                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS                                FILED
                                                                               March 15, 2019
                                                                              EDYTHE NASH GAISER, CLERK
In re G.A., R.A.-1, and L.A.                                                  SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

No. 18-0899 (Hampshire County 17-JA-84, 17-JA-86, and 17-JA-87)


                               MEMORANDUM DECISION
        Petitioner Father R.A.-2, by counsel Jeremy B. Cooper, appeals the Circuit Court of
Hampshire County’s July 31, 2018, order terminating his parental rights to G.A., R.A.-1, and
L.A.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”), Marla Zelene Harman, filed a response on behalf of the children in support of the
circuit court’s order. Petitioner filed a reply brief. On appeal, petitioner argues that the circuit
court based his adjudication as an abusing parent and the termination of his parental rights on
insufficient evidence and that his trial counsel was ineffective.

        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 November of 2017, the DHHR filed a petition alleging that petitioner sexually abused
G.A. The DHHR alleged that petitioner’s wife, A.C., knew of the abuse, but failed to report it to
the police or the DHHR. According to the DHHR, petitioner continued to have consistent contact
with G.A. following the incident of sexual abuse.2 Petitioner waived his preliminary hearing.



       1
          Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.
Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419
(2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles
L., 183 W. Va. 641, 398 S.E.2d 123 (1990). Additionally, as a child and petitioner share the same
initials, we refer to them as R.A.-1 and R.A.-2, respectively, throughout this memorandum
decision.
       2
         G.A.’s biological mother is petitioner’s ex-wife, J.A. According to the record, G.A. did
not live with petitioner, but was regularly brought to his home during visits with J.A.



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        The circuit court held three adjudicatory hearings in January, March, and April of 2018.
The forensic interview of G.A. was admitted into evidence without objection. The circuit court
found that the forensic interview of G.A. was reliable, credible, and probative as to the question
of whether petitioner sexually abused the child. In the interview, G.A. stated that she first
disclosed to her friend that someone touched her inappropriately. G.A. described a time that
petitioner tickled her to the point that she urinated on herself and then he took her inside to
change her clothes. G.A. was asked where petitioner touched her and she responded by circling
the vagina on an anatomically correct female drawing. The interviewer asked G.A. what she was
touched with and she circled the penis on a male drawing. The circuit court found that G.A.
stated that “she felt horrible, she felt sick, and she told [petitioner] to stop[.]” When the
interviewer asked what made it stop, the child stated that A.C. “walked in and ‘caught him.’”
The circuit court noted that the child indicated she told her mother, J.A., but “[J.A.] didn’t say
anything about it.” The circuit court further noted that the child “had a difficult time discussing
what happened to her in the Child First Interview and broke out in a rash and/or hives during the
process.” G.A. was subjected to a second forensic interview. However, in that interview, she
refused to repeat her disclosures and stated multiple times that she did not want to talk about the
events.

       All of the minor children were examined for signs of sexual abuse and three forensic
examiners testified regarding various abnormalities of the children’s genitalia. The examiners
explained that the abnormalities could have been naturally occurring or the result of sexual
abuse. Although these examinations were essentially inconclusive, the circuit court found that
the examiners indicated that “some red flags were evident[.]”

       According to the circuit court’s findings, A.C. testified that, during the “bathroom
incident,” she noted petitioner and the child were gone for a long time and she became
concerned. She yelled for petitioner, but heard no response. Eventually, she went into the
bathroom. The circuit court found that A.C. next testified that she,

       observed the minor child, G.A., sitting on the toilet completely naked; that her
       arms were around [petitioner]; that [petitioner] was crouched down in . . . front of
       the child; that he had one arm around the child; that his other hand was in . . .
       front of him, but his hand was not visible to her[.]

        A.C. asked petitioner what he was doing and he stated that he was giving the child a hug.
A.C. testified that petitioner “looked as if he had seen a ghost, like he jumped out of his skin”
and that G.A. looked terrified. Following that incident, A.C. and J.A. agreed not to allow
petitioner around the children alone. During his testimony, petitioner denied the allegations of
sexual abuse and asserted that the “bathroom incident was a misunderstanding.” Petitioner
explained that he was hugging the child because she was distraught. The circuit court found that
petitioner’s explanation was “incredulous.”

        Ultimately, the circuit court found that G.A.’s “disclosure of sexual abuse was credible
and consistent with the observations of . . . [A.C.], which were to a degree corroborated with
[J.A.]” The circuit court further found that none of the parents “could articulate a reason as to
why [G.A.] would in any way fabricate any allegations of sexual abuse” and that there was “no

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indication or evidence” that she was coached to make the disclosures. The circuit court
concluded that petitioner sexually abused G.A. and that petitioner was an abusing parent.

