                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                   FILED
In re B.S.-1, J.S., and G.S.                                                  November 19, 2018
                                                                                EDYTHE NASH GAISER, CLERK
No. 18-0600 (Preston County 17-JA-33, 17-JA-34, and 17-JA-35)                   SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA



                               MEMORANDUM DECISION
        Petitioner Father B.S.-2., by counsel Justin Gregory, appeals the Circuit Court of Preston
County’s June 1, 2018, order adjudicating him as an abusing parent in regard to the children.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy
M. Parsley, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), DeAndra Burton, filed a response on behalf of the children in support of the circuit
court’s order. On appeal, petitioner argues that the circuit court erred in adjudicating him as an
abusing parent.

        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.

        On May 2, 2017, the DHHR filed an abuse and neglect petition alleging that petitioner
exposed the children to emotional, psychological, and physical abuse due to his physical abuse of
J.S. The DHHR also alleged that petitioner had a history of Child Protective Services (“CPS”)
involvement and that the mother abandoned the children. In January of 2017, the DHHR
received a referral that J.S. “appeared at school with a large bruise about the size of a quarter, but
oblong on her left cheek that is pretty dark and fresh, along with a bruise on her chest about 5 ½
inches long.” J.S. disclosed that it was a rug burn as a result of petitioner throwing her on the
floor after striking G.S. for playing in the bathroom sink. In April of 2017, another referral was
made that reported that J.S. appeared at school with “two black eyes, scratches on her face, and
multiple bruises in what appeared to be different stages of healing on the front and back of her
lower legs.” On April 28, 2017, a DHHR worker interviewed J.S. and school personnel. The

       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). Additionally, because one of the children and petitioner
share the same initials, they will be referred to as B.S.-1 and B.S.-2, respectively, throughout this
memorandum decision.


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worker observed a knot on the right side of the child’s head along her hairline. The child
disclosed that petitioner kicked her in the side of the head that morning for opening a bag of dog
food. Further, the DHHR alleged that J.S. and B.S. both had truancy issues during the 2016-2017
school year, that the mother’s whereabouts were unknown, and that her last contact with the
children was reportedly four years prior. An amended petition was filed alleging that petitioner
had substance abuse issues and a drug-related criminal history. An additional amended petition
was filed in July of 2017 alleging that petitioner refused to submit to a random drug screen as
ordered by the circuit court on at least one occasion, and tested positive for opiates,
benzodiazepines, and marijuana in June of 2017.2 Petitioner waived the preliminary hearing.

         The circuit court held an adjudicatory hearing over several months in 2017 and 2018. The
DHHR presented the testimony of two teachers and the principal from the children’s school. The
school personnel testified that both B.S. and J.S. often came to school with bruises, and that J.S.
frequently had black eyes and various bumps. According to the teachers and principal, J.S.
disclosed that petitioner physically abused her on several occasions. J.S.’s kindergarten teacher
testified that she considered the child’s bruising to be excessive. The principal testified that she
took photographs of J.S.’s bruising and addressed the children’s truancy issues. The DHHR also
presented evidence that petitioner tested positive for illegal substances three times between May
and September of 2017. Next, petitioner’s former live-in girlfriend testified that she lived with
petitioner for approximately three years and never witnessed petitioner hit, kick, or injure his
children in any way. She testified that J.S.’s bruising was the result of playing with neighborhood
kids. A nurse practitioner from Preston County Urgent Care testified that she examined the
children following the alleged abuse by petitioner, but did not see signs of physical abuse.
However, in regard to her testimony, the circuit court found that she did not speak to the children
about the abuse, nor was she specifically trained to notice abuse. Petitioner testified that any
bruises on his children were likely caused by “rough playing.” The circuit court noted that it
gave “great credibility” to the testimony of the school personnel. The circuit court found that the
children had excessive bruising and that B.S. and J.S. had twenty-five and twenty-two unexcused
absences from school, respectively. The circuit court adjudicated petitioner as an abusing parent
in its June 1, 2018, adjudicatory order. It is from this 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


       2
         The amended petitions also included allegations that a court in Tennessee previously
found by clear and convincing evidence that petitioner sexually abused his four-year-old
stepdaughter, a child not at issue in this appeal. The Tennessee court also found by clear and
convincing evidence that petitioner abused his biological son, S.C., who is not at issue in this
appeal. Additionally, the DHHR alleged that petitioner voluntarily relinquished his parental
rights to two other children in Taylor County, West Virginia, in 2015. Those two children have
since reached the age of majority.
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       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, this Court
finds no error in the proceedings below.

