STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                  FILED
                                                                            September 19, 2016
In re: C.W., K.W., and T.R.                                                      RORY L. PERRY II, CLERK

                                                                               SUPREME COURT OF APPEALS

                                                                                   OF WEST VIRGINIA

No. 16-0019 (Wood County 14-JA-108, 14-JA-109, & 14-JA-110)


                              MEMORANDUM DECISION
        Petitioner Father P.W., by counsel Debra Steed, appeals the Circuit Court of Wood
County’s December 18, 2015, order terminating his parental, custodial, and guardianship rights
to C.W. and K.W. and his custodial rights to T.R.1 The West Virginia Department of Health and
Human Resources (“DHHR”), by counsel Lee Niezgoda, filed its response in support of the
circuit court’s order. The guardian ad litem (“guardian”), Courtney L. Ahlborn, filed a response
on behalf of the children also in support of the circuit court’s order. On appeal, petitioner alleges
that the circuit court erred in adjudicating him as an abusing parent on insufficient evidence and
in allowing the victim of his abuse to testify in the proceedings.2

        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 November of 2014, the DHHR filed an abuse and neglect petition against petitioner
that alleged he sexually abused a ten-year-old child, L.H., who was a guest in his home.
Additionally, the petition alleged that at least one of petitioner’s children was present in the room
when the abuse took place. Prior to the petition’s filing, L.H. participated in an interview
wherein she disclosed that while staying at petitioner’s home she awoke in the night to find
petitioner touching her buttocks and genitals. As to petitioner’s children, C.W., K.W., and
regarding T.R., who petitioner had legal custody of, the petition alleged that their mother

       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
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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previously had her parental rights to the children terminated in a separate abuse and neglect
proceeding and that petitioner was instructed to not allow the mother unsupervised contact with
the children in violation of the circuit court’s order. According to the DHHR, petitioner allowed
the mother to have unsupervised visits with the children. Moreover, the petition alleged that
petitioner’s wife had her parental rights to other children involuntarily terminated in a separate
abuse and neglect proceeding.

         Following adjudicatory hearings held in January and August of 2015, the circuit court
entered an order in October of 2015 that adjudicated petitioner as an abusing parent due to his
sexual abuse of L.H. and the fact that he allowed the children’s mother to have unsupervised
visitation with the children. During one of these hearings, L.H. testified to the allegations against
petitioner. The victim detailed that petitioner awakened her at approximately 3:00 a.m. by
touching her “butt and [her] private.” She further testified that when she awoke her pants and
underwear had been pulled down to her knees and petitioner was touching her “private area[,]”
which she gestured to establish was her vaginal area. The victim indicated that when she asked
petitioner if she could go home, he left the room and indicated he would contact her parents. She
later said that petitioner told her he had contacted her parents and that her mother was on the
way. However, the victim testified that her mother never arrived. According to the victim, she
went back to sleep only for petitioner to “tr[y] to do it again[,]” at which point the victim told
him to stop and petitioner left the room. The victim further testified to the events following the
sexual abuse, including the fact that she disclosed the abuse to petitioner’s wife the next morning
and asked the wife to call her mother. Petitioner’s wife told the victim that her mother was
visiting someone, which the child believed. As such, the victim spent another night in
petitioner’s home. When the victim’s mother eventually picked her up, the victim asked her
mother why she did not pick her up earlier. According to the victim’s mother, neither petitioner
nor his wife ever called. Following her return home, the victim told her mother, father, and
sister-in-law about petitioner’s sexual abuse.

        In his defense, both petitioner and his wife testified about the incident in question.
According to their testimony, both petitioner and the wife came into the children’s room in the
night because the victim, who takes medication to help with sleep, was having night terrors.
According to petitioner, he touched the victim so that he could separate her from K.W., who was
sleeping in the same bed, and put a body pillow between them to ensure the victim did not harm
K.W. while thrashing in bed. According to petitioner’s wife, the victim’s mother did not send
enough medication for the victim to stay at the house for two nights, so petitioner’s wife went to
the victim’s home to obtain more medication the day after the abuse when she was unable to
reach the victim’s mother.

        Following a dispositional hearing in December of 2015, the circuit court terminated
petitioner’s parental, custodial, and guardianship rights to C.W. and K.W. and his custodial
rights to T.R. It is from this order that petitioner appeals.

       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

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       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).

        First, the Court finds no error in the circuit court adjudicating petitioner as an abusing
parent. In support of this assignment of error, petitioner argues that the circuit court erred in
finding that he sexually abused L.H. The Court, however, does not agree.3 According to
petitioner, the evidence below was insufficient because the DHHR failed to provide any evidence
to corroborate the victim’s allegations against him; his own testimony and that of his wife
directly contradicted the victim’s testimony; the DHHR failed to establish that he touched the
victim for sexual gratification; and the victim’s testimony was inherently unreliable and
contained contradictions. The Court notes, however, that petitioner’s argument on this issue
ignores our prior case law dealing with the sufficiency of evidence in cases concerning sexual
abuse and, moreover, misrepresents the evidence below.

       In addressing sufficiency of the evidence claims in regard to abuse and neglect
proceedings, we have set forth the following standard:

               “W.Va.Code [§] 49-6-2(c) [now West Virginia Code § 49-4-601], 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 proof.’ 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) (internal citations omitted).
Pursuant to West Virginia Code § 49-1-201, “sexual abuse” is defined, in relevant part, as




       3
         In support of this assignment of error, petitioner also alleges that the circuit court erred
in finding that he allowed the children to have unsupervised visitation with their biological
mother. However, because the circuit court’s finding that petitioner sexually abused L.H. is a
sufficient basis for his adjudication as an abusing parent, we decline to address this argument on
appeal.


