                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

In Re: J.E., I.E., K.E., & L.E.                                                     FILED
                                                                                  March 16, 2015
No. 14-0666 (Calhoun County 13-JA-34 through 13-JA-37)                         RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


                               MEMORANDUM DECISION
        Petitioner Father, by counsel Rebecca Stollar Johnson, appeals the Circuit Court of
Calhoun County’s July 12, 2014, order denying his motion to set aside its April 9, 2014, order
terminating his parental rights to J.E., I.E., K.E., and L.E. The Department of Health and Human
Resources (“DHHR”), by counsel, Lee Niezgoda, filed a response in support of the circuit
court’s order. The guardian ad litem, Michael W. Asbury Jr., filed a response on behalf of the
children also supporting the circuit court’s order. On appeal, petitioner argues that the circuit
court (1) lacked venue to hear this abuse and neglect matter; (2) erred in finding that the DHHR
proved by clear and convincing evidence that he sexually abused one of the children; (3) erred in
denying his motion for a post-adjudicatory improvement period; and (4) erred in terminating his
parental rights upon a finding that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect.

        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.

         The DHHR filed three original abuse and neglect petitions against petitioner with regard
to his children over the course of three years. The first petition, filed in 2011 in the Circuit Court
of Clay County, appears to have alleged truancy as the primary allegation.1 When the Circuit
Court of Clay County discovered that petitioner resided in Calhoun County, it transferred the
2011 petition to the Circuit Court of Calhoun County for further proceedings.2 The Circuit Court
of Calhoun County granted petitioner an improvement period in the 2011 proceeding, and the
children remained in petitioner’s physical custody.

      The second petition, filed in 2012 again in the Circuit Court of Clay County, alleged
domestic violence between petitioner and his wife; unsanitary conditions in the home; and,

       1
         Although referenced in the current action and at issue in petitioner’s first assignment of
error, the parties did not include the original petitions or transcripts from the 2011 and 2012
proceedings in the record on appeal.
       2
        By order entered on February 25, 2013, the Circuit Court of Calhoun County dismissed
the 2011 proceedings.

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again, truancy. The Circuit Court of Clay County again transferred the 2012 petition to the
Circuit Court of Calhoun County for consolidation with the pending 2011 petition. At the time of
the 2012 petition’s filing, the DHHR removed the children from petitioner’s physical custody
and placed them with a relative, M.W., and her husband. In December of 2012, M.W. informed
Child Protective Services (“CPS”) that K.E. had stated that petitioner touched her for sexual
gratification. A few days later, an expert in child sexual abuse interviewed K.E., but the child did
not make any allegations against petitioner during that interview. In January of 2013, a CPS
worker interviewed K.E., and during that interview, K.E. stated that petitioner touched her for
sexual gratification.

       In February of 2013, the DHHR removed the children from M.W.’s care due to concerns
with the condition of her home; the children’s unkempt appearance on a regular basis while
under her care; and M.W.’s possible mental health issues. In the following six months, the
DHHR relocated K.E. into three foster homes because of continued complaints that she
presented severe behavioral issues, such as tantrums, screaming, wetting herself, and
masturbation. K.E. underwent therapy and a forensic interview related to her behaviors and the
alleged sexual abuse.

       In May of 2013, the DHHR filed the instant abuse and neglect petition against petitioner
and his wife in the Circuit Court of Calhoun County. As to petitioner, the 2013 petition alleged
that he sexually abused K.E., who related that petitioner touched her vaginal area during her
baths and at other times for sexual gratification.

         In August and September of 2013, the circuit court held two adjudicatory hearings on the
2013 petition. The CPS worker who interviewed K.E. testified as to her January interview, which
she admitted was somewhat unfocused because it was difficult to ascertain information from a
small child. Nonetheless, the CPS worker testified that, in that interview, K.E. stated that
petitioner “touched the—[her] cooch”; that when he touched her vaginal area he also “touche[d]
his cooch”; and that she seemed to indicate that this occurred in several rooms throughout the
home, at different times, and, on at least one occasion, petitioner was not wearing clothes when
he touched her. K.E. did not specify during this interview when or where the incident or
incidents occurred. Dr. Timothy Saar and an assistant in Dr. Saar’s office, Sandra Walls, both
testified for the DHHR that they interviewed K.E. in January of 2013, and K.E. disclosed that
petitioner touched her vaginal area. Dr. Saar diagnosed K.E. with attention deficit hyperactivity
disorder and disorders related to child neglect and child sexual abuse. Dr. Bobby Miller, a
licensed psychologist, testified for petitioner that, in his expert opinion, petitioner provided no
indication that he was a pedophile or otherwise demonstrated the profile of a sexual offender.
Petitioner and his wife testified and denied the allegations that petitioner inappropriately touched
K.E. The circuit court determined that, in weighing the credibility of the testimony, petitioner
sexually abused K.E. Therefore, it adjudicated the children as abused and neglected and
petitioner as an abusing parent.

