In re H.S.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re H.S. May 24, 2019
EDYTHE NASH GAISER, CLERK
No. 18-1093 (Marion County 17-JA-171) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father J.S., by counsel Scott A. Shough, appeals the Circuit Court of Marion
County’s November 26, 2018, order terminating his parental rights to H.S.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a response
in support of the circuit court’s order. The child’s guardians ad litem (“guardian”), Frances C.
Whiteman and Rebecca L. Tate, filed responses on behalf of the child in support of the circuit
court’s order.2 On appeal, petitioner argues that the circuit court erred in adjudicating him as an
abusing parent and in denying his motion to appoint a separate guardian ad litem for H.S.3
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.
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).
2
Frances C. Whiteman was initially appointed as guardian for the children subject to the
underlying petition, H.S and I.T. Petitioner moved for a second guardian for H.S. in April of 2018,
but the circuit court denied the motion at that time. After the adjudicatory hearings concluded in
August of 2018, the circuit court appointed Rebecca L. Tate as guardian for H.S. upon a finding
that she had separate interests from her half-sister, I.T. Frances C. Whiteman was relieved from
representing H.S., but continued to serve as guardian to I.T. As petitioner’s assignments of error
address adjudication, at which time H.S. was represented by Frances C. Whiteman, we find it
appropriate to consider both guardians’ respective response briefs on appeal.
3
Petitioner asserts no assignment of error regarding the termination of his parental rights.
1
In December of 2017, the DHHR filed a petition alleging that petitioner sexually abused
his step-daughter, I.T. I.T.’s mother and non-abusing father, B.T., shared joint custody of I.T.
Further, the DHHR alleged that H.S., petitioner and the mother’s biological child, lived in their
home as well. Petitioner agreed to leave the home following the filing of the petition and H.S.
remained in the custody of the mother. Petitioner waived his preliminary hearing. The circuit court
ordered the custodial parents to cooperate with the DHHR and allow the DHHR to make
announced and unannounced visits to their homes.
The DHHR filed an amended petition against the mother alleging that she failed to protect
H.S. from petitioner “by allowing [petitioner] to reside in the home with [H.S.]” The DHHR
alleged the parents inflicted “mental and emotional abuse . . . by their actions leading to [H.S.]
hiding under her bed to avoid [Child Protective Services] workers.” Petitioner’s presence in the
home was in direct contravention of a voluntary protection plan the parties executed at the
beginning of the proceedings. The mother waived her preliminary hearing.
The circuit court held six adjudicatory hearings over the next seven months. Petitioner’s
step-daughter, I.T., age twelve, testified and the circuit court found her testimony was “strong and
matter of fact regarding particular experiences to which she was subjected. [I.T.] was able to
describe, in detail, the manner in which she had been touched and [the] period of time during which
such conduct happened.” I.T. testified that she referred to her vagina as a “pee-bug” and her breasts
as “boobs.” According to the circuit court, I.T. described that petitioner “would touch her ‘pee-
bug’ and sometimes inside her ‘pee-bug.’” I.T. testified that this happened more than twenty times
sometimes when alone in the home with petitioner and other times when both her mother and H.S.
were home. I.T. also testified that petitioner licked her “pee-bug” on one occasion while her sister
was at school and the mother was at work. I.T. testified that it felt “very disgusting. It scared me.
It freaked me out.” I.T. testified that she thought petitioner began touching her “in third grade.”
Further, I.T. explained that petitioner would keep her home from school and touch her
inappropriately while they were alone. Additionally, the circuit court found that I.T’s father
testified that the child “had been absent or late for school on multiple occasions which led to the
modification of custody giving [the father] primary custody.” The circuit court found that, although
the evidence was unclear as to exactly how many times petitioner touched I.T., the description
provided was sufficient to indicate that I.T. “experienced this touching in her genital area” on
“many occasions.”
The forensic psychologist who performed an assessment on I.T. testified that the child’s
testimony was consistent with their initial session together and the child’s forensic interview. The
circuit court found that the psychologist “stated that [I.T.] was a child of average intelligence and
her actions and statements were consistent with a child that had been a victim of sexual assault.”