         In July of 2018, the circuit court held the final dispositional hearing. The DHHR
presented evidence to support the termination of petitioner’s parental rights. Petitioner did not
testify, but, through counsel, continued to deny the allegations of sexual abuse. The circuit court
found that petitioner took no responsibility for his actions and that there was no reasonable
likelihood that the behaviors warranting the removal of the children from petitioner’s home
could be corrected. Accordingly, the circuit court terminated petitioner’s parental rights by its
July 31, 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 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, this Court
finds no error in the proceedings below.

        On appeal, petitioner first argues that there was insufficient evidence to find that he
sexually abused G.A. and, therefore, the circuit court clearly erred in adjudicating him as an
abusing parent and terminating his parental rights. Petitioner asserts that G.A.’s forensic
interview lacked detail regarding the sexual abuse and her disclosures were limited to undefined
touching. Further, petitioner asserts that the circuit court placed undue weight on the testimony
of the respondent mothers considering those witnesses did not see petitioner in a state of undress
when he purportedly vaginally penetrated G.A. Finally, petitioner avers that the physical forensic
evaluations were inconclusive and no expert opinion of abuse was rendered.4 However, we do
not find the circuit court’s findings that G.A. was sexually abused to be clearly erroneous.
       3
         The children’s respective mothers’ parental rights were also terminated. According to
the parties, the permanency plan for the children is adoption in their current foster placement.
       4
        In an attempt to discredit those facts, petitioner also argues that he has not been indicted
on any charges related to the facts of this case. We do not find petitioner’s argument persuasive.

                                                                                   (continued . . . )
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               “[West Virginia Code § 49-4-601(i)], requires the [DHHR], in a child
       abuse or neglect case, to prove ‘conditions existing at the time of the filing of the
       petition . . . by clear and convincing [evidence].’ The statute, however, does not
       specify any particular manner or mode of testimony or evidence by which the
       [DHHR] 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) (citations omitted). Further,
“[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) (citations omitted).

        The circuit court’s finding that G.A. was sexually abused was supported by clear and
convincing evidence. G.A.’s disclosure during her forensic interview was found to be credible by
the circuit court. This disclosure, that petitioner touched her vagina with his penis, is consistent
with a finding of sexual abuse. Further, the events surrounding the purported sexual abuse were
corroborated by A.C. Although petitioner argues that he was not found undressed or caught in
the midst of abusing G.A., A.C. described petitioner’s frightened reaction, “like he jumped out of
his skin,” and recounts that G.A. looked terrified. A.C. testified that she was so startled by the
event that she decided not to allow petitioner to be alone with the children. Moreover, the circuit
court found there was no evidence to suggest G.A. was coached or otherwise motived into
making the disclosure. Based on this evidence, we find that the circuit court’s finding of sexual
abuse was supported by clear and convincing evidence and not clearly erroneous.

         This evidence also supports the circuit court’s termination of petitioner’s parental rights.
West Virginia Code § 49-4-604(b)(6) provides, in relevant part, that circuit courts are to
terminate parental rights upon findings that there is “no reasonable likelihood that the conditions
of neglect or abuse can be substantially corrected in the near future” and that termination is
necessary for the child’s welfare. West Virginia Code § 49-4-604(c)(5) provides, in relevant part,
that a situation in which there is no reasonable likelihood the conditions of abuse and neglect can
be substantially corrected includes one in which the abusing parent “[has] sexually abused or
sexually exploited the child, and the degree of family stress and the potential for further abuse
and neglect are so great as to preclude the use of resources to mitigate or resolve family
problems.” The circuit court found that petitioner sexually abused G.A. and, therefore, properly
found that there was no reasonable likelihood that the conditions of abuse and neglect could be
substantially corrected in the near future. The children’s welfare would be continually threatened
by further abuse while in petitioner’s care. Accordingly, termination was necessary for the

Rule 5 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings
provides “[u]nder no circumstances shall a civil child abuse and neglect [proceeding] be delayed
pending the initiation, investigation, prosecution, or resolution of any other proceeding,
including, but not limited to, criminal proceedings.” Therefore, there is no error in proceeding on
the underlying petition in advance of any potential criminal charges.



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child’s welfare. Thus, we find the circuit court did not err in terminating petitioner’s parental
rights.

        Finally, petitioner argues that his counsel was ineffective in that he failed to obtain an
independent expert to review and render an opinion on the forensic physical examinations of the
children. However, this Court has never recognized a claim of ineffective assistance of counsel
in an abuse and neglect proceeding and we decline to do so here.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 31, 2018, order is hereby affirmed.

                                                                                        Affirmed.

ISSUED: March 15, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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