In re B.J. and A.J. ( 2023 )

FILED
March 7, 2023
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re B.J. and A.J.
No. 22-0414 (Putnam County 21-JA-26 and 21-JA-27)
MEMORANDUM DECISION
Petitioner Father G.J. 1 appeals the Circuit Court of Putnam County’s April 27, 2022, order
terminating his parental, guardianship, and custodial rights to B.J. and A.J. 2 Upon our review, we
determine that oral argument is unnecessary and that a memorandum decision affirming the circuit
court’s order is appropriate. See W. Va. R. App. P. 21.
In March of 2021, the DHHR filed a petition alleging that petitioner subjected J.C., his
girlfriend’s then twelve-year-old daughter, to sexual abuse, sexually inappropriate behavior, and/or
sexualized grooming behavior. 3 The petition alleged that he fondled J.C.’s breast, watched her
change clothes on multiple occasions, and showed her a pornographic video. Petitioner and J.C.’s
mother share two children, B.J. and A.J., who were also named in the petition, which further
alleged that petitioner exposed the children to domestic violence. The children’s mother was listed
as a nonabusing parent.
Over two adjudicatory hearings, the court heard testimony from multiple witnesses. First,
the DHHR introduced testimony from the children’s maternal aunt who recounted disclosures J.C.
made regarding petitioner’s inappropriate touching, sexualized comments, and physical violence.
She further testified that J.C. feared not only for her safety, but also for the safety of her then two-
year-old brother, B.J., whom J.C. claimed petitioner picked up, screamed at, and shook. Next, the
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Petitioner appears by counsel Thomas H. Peyton. The West Virginia Department of Health
and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey and
Assistant Attorney General Katherine A. Campbell. Paul E. Stroebel appears as the children’s
guardian ad litem.
2
We use initials where necessary to protect the identities of those involved in this case. See
W. Va. R. App. P. 40(e).
3
Child J.C. was part of the proceedings below. However, petitioner has no rights to this
child, and the circuit court, accordingly, took no action in regard to J.C. when terminating
petitioner’s parental, custodial, and guardianship rights to his biological children. As such, J.C. is
not at issue in this appeal.
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DHHR introduced testimony from Erica Garcia-Palmer, a forensic interviewer qualified as an
expert in the in the field of child abuse and neglect. She interviewed J.C. shortly after the child
disclosed the abuse and testified that J.C. was credible and consistent in her disclosures, ultimately
opining that she believed the child had been subjected to the disclosed sexual abuse. Petitioner’s
counsel objected to this testimony on the grounds of hearsay and improper opinion evidence, but
the objections were overruled. Lastly, Child Protective Services worker Jessica Tice testified that
the disclosures J.C. made to her were consistent with those made to the child’s family and Ms.
Garcia-Palmer. Petitioner did not testify, but his counsel introduced testimony from the children’s
mother who claimed that she had not witnessed any indicators of sexual misconduct by petitioner
and suggested J.C. may have fabricated the claims out of anger after learning that her mother was
pregnant with A.J. Upon cross-examination, however, the mother admitted that J.C.’s behavior did
not change after finding out about the pregnancy and that J.C. never recanted any of the claims.
In October of 2021, the court, by order, adjudicated petitioner as an abusing parent, finding
by clear and convincing evidence that petitioner intentionally exposed J.C. to pornography and to
sexually explicit comments, subjected her to emotional and mental injury, engaged in sexual
grooming, and subjected her to sexual abuse by intentionally touching her breast. The court further
found that petitioner subjected J.C. and B.J. to domestic violence and that both B.J. and A.J. were
at risk of being abused and were abused children under state law. Although the court relied on the
entirety of the record in reaching these conclusions, it gave deference to Ms. Garcia-Palmer’s
expert testimony.
