In re L.N. and J.N.-1 ( 2018 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re L.N. and J.N.-1
May 14, 2018
No. 18-0033 (Randolph County 2017-JA-55 and 56) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father J.N.-2, by counsel Steven B. Nanners, appeals the Circuit Court of
Randolph County’s December 12, 2017, order terminating his parental rights to L.N. and J.N.-1.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy
M. Parsley, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Heather M. Weese, filed a response on behalf of the children also in support of the
circuit court’s order and a supplemental appendix. On appeal, petitioner argues that the circuit
court erred in adjudicating him as an abusing parent and improperly terminating his parental
rights based upon the erroneous 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 July of 2017, the DHHR filed a child abuse and neglect petition against petitioner,
alleging that petitioner abused the mother and both children mentally, emotionally, and
physically, and also abused L.N. sexually. The mother obtained a domestic violence protective
order (“DVPO”) against petitioner in relation to these acts. The children participated in forensic
interviews at the local Children’s Advocacy Center and disclosed that their father frequently
consumed alcohol and verbally abused them by calling them names such as “fat,” “lazy,” “slut,”
and “worthless.” The children also disclosed physical abuse by petitioner, including slapping
them in the face, pushing them down, and throwing objects at them. Petitioner also abused the
children’s pets in their presence, including choking and punching the dog and threatened the
children that he would beat them similarly if they did not obey. Both children expressed fear that
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). Additionally, because one of the children and petitioner
share the same initials, we will refer to them as J.N.-1 and J.N.-2, respectively, throughout this
memorandum decision.
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their father would kill their mother for obtaining the DVPO against him. Finally, L.N. revealed
that petitioner sexually abused her by digitally penetrating her on three separate occasions and
penetrating her with his penis on one occasion. Petitioner waived his preliminary hearing.
The circuit court held an adjudicatory hearing in August of 2017. Petitioner was
transported to the hearing from the regional jail, where he was incarcerated for charges relating
to his sexual abuse of L.N. Petitioner indicated that he was willing to stipulate to certain
allegations contained in the petition, but his counsel advised the circuit court that due to pending
criminal charges, he would not stipulate to any allegations of sexual abuse. A discussion then
ensued on the record, during which the guardian provided her opinion regarding petitioner’s
partial stipulation. The guardian stated
I understand . . . the facts and circumstances as we find ourselves with regard to
[petitioner] to enter an admission to child abuse for which he bases him being
criminal [sic] incarcerated and the case law is clear in that regard that he has to
choose one or the other. His silence on that can be taken by this [c]ourt, to be
contrary to his acceptance to his responsibility in any type of argument involving
his parental rights, but he does that at the detriment of being used in his criminal
case.
At that time, the circuit court allowed petitioner to provide a stipulation. Petitioner attempted to
stipulate to some allegations of abuse, including his becoming intoxicated in the children’s
presence and “being mean” to them, but denied participating in domestic violence and denied
that his drinking affected his ability to parent. The circuit court found that petitioner’s stipulation
was insufficient and the matter proceeded to a contested adjudicatory hearing. The DHHR
presented the testimony of the forensic interviewer who personally interviewed L.N. and
observed the interview of J.N.-1. The forensic interviewer testified regarding the children’s
disclosures of abuse, including petitioner verbally insulting them, physically harming them,
abusing their pets, and sexually assaulting L.N. on four separate occasions. After hearing
evidence, the circuit court adjudicated petitioner as an abusing parent.
In December of 2017, the circuit court held a dispositional hearing wherein it took
judicial notice of the testimony presented and findings made at the adjudicatory hearing. The
DHHR proffered that due to the aggravated circumstances of sexual abuse it was not required to
make reasonable efforts to preserve the family, and based upon the evidence taken at the
adjudicatory hearing, requested that petitioner’s parental rights be terminated. Petitioner
presented no evidence and argued that his adjudication was improper. Further, petitioner
indicated that he was not requesting an improvement period because he did nothing wrong. The
guardian joined the DHHR’s motion to terminate his parental rights and advised the circuit court
that both children desired termination of petitioner’s parental rights. The circuit court found that
the evidence presented at the adjudicatory hearing created a sufficient basis for both adjudication
and disposition, especially in light of petitioner’s failure to request an improvement period or
accept responsibility for his wrong-doing. The circuit court also acknowledged the children’s
desire that his parental rights be terminated. Accordingly, the circuit court found that petitioner
was unable or unwilling to provide for the children’s needs, that there was no reasonable
likelihood that the conditions of abuse and neglect could be corrected in the near future, and that
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termination was necessary for the children’s welfare. It is from the December 12, 2017, order
terminating his parental rights that petitioner appeals.2
The Court has previously established the following standard of review in cases such as
this:
“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 circuit court erred in adjudicating him as an abusing
parent based upon insufficient evidence. Specifically, petitioner argues that the DHHR failed to
offer any evidence to support the allegations contained in the petition except for the testimony of
the forensic interviewer, who was erroneously qualified as an expert witness and testified as to
hearsay statements made by the children. Petitioner argues that the recorded interviews should
have been submitted into evidence rather than the forensic interviewer’s testimony. Finally,
petitioner argues that he was misinformed by the guardian as to whether his testimony could be
used against him in his criminal case. We find petitioner’s argument to be without merit.
