abuse do not exhibit any physical symptoms of sexual
abuse.1 Petitioner Father testified that while attempting to put K.C. to sleep, he discovered a

       1
           Dr. Phillips performed the forensic physical evaluation of K.C. on June 22, 2012
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“water wart” near his daughter’s waistline. Upon his initial discovery he proceeding to visually
and physically inspect K.C.’s body for additional “water warts.” Specifically, Petitioner Father
testified that he felt “the crevices in between her butt,” and “alongside [her] vagina, along the
inner side of her thighs . . . .” Petitioner Father also testified that the remaining allegations of
sexual abuse never happened. At the conclusion of the hearing, the circuit court found that the
children were neglected due to Petitioner Father’s refusal, failure, or inability to supply the
children with the necessary food, clothing, shelter, supervision, medical care, or education.
Additionally, the circuit court found that the children were abused due to Petitioner Father’s
sexual abuse or sexual exploitation.

        In February of 2013, the circuit court held a dispositional hearing and terminated
Petitioner Father’s parental rights. The circuit court found that Petitioner Father failed to
acknowledge the conditions that led to the filing of the petition and did not respond to or follow
through with a reasonable family case plan or other rehabilitative efforts. It is from the
adjudicatory and dispositional order that Petitioner Father appeals.

       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).

        Petitioner argues that the circuit court erred in finding that clear and convincing evidence
existed to support the findings of abuse and neglect and, thus, the termination of his parental
rights was improper. We have previously held that

       “W.Va.Code[§] 49–6–2(c) [1980], requires the State Department of Welfare [now
       the Department of Health and Human Resources], in a child abuse or neglect case,
       to prove ‘conditions existing at the time of the filing of the petition . . . by clear
       and convincing proof.’ The statute, however, does not specify any particular
       manner or mode of testimony or evidence by which the State Department of


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       Welfare is obligated to meet this burden.” Syllabus Point 1, In Interest of S.C.,
       168 W.Va. 366, 284 S.E.2d 867 (1981).

Syl. Pt. 3, In re Randy H., 220 W.Va. 122, 640 S.E.2d 185 (2006).

        We disagree with Petitioner Father’s argument that the evidence below was
“uncorroborated” and “inconsistent.” The circuit court heard evidence that K.C. disclosed
specific and detailed instances of sexual abuse during her forensic interview and that the
interviewer considered her disclosures reliable. Additionally, the circuit court heard testimony
from Dr. Phillips that while the results of K.C.’s forensic exam were normal, ninety-five percent
of children who have been victimized by sexual abuse do not exhibit any physical symptoms of
sexual abuse.

       We have previously held that “[a] reviewing court cannot assess witness credibility
through a record. The trier of fact is uniquely situated to make such determinations and this
Court is not in a position to, and will not, second guess such determinations.” Michael D.C. v.
Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997). As such, we note that the circuit
court was in the best position to weigh witness credibility, and we find no error in the findings of
abuse and neglect to the children in this case.

        Furthermore, the Court finds no error in the termination of Petitioner Father’s parental
rights. The record shows that Petitioner Father failed to acknowledge the underlying conditions
of abuse or neglect. We have previously held that

       [i]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. Failure 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 Timber M., 231 W.Va. 44, --, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)). Because Petitioner Father failed to admit the truth
of the basic allegations of abuse and neglect and there were no services available to address the
sexual abuse, the problem was untreatable and the circuit court did not err in proceeding to
termination. Based upon the evidence above, the circuit court was presented with sufficient
evidence upon which it could have found 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 parental rights upon such findings.

       West Virginia Code § 49-6-5(a)(7)(A) provides that the DHHR is not required to make
reasonable efforts to preserve the family if any of the children in the home have been subjected to
sexual abuse. We also bear in mind the following: “‘Although parents have substantial rights that

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must be protected, the primary goal in cases involving abuse and neglect, as in all family law
matters, must be the health and welfare of the children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79,
479 S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013). The
record reflects that the circuit court had substantial basis for adjudicating Petitioner Father as an
abusive parent after finding that he sexually abused K.C.

       For the foregoing reasons, we find no error in the decision of the circuit court and its April
25, 2013 order and termination of Petitioner Father’s parental rights is hereby affirmed.


                                                                                          Affirmed.

ISSUED: November 26, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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