                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                    FILED
In Re: S.R., J.R., A.D., & K.D.                                                   November 26, 2013
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
No. 13-0731 (Putnam County 11-JA-39 through 11-JA-42)                            OF WEST VIRGINIA




                                  MEMORANDUM DECISION

        Petitioner Father, by counsel Rosalee Juba-Plumley, appeals the Circuit Court of Putnam
County’s June 18, 2013 order terminating his parental, custodial, and guardianship rights to S.R.,
J.R., A.D., and K.D. The West Virginia Department of Health and Human Resources (“DHHR”),
by counsel Michael L. Jackson, filed its response in support of the circuit court’s order. The
guardian ad litem, Stacy Ann Jacques, filed a response on behalf of the children supporting the
circuit court’s order. On appeal, petitioner alleges that the circuit court erred in adjudicating him
as an abusing parent due to sexual abuse of S.R. because the order contained insufficient findings
and the evidence did not support the finding of sexual abuse.

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

        In December of 2011, the DHHR filed its initial abuse and neglect petition alleging that
petitioner sexually abused his step-daughter, S.R., provided alcohol to one or more minor
children, engaged in domestic violence in the children’s presence, and engaged in excessive
corporal punishment. Thereafter, the circuit court held a series of adjudicatory hearings beginning
on January 27, 2012. During the first adjudicatory hearing, the circuit court heard testimony from
forensic child interviewer Maureen Runyon. Ms. Runyon testified that she interviewed J.R. and
A.D. and both credibly stated that they witnessed domestic violence and experienced physical
abuse, though they both denied they had been sexually abused. Ms. Runyon did not interview
S.R. because the child had previously spoken with a detective trained in child interviews.
However, Ms. Runyon testified that A.D. had knowledge of S.R. documenting sexual abuse in a
diary and that petitioner would sometimes take S.R. into a room alone and tell the other children
to stay away. Detective Lisa Arthur also testified that S.R. told her she had been sexually abused
over a period of years, that petitioner touched her genitals with lubricants and a vibrator, and that
petitioner forced her to engage in oral and anal sex. Detective Arthur testified that S.R. exhibited
sexual knowledge beyond her years. Physical exams did not reveal physical evidence of sexual
abuse.


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        At the next adjudicatory hearing in March of 2012, the circuit court heard testimony from
a Child Protective Services worker that all the children expressed fear of petitioner due to past
physical abuse. This worker did not question the children about sexual abuse because of their
prior interviews. The circuit court then conducted four more adjudicatory hearings through
August of 2012, and heard testimony from multiple witnesses. Additionally, the circuit court
conducted an in camera interview with S.R., allowing attorneys to submit questions for the child.
During the interview, S.R. recounted sexual abuse by petitioner over a period of several years.
Petitioner also presented several witnesses on his behalf who testified that the mother had
previously disclosed that she thought S.R. had been sexually abused by her own mother’s
boyfriend when she was five, that the children never expressed fear of petitioner, and that they
thought petitioner was a good father. Petitioner’s witnesses also testified that petitioner never
spent time alone with the children, except on rare occasions. However, on cross-examination,
petitioner did admit that on one particular night when he was alleged to have sexually abused
S.R., she slept alone with him in his bedroom.

        Petitioner’s expert witness, psychologist Dr. Krieg, testified that he believed, based on the
children’s interviews, they had been exposed to information by adults speaking in front of them or
that they were coached. Dr. Krieg further stated that S.R. appeared to be the victim of sexual
abuse, but that he was not sure petitioner was responsible. Dr. Krieg recommended a
psychological evaluation of S.R., which the circuit court ordered. The circuit court eventually
heard testimony from the psychologist appointed to conduct S.R.’s forensic psychological
examination, Barbara Nelson. Ms. Nelson testified that she found S.R.’s account of petitioner’s
sexual abuse to be very credible. S.R.’s account included a description of petitioner grooming her
with pills and alcohol to be receptive to the sexual abuse and a description of S.R. being made to
feel special for hiding the abuse. Ms. Nelson testified that S.R. described intense feelings of
shame and anxiety as a result of the abuse being revealed. The circuit court also conducted in
camera interviews with J.R. and A.D.