First, petitioner acknowledges that he failed to object to the forensic interviewer’s
testimony but claims that the circuit court’s reliance upon the same instead of the recorded
interview constitutes plain error. We disagree and decline to review the matter under a plain error
analysis. Moreover, petitioner argues that the circuit court erroneously qualified the forensic
interviewer as an expert witness “without affording him the opportunity to object.” This
argument is entirely without merit as petitioner fails to explain how the circuit court should have
invited him to object or cite to any authority requiring such. Accordingly, we find that petitioner
has waived this argument on appeal. “‘Our general rule is that nonjurisdictional questions . . .
raised for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc.,
206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n.20 (1999).” Noble v. W.Va. Dep’t of Motor
Vehicles, 223 W.Va 818, 679 S.E.2d 650 (2009). The record is clear that petitioner objected to
2
The mother was a non-abusing parent throughout the proceedings below and the
permanency plan for the children is to remain in her care.
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neither the forensic interviewer’s testimony, nor her qualifications as an expert witness and, as
such, we decline to address these issues.
Second, we find no error in the circuit court’s adjudication of petitioner as an abusing
parent. We have held that
“W.Va.Code [§] 49-6-2(c) [now 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). Pursuant
to West Virginia Code § 49-1-201,
“‘[an a]bused child’ means: (1) [a] child whose health or welfare is being harmed
or threatened by: (A) [a] parent . . . who knowingly or intentionally inflicts, [or]
attempts to inflict . . . physical injury or mental or emotional injury, upon the
child or another child in the home . . . [or] (B) [s]exual abuse or sexual
exploitation[.]”
The DHHR presented the testimony of the forensic interviewer who interviewed L.N. and
observed J.N.-1’s interview. This interviewer testified that L.N. disclosed emotional, physical,
and sexual abuse perpetrated by petitioner. The interviewer also observed J.N.-1 disclose
emotional and physical abuse by petitioner. Both children disclosed that they had been slapped,
pushed, and had things thrown at them by petitioner. Both children also disclosed that petitioner
abused their pets in front of them and threatened to do the same to them. Importantly, petitioner
did not offer testimony or evidence to contradict this testimony. We have held that
[b]ecause the purpose of an abuse and neglect case 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.
Syl. Pt. 2, W.Va. Dep’t of Health & Human Res. ex rel. Wright v. Doris S., 197 W.Va. 489, 475
S.E.2d 865 (1996). Petitioner did not respond to probative evidence offered against him during
the proceedings below and, as such, it was in the circuit court’s discretion to consider his silence
as affirmative evidence. While petitioner argues that the guardian misinformed him regarding the
ramifications of remaining silent, a review of the record does not indicate that petitioner relied
upon the guardian’s statement to his detriment, especially in light of the fact that petitioner’s
counsel stated that he was not going to testify to any allegations regarding sexual abuse prior to
any statement made by the guardian. Moreover, the guardian’s statement that petitioner had to
choose between remaining silent or testifying to the detriment of said testimony being used in his
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criminal case cannot be construed to overstate the law as petitioner alleges.3 Based on the
evidence outlined above, we find no error in the circuit court’s decision to adjudicate petitioner
as an abusing parent based upon the testimony of the forensic interviewer regarding the many
forms of abuse and petitioner’s silence.
Petitioner also argues that the circuit court erred in terminating his parental rights based
upon the erroneous adjudication. However, we find no error in the circuit court’s adjudication of
petitioner, and we find no error in its decision to terminate petitioner’s parental rights. West
Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental, custodial,
and guardianship rights upon findings that there is “no reasonable likelihood that the conditions
of neglect or abuse can be substantially corrected in the near future” and that termination is
necessary for the child’s welfare. According to West Virginia Code § 49-4-604(c)(2) and (5), a
situation in which there is no reasonable likelihood the conditions of abuse and neglect can be
substantially corrected includes one in which
(2) [t]he abusing parent or parents have willfully refused or are presently
unwilling to cooperate in the development of a reasonable family case plan
designed to lead to the child’s return to their care, custody and control . . . [or]
....
(5) . . . 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[.]
3
We have previously noted that this Court is
satisfied that this rule allowing a trial court to consider one’s silence as
affirmative evidence of culpability, as set forth in [W.Va. Dept. of Health and
Human Resources ex rel. Wright v. Doris S., 197 W.Va. 489, 475 S.E.2d 865
(1996)], is soundly supported by the authorities and is consistent with the policy
of this State which encourages prompt hearing of abuse and neglect cases and a
paramount concern for the best interests of the children involved in such
proceedings. We are also satisfied that the rule does not offend the protections
against self-incrimination afforded by the Fifth and Fourteenth Amendments to
the Constitution of the United States and Article III, Section 5 of our State
Constitution. As applied to the issue of culpability, the rule simply confronts the
accused parent with a choice: Assert the privilege against self-incrimination with
the risk that silence will be considered in the civil proceeding as evidence of
culpability, or waive the privilege and offer such evidence as the accused may
alone possess to refute the charge of abuse and neglect.
In re Daniel D., 211 W.Va. 79, 87, 562 S.E.2d 147, 155 (2002).
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Here, the circuit court found that there was sufficient evidence to find that petitioner
abused the children physically, mentally, emotionally, and abused L.N. sexually, which
constituted aggravated circumstances. Moreover, petitioner did not request an improvement
period or desire to participate in the same because he continued to deny the allegations of abuse
and neglect throughout the proceedings. As such, petitioner’s failure to acknowledge the
conditions of abuse rendered the problem untreatable. See In re Timber M., 231 W.Va. 44, 55,
743 S.E.2d 352, 363 (2013). Finally, the children desired that petitioner’s parental rights be
terminated. Based upon the evidence outlined above and petitioner’s failure to acknowledge the
conditions of abuse and refusal to participate in a plan to correct the same, we agree with the
circuit court’s findings that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and that termination was necessary for the children’s welfare. As mentioned
above, circuit courts are directed to terminate parental rights upon such findings.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 12, 2017, order is hereby affirmed.
Affirmed.
ISSUED: May 14, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
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