                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



In Re: H.S. & H.S.
                                                                                   FILED
                                                                                January 17, 2014
                                                                             RORY L. PERRY II, CLERK
No. 13-0857 (Randolph County 12-JA-38 & 12-JA-39)                          SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA



                                 MEMORANDUM DECISION

        Petitioner Father, by counsel Christopher W. Cooper, filed this appeal from the Circuit
Court of Randolph County’s order entered on July 19, 2013. The guardian ad litem for the
children, Heather M. Weese, filed a response in support of the circuit court’s order. The
Department of Health and Human Resources (“DHHR”), by its attorney Lee A. Niezgoda, also
filed a response in support of the circuit court’s order. Petitioner appeals the circuit court order
adjudicating him an abusing parent, as well as the termination of his parental rights to the subject
children1 following the adjudication.

        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 October of 2012, the DHHR filed a petition for abuse and neglect that alleged
Petitioner Father sexually abused H.S.-1 and that the children’s mother failed to protect them
from him. Following adjudicatory hearings in January and February of 2013, petitioner was
adjudicated as an abusing parent based on his sexual abuse of H.S.-1. At the hearings, petitioner
denied abusing H.S.-1 and sought to cross-examine the child. A tape of an interview with a
DHHR employee was admitted into the record, and the DHHR employee was subject to cross-
examination. Petitioner objected to the inclusion of this evidence and the DHHR worker’s
testimony. The circuit court denied petitioner’s requests to cross-examine and overruled
objections to testimony describing the child’s interview by the DHHR. At the adjudicatory
hearing, the children’s mother testified that he often walked around the house naked in front of
the children and she once found him in H.S.-1’s bed in the middle of the night wearing no pants.
In April of 2013, at the dispositional hearing, the children’s mother was granted a post­
adjudicatory improvement period. Petitioner renewed his argument that he was entitled to cross-
examine the infant child at the dispositional hearing. Petitioner’s parental rights to the two
children were terminated by order entered on July 19, 2013. It is from this order that petitioner
appeals.

1
  Because the children in this case have the same initials, we have distinguished each of them
using numbers 1 and 2 after their initials. The circuit court case numbers also serve to distinguish
each child.

                                                 1

       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’s sole argument is that the exclusion of H.S.-1’s testimony in court
was clear error, leading to petitioner being improperly adjudicated as an abusing parent and his
parental rights being terminated. Specifically, he argues that Rule 8 of the West Virginia Rules
of Child Abuse and Neglect Proceedings is unconstitutional as applied to him because it violates
his due process right to confront a witness in a proceeding. Petitioner further argues that Rule 8’s
restrictions on the testimony of children conflict with the statutory mandate that a parent “be
afforded a meaningful opportunity to be heard, including the opportunity to testify and to present
and cross-examine witnesses.” W.Va. Code § 49-6-2(c). Petitioner argues, in the alternative, that
the circuit court could have taken in camera testimony pursuant to Rule 8(b).

       Rule 8(a) of the West Virginia Rules of Child Abuse and Neglect Proceedings contains
mandatory and permissive guidance for when circuit courts should exclude testimony by
children. Under the rule, there is “a rebuttable presumption that the potential psychological harm
to the child outweighs the necessity of the child’s testimony and the court shall exclude this
testimony if the potential psychological harm to the child outweighs the necessity of the child’s
testimony.” (Emphasis added.) The rule describes additional circumstances when a court is also
permitted to exclude a child’s testimony, even if the potential psychological harm to the child
does not outweigh the necessity of the child’s testimony:

       Further, the court may exclude the child’s testimony if (A) the equivalent
       evidence can be procured through other reasonable efforts; (B) the child’s
       testimony is not more probative on the issue than the other forms of evidence
       presented; and (C) the general purposes of these rules and the interest of justice
       will best be served by the exclusion of the child’s testimony.

Rule 8 is designed to protect children from harm and its application in this case did not
violate petitioner’s constitutional or statutory rights.


                                                 2

         Here, the circuit court had ample evidence upon which to base a finding that the potential
psychological harm to H.S.-1 outweighed the necessity of the testimony. Petitioner showed a
willingness to intimidate his family members. For example, the children’s mother stated that she
felt intimidated by petitioner, the circuit court ordered petitioner not to look at the children’s
mother during testimony, and evidence showed that H.S.-1 hid behind the mother when the
mother confronted petitioner about the sexual abuse. Additionally, the necessity of cross-
examination for H.S.-1’s testimony did not outweigh its potential psychological harm because
the testimony was corroborated by the testimony of the mother and DHHR worker, who were
subject to cross-examination. Petitioner’s argument that Rule 8(b) of the West Virginia Rules of
Child Abuse and Neglect Proceedings indicates that in camera testimony is an alternative to
excluding a child from cross-examination, is unfounded. Rule 8(b) clearly addresses the
“[p]rocedure for taking testimony from children[,]” when the circuit court determines that the
child should testify. We find no error in the circuit court’s exclusion of H.S.-1 from cross-
examination. We hold that the evidence before this Court amply supports petitioner’s
adjudication as an abusing parent based upon petitioner’s abuse of H.S.-1. Further, the circuit
court correctly found that there was no reasonable likelihood that the conditions of abuse and
neglect could be substantially corrected, based upon his refusal to acknowledge his abuse.
Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental
rights upon these findings.

       For the foregoing reasons, we affirm the circuit court’s order terminating petitioner’s
parental rights to the subject children.

                                                                                        Affirmed.

ISSUED: January 17, 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




                                                3

