                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In re: C.B. and A.B.                                                              FILED
                                                                               June 16, 2017
No. 16-1159 (Hampshire County 16-JA-37 & 16-JA-40)                             RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


                              MEMORANDUM DECISION
       Petitioner Father B.B., by counsel Charlie B. Johnson, appeals the Circuit Court of
Hampshire County’s November 3, 2016, order terminating his parental rights to then sixteen­
year-old C.B. and six-year-old A.B.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”), Joyce E. Stewart, filed a response on behalf of the
children in support of the circuit court’s order. On appeal, petitioner argues that (1) the circuit
court improperly terminated his parental rights to the children because he did not receive proper
notice of the dispositional hearing; and (2) the circuit court improperly adjudicated him as an
abusing parent based, in part, on his silence, invoked under the constitutional right against self-
incrimination.

        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 April of 2015, the DHHR filed an abuse and neglect petition against petitioner for
physically and emotionally abusing his girlfriend’s then fifteen-year-old daughter, H.F.2 In its
petition, the DHHR claimed that petitioner was charged with criminal solicitation of a minor and
that he had punched, screamed at, and forcibly held down H.F., who feared him. H.F. resided in

       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). We note that petitioner is also the biological father of K.B.,
who was involved in the proceedings below, but who reached the age of majority during the
pendency of these proceedings. As such, this memorandum decision applies to C.B. and A.B.
only.
       2
         The proceedings below involved children and adult respondents not at issue in this
appeal. This memorandum decision relates only to the order on appeal that terminated
petitioner’s parental rights to C.B. and A.B.
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the petitioner’s home with his other biological children. It was further alleged that petitioner had
a history with Child Protective Services (“CPS”), which included four substantiated abuse and
neglect referrals and one prior petition of abuse and neglect.3 Additional allegations were
included in an amended petition filed in June of 2016. Those allegations included claims of
inappropriate sexual statements made in the children’s presence and additional acts of domestic
violence and child abuse.

         In June of 2016, the circuit court held an adjudicatory hearing. At that hearing, several
witnesses testified and confirmed the allegations in the amended petition. Petitioner, however,
asserted that he did not intend to testify under the constitutional protection against self-
incrimination, as set forth in the Fifth Amendment to the United States Constitution. At the
conclusion of the hearing, the circuit court found that petitioner had a history of physical and
emotional abuse of the children; that he struck and threatened H.F.; and that he was recently
convicted of solicitation of a minor. The circuit court further found that petitioner’s silence was
additional evidence of his misconduct. Based on these findings, petitioner was adjudicated as an
abusing parent. In the circuit court’s written adjudicatory order, the circuit court stated in bold
letters “[t]his matter shall be continued for a Dispositional Hearing to occur on August 23, 2016,
beginning at 9:30 a.m. at the Hampshire County Judicial Center, Romney, West Virginia.”

        On August 23, 2016, the circuit court held a dispositional hearing. Petitioner was not
present in person due to his incarceration, but his counsel was present. Due to issues not relevant
to this appeal, the circuit court continued the hearing to October 17, 2016. A written order from
the August 23, 2016, hearing was entered in which the circuit court stated “[t]his matter is
continued for the purpose of Disposition to October 17, 2016, at 9:30 a.m. . . . at the Hampshire
County Judicial Center, Romney, WV.”

       On October 17, 2016, the circuit court held the final dispositional hearing. Petitioner was
not present in person due to his incarceration, but his counsel was present. At the conclusion of
the hearing, the circuit court terminated petitioner’s parental rights to the children.4 This appeal
followed.

       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


       3
         It does not appear from the record on appeal that the prior petition for abuse and neglect
resulted in the termination of petitioner’s parental rights to any children.
       4
          Petitioner’s parental rights to the children were terminated below. According to the
parties, the children have different mothers and separate placements. C.B. was permanently
placed with his non-offending mother with a permanency plan to remain in her custody, care,
and control. The younger child, A.B., currently resides with her maternal aunt pending the on­
going improvement period of her mother. A.B.’s permanency plan is either (1) reunification with
her mother if the mother is successful in her improvement period, or (2) adoption by the maternal
aunt, if the mother is unsuccessful in her improvement period.
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       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).

        On appeal, petitioner first argues that the circuit court erred in terminating his parental
rights to the children because he was not provided notice of the dispositional hearing. Rule 31 of
the West Virginia Rules of Procedure for Abuse and Neglect Proceedings provides that “[n]otice
of the date, time, and place of the disposition hearing shall be given to all parties, their counsel,
and persons entitled to notice and the right to be heard.” Contrary to petitioner’s argument on
appeal, the record is indisputable that the circuit court provided him written notice of the
dispositional hearings, including the date, time, and place for those hearings. The dispositional
hearings were clearly noticed in the circuit court’s adjudicatory order (noticing the dispositional
hearing on August 23, 2016) and in the order from the August 23, 2016, dispositional hearing
(noticing the final dispositional hearing on October 17, 2016). Moreover, in addition to written
notice, it appears that the circuit court stated the dates of those hearings on the record at the
adjudicatory hearing and the August 23, 2016, dispositional hearing. Although petitioner was not
present in person at the August 23, 2016, dispositional hearing, his counsel was present. As such,
we find no error regarding notice of the dispositional hearings in this matter.

        Petitioner’s second assignment of error is that the circuit court improperly held his
silence against him when he invoked his Fifth Amendment right against self-incrimination at the
adjudicatory hearing. Petitioner acknowledges that our case law permits a circuit court to
consider a parent’s decision to remain silent in civil abuse and neglect proceedings as affirmative
evidence of abuse or neglect. We have held that

               “‘[b]ecause the purpose of an abuse and neglect proceeding is remedial,
       where the parent or guardian fails to respond to probative evidence offered against
       him/her during the course of an abuse and neglect proceeding, a lower court may
       properly consider that individual’s silence as affirmative evidence of that
       individual’s culpability.’ Syl. Pt. 2, West Virginia Dept. of Health and Human
       Resources ex rel. Wright v. Doris S., 197 W.Va. 489, 475 S.E.2d 865 (1996).”
       Syl. Pt. 2, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002).

Syl. Pt. 2, In re K.P., 235 W.Va. 221, 772 S.E.2d 914 (2015). Petitioner attempts to distinguish
our prior cases from his own circumstances by asserting that his criminal charges were unrelated
to his abuse and neglect case and that his criminal attorney (who was not his attorney in the

                                                 3

abuse and neglect case) advised him to remain silent. We find petitioner’s argument
unpersuasive.

        Our holdings are clear that a circuit court may consider a parent’s silence as affirmative
evidence. The circuit court did so in this case. Contrary to petitioner’s argument, it was not error
for the circuit court to do so in this case. Consequently, we find no merit to petitioner’s second
assignment of error.

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 3, 2016, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: June 16, 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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