                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS

                                                                                   FILED
In Re: M.G., W.G., and C.G.                                                       March 31, 2014
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
No. 13-1001 (Wood County 12-JA-179, 12-JA-180, and 12-JA-181)                   OF WEST VIRGINIA




                                MEMORANDUM DECISION

       Petitioner Father, by counsel Reggie Bailey, appeals the Circuit Court of Wood County’s
September 11, 2013, order terminating his custodial and guardianship rights to M.G., W.G., and
C.G.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Lee Niezgoda, filed its response in support of the circuit court’s order. Respondent Mother J.S.,
by counsel Debra Steed, filed a response in support of the circuit court’s order.2 The guardian ad
litem, Lora Snodgrass, filed a response on behalf of the children also supporting the circuit
court’s order. On appeal, Petitioner Father alleges that the circuit court erred in: admitting
improper lay person testimony, adjudicating the children as abused and neglected, admitting
improper cross-examination, allowing three expert rebuttal witnesses, denying his motion for a
post-adjudicatory improvement period, terminating his custodial rights, and limiting him to
supervised post-termination visitation.

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

        On November 19, 2012, a Child Protective Service (“CPS”) worker investigated
Petitioner Father’s home following an allegation that he lacked proper parenting skills or
motivation that affected the safety of the children. This referral was unsubstantiated, but CPS
initiated an in-home safety plan that Petitioner Father refused. Several days later, CPS workers
returned to Petitioner Father’s home to investigate unexplained marks on the children.

       In December of 2012, CPS workers went to Petitioner Father’s house and observed him
sleeping while the children were unattended. A CPS worker also observed that the children were
wearing dirty diapers, appeared to be hungry, and indicated that the home smelled like urine and

       1
         Petitioner Father does not challenge the termination of his guardianship rights in his
brief. Therefore, this appeal will only address the termination of Petitioner Father’s custodial
rights to M.G., W.G., and C.G.
       2
        J.S. (“the mother”) is the biological mother of the children. The circuit court awarded the
mother legal and physical custody of the children.
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feces. Additionally, Kimberly Carson witnessed Petitioner Father use inappropriate language in
front of the children.3

        Following these incidents, the DHHR filed a petition for emergency custody against
Petitioner Father. The petition alleged that Petitioner Father abused and neglected the children
through physical and emotional abuse, educational neglect, medical neglect, unsanitary living
conditions, and failing to provide adequate supervision and nutrition. By order entered on
December 11, 2012, the circuit court granted the mother temporary legal and physical custody of
the children.

        The circuit court held an adjudicatory hearing on March 12, 2013, which was continued
to June 5, 2013, to allow the parties to present further evidence. During the adjudicatory
hearings, the circuit court heard testimony from four JCDC workers, two school employees,
Petitioner Father’s therapist, two licensed psychologists, and a behavioral consultant.
Additionally, testimony was provided by Petitioner Father and the children’s mother. By order
entered on August 8, 2013, the circuit court found that Petitioner Father emotionally and
physically abused the children.

        In September of 2013, the circuit court held a dispositional hearing and heard additional
testimony from Petitioner Father and another service provider. After considering the evidence,
the circuit court terminated Petitioner Father’s custodial and guardianship rights. The circuit
court found that Petitioner Father failed to correct the conditions that led to the filing of the
petition. The circuit court also determined that Petitioner Father was unable to exercise proper
parenting skills and was incapable of improving his parenting skills due to his mental and
emotional illness. It is from this order that Petitioner Father now 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).


       3
        Ms. Carson works for the Jackson County Development Center (“JCDC”). The JCDC
provides Petitioner Father with services to help him cope with the difficulties of raising his
children. All of Petitioner Father’s children were diagnosed with Autism.

                                                    2


Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

         On appeal, Petitioner Father raises eight assignments of error. First, Petitioner Father
contends that the circuit court erred in allowing the testimony of the JCDC worker, Samantha
Nokleby. Specifically, Petitioner Father argues that Ms. Nokleby should not have been allowed
to testify about the children’s injuries or bruising because she did not have specialized training in
evaluating injuries or bruises.

       Rule 701 of the West Virginia Rules of Evidence provides the following:

       If the witness is not testifying as an expert, his or her testimony in the form of
       opinions or inferences is limited to those opinions or inferences which are (a)
       rationally based on the perception of the witness and (b) helpful to a clear
       understanding of the witness' testimony or the determination of a fact in issue.

