                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS

                                                                                            FILED
In re I.B., J.B., R.M., and A.J.                                                         June 11, 2018
                                                                                       EDYTHE NASH GAISER, CLERK
                                                                                       SUPREME COURT OF APPEALS
No. 18-0114 (Jefferson County 17-JA-11, 12, 33, and 34)                                    OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Father D.B., by counsel Christian J. Riddell, appeals the Circuit Court of
Jefferson County’s January 9, 2018, order terminating his parental rights to I.B., J.B., R.M., and
A.J.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 and a supplemental
appendix. The guardian ad litem (“guardian”), Jared Adams, filed a response on behalf of the
children 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 and in failing to exclude the recorded
interview of a minor victim that had not been disclosed during discovery.2

        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 June of 2017, a law enforcement officer filed a child abuse and neglect petition against
petitioner, alleging that the children I.B. and J.B. were at risk of abuse based upon petitioner’s
sexual abuse of four minor girls. Specifically, the officer’s investigation revealed that four of
J.B.’s friends reported being sexually abused by petitioner throughout 2015 and 2016 when
spending the night at petitioner’s home. Each of the child victims reported that petitioner would
wait until they fell asleep and then touch their vaginas. The DHHR filed an amended petition in
October of 2017, adopting the allegations contained in the original petition and adding two more
of petitioner’s children, R.M. and A.J., who were previously unknown to the DHHR.

     The circuit court held two adjudicatory hearings throughout October of 2017 and
November of 2017. The recorded interviews of the child victims conducted at the local
                                                            
              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).
              2
                  Petitioner raises no specific assignment of error regarding the termination of his parental
rights.
                                                                   1

 
Children’s Advocacy Center (“CAC”) were viewed in open court and admitted into evidence.
The CAC interview of one of the child victims had not been disclosed to petitioner during the
discovery process, but the child victim’s allegations were contained in the petition. Petitioner
moved the circuit court to exclude the undisclosed interview and said motion was denied.
However, the circuit court did grant petitioner the opportunity to reopen the adjudicatory
evidence after he fully reviewed the recorded interview at his leisure following the October of
2017 hearing.

        Petitioner presented the testimony of several witnesses, all of whom testified that they
had no knowledge of petitioner having sexually abused children. Petitioner also testified and
denied sexually abusing the children. Petitioner suggested that the children made up the
allegations of abuse because he recently told them they would not be permitted to stay overnight
anymore if they continued to misbehave. After hearing evidence, the circuit court adjudicated
petitioner as an abusing parent based upon sexual abuse of the four child victims. Specifically,
the circuit court found that petitioner rubbed the vaginal area of one child and tried to put his
penis in her mouth, put his hands underneath the clothing of three of the children to feel their
vaginal areas, and digitally penetrated one of the children’s vagina. Further, the circuit court
found that the child victims were “prepubescent and their description of the touching was
consistent with their developmental age.” Finally, because petitioner sexually abused four
children while they were in his home, the circuit court found that petitioner abused I.B. and J.B.
Petitioner was adjudicated as having abandoned R.M. and A.J.

        In January of 2018, the circuit court held a dispositional hearing wherein petitioner did
not contest the termination of his parental rights, but argued that he had been wrongfully
adjudicated and advised that he intended to appeal his adjudication. The circuit court
incorporated its previous findings into its dispositional order, in which it also found that there
was no reasonable likelihood that petitioner could correct the conditions of abuse in the near
future and that termination was necessary for the children’s welfare. It is from the January 9,
2018, dispositional order that petitioner appeals.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

                                                            
              3
         C.W., the mother of I.B. and J.B., is currently participating in an improvement period.
The permanency plan for the children is to remain in her care should she successfully complete
the permanency plan. The concurrent permanency plan is adoption by a relative. W.M., R.M.’s
mother, is a non-abusing parent and the permanency plan for R.M. is to remain in her mother’s
care. J.J., A.J.’s mother, is a non-abusing parent and the permanency plan for A.J. is to remain in
her mother’s care.
                                                               2

 
              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 allegations of sexual abuse against the great weight of the evidence.4
Petitioner argues that the only evidence of sexual abuse comes from the CAC interviews of the
four children, with no other corroboration. Petitioner asserts that the children’s statements are
rehearsed and too similar to be genuine. As a specific example, petitioner states that none of the
children could provide a satisfactory answer to questions about sensory information. Moreover,
petitioner alleges that the children’s allegations that he entered J.B.’s bedrooms to abuse the
children “every five minutes” were particularly unbelievable, especially in light of the fact that
both C.W. and J.B. were extremely light sleepers and would have awoken had he repeatedly
gone in and out of the bedrooms.

