                               STATE OF WEST VIRGINIA
                             SUPREME COURT OF APPEALS
                                                                                     FILED
In re S.N., N.N., and S.B.                                                        June 12, 2019
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
No. 19-0099 (Upshur County 18-JA-20, 18-JA-21, and 18-JA-22)                         OF WEST VIRGINIA




                               MEMORANDUM DECISION



        Petitioner Father W.B., by counsel Brian W. Bailey, appeals the Circuit Court of Upshur
County’s January 7, 2019, order terminating his parental rights to S.N., N.N., and S.B.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”), G. Phillip
Davis, filed a response on behalf of the children in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in denying his motion for the children to testify and in
excluding the evidence provided by his character witnesses in the adjudicatory order.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 May of 2018, the DHHR filed a child abuse and neglect petition alleging that petitioner
sexually abused sixteen-year-old S.N. According to the DHHR, S.N. participated in a forensic
interview and disclosed that petitioner had sexually abused her “since she was in eighth grade.”
S.N. “detailed that the sexual abuse occurred almost daily and began approximately two months



       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 asserts no assignment of error regarding the termination of his parental rights to
the children.



                                                  1
after her mother left for prison.”3 The DHHR alleged that S.N.’s sisters also participated in forensic
interviews and corroborated details of S.N.’s disclosures.

        In June of 2018, petitioner filed a “Motion to Permit the Respondent Father the Opportunity
to Question Child Witnesses,” citing Rule 8 of the West Virginia Rules of Procedure for Child
Abuse and Neglect Proceedings and arguing that his due process rights would be violated if he
was not allowed to question the children. The DHHR provided video recordings of the children’s
forensic interviews to the parties and filed a motion to exclude the children’s testimony. In its
motion, the DHHR alleged that S.N.’s therapist recommended that S.N. not be required to testify
as she exhibited “clinically significant symptoms of Posttraumatic Stress Disorder.” According to
the DHHR, the therapist opined “that testifying has great potential for causing [S.N.] further
trauma at this time.” The guardian concurred with the DHHR’s position. Thereafter, petitioner
stipulated to the authenticity of the forensic interviews, but adamantly denied the veracity of their
contents.

         The circuit court held four adjudicatory hearings during the next four months. The DHHR
presented the children’s recorded forensic interviews and the testimony of their older adult sister,
a DHHR worker, and a West Virginia State Trooper. Following the presentation of this evidence,
the circuit court considered the potential psychological harm that could be caused if the children
were required to testify. The circuit court reasoned that the forensic interviews were conducted
appropriately and that the DHHR presented testimony that corroborated the interviews. Further,
the DHHR presented evidence that S.N. would suffer further psychological harm if required to
testify. Accordingly, the circuit court ordered that the children would not be required to testify.
Petitioner presented testimony from six witnesses but did not testify on his own behalf, 4 despite
the circuit court’s instruction that a failure to testify could result in a negative inference.

        Following the presentation of evidence, the circuit court adjudicated the children as abused
children and petitioner as an abusing parent. In support of adjudication, the circuit court made
extensive findings of fact, including S.N.’s detailed recollections of specific instances of sexual
abuse; N.H.’s recollection of finding a “diary entry” style note on S.B.’s cellphone that included
“explicit detail” about her interaction with petitioner; the siblings’ shared concerns that something
was happening between petitioner and S.N.; and the siblings’ recollection of noises consistent with
sex emanating from the room where S.N. and petitioner shared a bed, which was most specifically
detailed by S.B. mimicking the noise of the creaking bed during her forensic interview. Petitioner
filed a motion for a post-adjudicatory improvement period, and the DHHR filed a motion to
terminate petitioner’s parental rights.
       3
        The mother was convicted of unlawful wounding and served an extensive term of
incarceration. During her incarceration, the mother made the step-father the children’s legal
guardian. At the time of the filing of the petition, the mother was no longer incarcerated and, after
S.N.’s disclosure of sexual abuse, regained custody of the children.
       4
         In petitioner’s brief on appeal, he characterizes these witnesses as “basically people who
knew him from the . . . community, who testified to his character.” Petitioner concedes “they were
not fact witnesses.”



                                                  2
        The circuit court held the final dispositional hearing in November of 2018. The DHHR
requested the circuit court take judicial notice of the previously admitted evidence and presented
additional testimony from a DHHR worker. Petitioner presented no evidence, but continued to
deny the allegations in the petition through his counsel. The circuit court found that there was no
reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in
the near future and that termination of petitioner’s parental rights was in the children’s best
interests. Accordingly, the circuit court terminated petitioner’s parental rights by its January 7,
2019, order. Petitioner now appeals that order.5

       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 argues that the circuit court erred in excluding the testimony of the
children, particularly that of S.N., and in relying on the children’s forensic interviews. Petitioner
contends that certain provisions in the law emphasize the maturity levels of those under the age of
majority, and S.N., who was seventeen at the time of the adjudicatory hearing, was near enough to
the age of adulthood to be required to testify.6 Petitioner argues that the circuit court’s order
excluding the testimony of the children violates his due process rights. However, we have held
that “[i]n a child abuse and neglect civil proceeding held pursuant to [West Virginia Code § 49-4-
601], a party does not have a procedural due process right to confront and cross-examine a child.”
Syl. Pt. 7, in part, In re J.S., 233 W. Va. 394, 758 S.E.2d 747 (2014). Based on this holding and
the reasoning more fully detailed below, we find petitioner is entitled to no relief.