This Court has held the following with respect to lay testimony:

                In order for a lay witness to give opinion testimony pursuant to Rule 701
       of the West Virginia Rules of Evidence (1) the witness must have personal
       knowledge or perception of the facts from which the opinion is to be derived; (2)
       there must be a rational connection between the opinion and the facts upon which
       it is based; and (3) the opinion must be helpful in understanding the testimony or
       determining a fact in issue.

Syl. Pt. 2, State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310 (1999), modified on other grounds by
State v. McCraine, 214 W.Va. 188, 588 S.E.2d 177 (2003).

        A review of the record before us indicates that Ms. Nokleby’s testimony was not expert
in nature, but was rather simply lay opinion testimony under Rule 701 of the West Virginia
Rules of Evidence. At the adjudicatory hearing, Ms. Nokleby provided testimony regarding the
bruises she personally observed on the children while she was providing services to Petitioner
Father and the children. Ms. Nokleby testified that she filled out bruise reports almost daily and
that the children had bruises all over their bodies, sometimes resembling fingerprints. Ms.
Nokleby did not require any medical or scientific expertise to testify to this, as the testimony was
rationally based on her own observations. For these reasons, the circuit court did not abuse its
discretion in admitting the testimony of Ms. Nokleby.

        Next, the Court finds that the circuit court did not err in finding that the children were
abused and neglected. Three of Petitioner Father's assignments of error concern these findings
and will be addressed together. Petitioner Father alleges that the circuit court erred in finding that
petitioner exercised physical abuse or excessive corporal punishment, the home was unclean, and
nutritional neglect existed to support the findings of abuse and neglect. 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
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       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. 3, In re Randy H., 220 W.Va. 122, 640 S.E.2d 185 (2006).

        We find no error in regard to the circuit court’s findings of abuse and neglect. While
Petitioner Father argues that the evidence was insufficient to support the circuit court’s findings
of abuse and neglect because the evidence below was conflicting and inconsistent, we disagree.
Specifically, the circuit court heard evidence that Ms. Nokleby observed Petitioner Father grab
W.G. by the arm and shake him, which resulted in a long scratch on W.G.’s arm and a welt on
his elbow. The circuit court also heard testimony from two others who noticed bruising on the
children’s bodies. Other witnesses testified that Petitioner Father’s home smelled like urine and
feces, Petitioner Father kept his medicine within the reach of the children, and dirty diapers
where piled up in the trash can. Finally, the circuit court heard testimony that the children were
not being fed a properly balanced diet.

       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 assess witness credibility, and we find no error in the findings of
abuse and neglect to the children at issue. Further, we decline to grant petitioner relief in this
regard because of the overwhelming evidence supporting the circuit court's finding of abuse and
neglect.

       Next, Petitioner Father complains that the circuit court impermissibly permitted the
opposing parties to elicit testimony and evidence on cross-examination from Rebecca Riales, a
licensed professional therapist and Petitioner Father’s counselor, regarding her diagnosis and
treatment of Petitioner Father.4 On direct examination, Ms. Riales testified about Petitioner
Father’s disciplinary techniques and that in her opinion, Petitioner Father was “a conscientious
and responsible dad.” During cross-examination, Ms. Riales was questioned about her training in
providing counseling to individuals whose children have been diagnosed with Autism, the basis
for her conclusion, and Petitioner Father’s specific treatment. The DHHR also inquired as to
whether Ms. Riales conducted an independent investigation or additional testing in forming her
opinion about Petitioner Father’s parenting abilities.

       We have previously held that

               “The West Virginia Rules of Evidence . . . 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.”
       4
           Ms. Riales provided counseling to Petitioner Father for approximately two years.
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Syl. Pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).

        Upon our review, we find that the cross-examination of Ms. Riales was proper. Rule
611(b)(2) of the West Virginia Rules of Evidence states that the cross-examination of a non-
party witness “should be limited to the subject matter of the direct examination and matters
affecting the credibility . . . .” As stated above, Ms. Riales testified on direct examination that
Petitioner Father was “a conscientious and responsible dad.” Ms. Riales’s opinion “opened the
door” to questioning as to how she reached her opinion. Questions relating to the basis of her
opinion are directly related to the subject matter of her direct examination pursuant to Rule
611(b)(2) of the West Virginia Rules of Evidence. Therefore, we find no abuse of discretion in
the circuit court’s decision to allow the cross-examination of Ms. Riales.

