                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                    FILED
In re K.M. and J.C.                                                              June 17, 2019
                                                                                EDYTHE NASH GAISER, CLERK
No. 19-0208 (Marion County 18-JA-126 and 18-JA-127)                             SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION



       Petitioner Father G.M., by counsel Matthew S. Delligatti, appeals the Circuit Court of
Marion County’s January 27, 2019, order adjudicating him as an abusing parent.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed
a response in support of the circuit court’s order. The children’s guardian ad litem (“guardian”),
Marci R. Carroll, 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 September 19, 2018, the DHHR filed a petition alleging that petitioner sexually abused
his adopted daughter, K.M., when he got her up for school on September 7, 2018. According to
the referral, the child arrived to school that day and reported that petitioner repeatedly touched her
vagina through her pants, touched her breast through her clothing, and then tried several times to
put his hands down the child’s pants. A forensic interview was conducted during which the child
identified that petitioner touched her breasts and vagina by marking those areas on an anatomical
drawing. The child became upset and cried when asked to name the vaginal area. The child
disclosed that she was wearing grey shorts and an orange tank top and was lying on her back in
bed when petitioner came into her room and stood above the bed. The child explained that she
believed petitioner thought she was asleep when he touched her. She stated that petitioner first
touched her breasts, but stopped when she moved. She reported that he then touched the area

       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).


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around her vagina. She explained that petitioner touched her over her clothes. Further, the child
disclosed that petitioner attempted to reach up her shorts to touch her, but that he stopped when
she moved her leg. She stated that after she moved that time, petitioner shook her arm to wake her
up. The child told the interviewer that she did not initially tell her mother about the sexual abuse
because she did not want her brother to hear. After learning of petitioner’s sexual abuse of K.M.,
the mother filed a protective order against petitioner to prevent him from having any contact with
the child.2

        When a Child Protective Services worker and the police interviewed petitioner, he admitted
to having a sexual relationship with his stepdaughter, the children’s biological mother. However,
petitioner claimed that the sexual relationship with his stepdaughter did not occur until she became
an adult. Petitioner denied that he touched K.M. in a sexual way and suggested that the child made
the allegations because she was angry with him for breaking her phone, which he did after finding
that she had his phone number programmed under “ass.” Petitioner also offered examples of K.M.
lying about things and being jealous of her brother in an attempt to discredit her.

        On September 27, 2018, the circuit court held a preliminary hearing during which the
forensic interviewer testified regarding the child’s disclosures during the interview. The
interviewer further testified that the child made consistent statements about the abuse to her mother
and her therapist. At the conclusion of the hearing, the circuit court found that the DHHR’s removal
of the children from petitioner’s custody was reasonable and necessary and scheduled the
adjudicatory hearing. On December 11, 2018, the circuit court held a hearing and granted the
guardian’s motion to admit K.M.’s forensic interview in lieu of her testimony.

         On January 7, 2019, the circuit court held an adjudicatory hearing. The forensic interviewer
testified that the child disclosed to school personnel that petitioner sexually abused her when
waking her up for school. The interviewer further provided details of the child’s disclosures,
particularly that petitioner had touched the child’s breasts and vaginal area, and that the child
marked an anatomical drawing of those areas, which was admitted into evidence along with a
recording of the child’s interview. Next, K.M.’s therapist testified that the child disclosed the
sexual abuse to her. The therapist opined that the behaviors that K.M. exhibited were consistent
with those frequently exhibited by victims of sexual abuse, and that she had no reason to doubt the
veracity of the child’s disclosures. The police officer who investigated the allegations testified that
he observed the child’s forensic interview. He testified that nothing the child said during the
interview led him to question her truthfulness and added that the child cried during the interview,
particularly when disclosing that petitioner touched her vagina. The officer further testified that
petitioner denied the allegations against him during his interview and agreed to take a polygraph
examination at a later time. However, petitioner failed to appear for the examination, purportedly
upon advice of his counsel.

      Petitioner testified on his own behalf stating that nothing “sexual” happened between him
and K.M. He initially denied touching the child’s breasts or vaginal area, but later testified that it
was possible that he touched her breasts or other parts of her body, but if he had done so, it was


       2
         There were no allegations of abuse and neglect against the mother as she took appropriate
steps to protect K.M. after learning of the abuse.
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not intentional. He also suggested that the child made the allegations because he broke her phone.
However, the mother testified that, although petitioner broke the child’s phone, the child started
using an old phone and did not seem upset about the broken phone.

        On January 27, 2019, after reviewing the child’s forensic interview, the circuit court issued
an order adjudicating petitioner as an abusing parent based upon his sexual abuse of K.M. The
circuit court found that the child’s repeated disclosures of sexual abuse were credible and
supported by clear and convincing evidence, including the therapist’s testimony that the child’s
symptoms were consistent with that of a child sexual abuse victim. The circuit court further found
that petitioner’s testimony was not credible, “both in demeanor and content,” particularly due to
his conflicting versions of events. First, he firmly denied the allegations, but then admitted that it
was possible that he accidentally touched the child’s breasts or “somewhere else on her body,” but
consistently emphasized that “there was no intent.” In sum, the circuit court found that petitioner
“inappropriately touched the breasts and vaginal area of [the child and] . . . did so in a sexual
manner and not merely incidental to waking her up for school.” It is from this order that petitioner
appeals.3

       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).