       However, we find petitioner’s argument 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. and Z.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)). Additionally,

                      [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) [now W.Va. Code
              § 49-1-201].

                                                            
              4
         Regarding two of his children, petitioner was adjudicated as an abusing parent based
upon abandonment. However, on appeal, petitioner only addresses his adjudication based upon
allegations of sexual abuse. As such, we will not address the circuit court’s adjudication of
petitioner based upon abandonment.
                                                               3

 
Syl. Pt. 2, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).

        While petitioner argues that the circuit court erred in adjudicating him as an abusing
parent “against the full weight of the evidence,” a review of the record reveals that sufficient
evidence existed upon which to find that petitioner sexually abused the four child victims while
they were in his custody. The DHHR presented the CAC interviews of the four child victims in
which each described the abuse perpetrated by petitioner. Petitioner was permitted to submit a
brief detailing the inconsistent statements made by the child victims during the interviews.
Moreover, petitioner presented the testimony of several witnesses who testified in his favor.
However, the circuit court weighed the evidence and found that the child victims’ disclosures of
abuse were credible. Accordingly, the circuit court found that petitioner’s own children were
abused and adjudicated petitioner accordingly. We have held that “[a] reviewing court cannot
assess witness credibility through a record. The trier of fact is uniquely situated to make some
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 decline to disrupt the circuit court’s findings that the child victims were credible and
their allegations were true. Therefore, we find that petitioner was adjudicated upon sufficient
evidence and is entitled to no relief in this regard.

        Petitioner also argues that the circuit court erred in failing to exclude the CAC interview
of one child victim, L.M., when it had not been disclosed to petitioner during the discovery
process. Petitioner argues that he was significantly prejudiced by the admission of the recorded
interview because it forced him to “respond with legal strategy on the spot without even having
the benefit of being able to properly see or even hear in some respects the full testimony.”5 Upon
our review, however, the Court finds no error in the proceedings. We have held

                        “[t]he West Virginia Rules of Evidence and the West Virginia Rules of
              Civil Procedure allocate significant discretion to the trial court in making
              evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence
              . . . are committed to the discretion of the trial court. Absent a few exceptions, this
              Court will review evidentiary and procedural rulings of the circuit court under an
              abuse of discretion standard.” Syl. Pt. 1, in part, McDougal v. McCammon, 193
              W.Va. 229, 455 S.E.2d 788 (1995).

Syl. Pt. 3, In re J.S., 233 W.Va. 394, 758 S.E.2d 747 (2014). In support of his argument that the
circuit court should have excluded L.M.’s CAC interview, petitioner fails to cite to any authority
that would have required disclosure of the same, aside from his general assertion that it should
have been disclosed in the discovery process. We find, however, that the circuit court did not err
in admitting the interview into evidence. The petition contained the allegations made by L.M.
and, as such, petitioner had notice of the same. In fact, the petition contained twelve enumerated
points regarding petitioner’s abuse of L.M. in particular. Moreover, petitioner properly received
copies of the three other child victims’ CAC interviews and had already prepared his defense for

                                                            
              5
        The record indicates that there were some technical difficulties in playing the recorded
interviews in open court.
                                                               4

 
those allegations, which were similar to L.M.’s allegations. Finally, the circuit court granted
petitioner time to review the CAC interview at his leisure and then reopen evidence should he
desire to present more evidence regarding the interview. Therefore, we find that the circuit court
did not abuse its discretion in admitting the undisclosed CAC interview into evidence.

        Lastly, because the proceedings in circuit court regarding the mother of I.B. and J.B. are
still ongoing, this Court reminds the circuit court of its duty to establish permanency for the
children. Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings
requires:

       At least once every three months until permanent placement is achieved as
       defined in Rule 6, the court shall conduct a permanent placement review
       conference, requiring the multidisciplinary treatment team to attend and report as
       to progress and development in the case, for the purpose of reviewing the progress
       in the permanent placement of the child.

       Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules
of Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the
children within twelve months of the date of the disposition order. As this Court has stated,

               [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
       placement of an abused and neglected child following the final dispositional order
       must be strictly followed except in the most extraordinary circumstances which
       are fully substantiated in the record.

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that

               [i]n determining the appropriate permanent out-of-home placement of a
       child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4-
       604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
       home for the child and shall consider other placement alternatives, including
       permanent foster care, only where the court finds that adoption would not provide
       custody, care, commitment, nurturing and discipline consistent with the child’s
       best interests or where a suitable adoptive home can not be found.

Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 9, 2018, order is hereby affirmed.


                                                                                         Affirmed.


                                                 5

 
ISSUED: June 11, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

Justice Loughry, Allen H., II suspended and therefore not participating.
 




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