         On November 14, 2012, the circuit court issued its adjudicatory order, finding that
petitioner sexually abused S.R. from the ages of six to eleven. The circuit court noted that the
child had disclosed the abuse to at least three state officials who had conducted appropriate
interviews and found her disclosures to be credible. Further, the circuit court found that J.R. and
A.D. both acknowledged that petitioner sometimes took S.R. into another room where they were
not allowed to follow. Finally, the circuit court found that a lack of physical evidence did not
make S.R.’s disclosures less credible. In May of 2013, the circuit court held a dispositional
hearing and ultimately terminated petitioner’s parental, custodial, and guardianship rights to all of
the children.

       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

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       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, the Court finds no error in the circuit court adjudicating petitioner as an
abusing parent due to his sexual abuse of S.R. West Virginia Code § 49-6-2(c) states that,
following an adjudicatory hearing, a 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 . . . .” That code section further requires that “[t]he findings must be based
upon conditions existing at the time of the filing of the petition and proven by clear and
convincing proof.” In discussing this evidentiary standard, we have previously held that

       “W.Va.Code [§] 49–6–2(c) [1980], requires the [DHHR], in a child abuse or
       neglect case, to prove ‘conditions existing at the time of the filing of the petition . .
       . by clear and convincing proof.’ The statute, however, does not specify any
       particular manner or mode of testimony or evidence by which the [DHHR] is
       obligated to meet this burden.” Syllabus Point 1, In the Interest of S.C., 168 W.Va.
       366, 284 S.E.2d 867 (1981).

Syl. Pt. 1, in part, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997). Upon our review, it is
clear that the evidence below was sufficient to support the circuit court’s finding that petitioner
sexually abused S.R.1

        As noted above, the circuit court held six adjudicatory hearings over a span of eight
months and heard testimony from a variety of witnesses, both expert and lay. Petitioner’s
argument in support of his assignment of error essentially calls into question the credibility of the
witnesses and evidence upon which the circuit court based its finding of sexual abuse. According
to petitioner, many facts from the child’s statements were contradicted by other witnesses.
Accordingly, petitioner argues that the contradictions call into question the sufficiency of the

       1
         In its adjudicatory order, the circuit court further found that the remaining children were
abused by virtue of their presence in the home when the sexual abuse occurred and the associated
risk of abuse to those children pursuant to West Virginia Code § 49-1-3 and our prior holdings.
See Syl. Pt. 5, In re Amber Leigh J., 216 W.Va. 266, 607 S.E.2d 372 (2004) (quoting Syl. Pt. 2, In
re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995)). Because we affirm the circuit court’s
finding that petitioner sexually abused S.R., the finding of abuse as to the other children is also
affirmed.
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evidence, especially in light of the circuit court’s failure to address the contradictory evidence in
its findings of fact. The Court, however, disagrees.

        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 addressed above, the circuit court
heard extensive testimony regarding the sexual abuse in question, including in camera testimony
from the victim, S.R. Ultimately, the circuit court found that “[t]he child disclosed these acts [of
petitioner’s sexual abuse] to no fewer than three state officials,” and that “[a]ll interviewing
persons and entities, including the [circuit court], found the child to be credible.” As such, the
Court finds that there was sufficient evidence upon which the circuit court based its finding of
sexual abuse, petitioner’s contradictory evidence notwithstanding.

        Further, we find no merit in petitioner’s allegation that the circuit court made insufficient
findings of fact in support of its determination that petitioner sexually abused S.R. In fact, in the
adjudicatory order, the circuit court devoted almost two full pages to discussing its finding of
petitioner’s sexual abuse. This included a discussion of the lack of physical evidence regarding
the abuse, a fact petitioner relies upon in arguing there was insufficient evidence to support the
finding of sexual abuse. Additionally, in its dispositional order, the circuit court addressed
petitioner’s motion to reconsider adjudication, affirmed its prior adjudicatory order, and also
“proceeded to supplement its prior order of adjudication with further findings as set forth on the
record.”2 Simply put, the circuit court was in the best position to determine the credibility of the
witnesses and did not err in failing to discuss evidence it deemed as lacking in credibility. As
such, we find that the circuit court made sufficient findings to support adjudication of petitioner
having sexually abused S.R.

        For the foregoing reasons, we find no error in the decision of the circuit court and its June
18, 2013 order terminating petitioner’s parental, custodial and guardianship rights to the children
is hereby affirmed.

                                                                                          Affirmed.

ISSUED: November 26, 2013

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

       2
        Petitioner did not include the dispositional hearing transcript in the appendix on appeal.
Therefore the substance of these additional findings is unknown to the Court.
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