The psychologist further opined “that [I.T.]’s confusion about the number of times that she had
been ‘touched’ by [petitioner was] normal for a child who had been sexually abused for a long
period of time.” A nurse also testified regarding I.T.’s statements during her examination. The
circuit court found that testimony “further shows that [I.T.] has been consistent in her allegations,
and has not changed or recanted the allegations made against [petitioner].”
The mother testified in defense of petitioner. The circuit court found that she disregarded
the voluntary protection plan as alleged in the amended petition. Thus, the circuit court perceived
2
that the mother was biased in favor of petitioner and her testimony “did little to detract from the
testimony” of I.T. and the forensic psychologist. Petitioner also called two character witnesses,
which the circuit court found to be credible. Yet, the circuit court noted that these witnesses also
did little to detract from the testimony of I.T. Finally, petitioner testified and denied the allegations
that he sexually abused I.T. The circuit court found petitioner was unable to rebut the allegations.
Ultimately, the circuit court found “that there [was] clear and convincing evidence that [I.T.]
suffered sexual abuse by [petitioner] while in the custody of [the mother] . . . and another child
residing in the home was [H.S.]” The circuit court adjudicated petitioner as an abusing parent and
H.S. as an abused child. Further, the circuit court found that H.S. had “separate interests from
[I.T.]” and appointed the child a separate guardian ad litem.
The circuit court held the final dispositional hearing in October of 2018. The circuit court
found that petitioner continued to deny that he sexually abused I.T. The circuit court noted this
Court’s prior holdings that
[f]ailure 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 In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013). Accordingly, the circuit
court terminated petitioner’s parental rights by its November 26, 2018 order. Petitioner now
appeals that order.4
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).
On appeal, petitioner argues that the circuit court erred in adjudicating him as an abusing
parent as insufficient evidence was presented to support this finding. Petitioner contends that the
The mother’s parental rights were also terminated below. According to the parties, the
4
permanency plan for the child is adoption in her relative foster placement.
3
sole evidence against him was I.T.’s verbal accusations, which were unsupported by physical
evidence or other witness testimony. Petitioner asserts that the circuit court failed to consider this
lack of physical and corroborating evidence of the sexual abuse. Further, petitioner argues that the
circuit court failed to critically analyze the totality of I.T.’s statements and erred in finding that she
was a credible witness. We disagree and find no error in the circuit court’s determination, as more
fully addressed below.
In regard to adjudication,
“[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). Further,
[t]his Court has explained 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.” Brown v. Gobble, 196 W.Va. 559, 564,
474 S.E.2d 489, 494 (1996) (internal citations omitted). We have also stated that
the clear and convincing standard is “intermediate, being more than a mere
preponderance, but not to the extent of such certainty as is required beyond a
reasonable doubt as in criminal cases.” Cramer v. W. Va. Dept. of Highways, 180
W.Va. 97, 99 n. 1, 375 S.E.2d 568, 570 n. 1 (1988).
In re F.S., 233 W. Va. 538, 546, 759 S.E.2d 769, 777 (2014). Upon our review of the record, we
find that I.T.’s statements were compelling and sufficiently detailed to support the circuit court’s
finding that she was sexually abused. The child gave specific details regarding the abuse, such as
locations during specific events. Further, the child explained a pattern of abuse that was
corroborated by the testimony of her non-abusing father B.T.; specifically that petitioner would
not take the child to school and perpetrate the abuse during that window of opportunity. Although,
petitioner emphasizes the lack of physical evidence presented, he fails to recognize that “[s]exual
abuse may be proven solely with the victim’s testimony, even if that testimony is uncorroborated.”
In re K.P., 235 W. Va. 221, 230, 772 S.E.2d 914, 923 (2015) (citing syl. pt. 5, State v. Beck, 167
W. Va. 830, 286 S.E.2d 234 (1981)). Likewise, “the absence of witnesses to the abuse is not a
basis to disbelieve [the child.] It is axiomatic that most sexual abuse of children is not committed
in front of an audience.” Id. at 232, 772 S.E.2d at 925. Therefore, a child victim’s testimony alone
can be sufficient to form a factual finding that the child was sexually abused, provided the child’s
testimony is credible.
To the extent that petitioner argues that I.T.’s testimony was not credible, we note that “[i]n
reviewing the entirety of the evidence, this Court must adhere to the appellate standard of review
set forth above, according significant weight to the circuit court's credibility determinations while
refusing to abdicate our responsibility to evaluate the evidence and determine whether an error has
4
been committed.” F.S., 233 W. Va. at 546, 759 S.E.2d at 777. Moreover, “[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.” Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997).
