                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                   FILED
In Re: A.S.                                                                     February 9, 2015
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
No. 14-0999 (Nicholas County 14-JA-53)                                          OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner, by counsel John Anderson II, appeals the Circuit Court of Nicholas County’s
September 5, 2014, order terminating her parental rights to her thirteen-month-old son, A.S. The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans,
filed its response in support of the circuit court’s order. The guardian ad litem (“guardian”),
Linda Garrett, filed a response on behalf of the child that also supports the circuit court’s order.
On appeal, petitioner argues that the circuit court erred in terminating her parental rights.1

        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.

        On April 11, 2014, the DHHR filed an abuse and neglect petition alleging that
petitioner’s boyfriend sexually abused his daughters and that petitioner failed to protect these
children from the sexual abuse.2 The circuit court held an adjudicatory hearing on June 19, 2014,
during which a Child Protective Services worker testified that petitioner witnessed her boyfriend
sexually abuse his daughters and failed to prevent the abuse. Based on this evidence, the circuit
court adjudicated petitioner as an abusive and neglectful parent and adjudicated A.S. as an
abused and neglected child.



       1
        We caution petitioner’s counsel that his brief does not comport with Rule 10(c)(7) of the
West Virginia Rules of Appellate Procedure as it contains no citations to either case or statutory
authority. We note also that Rule 10(j) provides for the imposition of sanctions where a party’s
brief does not comport with the rules, including “the Supreme Court refusing to consider the
case, denying oral argument to the derelict party, dismissing the case from the docket, or
imposing such other sanctions as the Court may deem appropriate.”
       2
         Petitioner’s boyfriend voluntarily relinquished his parental rights to his daughters.
Petitioner does not have any parental rights to her boyfriend’s daughters. Therefore, this
memorandum decision only concerns the termination of petitioner’s parental rights to A.S.

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        On July 23, 2014, the circuit court held a dispositional hearing and found aggravated
circumstances existed because petitioner knowingly allowed her boyfriend to sexually abuse his
daughters. As a result, the circuit court terminated petitioner’s parental rights to A.S. It is from
this order that petitioner now appeals.

       This Court has established the following standard of review in such cases:

               “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 first argues that the
circuit court erred in finding that the presumption of psychological harm outweighed the
necessity of the children’s testimony. Rule 8(a) of the West Virginia Rules of Child Abuse and
Neglect Proceedings provides that “there shall be a rebuttable presumption that the potential
psychological harm to the child outweighs the necessity of the child’s testimony and the court
shall exclude this testimony if the potential psychological harm to the child outweighs the
necessity of the child's testimony.” A psychologist testified that it would be “damaging” to
require the children to testify and should be avoided. Further, petitioner failed to offer any
evidence that the children’s testimony outweighed the potential psychological harm. Therefore,
the circuit court did not abuse its discretion by not allowing the children to testify.

       Petitioner further argues that she did not allow her boyfriend to sexually abuse his
daughters. We have previously held that

               “W.Va.Code, 49–6–2(c) [1980], requires the State Department of Welfare
       [now the Department of Human Services], 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 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. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (internal citations omitted).

       Additionally, this Court has held that

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              [w]here there is clear and convincing evidence that a child has suffered
       physical and/or sexual abuse while in the custody of his or her parent(s),
       guardian, or custodian, another child residing in the home when the abuse took
       place who is not a direct victim of the physical and/or sexual abuse but is at risk
       of being abused is an abused child under W. Va. Code, [§] 49-1-3(a) (1994).

Syl. Pt. 2, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995). Our review of the record
reflects that petitioner witnessed her boyfriend sexually abuse his daughters and that she failed to
prevent or stop the abuse. While there is no evidence that petitioner’s child, A.S., was sexually
abused, the circuit court adjudicated him as an abused child because A.S. was in petitioner’s
home during the sexual abuse and was at risk of being abused.

        Despite her assertion of ignorance as to the sexual abuse of her boyfriend’s daughters,
petitioner failed to testify during the proceedings below. We have previously held that

              “[b]ecause the purpose of an abuse and neglect proceeding is remedial,
       where the parent or guardian fails to respond to probative evidence offered against
       him/her during the course of an abuse and neglect proceeding, a lower court may
       properly consider that individual’s silence as affirmative evidence of that
       individual’s culpability.” Syl. pt. 2, West Virginia Dept. of Health and Human
       Resources ex rel. Wright v. Doris S., 197 W.Va. 489, 475 S.E.2d 865 (1996).

Syl. Pt. 3, In re Marley M., 231 W.Va. 534, 745 S.E.2d 572 (2013). It is clear from our review of
the record, that the circuit court properly considered petitioner’s silence as evidence of her
culpability. As such, we find that the circuit court was presented with sufficient evidence that
petitioner allowed her boyfriend to sexually abuse his daughters and that she failed to prevent the
abuse.

        Lastly, petitioner argues that the circuit court erred in terminating her parental rights.
West Virginia Code § 49-6-5(a)(7)(A) states, in relevant part, that “the [DHHR] is not required
to make reasonable efforts to preserve the family if the court determines . . . [t]he parent has
subjected the child, another child . . . to aggravated circumstances which include, but are not
limited to . . . sexual abuse.” This Court has held that “‘courts are not required to exhaust every
speculative possibility of parental improvement . . . where it appears that the welfare of the child
will be seriously threatened . . . .’ Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114
(1980).” Syl. Pt. 4, in part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Moreover, this
Court has stated:

       “in 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.” West Virginia Dept. of Health and Human Resources v. Doris S., 197
       W.Va. 489, 498, 475 S.E.2d 865, 874 (1996)

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In re Kaitlyn P., 225 W.Va. 123, 126, 690 S.E.2d 131, 134 (2010). In the case at bar, we find that
the circuit court was presented with sufficient evidence upon which it could have found that
aggravated circumstances existed which called for the termination of petitioner’s parental rights.

       For the foregoing reasons, we affirm.


                                                                                        Affirmed.

ISSUED: February 9, 2015

CONCURRED IN BY:

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




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