In re V.T., S.T., T.T., and S.B. ( 2023 )

FILED
May 16, 2023
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re V.T., S.T., T.T., and S.B.
No. 22-633 (Harrison County 21-JA-203-2, 21-JA-204-2, 21-JA-205-2, and 21-JA-207-2)
MEMORANDUM DECISION
Petitioner Father and Stepfather J.T.1 appeals the Circuit Court of Harrison County’s June
22, 2022, order terminating his parental and custodial rights to V.T., S.T., T.T., and S.B.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 September of 2021, the DHHR filed a petition against petitioner (the father of V.T., S.T.,
and T.T. and stepfather of S.B.) and P.T. (the mother of S.B. and stepmother of V.T., S.T., and
T.T.) alleging that the couple failed to protect the children from the children’s adult
stepbrother/half-brother’s (Z.D.) sexual abuse. In late August of 2021, S.T. ran away from home,
was located by police, and disclosed Z.D.’s sexual abuse of the children during a child advocacy
center (“CAC”) interview. Then-fifteen-year-old S.T. (1) disclosed that Z.D.’s sexual abuse started
when she was thirteen years old and (2) alleged that the family moved from New York to three
different counties in North Carolina and then to West Virginia to evade child welfare authorities.3
S.T. stated that P.T. was fully aware of the abuse, as P.T. had walked in on instances of Z.D.
inappropriately touching his siblings. S.T. also reported that when she told petitioner and P.T.
about instances of the abuse, they refused to believe her or acknowledge the abuse. The DHHR
further alleged that petitioner and P.T. emotionally abused the children by insulting them and
calling them vulgar names; that petitioner excessively punished the children by beating them with
a belt; and that P.T. threw objects, like shoes, at the children.
1
Petitioner appears by counsel Dean R. Morgan. The West Virginia Department of Health
and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey and
Assistant Attorney General Katica Ribel. Dreama D. Sinkkanen 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
The children ranged in age from ten to sixteen years old when the petition was filed. Z.D.
is the son of P.T. from a prior relationship.
1
The circuit court held contested adjudicatory hearings in October and December of 2021
and April of 2022. P.T. denied that she or petitioner ever struck the children. She further testified
that the family had strict rules that the male children could not be upstairs where the girls’ rooms
were located, and the girls could not be in the boys’ room in the basement. When questioned about
prior child welfare services involvement with the family in North Carolina, P.T. admitted that there
were reports in 2019 about her son Z.D.’s sexual misconduct with the other children, but she
asserted that North Carolina did not file a case against the family. Petitioner testified consistent
with P.T.’s testimony. When questioned about prior allegations, petitioner did not disclose the
details about referrals made in New York. Petitioner denied ever leaving a mark or bruise on the
children when disciplining them. He stated that none of the children had disclosed any abuse and
that S.T. lashes out when she does not get her way.
The DHHR worker testified that he was present during S.T.’s CAC interview and his
description of S.T.’s allegations was consistent with the petition. The DHHR moved for the
admission of several exhibits concerning prior child protective services involvement with the
family in New York and North Carolina spanning from 2010 to the present. The allegations
included the parents’ lack of supervision over the children, Z.D.’s sexual misconduct, P.T.’s
sexually explicit social media post, and two of the children watched pornography on a public
library’s computer.
The forensic interviewer testified that all the children were interviewed in early August of
2021 at the CAC but did not disclose sexual abuse at that time. However, during the interviews,
V.T. revealed that P.T. deliberately smashed S.T.’s cellphone after an argument. S.B. disclosed
being afraid when petitioner and P.T. “had fights.” T.T. stated that the family had moved to several
places but denied any abuse. S.B. reported that Z.D. had sex with a cousin in North Carolina but
denied that Z.D. sexually abused her. In this interview conducted a few weeks before S.T. ran
away from home, S.T. did not disclose sexual abuse but instead disclosed allegations of domestic
violence such as P.T. attempting to run petitioner over with a car and holding a knife to him. She
also reported that petitioner struck Z.D., causing him to fall to the ground and that P.T.
purposefully broke S.T.’s cellphone.
