                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In re: P.F.                                                                       FILED
                                                                               June 19, 2017
No. 17-0062 (Mingo County 16-JA-43)                                            RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


                              MEMORANDUM DECISION
       Petitioner Father G.F., by counsel Jerry M. Lyall, appeals the Circuit Court of Mingo
County’s December 6, 2016, order terminating his parental rights to P.F.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a response
in support of the circuit court’s order. The guardian ad litem (“guardian”), Diana Carter Wiedel,
filed a response on behalf of the children in support of the circuit court’s order and a
supplemental appendix. On appeal, petitioner argues that the respondent withheld exculpatory
evidence.

        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 March of 2016, the DHHR and the biological father of B.M. and K.M., as co­
petitioner, filed an abuse and neglect petition against petitioner and the mother alleging that
petitioner, the mother, and three children, B.M., K.M., and P.F., lived in a camper without food,
running water, or electricity.2 The petition further alleged that B.M. disclosed to her biological
father that petitioner was sexually abusing her and her sister, K.M. According to the petition, the
biological father took B.M. and K.M. to Cabell Huntington Hospital for a forensic physical
examination. As set forth in the petition, the physical examination did not show evidence of
abuse. The petition further alleged that petitioner and the mother engaged in domestic violence in
the children’s presence.



       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 is not the biological father of B.M. or K.M. As such, they are not the subject
of his appeal before this Court.
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        In May of 2016, the circuit court held a preliminary hearing wherein it heard testimony
from a DHHR worker, petitioner, and the mother. The DHHR worker testified that K.M. and
B.M. were interviewed at the Mingo County Child Advocacy Center (“CAC”) and disclosed that
petitioner sexually abused them, that petitioner and the mother engaged in sexual intercourse and
domestic violence in the children’s presence, and that there was no food or running water in their
home. B.M. also reported that the mother was aware of the sexual abuse. Both petitioner and the
mother denied the sexual abuse and domestic violence allegations. Based on the evidence
presented, the circuit court found, by clear and convincing evidence, that B.M. and K.M.
suffered “horrific sexual abuse” by petitioner and the mother was aware of the abuse.

       In June of 2016, the circuit court held an adjudicatory hearing during which no further
witness testimony was presented. The circuit court found that the children had been abused and
neglected, that the mother failed to protect them, and that the home was in a deplorable
condition. Petitioner requested an improvement period, and the motion was “emphatically
denied” by the circuit court.

         In November of 2016, the circuit court held a dispositional hearing. The CAC interviewer
testified that she interviewed B.M. and K.M. separately and each child made “disturbing
disclosures” of sexual abuse by petitioner. According to the interviewer, B.M. and K.M.
disclosed that petitioner did “bad things” to them, which B.M. later identified as “S.E.X.” B.M.
disclosed that petitioner “pulled down his pants,” had sex with her, and tried to kiss her. She told
the interviewer that petitioner “hurts her,” “f****s her,” and let another boy “[screw] her and her
sister like dogs.” B.M. also disclosed that petitioner “touched her a 100 (sic) times on her boobs,
monkey, and butt” and threatened to kill and “bury her.”3 Finally, B.M. reported that the mother
was aware of the sexual abuse and told petitioner to “stop doing that. She is a kid.” K.M. told the
interviewer that petitioner “licked her monkey” and identified her vagina as her “monkey.”
Based on the evidence presented, the circuit court found that there was no reasonable likelihood
petitioner could substantially correct the conditions of abuse and neglect and terminated his
parental rights to P.F.4 It is from that December 6, 2016, order that petitioner 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
       3
           Both B.M. and K.M. used the term “monkey” to indicate their vaginas.
       4
        The parental rights of both parents to P.F. were terminated below. Additionally, the
mother’s parental rights to K.M. and B.M. were terminated below. J.M., the father of B.M. and
K.M., was a non-offending parent. The guardian states that all three children were placed in
J.M.’s home and the permanency plan is adoption into that home.

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       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, the Court finds
no error in the circuit court’s order terminating petitioner’s parental rights to P.F.

       Petitioner’s argument on appeal is that the DHHR knowingly withheld “exculpatory
evidence” from him and that such evidence tended to make the allegations against him “less
probable.”5 Petitioner asserts that the reports of the forensic examinations performed at the CAC
and the forensic physical examinations were withheld from him. We do not agree.

         It is clear from the record that the information of which petitioner complains was
provided to him.6 The information that indicated that there was no physical evidence of sexual
abuse of either B.M. or K.M. was contained in the petition initiating the proceedings against
petitioner. The information was also obtained through the testimony of the DHHR’s witness at
the preliminary hearing; upon questioning by the mother’s counsel, a DHHR worker testified that
the examinations of B.M. and K.M. revealed no physical evidence of sexual abuse.7 The fact that
there was no physical evidence of sexual abuse was clearly considered by the circuit court prior
to petitioner’s adjudication. Further, the record on appeal clearly indicates that, at the time of the
dispositional hearing, copies of the audio and video recordings of the children’s forensic
interviews had been provided to all counsel of record. There was no indication in or on the
record that petitioner did not receive copies of the interviews or that he requested additional time
to review the recordings. Those interviews were admitted into evidence without any objection
from petitioner. “Generally the failure to object constitutes a waiver of the right to raise the
matter on appeal.” State v. Asbury, 187 W.Va. 87, 91, 415 S.E.2d 891, 895 (1992). Accordingly,
we find no error below.



       5
         On appeal, petitioner does not raise a specific assignment of error regarding the circuit
court’s termination of parental rights.
       6
         Petitioner contends that the DHHR was required to disclose so-called “exculpatory
evidence.” In support of his argument, petitioner cites to Stickler v. Greene, 527 U.S. at 280
(1999). (holding that “the duty to disclose such evidence is applicable even though there has
been no request by the accused.”) Notwithstanding petitioner’s argument, it is clear from the
record that he received the information he now requests during the underlying proceedings.
Further, petitioner argues that he was denied his “constitutional right to equal protection and due
process of law” because the DHHR withheld exculpatory evidence. Because petitioner received
this information below, his additional arguments are without merit.
       7
         We note that West Virginia Code § 49-1-201 and its definition of “abuse,” does not
require the showing that a child suffered a physical injury.
                                                  3


     For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 6, 2016, order is hereby affirmed.


                                                                                    Affirmed.

ISSUED: June 19, 2017


CONCURRED IN BY:

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




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