                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

                                                                                FILED
In re: L.G.-1, L.G.-2, K.G., and J.G.                                      November 21, 2016
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
No. 16-0647 (Roane County 15-JA-48, 15-JA-49, 15-JA-50, & 15-JA-51)              OF WEST VIRGINIA




                              MEMORANDUM DECISION

        Petitioner Father C.G., by counsel Andrew S. Ryan, appeals the Circuit Court of Roane
County’s June 17, 2016, order terminating his parental rights to eight-year-old L.G.-1, six-year­
old L.G.-2, three-year-old K.G., and one-year-old J.G.1 The West Virginia Department of Health
and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed its response in support of the
circuit court’s order. The guardian ad litem (“guardian”), Anita Harold Ashley, filed a response
on behalf of the children supporting the circuit court’s order. On appeal, petitioner argues that
the circuit court erred in finding that he abused and neglected his children.

        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 November of 2015, the DHHR filed an abuse and neglect petition against petitioner
and the children’s mother that alleged that the parents’ drug abuse resulted in the children’s
abuse. The DHHR also alleged that the home was unsanitary, the children had not received
proper dental care, and the parents denied a DHHR worker entry into the home. The DHHR
further alleged that petitioner and the mother were involved in a pending abuse and neglect case
in Jackson County, West Virginia and they refused to cooperate in services in that case.
Subsequently, the circuit court held a preliminary hearing wherein petitioner and the mother
failed to appear because they were not properly served. The parties’ counsel appeared and the
hearing proceeded without them. A DHHR worker testified that both parents were non-compliant
with her requests to enter the home after receiving a referral and they had visible sores on their
bodies that were “consistent with drug use.” The worker also testified that the mother appeared

       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 two of the children in this matter share
the same initials, the Court refers to them as L.G.-1 and L.G.-2, respectively.


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to be groggy, disheveled, and staggering. The circuit court granted petitioner and the mother
leave to file a motion for a supplemental preliminary hearing due to the lack of notice. Neither
petitioner nor the mother requested a supplemental preliminary hearing in this matter.

         In January of 2016, the circuit court held an adjudicatory hearing wherein the mother
testified that neither she nor petitioner had substance abuse problems and both would “pass a
drug screen that day.” The circuit court ordered petitioner and the mother to submit to a drug
screens and ordered a recess during the hearing. The mother tested positive for amphetamines
and Suboxone. Petitioner tested positive for amphetamines, Suboxone, and methamphetamines.
The mother objected to the relevance of the drug screen to the extent that it would be used as
evidence of her drug use at adjudication. The circuit court noted the mother’s objection and
stated that the positive drug screen would be relevant to her credibility as a witness. Petitioner
moved the circuit court to continue the remainder of the hearing until the parties received
laboratory confirmation of the drug screens.

         In February of 2016, the circuit court concluded the adjudicatory hearing and was
presented with confirmation of petitioner’s prior positive drug screens and the same were
admitted into evidence. Petitioner admitted that he relapsed by using Suboxone following the
removal of the children. The mother similarly admitted that she relapsed by using Suboxone
following the removal of the children. A DHHR worker testified that petitioner did not keep in
contact with the DHHR and did not attend random drug screens, which were a prerequisite to
visitation with the children. At the close of the DHHR’s evidence, the mother moved the circuit
court to continue the hearing for another day so that she could present additional witnesses. The
circuit court granted her motion and ordered petitioner and the mother to submit to random drug
screens. At a subsequent hearing, the mother presented the testimony of her aunt who stated that
she had not observed either petitioner or the mother using drugs, as she did in the past. She
admitted, however, that she had not observed either party recently and had only seen them “a
couple of times” in the last year. Based on the evidence presented at the adjudicatory hearing, the
circuit court found by clear and convincing evidence that petitioner abused drugs which
adversely affected his ability to parent his children and resulted in the children’s abuse.
Thereafter, petitioner filed a motion for a post-adjudicatory improvement period.