The interviewer further testified that during a subsequent CAC interview with S.T. taken
after she ran away in late August of 2021, S.T. recanted her prior statement that she did not know
anything about sexual abuse by Z.D. S.T. admitted that she lied because her aunt was waiting in
the lobby and could hear what she said. She also said that Z.D. was sending her threatening texts
during the first CAC interview. S.T. stated that P.T. told the children that they would move out of
West Virginia if Z.D. got into trouble for his sexual misconduct. S.T. described several incidents
in which Z.D. sexually abused her, V.T., and S.B. She stated that during a month that the children
were left alone while petitioner and P.T. were “on the road” driving a truck, V.T. caught Z.D.
having oral sex with his half-sister S.B. S.T. stated that she called petitioner and told him about
the incident, but he did not believe her. She also told the interviewer that P.T. deleted a video from
a personal device of Z.D. forcing T.T. to “dry hump” him. When describing an incident where
Z.D. forced her to put her hand in his pants, S.T. said Z.D. told her, “It’s not like we are biological
siblings.” Finally, S.T. disclosed that petitioner struck her across the face and that she had seen
petitioner slap P.T.
2
At a status hearing in January of 2022, the court announced that had it conducted an in
camera interview of S.T. the day prior and that S.T.’s statements were consistent with those made
in her second CAC interview disclosing extensive sexual, physical, and emotional abuse in the
home. In the final adjudicatory order, the court found that “there was a plan and concerted effort
to intimidate these children and secure their silence.” The court summarized the concerning pattern
of various referrals made since 2015 regarding lack of supervision of the children and sexual abuse
in the home, including referrals from other family members who directly witnessed Z.D. sexually
abusing S.B. The court found that petitioner and P.T. moved the children “from place to place
when [Z.D.’s] behaviors were discovered and investigated.” It also determined that petitioner and
P.T. were not truthful about the number of referrals though the years, including the numerous
referrals in New York. Based on the evidence, the court found that petitioner and P.T. knew that
the children were being sexually abused but chose to protect Z.D. from prosecution. The court
further found that petitioner physically abused S.T. and V.T. and that petitioner and P.T.
chronically emotionally abused all of the children. Accordingly, the court adjudicated petitioner
as an abusing parent.
Petitioner filed a motion for a post-adjudicatory improvement period in May of 2022. That
same month the circuit court held a contested dispositional hearing, during which the court took
judicial notice of all prior evidence. Petitioner testified that he was sometimes too strict with the
girls, as he wanted them to dress modestly and not have “their legs wide open for the world to see
anything.” He claimed that he had been cooperating with the DHHR’s services. He stated that he
remained unconvinced that Z.D. was sexually inappropriate with the children and cited the
previous unsubstantiated allegations in North Carolina. A service provider testified that several of
the children did not want to visit with petitioner and P.T. and that P.T. would entice the children
to visit by providing Easter baskets and toys and bringing the family pets. She further stated that
she observed petitioner criticizing the female children’s clothing by telling them to adjust their
shirts and that their pants were too tight. He also asked the children during a visit whether they
told anyone that he had beat them with a belt. The provider stated that all of the children were
afraid to decline visits. The DHHR worker testified that all children but S.B. wanted to remain in
their placements.
The court’s dispositional order specifically provides that petitioner “maintains that the
sexual abuse of the children previously found by this court is a false accusation.” The court found
that the DHHR was relieved of its duty to make reasonable efforts to reunify the family due to the
“severity of the abuse” and petitioner and P.T.’s “failure to take any responsibility for said abuse.”
The court concluded that there was no reasonable likelihood that the conditions of abuse and
neglect could be corrected in the near future and that termination of petitioner’s parental and
custodial rights was necessary for the children’s welfare. Consequently, the court terminated
petitioner’s parental and custodial rights by order entered on June 22, 2022.4
4
The parental rights of the mother of V.T., S.T., and T.T. were terminated. The permanency
plan for these children is adoption by the paternal grandmother. S.B.’s mother’s parental rights
were terminated below. The father of S.B. voluntarily relinquished his parental rights. S.B.’s
permanency plan is adoption by her foster family.