         On appeal, petitioner argues that the circuit court erred in adjudicating him as an abusing
parent. In support, petitioner argues that “[n]early all of the evidence presented by the [DHHR]
in its case in chief was unreliable hearsay.” Petitioner asserts that his witnesses provided reliable
evidence. Although petitioner argues that the DHHR’s witnesses’ testimony and the DHHR’s
exhibits constituted hearsay, petitioner makes no reference to any objections to the same.3
Further, in regard to the DHHR’s evidence, we have held that
       [t]he West Virginia Rules of Evidence declare that parties must object to the
       wrongful offer of evidence at a particular time and with reasonable specificity.
       The failure to object at the time and in the manner designated by Rule 103(a) of
       the West Virginia Rules of Evidence is treated as a procedural default, with the
       result that the evidence, even if erroneous, becomes the facts of the case. West
       Virginia practice imposes the same duty of diligence in regard to nonjury cases.
       Silence in the circuit court typically constitutes a waiver of objection. See
       W.Va.R.Evid. 103(a)(1).

Tiffany Marie S., 196 W.Va. at 234, 470 S.E.2d at 188. Therefore, because petitioner failed to
object to the DHHR’s evidence, petitioner waived the hearsay issue on appeal.

        Moreover, based upon our review of the record, we find that the circuit court had
sufficient evidence to adjudicate petitioner as an abusing parent. We have held that

               “W.Va. Code [§] 49-6-2(c) [now West Virginia Code § 49-4-601(i)],
       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
       [evidence].’ The statute, however, does not specify any particular manner or mode


       3
         Pursuant to Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, the
argument must contain appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were presented in the
lower tribunal. Petitioner makes no reference to the record on appeal wherein he objected to the
testimony of the adverse witnesses or the DHHR’s exhibits.


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       of testimony or evidence by which the [DHHR] 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. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (citations omitted). This Court
has explained that “‘clear and convincing’ is the measure or degree of proof that will produce in
the mind of the factfinder a firm belief or conviction as to the allegations sought to be
established.” In re F.S., 233 W.Va. 538, 546, 759 S.E.2d 769, 777 (2014) (citing Brown v.
Gobble, 196 W.Va. 559, 564, 474 S.E.2d 489, 494 (1996)). However, “the clear and convincing
standard is ‘intermediate, being more than a mere preponderance, but not to the extent of such
certainty as is required beyond a reasonable doubt as in criminal cases.’” In re F.S., 233 W.Va. at
546, 759 S.E.2d at 777 (quoting Cramer v. W.Va. Dep’t of Highways, 180 W.Va. 97, 99 n.1, 375
S.E.2d 568, 570 n.1 (1988)).

        West Virginia Code § 49-1-201 provides the definitions of “abused child” and “abusing
parent.” An “abused child” is a child “whose health or welfare is being harmed or threatened by:
(A) A parent, guardian or custodian who knowingly or intentionally inflicts, attempts to inflict or
knowingly allows another person to inflict, physical injury or mental or emotional injury, upon
the child or another child in the home.” Further, an “‘[a]busing parent’ means a parent, guardian
or other custodian, regardless of his or her age, whose conduct has been adjudicated by the court
to constitute child abuse or neglect as alleged in the petition charging child abuse or neglect.” Id.
Here, sufficient evidence of petitioner’s abuse of the children existed to adjudicate him as an
abusing parent. The record shows that J.S. often came to school with excessive bruising, black
eyes, and various bumps. The child disclosed to teachers and other school personnel that on one
particular occasion, petitioner kicked her in the head for opening a bag of dog food. Her
disclosure was corroborated by B.S.-1’s disclosure. The record also shows that B.S.-1 and J.S.
had excessive absences from school during the 2016-2017 school year. Further, the circuit court
found the school personnel’s testimony to be credible and compelling.

        We have often noted 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). The circuit court specifically stated in its
adjudicatory order that it gave “great credibility” to the testimony of the school personnel. While
petitioner argues that his witnesses’ testimony was reliable, the circuit court clearly found the
DHHR’s witnesses’ testimony more credible and persuasive. In addition to the testimony from
the school employees, the DHHR presented evidence that petitioner tested positive for illegal
substances in May, June, and September of 2017. Based upon this evidence, we find that the
circuit court properly adjudicated petitioner as an abusing parent. Accordingly, petitioner is
entitled to no relief.

       Because the abuse and neglect proceedings are ongoing, this Court reminds the circuit
court of its duty to establish permanency for the children. Rule 39(b) of the Rules of Procedure
for Child Abuse and Neglect Proceedings requires:

       At least once every three months until permanent placement is achieved as
       defined in Rule 6, the court shall conduct a permanent placement review

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       conference, requiring the multidisciplinary treatment team to attend and report as
       to progress and development in the case, for the purpose of reviewing the progress
       in the permanent placement of the child.

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the
children within twelve months of the date of the dispositional order. As this Court has stated,

               [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
       placement of an abused and neglected child following the final dispositional order
       must be strictly followed except in the most extraordinary circumstances which
       are fully substantiated in the record.

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Finally, “[t]he guardian ad litem’s role
in abuse and neglect proceedings does not actually cease until such time as the child is placed in
a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991).

        For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 1, 2018, adjudicatory order is hereby affirmed.


                                                                                       Affirmed.




ISSUED: November 19, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment




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