        On appeal, petitioner argues that the DHHR failed to prove by clear and convincing
evidence that he abused and neglected the children and that the circuit court’s findings were clearly
erroneous. In support, petitioner contends that K.M.’s disclosures during her forensic interview
were not credible because of a discrepancy regarding how often petitioner stayed at the family’s
home, because it was “not clear whether K.M. was dreaming or ‘half-asleep,’” and because K.M.
made allegations against petitioner “out of spite” after petitioner broke her phone. Petitioner also
alleges that the circuit court failed to “properly assess” his credibility because he was “insistent
that he did not intentionally grab K.M.’s breast or touch her vaginal area when he woke her up for
school but he acknowledged that he possibly could have brushed or bumped her breast when


       3
        The mother is a nonabusing parent. Because a dispositional hearing has not yet been held
in the matter, petitioner’s parental rights to the children are still intact.
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tugging on her blanket to wake her up.” Finally, in support of his argument that the circuit court
erred in adjudicating him as an abusing parent, petitioner contends that no criminal charges were
filed against him. We find no error in the circuit court’s adjudicating petitioner as an abusing
parent.

       In regard to adjudication,

                 “[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 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). Further,

       [t]his 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.” Brown v. Gobble, 196 W.Va. 559, 564,
       474 S.E.2d 489, 494 (1996) (internal citations omitted). We have also stated that
       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.” Cramer v. W. Va. Dept. of Highways, 180
       W.Va. 97, 99 n. 1, 375 S.E.2d 568, 570 n. 1 (1988).

In re F.S., 233 W. Va. 538, 546, 759 S.E.2d 769, 777 (2014).

        Upon our review of the record, we find that K.M.’s statements were compelling and
sufficiently detailed to support the circuit court’s finding that she was sexually abused by
petitioner. During the forensic interview, the child consistently disclosed that petitioner touched
her breasts and vaginal area when he came into her room to wake her up for school on September
7, 2018. She also disclosed the sexual abuse to her mother and her therapist. We have held that
“[s]exual abuse may be proven solely with the victim’s testimony, even if that testimony is
uncorroborated.” In re K.P., 235 W. Va. 221, 230, 772 S.E.2d 914, 923 (2015) (citing syl. pt. 5,
State v. Beck, 167 W. Va. 830, 286 S.E.2d 234 (1981)). Likewise, “the absence of witnesses to the
abuse is not a basis to disbelieve [the child.] It is axiomatic that most sexual abuse of children is
not committed in front of an audience.” Id. at 232, 772 S.E.2d at 925. K.M.’s forensic interview
was admitted into evidence in lieu of her testimony and her disclosures were sufficient to show
that petitioner sexually abused her, because, as discussed further below, the circuit court found her
statements to be credible.

       To the extent that petitioner argues that the child’s disclosures during her forensic interview
were not credible and that the circuit court “failed to properly assess” petitioner’s credibility, we
note that “[i]n reviewing the entirety of the evidence, this Court must adhere to the appellate
standard of review set forth above, according significant weight to the circuit court’s credibility
determinations while refusing to abdicate our responsibility to evaluate the evidence and determine

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whether an error has been committed.” F.S., 233 W. Va. at 546, 759 S.E.2d at 777. Moreover, “[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 found the child’s disclosures to be credible and supported by clear and
convincing evidence. The forensic interviewer testified that K.M. disclosed consistent details
regarding the sexual abuse perpetrated by petitioner. The child’s therapist opined that the behaviors
that K.M. exhibited were consistent with those frequently exhibited by victims of sexual abuse,
and that she had no reason to doubt the veracity of the child’s disclosures. The police officer that
investigated the allegations testified that he observed the child’s forensic interview and that
nothing the child said during the interview led him to question her truthfulness. In its adjudicatory
order, the circuit court was dismissive of petitioner’s attempts to discredit the child’s disclosures.
Notably, while petitioner claimed that K.M. made the allegations against him because she was mad
at him for breaking her phone, the child’s mother testified that K.M. was not upset about the phone.
Further, although petitioner argues that there was a discrepancy regarding how often he stayed at
the family’s home, the evidence clearly showed that petitioner was in the home when the abuse
occurred. Additionally, petitioner argues that the child may have been dreaming or “half-asleep”
when the abuse occurred. However, the record shows that the child consistently stated that she was
awake when petitioner sexually abused her and was able to give clear and concise details regarding
the abuse. Moreover, in regard to petitioner’s testimony, the circuit court found that his testimony
was not credible due to his conflicting version of the events. First, he denied the allegations, but
later admitted that there as a possibility that he may have touched K.M. “somewhere on her body”
when he was waking her up for school. Based on this evidence, we find no error in the circuit
court’s determinations regarding the credibility of the child and petitioner.

        While petitioner also argues that criminal charges were not filed against him for lack of
probable cause, as discussed above, in the abuse and neglect matter at hand, the statements K.M.
made during her forensic interview were sufficient to show that petitioner sexually abused her. As
discussed, the circuit court found the child’s statements during the forensic interview to be
credible. Further, although the investigating officer did not pursue criminal charges, as mentioned
above, the officer stated during his testimony that he observed K.M.’s forensic interview and did
not have any reason to believe that the child was not being truthful about the abuse. Therefore,
petitioner is entitled to no relief.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 27, 2019, order is hereby affirmed.


                                                                                           Affirmed.


ISSUED: June 17, 2019




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CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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