       5
           The nonabusing mother retains her parental rights and full custody of the children.
       6
        In support of his argument, petitioner references West Virginia Code § 48-9-206(a)(2),
which provides that a court may consider a child’s preference for parental custody if fourteen years
or older or if younger than fourteen and “sufficiently matured that he or she can intelligently
express a voluntary preference for one parent,” and West Virginia Code § 61-8B-2(c)(1), which
provides that a child sixteen years or older may consent to sexual acts.
                                                   3
        Ruling on the issue, the circuit court relied on Rule 8(a) of the West Virginia Rules of
Procedure for Abuse and Neglect Proceedings, which provides, in part, “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.” In this case, this presumption is
bolstered by the DHHR’s evidence that S.N. expressed “clinically significant symptoms of
Posttraumatic Stress Disorder” and that requiring her to testify had “great potential” for causing
further trauma. Moreover, petitioner presented no evidence to rebut the presumption that S.N. or
the other two children would be psychologically harmed by testifying. Rule 8(a) also provides
factors to consider regarding a child’s testimony:

       [T]he court may exclude the child’s testimony if (A) the equivalent evidence can
       be procured through other reasonable efforts; (B) the child’s testimony is not more
       probative on the issue than the other forms of evidence presented; and (C) the
       general purposes of these rules and the interest of justice will best be served by the
       exclusion of the child’s testimony.

        In this case, the children’s testimony was available through the recorded forensic
interviews. The circuit court found that these interviews were properly performed, without
improper or leading questions. Indeed, petitioner stipulated to the admission of these interviews.7
There is no reason to believe the children’s testimony would be more probative than their
statements in the forensic interviews. Finally, the general purpose of the Rules, which is to serve
the best interests of the children, is served by the exclusion of the children’s testimony due to the
potential psychological harm would accompany such testimony.8 In sum, we find no error in the
circuit court’s order excluding the testimony of the children and admitting the forensic interviews
into evidence.

        Petitioner’s final argument is that the circuit court erred in failing to include any findings
of fact regarding his witnesses. Petitioner asserts that he presented multiple witnesses “in support

       7
         Petitioner also argues that the forensic interviews were not admissible under the West
Virginia Rules of Evidence. The Court has previously found that forensic interviews are admissible
in certain cases. See In re J.S., 233 W. Va. 394, 406-07, 758 S.E.2d 747, 759-60 (2014). However,
as noted above, petitioner filed a written stipulation to the “authenticity” of the interviews while
challenging the veracity of the statements made therein and preserving his motion to cross-examine
the child witnesses. Further, petitioner did not challenge the admission of the interviews and
instead maintained his argument that the testimony of the children would be more appropriate.
Accordingly, petitioner has waived this argument regarding the admission of this evidence for the
purposes of appeal.
       8
        Rule 2 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings
provides “[t]hese rules shall be liberally construed to achieve safe, stable, secure permanent homes
for abused and/or neglected children and fairness to all litigants. These rules are not to be applied
or enforced in any manner which will endanger or harm a child.”



                                                  4
of his character,” all of whom “emphatically denied this alleged sexual abuse.” Additionally,
petitioner presented witnesses that lived in the home with petitioner, and the witnesses testified
they did not know about the abuse. However, petitioner cites to no authority that requires the circuit
court to make findings regarding every witness presented, nor does petitioner allege any specific
facts from the testimony of these witnesses that may be relevant.9 Rather, the circuit court relied
on the forensic interviews of the children who provided specific details regarding petitioner’s
sexual abuse of S.N. The forensic interviews of the children emphasized petitioner’s precautions
in attempting to keep the abuse a secret, such as locking the garage and bedroom doors when the
abuse took place, taking S.N. out for activities alone wherein S.N. stated she was then sexually
abused, and sending S.N.’s siblings on an errand during a vacation to remain alone with S.N. in
the hotel room. In short, the DHHR presented sufficient evidence to adjudicate petitioner as an
abusing parent, even in light of the evidence that petitioner presented. Accordingly, we find no
error in the circuit court’s order.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 7, 2019, order is hereby affirmed.

                                                                                            Affirmed.

ISSUED: June 12, 2019


CONCURRED IN BY:

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




       9
         In support of this argument, petitioner argues that a circuit court’s dispositional order is
inadequate when it “merely declares that there is no reasonable likelihood that a parent can
eliminate the conditions of neglect, without explicitly stating factual findings in the order or on the
record supporting such conclusion.” Syl. Pt. 4, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620
(2001). Yet, this holding applies to the findings of fact and conclusions of law in dispositional
orders, rather than adjudicatory orders. Further, the circuit court’s adjudicatory order contains
several detailed findings of fact to support its conclusion that petitioner sexually abused S.N.
Accordingly, we find this argument unpersuasive.
                                                  5