         In May of 2016, the circuit court held a dispositional hearing and addressed petitioner’s
motion for a post-adjudicatory improvement period. Petitioner appeared in person and the
mother failed to appear. A DHHR worker testified that petitioner failed to comply with the
circuit court’s orders. The worker testified that petitioner failed to submit to random drug
screens, except for his initial drug screen at the January of 2016 hearing. The worker also
testified that petitioner failed to visit the children because he refused to submit to random drug
screens, failed to submit to a psychological evaluation and parental fitness evaluation, and failed
to keep in contact with the DHHR. The circuit court found that petitioner failed to take
responsibility for his actions and failed to participate in services during the pendency of the
proceedings. The circuit court concluded that there was no reasonable likelihood that the
conditions of abuse and neglect could be corrected in the near future and denied petitioner’s
motion for an improvement period. Based on the evidence presented, the circuit court terminated
petitioner’s parental rights to the children by order dated June 17, 2016. It is from this order that
petitioner appeals.

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       This 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).

        On appeal, petitioner argues that the circuit court should not have considered his failed
January of 2016 drug screen as evidence at his adjudication. However, there is no evidence on
the record that petitioner objected to the admission of his failed drug screen as evidence at the
adjudicatory hearing. This Court has routinely held that a party must assert a right in the circuit
court to preserve the issue for appellate review. See State v. Jessie, 225 W.Va. 21, 27, 689
S.E.2d 21, 27 (2009) (“general rule is that nonjurisdictional questions not raised at the circuit
court level will not be considered to the first time on appeal.”) (citation omitted). As such, we
decline to address petitioner’s argument on appeal.

        To the extent that petitioner argues that there was insufficient evidence to adjudicate him
as an “abusing parent,” we disagree. Specifically, petitioner asserts that the circuit court erred
when it considered his failed drug screen during adjudication because that evidence did not
“exist at the time of removal” and it was the sole basis for his adjudication. However, petitioner’s
argument ignores the multiple bases for the circuit court’s adjudication and the substantial
evidence supporting the same.

        According to West Virginia Code § 49-1-201, an abused child is one whose “health or
welfare is harmed or threatened by [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.” Similarly, an
“[a]busing parent means a parent . . . 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.
We have also explained that

                “W.Va. Code, [§] [49-4-601(2)], 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

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       particular manner or mode 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) (internal citations omitted).

         Upon our review, we find that the record demonstrates that the circuit court was
presented with ample evidence of petitioner’s abuse of the subject children. Moreover, substance
abuse was not the only factor upon which petitioner was adjudicated. In addition to the testimony
that petitioner appeared to have sores and marks on his face and arms that were consistent with
signs of substance abuse, the circuit court was presented with evidence that petitioner’s home
was in an unsanitary and unlivable condition, and that petitioner failed to secure dental treatment
for the children. A DHHR worker testified that the home was filthy, the mattresses and bedding
were dirty, and the children were not clean. She also testified that the oldest child, L.G.-1, had
only been to a dentist once and had four of her teeth extracted due to “bottle rot.” She further
testified that another child, K.G., required emergency dental surgery as a result of severe tooth
decay. The mother’s undisputed testimony at adjudication was that the three youngest children
had never been to a dentist and still drank from a baby bottle. Based upon the record, the
evidence of abuse and neglect was sufficient to support the circuit court’s findings that petitioner
was an abusing parent and that the children were abused and neglected.

        Although petitioner denied abusing drugs, the circuit court was not required to accept his
testimony as true. 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). Petitioner presented no
evidence disputing the drug abuse allegations, other than his testimony that he had been clean for
approximately eight years despite his admitted relapse on Suboxone. As such, the circuit court
was free to consider petitioner’s failed drug screen to gauge his credibility as a witness. The
circuit court was in the best position to weigh witness credibility. We find no error in the
findings of abuse and neglect of the children at issue.

       For the foregoing reasons, the circuit court’s June 17, 2016, termination order is hereby
affirmed.
                                                                                      Affirmed.



ISSUED: November 21, 2016

CONCURRED IN BY:

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

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