       In December of 2013, at the dispositional hearing, petitioner moved for a post­
adjudicatory improvement period arguing that he had a deep bond with his children and would
comply with services to reunify with them. The circuit court heard testimony from petitioner and
his wife that, although he did not sexually touch K.E., he had several areas of parenting that


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could use improvement. The CPS worker, however, testified that CPS had worked with
petitioner in the past, but that he failed to follow through on services provided and to fully admit
to all of his issues. By order entered on January 9, 2014, the circuit court denied petitioner’s
motion and terminated his parental rights to all four children. On April 9, 2014, it entered a
corrected order. Subsequently, petitioner moved to set aside the April 9, 2014, order, but the
circuit court denied that motion on June 12, 2014. This appeal followed on July 11, 2014.

       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 raises four assignments of error. He first argues that the Circuit
Court of Calhoun County lacked venue to hear this matter. However, petitioner cites to no
objection or motion on this issue in the record on appeal. To the contrary, as to the 2011 and
2012 petitions, the circuit court’s order clearly states that those petitions were transferred from
Clay to Calhoun counties “without objection.” As to the instant 2013 petition, we also find no
objection or motion on this issue by petitioner before the circuit court. We have explained that
“‘“[j]urisdiction deals with the power of the court, while venue deals with the place in which an
action may be tried.” Syllabus Point 7, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963).’
Syllabus Point 2, Vanover v. Stonewall Casualty Co., 169 W.Va. 759, 289 S.E.2d 505 (1982).”
Hansbarger v. Cook, 177 W.Va. 152, 157, 351 S.E.2d 65, 70 (1986). Furthermore, “[s]ubject
matter jurisdiction cannot be conferred by consent or waiver, but venue may be.” Id. We find
that petitioner’s failure to object to venue before responding to the merits of the pleading
constitute waiver of this issue for appellate review. See State v. Asbury, 187 W.Va. 87, 91, 415
S.E.2d 891, 895 (1992) (“Generally the failure to object constitutes a waiver of the right to raise
the matter on appeal.”).

        Next, petitioner claims the circuit court erred in finding that the DHHR proved by clear
and convincing evidence that he sexually abused K.E. West Virginia Code § 49–6–2(c) directs
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 . . . .” Further, that code provision requires that “[t]he findings must be based


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upon conditions existing at the time of the filing of the petition and proven by clear and
convincing proof.” Id. 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.

Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (internal citations omitted).

        Upon our review, it is clear that the evidence below was sufficient to support the circuit
court’s finding. K.E. disclosed to several individuals that petitioner sexually abused her in his
home. Although petitioner argues that “the only person [K.E.] disclosed to is the foster mother
[M.W.] who is suffering from mental illness and may have coached the child[,]” our review of
the record reveals that K.E. also disclosed these abuses to the CPS worker and two psychological
professionals in January of 2013. The circuit court heard detailed testimony from Dr. Saar, Ms.
Walls, and the CPS worker regarding K.E.’s disclosures. Further, while it is also true that
petitioner denied these accusations in his testimony to the circuit court, and his wife testified that
he did not commit these acts, we have held that “in the context of abuse and neglect proceedings,
the circuit court is the entity charged with weighing the credibility of witnesses and rendering
findings of fact.” In re Emily, 208 W.Va. 325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1,
in part, In re Travis W., 206 W.Va. 478, 525 S.E.2d 669 (1999)); see also Michael D.C. v.
Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997) (“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.”). Upon our review of the record, we find the circuit court was in the best
position to weigh the credibility of this conflicting testimony, and we cannot find, based on the
record before us, that the circuit court’s findings were erroneous. Moreover, we note that even in
the context of criminal procedure, which employs a higher burden of proof than civil abuse and
neglect proceedings, “‘[a] conviction for any sexual offense may be obtained on the
uncorroborated testimony of the victim, unless such testimony is inherently incredible[.]’
Syllabus Point 5, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981).” Coleman v. Painter,
215 W. Va. 592, 598–99, 600 S.E.2d 304, 310–11 (2004). Therefore, we find no error in the
circuit court’s rulings.