At disposition, petitioner introduced testimony from his therapist and his mother, both of
whom stated that they had not witnessed any aggressive behavior by petitioner. Lastly, petitioner
testified that, although he voluntarily surrendered to a forensic psychological evaluation, parenting
classes, and drug screening, he sought no treatment for sexual abuse, domestic violence, or
physical abuse because none had occurred. Petitioner’s counsel moved for a post-adjudicatory
improvement period. The court denied the motion, finding that petitioner did not qualify for a post-
adjudicatory improvement period as he failed to acknowledge any wrongdoing. The DHHR moved
to terminate petitioner’s parental rights; the guardian and counsel for the children’s mother joined
in the motion. The court found that there was no reasonable likelihood that petitioner could correct
the conditions of abuse and that termination was in the children’s best interests. In support of these
findings, the court reiterated that petitioner intentionally subjected J.C. to sexual abuse and
sexualized grooming behavior; engaged in domestic violence; was presently unwilling and/or
unable to provide adequately for the needs of the children; and did not acknowledge any
wrongdoing. Accordingly, the court terminated petitioner’s parental, guardianship, and custodial
rights to B.J. and A.J. 4 and denied post-termination visitation. 5
On appeal from a final order in an abuse and neglect proceeding, this Court reviews the
circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re
Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). We initially turn to petitioner’s specific arguments
4
The mother was deemed a nonabusing parent. The permanency plan for B.J. and A.J. is
to remain in the care of the nonabusing parent.
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The court also ordered petitioner not to have contact with the J.C.
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regarding adjudication. 6 First, petitioner contends that the circuit court erred in allowing the
forensic interviewer to testify regarding J.C.’s out-of-court statements, asserting that testifying
would not have caused psychological harm to the child. We find no error. Rule 8 of the Rules of
Procedure for Child Abuse and Neglect Proceedings establishes “a rebuttable presumption that the
potential psychological harm to the child outweighs the necessity of the child’s testimony.”
Although petitioner now argues that testifying would not have caused psychological harm to the
child because she already testified in his criminal case, 7 no such argument was made during the
adjudicatory hearing where the forensic interviewer testified. Accordingly, petitioner abdicated his
responsibility to rebut the presumption. Petitioner further seeks to invalidate admission of the
interviewer’s testimony because the circuit court did not make a finding on whether the potential
psychological harm to the child outweighed the necessity of her testimony. Again, however,
petitioner made no objections on this specific ground during the hearing, so the court had no
occasion to make such a finding on the record. While it is true that petitioner’s counsel objected
to the interviewer’s testimony on hearsay grounds, it is unnecessary to address petitioner’s specific
argument regarding hearsay because Rule 8 clearly permits the introduction of “equivalent
evidence,” which in this case is the recorded forensic interview and the testimony of the person
who conducted it. Here, the child’s testimony was wholly unnecessary because of the
comprehensive nature of both the interview and the interviewer’s testimony. See In re L.N., No.
18-0033, 2018 WL 2194024, at *4 (W. Va. May 14, 2018)(memorandum decision) (affirming “the
circuit court’s decision to adjudicate petitioner as an abusing parent based upon the testimony of
the forensic interviewer” in lieu of requiring the child to testify).
Second, petitioner contends that the circuit court erred by permitting the forensic
interviewer to render her opinion on the truthfulness of J.C.’s allegations against petitioner. To
support his contention, petitioner cites to the following:
Expert psychological testimony is permissible in cases involving incidents
of child sexual abuse and an expert may state an opinion as to whether the child
comports with the psychological and behavioral profile of a child sexual abuse
victim, and may offer an opinion based on objective findings that the child has been
sexually abused. Such an expert may not give an opinion as to whether he
personally believes the child, nor an opinion as to whether the sexual assault was
committed by the defendant, as these would improperly and prejudicially invade
the province of the jury.
Syl. Pt. 7, State v. Edward Charles L., 183 W. Va. 641, 644, 398 S.E.2d 123, 126 (1990).
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In addition to petitioner’s two specific arguments regarding adjudication, which are
addressed below, he also notes that A.J. was not born at the time of the abuse but makes no specific
legal arguments and does not cite to any legal authority regarding this issue. Accordingly, we
decline to address it here.