3
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). First, petitioner argues that the circuit court erred
in adjudicating him as an abusing and neglecting parent, as there was not clear and convincing
evidence to support his adjudication. Petitioner argues that S.T. was the only child that disclosed
sexual abuse by Z.D. However, the evidence below supports petitioner’s adjudication under a clear
and convincing standard. See W. Va. Code § 49-4-601(i) (requiring a circuit court to find, “by
clear and convincing evidence,” that a parent has abused and/or neglected a child at the conclusion
of the adjudicatory hearing); In re F.S., 233 W. Va. 538, 546, 759 S.E.2d 769, 777 (2014)
(explaining that “‘clear and convincing’ is the measure or degree of proof that will produce in the
mind of the factfinder a firm belief or conviction as to the allegations sought to be established”).
Although S.T. was the only child to specifically disclose sexual abuse by Z.D., the other
children disclosed emotional abuse and instances of domestic violence. Additionally, petitioner
admitted to slapping S.T. and did not deny that he cursed at the children. The record also shows a
concerning pattern of allegations in New York and North Carolina that involved the parents’ lack
of supervision, Z.D.’s sexual misconduct, P.T.’s sexually explicit social media posts, and the
children’s viewing of pornography on a public library’s computer. The circuit court also found
that S.T.’s statements during an in camera interview were consistent with her prior statements
made during her second CAC interview. The court weighed this testimony, as well as that of other
witnesses, and did not find petitioner and P.T.’s testimonies credible. We decline to disturb its
credibility determinations. See Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531,
538 (1997) (“A reviewing court cannot assess witness credibility through a record. The trier of fact
is uniquely situated to make such determinations and this Court is not in a position to, and will not,
second guess such determinations.”). Finally, the court found that petitioner and P.T.
systematically silenced the children to protect Z.D. The evidence against petitioner was
overwhelming, and we find no error in the circuit court’s adjudication of petitioner as an abusing
and neglecting parent. See W. Va. Code § 49-1-201 (defining “neglected child,” in part, as one
who is harmed or threatened by a parent’s “failure . . . to supply the child with necessary . . .
supervision” and an “abused child,” in part, as one who is harmed or threatened by a parent who
“intentionally inflicts . . . physical, mental, or emotional injury, upon the child or another child in
the home”).
Petitioner also argues that the circuit court erred in denying him an improvement period.
Petitioner cites his cooperation with services and alleged willingness to fully participate in an
improvement period. See id. § 49-4-610(2). However, petitioner concedes in his brief on appeal
that he did not acknowledge the sexual abuse in the home. We have previously held that
[i]n order to remedy the abuse and/or neglect problem, the problem must first be
acknowledged. 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 and in making
an improvement period an exercise in futility at the child’s expense.
In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted). As such, the
circuit court did not err in denying petitioner an improvement period.
4
Lastly, petitioner argues that the circuit court erred in terminating his parental rights
because the conditions of abuse and neglect had been corrected by the dispositional hearing—
namely Z.D. no longer living in the home. Petitioner further stresses the importance of the
parent/child relationship to the stability of the children and argues that termination was not
necessary for the children’s welfare. Upon our review, we find no error. No reasonable likelihood
that the conditions of abuse and neglect can be corrected includes when
[t]he abusing parent or parents 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[.]
W. Va. Code § 49-4-604(d)(5). Here, the facts bear out that the children suffered emotional,
mental, physical, and sexual abuse for years while in the parents’ care and that three of the four
children no longer wish to live with petitioner or P.T.5 Petitioner failed to acknowledge the
conditions of abuse and neglect, which also supports the court’s finding that termination was
necessary to protect the children from further abuse. Accordingly, we find no error in the circuit
court’s decision to terminate petitioner’s parental and custodial rights to the children. See also Syl.
Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (holding that “[t]ermination of
parental rights . . . may be employed . . . when it is found that there is no reasonable likelihood . .
. that the conditions of neglect or abuse can be substantially corrected”).
For the foregoing reasons, we find no error in the decision of the circuit court, and its June
22, 2022, order is hereby affirmed.
Affirmed.
ISSUED: May 16, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
5
See W. Va. Code § 49-4-604(c)(6)(C) (“the court shall give consideration to the wishes of
a child 14 years of age or older or otherwise of an age of discretion as determined by the court
regarding the permanent termination of parental rights”).
5