                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

                                                                                    FILED
In Re: J.P.                                                                       June 19, 2014
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
No. 14-0114 (Greenbrier County 13-JA-34)                                         OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Father, by counsel Kristopher Faerber, appeals the Circuit Court of Greenbrier
County’s January 13, 2014, order terminating his parental rights to J.P. The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel William Jones, filed its
response in support of the circuit court’s order. The guardian ad litem (“GAL”), Lieselotte Sills,
filed a response on behalf of the child that also supported the circuit court’s order. On appeal,
Petitioner Father alleges that the circuit court erred in adjudicating him as an abusive parent and
in denying his right to a jury trial.

        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 September 10, 2011, the DHHR placed J.P. with Petitioner Father after the child’s
mother’s parental rights were involuntarily terminated.1 A few weeks later, the DHHR removed
J.P. from Petitioner Father’s home.2 The DHHR returned J.P. to Petitioner Father’s care on
October 7, 2011. However, several months later, the DHHR removed J.P. from Petitioner
Father’s care. CPS worker Crystal Stock testified that the DHHR removed the child from
Petitioner Father because he allegedly followed J.P. to the bus stop and “pushed [J.P.] to the
ground, got on top of him and held him down.” In July of 2012, the DHHR again returned J.P. to
the care of Petitioner Father. In July of 2013, the DHHR again removed J.P. from Petitioner
Father’s care following an incident wherein Petitioner Father allegedly attempted to force J.P. to



       1
         As part of this prior proceeding, the DHHR provided Petitioner Father with multiple
services designed to reunify Petitioner Father with J.P., such as parenting classes, supervised
visitation, drug screening, counseling services, and a special medical card.
       2
        Child Protective Services (“CPS”) worker Crystal Stock testified that Petitioner Father
mentally abused J.P. by embarrassing him in front of his friends at school.

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clean the dishes by threatening to urinate on his pillow.3 As a result of the tumultuous history
stated above, and Petitioner Father’s disciplinary methods, the DHHR filed an abuse and neglect
petition.4

         Prior to the adjudicatory hearing, Petitioner Father filed a motion for a jury trial, which
the circuit court denied. During the adjudicatory hearing, the circuit court heard testimony
regarding Petitioner Father’s disciplinary techniques. The circuit court continued the
adjudicatory hearing until September 24, 2013, during which it heard additional testimony. J.P.
testified that Petitioner Father tried to drop him off at a children’s shelter and that, on one
occasion Petitioner Father threw a bag of J.P.’s personal items out of the window while driving
on the interstate. Finally, the circuit court heard testimony that Petitioner Father would place a
chain and padlock around the freezer to prevent J.P. from eating his stepsister’s food. After
considering all of the evidence, the circuit court ruled that Petitioner Father was an abusive
parent based on a “pattern of behaviors, including verbal and physical aggression, as well as
dominant and oppressive behaviors, which have seriously interfered with the child’s cognitive,
emotional, and social development.” By order entered on January 13, 2014, the circuit court
terminated Petitioner Father’s parental rights. The circuit court held that there was no reasonable
likelihood that the conditions of abuse and neglect could be corrected in the near future because
Petitioner Father failed to benefit from over two years of services. 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).

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


       3
         Petitioner Father testified that he was aware that J.P.’s pillow was one of the only things
he still had from his mother. Petitioner Father also testified that he did not urinate on J.P.’s
pillow.
       4
       CPS worker Stock testified that Petitioner Father received services beginning in June of
2011. The DHHR terminated Petitioner Father’s services in July of 2013.

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        On appeal, Petitioner Father raises two assignments of error. First, Petitioner Father
argues that the circuit court violated his constitutional right to a jury trial in this abuse and
neglect matter. Petitioner Father submits that because he has a significant liberty interest5 in the
care, custody, and control of his child, Article III, Section 10, of the West Virginia Constitution6
guarantees him a jury trial in this abuse and neglect proceeding. Further, Petitioner Father
submits that a jury trial would further promote the child’s best interest7 by allowing decisions to
be made by rational and unbiased members of the public.