7
The criminal matter concluded with petitioner pleading no contest to simple battery and
being sentenced to probation.
3
We recently addressed a similar set of circumstances and affirmed the circuit court’s
adjudication and subsequent termination of parental rights. In re M.J., No. 21-0591, 2022 WL
2135584 (W. Va. June 14, 2022)(memorandum decision). The petitioner in that case also argued
that the circuit court improperly relied on a forensic interviewer’s opinion that she “believed the
evidence pointed to the child, [M.J.], being sexually abused.” Id. at *3. She too cited to Edward
Charles L., but as we explained, petitioner misplaced her reliance on that case as the forensic
interviewer’s opinion did not “invade the province of the jury” because petitioner was not a
criminal defendant in a jury trial. Id. As we explained, “[t]his Court expects a circuit court judge
who conducts a bench trial to disregard any inadmissible evidence when rendering a decision.” Id.
In In re M.J., as in the instant case, the court made factual findings recounting the forensic
interviewer’s testimony, including her statement regarding the credibility of the child, but did not
make a specific finding showing reliance on the opinion when rendering its decision. Id. “Instead,
the circuit court’s findings indicate[d] that it relied on [the forensic interviewer’s] expert opinion[]
about the evidence showing that [the child] was sexually abused,” and, as we further explained,
the court did not err in giving that testimony greater weight. Id. Here too, the circuit court made
extensive findings regarding Ms. Garcia-Palmer’s testimony as a whole—though also noting her
statement regarding the credibility of the child—and found that her “expert testimony . . . [was]
credible and should be given great deference in weighing the evidence.” The circuit court did not
make a specific finding that it relied on Ms. Garcia-Palmer’s opinion regarding J.C.’s credibility
in rendering its decision. Instead, the court noted that its conclusions were based upon the entirety
of the evidence presented at the dispositional hearing and the findings made at the adjudicatory
hearing, including the testimony of multiple witnesses who corroborated the consistency and/or
accuracy of J.C.’s statements regarding the sexual abuse and domestic violence. Accordingly,
petitioner cannot be entitled to relief regarding his adjudication.
Next, we turn to petitioner’s argument regarding termination. Specifically, petitioner
argues that the circuit court erred in terminating his parental rights to B.J. and A.J. as termination
was not in their best interests. Petitioner correctly cites to West Virginia Code § 49-4-604(c)(6),
which allows for termination “[u]pon a finding that there is no reasonable likelihood that the
conditions of neglect or abuse can be substantially corrected in the near future and, when necessary
for the welfare of the child.” Petitioner stresses, among other things, that he has a strong emotional
bond with the children and has always provided for their physical and financial needs. However,
petitioner completely ignores the fact that he was adjudicated for sexually abusing a child in the
home and for engaging in domestic violence in the home. Even more importantly, petitioner
continues to deny any wrongdoing whatsoever, thereby threatening the children’s wellbeing by
refusing to address the serious issues for which he was adjudicated. See In re Timber M., 231 W.
Va. 44, 55, 743 S.E.2d 352, 363 (2013) ( “Failure to acknowledge the existence of the problem,
i.e., the truth of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator
of said abuse and neglect, results in making the problem untreatable.”). Petitioner’s argument on
appeal that there is no evidence that “B.J. and A.J.’s health or welfare were threatened by
permitting their father to parent them in some manner” only underscores his complete refusal to
accept responsibility, as the circuit court was presented with ample evidence that petitioner’s
egregious conduct threatened the children. As such, the court did not err in finding there was no
reasonable likelihood that petitioner could correct the conditions and that termination was
necessary for the welfare of the children. Because the circuit court made the findings required for
termination of petitioner’s parental rights upon ample evidence, we find no error. See W. Va. Code
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§ 49-4-604(c)(6) (permitting a circuit court to terminate parental rights upon finding that there is
no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected in
the near future and when necessary for the child’s welfare).
For the foregoing reasons, we find no error in the decision of the circuit court, and its April
27, 2022, order is hereby affirmed.
Affirmed.
ISSUED: March 7, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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