                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



In Re: R.L.                                                                       FILED
                                                                                  May 24, 2013
No. 12-1516 (Berkeley County 12-JA-70)                                       RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA


                                MEMORANDUM DECISION

        Petitioner Father filed this appeal, by counsel Christopher J. Prezioso, from the Circuit
Court of Berkeley County, which terminated his parental rights by order entered on November
29, 2012. The guardian ad litem for the child, William Prentice Young, has filed a response
supporting the circuit court’s order. The Department of Health and Human Resources
(“DHHR”), by its attorney Melinda C. Dugas, has also filed a response in support of the circuit
court’s order.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       In May of 2012, the DHHR filed the petition initiating the abuse and neglect proceedings
below. The petition alleged abuse and neglect of the subject child by Petitioner Father’s alleged
sexual abuse of two of R.L.’s siblings.1 At the adjudicatory hearing, those two children testified,
in camera, about Petitioner Father’s sexual abuse against them. In November of 2012, the circuit
court entered its order terminating Petitioner Father’s parental rights. The circuit court further
denied Petitioner Father an improvement period and post-termination visitation. Petitioner Father
appeals this termination order.

        Petitioner Father first argues that the circuit court committed reversible error by finding
the infant children at issue to be abused children as defined by West Virginia Code § 49-1-3. He
argues that no physical evidence was entered to support the sexual abuse allegations and the
children’s testimony did not establish that sexual abuse occurred. Petitioner also asserts that the
children’s mother was motivated to appear as a co-petitioner in the circuit court proceedings due
to her plans to file for divorce. Petitioner argues that, accordingly, the DHHR did not meet its
burden of proof by clear and convincing evidence. In response, the child’s guardian ad litem and
the DHHR both contend that the circuit court did not err in finding the subject child and his
siblings to be abused children under West Virginia Code § 49-1-3. They argue that the two
children who testified clearly described petitioner’s unwanted touches to their genitals over their
clothing and that petitioner told them not to disclose this behavior to their mother. More
1
  R.L. and his siblings all have the same mother, but different fathers. R.L. was Petitioner
Father’s only biological child in the proceedings below.

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specifically, one of the children testified that Petitioner Father elaborated by telling her that if she
told her mother, R.L. would grow up without a father. Both respondents further highlight that
petitioner neither denied these incidents nor offered any alternative explanations to these
testimonies, and that petitioner’s argument concerning any motivation by the children’s mother
has no bearing on the abuse and neglect proceedings.

        Second, Petitioner Father argues that the circuit court erred by terminating his parental
rights. He asserts that no specific allegations of abuse were made against the subject child and
that the allegations contained in the petition do not correspond to the appropriate and responsible
behavior he exhibited with R.L. Respondents refute petitioner’s argument and argue that,
pursuant to West Virginia Code § 49-1-3(1)(A), R.L. and another of his siblings were properly
considered by the circuit court as abused children because petitioner knowingly inflicted sexual
abuse upon two of R.L.’s siblings in the home. They reiterate that the evidence in circuit court
was clear and convincing to support the circuit court’s findings of sexual abuse and,
subsequently, its findings that the conditions were not likely to be corrected in the near future.
Respondents argue that, accordingly, the circuit court committed no errors in termination.

       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 error in the circuit court’s termination of Petitioner
Father’s parental rights, including its findings that R.L. and his siblings were all considered
abused children. West Virginia Code § 49-1-3(1)(A) clearly includes in its definition of an
“abused child” as a child who is “another child in the home” when a parent has inflicted abuse to
a different child there. We have case law that affirms this determination. See Syl. Pt. 2, In re
Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995). Our review of the record on appeal reflects
testimony of Petitioner Father’s sexual abuse against two of R.L.’s siblings when the family
lived together. Due to these aggravated circumstances, the DHHR was not required to make
reasonable efforts to preserve the family, pursuant to West Virginia Code § 49-6-5(a)(7)(A). We
further find that the circuit court was presented with sufficient evidence upon which it based
findings that there was no reasonable likelihood to believe that conditions of abuse and neglect


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could be substantially corrected in the near future, and that 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.

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

                                                                                     Affirmed.

ISSUED: May 24, 2013

CONCURRED IN BY:

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




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