        We have previously held that “[a] circuit court's interpretation of the West Virginia
Constitution is reviewed de novo.” Syl. Pt. 1, Leon v. Greenbrier Cnty. Bd. Of Educ., 199 W.Va.
400, 484 S.E.2d 909 (1996). Upon our review, the Court finds no error in the circuit court’s
decision to deny Petitioner Father a jury trial in this abuse and neglect matter. Findings of abuse
and neglect and termination of parental, custodial, and guardianship rights must be made in
compliance within the provisions of West Virginia Code § 49-6-1 through § 49-6-12 and the
West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings (“the Rules”). A
plain reading of West Virginia Code § 49-6-2(c) and the Rules, reveals that the Legislature did
not intend to allow a jury trial in an abuse and neglect proceeding. To the contrary, the
Legislature included clear language in West Virginia Code § 49-6-2(c) providing that “the 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 . . . .” (Emphasis added).
Further, the Rules state that “[a]t the conclusion of the adjudicatory hearing, the court shall make
findings of fact and conclusions of law, in writing or on the record, as to whether the child is
abused and/or neglected in accordance with W. Va. Code § 49-6-2(c).” W. Va. R. Proc. for Child
Abuse and Neglect Proceedings 27. (Emphasis added). Clearly, the use of the phrase “the court”
suggests that the circuit court is to be the trier of fact in abuse and neglect proceedings.

       Moreover, we have previously held that

       [e]ven though the concepts of “property” and “liberty” found in Article III,
       Section 10 of our State Constitution . . . have been given an expanded meaning,
       resulting in an extension of procedural due process protection, this Court has not
       held that Article III, Section 10 requires the right to a jury trial in every instance
       where a procedural due process right must be accorded.

Markey v. Wachtel, 164 W.Va. 45, 52, 264 S.E.2d 437, 442 (1979).
       5
         In Troxel v. Granville, 530 U.S. 57, 65 (2000), the United States Supreme Court stated
that “[t]he liberty interest at issue in this case—the interest of parents in the care, custody, and
control of their children—is perhaps the oldest of the fundamental liberty interests recognized by
this Court.”
       6
       “No person shall be deprived of life, liberty, or property, without due process of law, and
judgment of his peers.” W.Va. Const. art. III, § 10.
       7
        “[T]he best interests of the child is the polar star by which decisions must be made
which affect children.” Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d 866, 872
(1989).
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       Further, this Court has also held that

              West Virginia Code, Chapter 49, Article 6, Section 2, as amended, and the
       Due Process Clauses of the West Virginia and United States Constitutions
       prohibit a court or other arm of the State from terminating the parental rights of a
       natural parent having legal custody of his child, without notice and the
       opportunity for a meaningful hearing.

Syl. Pt. 2, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973). Pursuant to West Virginia Code §
49-6-2(c) a “party or parties having custodial or other parental rights or responsibilities . . . shall
be afforded a meaningful opportunity to be heard, including the opportunity to testify and to
present and cross-examine witnesses.” In this case, Petitioner Father was represented by counsel,
afforded a meaningful opportunity to be heard, and allowed to fully participate in the
proceedings below. “We have never considered that the framers of Article III, Section 10 of the
West Virginia Constitution intended to extend the right of jury trial to all cases.” Markey, 164
W.Va. at 50, 264 S.E.2d at 441. For these reasons, we find that the circuit court did not err in
denying Petitioner Father a jury trial in this abuse and neglect proceeding.

        Finally, the Court finds no error in the circuit court’s decision adjudicating Petitioner
Father as an abusive parent. Petitioner Father argues that the circuit court erred in finding that his
disciplinary methods constituted abusive behavior. 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
       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 with regard to the circuit court’s findings of abuse. The circuit court
heard testimony from multiple witnesses, including Petitioner Father. 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 of the child at issue.

       For the foregoing reasons, we find no error in the decision of the circuit court and the
January 13, 2014, order is hereby affirmed.



                                                                                            Affirmed.

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ISSUED: June 19, 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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