We do not find that the circuit court’s determination that I.T. was credible to be clearly erroneous.
As evidenced through multiple witnesses, I.T. was consistent and specific in her allegations against
petitioner. Further, the forensic evaluator did not note any indication that the child was coached
into making the allegations or otherwise motivated by outside prompting. While petitioner argues
that I.T. lacked credibility because she lacked detail in her allegations as to dates of the incidents,
the forensic evaluator explained that children of that age are unlikely to remember specific details
regarding time. The evaluator further opined that I.T.’s testimony and statements were consistent
with her age. Considering the deference provided to circuit courts and their unique position to
observe the testifying witnesses, we find no error in the circuit court’s determination that I.T. was
credible.
We find that the DHHR presented clear and convincing evidence that petitioner sexually
abused I.T. We also find no error in the circuit court’s determination that petitioner was an abusing
parent and that H.S. was an abused child as we have held
[w]here there is clear and convincing evidence that a child has suffered
physical and/or sexual abuse while in the custody of his or her parent(s), guardian,
or custodian, another child residing in the home when the abuse took place who is
not a direct victim of the physical and/or sexual abuse but is at risk of being abused
is an abused child under [West Virginia Code § 49-1-201].
Syl. Pt. 2, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995). See also State ex rel. W. Va.
Dep’t of Health and Human Res. v. Fox, 218 W. Va. 397, 624 S.E.2d 834, syl. pt. 4 (2005). It is
undisputed that H.S. was a child residing in the home during the time that petitioner sexually
abused I.T. Accordingly, the circuit court did not err in finding that H.S. was an abused child.
Petitioner also argues that the circuit court erred in denying his motion for the appointment
of a separate guardian ad litem for H.S. Petitioner argues that I.T. and H.S. expressed completely
opposite opinions toward him and their desire for contact with him. According to petitioner, then-
eight-year-old H.S. believed that I.T. was lying about the abuse. Petitioner argues that Ms.
Whiteman focused primarily on the desires of I.T. and excluded H.S., as evidenced by her failure
to meet with H.S. until five months after the petition was filed.5 We find no merit to petitioner’s
argument. In accordance with the Guidelines for Children’s Guardians Ad Litem in Child Abuse
and Neglect Cases, which are found in Appendix A of the West Virginia Rules of Procedure for
Child Abuse and Neglect Proceedings, a guardian’s role during an abuse and neglect proceeding
is “both as an attorney, and to represent the best interests of the child.” These guidelines grant a
guardian “broad discretion in determining what is necessary to protect the best interests of the
child” and emphasize that the “safety [and] well-being . . . of a child in an abuse and neglect
proceeding are central to all aspects of the GAL’s representation.” See Subsec. A. 1., App. A., W.
Va. R. of Proc. for Child Abuse & Neglect Proc. In this case, Ms. Whiteman acted in the best
5
Petitioner provides no citation to the record to support this claim.
5
interests of H.S. by recommending that she not have visitation with petitioner. Ms. Whiteman
interviewed both children and believed that I.T.’s allegations were credible. Ms. Whiteman,
therefore, had reason to believe that H.S. was also at risk of abuse. Petitioner’s argument stresses
that it was H.S.’s “desire” to visit with petitioner and that Ms. Whiteman acted contrary to this
desire. However, H.S. was only eight years old and, regardless of her desires, the circuit court is
not required to consider a child’s wishes unless they are “fourteen years or older or otherwise of
an age of discretion as determined by the court.” See W. Va. Code § 49-4-604(b)(6)(C).
Petitioner’s speculation that an earlier appointed second guardian ad litem would have
recommended visitation is unfounded because it is clear that Ms. Whiteman was acting in the best
interest and safety of H.S. Even following the circuit court’s appointment of a second guardian ad
litem, Ms. Tate did not recommend visitation between petitioner and H.S. Accordingly, we find
no error in the circuit court initially denying petitioner’s motion to appoint a separate guardian ad
litem for H.S considering the circumstances of this case.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 26, 2018, order is hereby affirmed.
Affirmed.
ISSUED: May 24, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
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