                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


                                                                                    FILED
In Re: K.J., E.J., & E.A.                                                         June 15, 2015
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
No. 14-1270 (Putnam County 14-JA-7 through 14-JA-9)                             OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Mother P.J., by counsel Joshua Martin, appeals the Circuit Court of Putnam
County’s October 15, 2014, order terminating her parental, custodial, and guardianship rights to
K.J., E.J., and E.A. The West Virginia Department of Health and Human Resources (“DHHR”),
by counsel S.L. Evans, filed its response in support of the circuit court’s order. The guardian ad
litem (“guardian”), Gregory Courtright, filed a response on behalf of the children in support of
the circuit court’s order. Petitioner filed a supplemental appendix. On appeal, petitioner argues
that the circuit court erred in prohibiting petitioner’s expert from testifying and excluding his
report during the dispositional hearing.1

        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 a prior abuse and neglect petition against petitioner seeking the
termination of her parental rights to two older children. By order entered March 20, 2001, the
circuit court terminated her parental rights to two older children. Subsequently, the DHHR filed
an additional abuse and neglect petition against petitioner seeking the termination of her parental
rights to a third child. In March of 2003, the circuit court also terminated her parental rights to
the third child.

        In February of 2014, the DHHR filed the current abuse and neglect petition against
petitioner based upon her prior involuntary terminations in 2001 and 2003. The petition further
alleged that petitioner failed to remedy the conditions that led to the prior terminations. Several
months following the filing of the petition, the circuit court held a series of adjudicatory hearings
during at which it ordered petitioner to submit to a parental fitness evaluation. The circuit court

       1
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed at the time of the lower court proceedings.


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advised petitioner that the DHHR would pay for the evaluation if it was conducted in West
Virginia or she was free to obtain her own evaluation in Oklahoma at her expense.2 The circuit
court also permitted petitioner to have telephone contact with the children. After considering the
evidence, the circuit court found that petitioner failed to provide the children with financial,
physical, or emotion support for “several years.” Accordingly, the circuit court adjudicated
petitioner as a neglectful parent.

        In June of 2014, Doctor Larry Vaught, Ph.D., performed a parental fitness evaluation on
petitioner and prepared a report.3 However, prior to the dispositional hearing the circuit court
ordered West Virginia based Hudson Forensic Psychological to conduct a parental fitness
evaluation on petitioner. The circuit court held a dispositional hearing on October 2, 2014,
during which petitioner moved to permit Dr. Vaught to testify and to admit his report. The
guardian objected to petitioner’s motions. After considering the parties’ arguments, the circuit
court ruled that it “wasn’t comfortable with having the parental fitness evaluator and evaluation
done by the out-of-state provider,” and denied petitioner’s motion. Thereafter, the circuit court
terminated petitioner’s parental, custodial, and guardianship rights. 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
       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, the Court finds
no abuse of discretion in the circuit court’s evidentiary ruling.

       Petitioner’s sole assignment of error on appeal is that the circuit court erred in prohibiting
her expert witness from testifying at the dispositional hearing and in excluding his report. We
have previously held that:



       2
        Petitioner lived in Oklahoma during the underlying proceedings while the children lived
in West Virginia.
       3
           Dr. Vaught is a licensed psychologist in the State of Oklahoma.

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       “The West Virginia Rules of Evidence. . . allocate significant discretion to the
       trial court in making evidentiary and procedural rulings. Thus, rulings on the
       admissibility of evidence . . . are committed to the discretion of the trial court.
       Absent a few exceptions, this Court will review evidentiary and procedural
       rulings of the circuit court under an abuse of discretion standard.”

Syl. Pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995). The circuit
court noted that Dr. Vaught’s report was a “cursory psychological parental fitness report” and
that “it appear[s] to be much less detailed and . . . contain much less information” than a circuit
court generally expects. Furthermore, petitioner failed to present the circuit court with Dr.
Vaught’s credentials to qualify him as an expert. Importantly, the report failed to include any
information regarding petitioner’s prior terminations or whether petitioner acknowledged the
underlying issues of abuse and neglect. Despite expressing its desire to have Dr. Vaught testify
in person or by video, Dr. Vaught could only testify telephonically. We have ruled that, “[t]he
admissibility of testimony by an expert witness is a matter within the sound discretion of the trial
court, and the trial court's decision will not be reversed unless it is clearly wrong.” Syl. Pt. 6,
Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991). For these reasons, we
find no error in the circuit court’s ruling excluding the evidence of petitioner’s retained expert.

        Furthermore, when a circuit court is evaluating whether to terminate a parent’s parental,
custodial, and guardianship rights pursuant to West Virginia Code § 49-6-5, the dispositive
question remains whether there is no reasonable likelihood that the conditions of neglect or abuse
can be substantially corrected in the near future. The evidence supports the circuit court’s order
terminating petitioner’s parental, custodial, and guardianship rights. Specifically, the circuit court
found that petitioner failed to participate in multidisciplinary team meetings, failed to participate
in services to remedy the current conditions of abuse and neglect, and failed to remedy the
conditions of abuse and neglect that led to her prior involuntary terminations. These findings
support the circuit court's conclusions that there was no reasonable likelihood to believe that the
conditions of abuse and neglect could be substantially corrected in the near future, and that the
termination was necessary for the child's welfare. Pursuant to West Virginia Code § 49-6-5(a)(6),
circuit courts are directed to terminate parental rights upon such findings, just as the circuit court
did in this case.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 15, 2014, order is hereby affirmed.
                                                                                    Affirmed.

ISSUED: June 15, 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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