        Next, Petitioner Father argues that the circuit court erred in allowing three expert
witnesses to rebut Ms. Riales’s lay witness testimony. More specifically, Petitioner Father argues
that they should not have been allowed to testify regarding Petitioner Father’s parenting because
it exceeded the scope of Ms. Riales direct examination. The circuit court heard rebuttal testimony
from John Atkinson, a licensed clinical psychologist. Mr. Atkinson testified that Petitioner
Father did not have “the capacity to provide a calm, stable environment for [the] children.” The
circuit court also heard testimony from Amy Guthrie, a licensed psychologist, and Carol
Newland, a behavior consultant, that Petitioner Father has failed to implement strategies to help
the proper development of his autistic children. This testimony was proper to challenge Ms.
Riales’s opinion that Petitioner Father was “a conscientious and responsible dad.” Further,
Petitioner Father failed to cite to any case law or other authority to suggest that expert witnesses
could not rebut the opinion of a lay witness. “The admissibility of testimony by an expert witness
is a matter within the sound discretion of the trial court, and the trial court's decision will not be
reversed unless it is clearly wrong.” Syl. Pt. 6, Helmick v. Potomac Edison Co., 185 W.Va. 269,
406 S.E.2d 700 (1991). For these reasons, we find that the circuit court did not error in admitting
the expert testimony.

        In his seventh assignment of error, Petitioner Father alleges that the circuit court erred in
denying his motion for a post-adjudicatory improvement period. In support of this argument,
Petitioner Father testified that he wanted services and worked with service providers to remedy
the alleged conditions of abuse and neglect. Petitioner Father also testified that he would not
refuse any services. Upon our review, the Court finds no error in the circuit court’s decision to
deny Petitioner Father a post-adjudicatory improvement period. West Virginia Code § 49-6­
12(b)(2) grants circuit courts discretion in granting post-adjudicatory improvement periods upon
a showing that the parent will fully participate in the same. The record in this matter supports the
circuit court’s denial because of Petitioner Father’s failure to show, by clear and convincing
evidence, that he would fully comply with the terms of a post-adjudicatory improvement period.

         While it is true that Petitioner Father testified that he wanted services and allowed the
JCDC to conduct services in his home, the record also shows that Petitioner Father failed to
implement the skills he was learning. Expert witness and behavior consultant Ms. Newland
testified that she began working with Petitioner Father in January of 2011, but terminated her
services in August of 2011, due to non-compliance. Specifically, Ms. Newland testified that
Petitioner Father failed to decrease the use of diapers in the home, increase the use of non-verbal

                                                      5


language, increase the children’s use of silverware, and increase the children’s desire to wear
appropriate clothing. Ms. Newland also testified that Petitioner Father did not attempt to get the
children to “take medication by mouth.” These factors illustrate Petitioner Father’s failure to
show that he was likely to fully participate with the terms of his improvement period, and
support the circuit court’s denial of Petitioner Father’s motion for a post-adjudicatory
improvement period. We have previously held that “courts are not required to exhaust every
speculative possibility of parental improvement before terminating parental rights . . . .” Syl. Pt.
4, in part, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011) (quoting Syl. Pt. 1, In re R.J.M.,
164 W.Va. 496, 266 S.E.2d 114 (1980)). For these reasons, the Court finds no error in the denial
of Petitioner Father’s motion for a post-adjudicatory improvement period.

        Finally, Petitioner Father argues that the circuit court erred in terminating his custodial
rights and limiting his post-termination visitation with the children to supervised visitation. The
record indicates that the circuit court was presented with sufficient evidence that there was no
reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in
the near future and that termination was necessary for the children’s welfare. Although the
DHHR provided services to Petitioner Father for approximately eight months, Petitioner Father
failed to respond to the services. Additionally, psychologist Ms. Guthrie testified that it would be
difficult for Petitioner Father to parent his children because of his mental diagnosis.

        Pursuant to West Virginia Code § § 49-6-5(b)(3) and (6), these conditions constitute
situations in which there is no reasonable likelihood that the parent can substantially correct the
conditions of abuse or neglect in the near future, which the circuit court found in this matter. The
circuit court further found that termination of petitioner’s custodial rights was necessary for the
children’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are instructed to
terminate custodial rights upon these findings. Upon our review, we also find no error with the
circuit court’s directions concerning Petitioner Father’s post-termination visitation. After
terminating custodial rights, a circuit court may grant post-termination visitation if it considers
that such a relationship is in the children’s best interests and if it would not unreasonably
interfere with their permanent placement. See State ex rel. Amy M. v. Kaufman, 196 W.Va. 251,
260, 470 S.E.2d 205, 214 (1996). The circuit court’s termination order with directions for post-
termination visitation reflects these considerations.

      For the foregoing reasons, we find no error in the decision of the circuit court and the
September 11, 2013, order is hereby affirmed.

                                                                                         Affirmed.
ISSUED: March 31, 2014

CONCURRED IN BY:

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

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