        Third, petitioner asserts that the circuit court erred in denying his motion for a post­
adjudicatory improvement period. Pursuant to West Virginia Code § 49–6–12(b), circuit courts
have the discretion to grant a post-adjudicatory improvement period when the subject parent
demonstrates by clear and convincing evidence that he or she will likely fully participate in the
improvement period. However, West Virginia Code § 49–6–5(a)(7)(A) directs that the DHHR is
not required to make reasonable efforts to preserve the family when the circuit court determines
that the parent has subjected the child to aggravated circumstances, “which include, but are not
limited to . . . sexual abuse.” In this case, due to the nature of the adjudication and petitioner’s
history before the circuit court, we cannot find that the circuit court abused its discretion in
denying his motion for a post-adjudicatory improvement period. The circuit court adjudicated


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petitioner as an abusing parent due to his sexual abuse of K.E., which is an aggravated
circumstance and does not require reasonable efforts to preserve the family. Moreover, we have
recognized that an improvement period is futile if the subject parent has failed to acknowledge
the existence of the problem. Syl. Pt. 2, W. Va. Dept. of Health and Human Res. ex rel. Wright v.
Doris S., 197 W.Va. 489, 475 S.E.2d 865 (1996) (“Because 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.”). Here, petitioner failed to acknowledge the existence of the abuse adjudicated.
While petitioner testified at the dispositional hearing that he could make improvements in the
areas of “communication” and “understanding” and would generally “take any class or any
program” to regain custody, he did not admit to the sexual abuse of K.E. Further, petitioner had
previously been granted an improvement period in the 2011 abuse and neglect proceedings, but,
notwithstanding that improvement period, the DHHR filed another petition against him in 2012
alleging domestic violence, unsuitable conditions in his home, and truancy. Therefore, the circuit
court did not err as to this issue.

        Finally, petitioner argues that the circuit court erred in terminating his parental rights
upon a finding that there was no reasonable likelihood that he could substantially correct the
conditions of abuse and neglect. Petitioner contends that, notwithstanding the circuit court’s
finding, less restrictive alternatives existed in this matter under West Virginia Code § 49–6–5(a)
and our holding in syllabus point one, in part, of In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114
(1980) (“As a general rule the least restrictive alternative regarding parental rights to custody of
a child under W.Va. Code, 49-6-5 (1977) will be employed.”). We disagree. West Virginia Code
§ 49-6-5(b)(5) provides that “no reasonable likelihood that conditions of neglect or abuse can be
substantially corrected” exists when

       [t]he abusing parent or parents have repeatedly or seriously injured the child
       physically or emotionally, or have sexually abused or sexually exploited the child,
       and the degree of family stress and the potential for further abuse and neglect are
       so great as to preclude the use of resources to mitigate or resolve family problems
       or assist the abusing parent or parents in fulfilling their responsibilities to the
       child

The circuit court specifically found that petitioner, having been adjudicated as an abusing parent,
had sexually abused K.E. and that the degree of family stress and potential for further abuse and
neglect were so great as to preclude the use of resources to mitigate or resolve family problems
or assist him in fulfilling his responsibilities to that child. Petitioner fails to demonstrate that the
circuit court was clearly wrong in this finding. During three separate interviews, K.E. told at
least three individuals that petitioner sexually abused her. Although petitioner denied these
accusations, as explained above, witness credibility rests in the province of the finder of fact.
Therefore, the circuit court did not err in finding that there was no reasonable likelihood that
petitioner could substantially correct the conditions of abuse and neglect in the near future.

       Further, petitioner’s argument that less restrictive alternatives existed in this matter
ignores previous decisions of this Court. This Court has often held that


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               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W.Va. Code,
       49–6–5 [1977] may be employed without the use of intervening less restrictive
       alternatives when it is found that there is no reasonable likelihood under
       W.Va.Code, 49–6–5(b) [1977] that conditions of neglect or abuse can be
       substantially corrected.” Syl. pt. 2, In Re: R.J.M., 164 W.Va. 496, 266 S.E.2d 114
       (1980).

Syl. Pt. 2, In re Dejah P., 216 W.Va. 514, 607 S.E.2d 843 (2004). Here, given its findings, the
circuit court did not err in terminating petitioner’s parental rights without the use of intervening
less restrictive alternatives. Therefore, upon our review of the record, we find no error.

        Based upon our review of the record, we find no error in the circuit court’s termination of
petitioner’s parental rights. Given the facts of this case, there was no reasonable likelihood that
petitioner could substantially correct the conditions of abuse and neglect in the near future, and
termination was necessary for the children’s welfare and in the children’s best interests. Pursuant
to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights and
responsibilities upon such findings.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: March 16, 2015

CONCURRED IN BY:

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




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