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“sexual contact, . . . which a parent, guardian or custodian engages in . . . with a child[.]”4 That
statute goes on to indicate that “sexual contact” in abuse and neglect proceedings is the same as
the definition of that term as set forth in West Virginia Code § 61-8B-1(6), which states that

       “[s]exual contact” means any intentional touching, either directly or through
       clothing, of the breasts, buttocks, anus or any part of the sex organs of another
       person, . . . where the victim is not married to the actor and the touching is done
       for the purpose of gratifying the sexual desire of either party.

         According to petitioner, the DHHR failed to put on any evidence that his alleged
touching was done for sexual gratification, especially in light of the fact that the DHHR did not
introduce any evidence of his lustful disposition toward young children. However, the record is
clear that the DHHR did submit such evidence, which petitioner simply ignores. Namely, the
victim in this matter testified that petitioner pulled her shorts and underwear down to her knees
and touched her buttocks and vaginal area. Contrary to petitioner’s assertion that the child never
testified that he touched her vaginal area, the record clearly indicates that she testified that
petitioner touched her “private area” and that she gestured toward her vagina. In fact, the circuit
court specifically noted that the victim “pointed to her vagina area.” While this may not
constitute direct evidence of petitioner’s intention to achieve sexual gratification from the
touching, it certainly amounts to circumstantial evidence and is sufficient to support the circuit
court’s finding of abuse.

        In support of this assignment of error, petitioner relies heavily on his allegation that the
victim’s testimony lacked credibility and that his testimony and that of his wife directly
contradicted the victim’s. Specifically, petitioner argues that certain aspects of the victim’s
testimony, including when the children went to sleep, when she told her parents about the abuse,
and when Child Protective Services was notified, are contradictory or inherently unreliable.
Again, petitioner’s argument ignores our prior holdings. As the trier of fact, the circuit court was
tasked with making credibility determinations as to the various witnesses and these findings are
entitled to deference on appeal. 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.”). Contrary to petitioner’s argument
on appeal, the circuit court found the victim to be credible. Moreover, the circuit court found that
the testimony of petitioner and his wife lacked credibility. Specifically, the circuit court found
that “[t]he testimony of [petitioner] is largely not credible and contradicted by the credible
testimony of the child, . . . of Brittany Harris, a Child Protective Services Worker who conducted
an investigation of the child’s accusations, and of Nicole Lim, a nurse practitioner who treated
[the child].” The circuit court also found that petitioner’s wife “attempted to protect [petitioner]
throughout these proceedings and during the investigation of sexual abuse allegations prior to the
filing of a petition.” Ultimately, as it found petitioner’s testimony lacked credibility, the circuit
court further found that petitioner’s wife’s testimony was “supportive of or identical to the

       4
        Because the adjudicatory hearing concluded after the new version of West Virginia Code
§§ 49-1-101 through 49-7-304 took effect, we will apply the new version to the circuit court’s
adjudicatory rulings.
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account provided by [petitioner].” As such, it is clear that petitioner’s arguments regarding the
credibility of the various witnesses below are without merit.

        Additionally, in addressing sexual crimes in the criminal context, we have held that “‘[a]
conviction for any sexual offense may be obtained on the uncorroborated testimony of the
victim, unless such testimony is inherently incredible . . . .’ Syl. pt. 5, State v. Beck, 167 W.Va.
830, 286 S.E.2d 234 (1981).” Syl. Pt. 1, State v. Haid, 228 W.Va. 510, 721 S.E.2d 529 (2011).
Given that the higher burden of proof for a criminal conviction can be supported by the
uncorroborated testimony of the victim, so too can an adjudication of sexual abuse under a clear
and convincing standard be supported by such testimony. However, it is important to note that,
contrary to petitioner’s argument on appeal, the testimony of the victim in this matter was
corroborated by other witnesses, as set forth above. For these reasons, the Court finds no error in
the circuit court’s adjudication of petitioner as an abusing parent.

       Finally, the Court finds no error in the circuit court permitting the victim to testify in the
proceedings below. On appeal, petitioner argues that Rule 8 of the West Virginia Rules of
Procedure for Child Abuse and Neglect Proceedings required the circuit court to exclude the
victim’s testimony because the potential psychological harm to the victim outweighed the
necessity of the testimony. Upon our review, the Court finds no merit to this argument.
According to Rule 8(a),

       [n]otwithstanding any limitation on the ability to testify imposed by this rule, all
       children remain competent to testify in any proceeding before the court as
       determined by the Rules of Evidence and the Rules of Civil Procedure. However,
       there shall be a rebuttable presumption that the potential psychological harm to
       the child outweighs the necessity of the child’s testimony and the court shall
       exclude this testimony if the potential psychological harm to the child outweighs
       the necessity of the child’s testimony. Further, the court may exclude the child’s
       testimony if (A) the equivalent evidence can be procured through other reasonable
       efforts; (B) the child’s testimony is not more probative on the issue than the other
       forms of evidence presented; and (C) the general purposes of these rules and the
       interest of justice will best be served by the exclusion of the child's testimony.

Petitioner argues that the DHHR failed to put on any evidence to rebut the presumption that the
potential psychological harm to the victim outweighed the necessity of her testimony. Again,
however, petitioner’s argument ignores the evidence in the record.

        In order to protect the victim’s interest below, the circuit court appointed her a guardian
ad litem independent of the guardian appointed to represent petitioner’s children. When the
victim was called to testify, her guardian informed the circuit court that the only apprehension on
the victim’s part was testifying in petitioner’s presence. As such, the victim’s guardian moved to
exclude petitioner from the courtroom during the victim’s testimony, and the circuit court
granted the same. According to the circuit court, the victim “was willing and able to testify
without incurring further psychological harm so long as she was able to do so outside of
[petitioner’s] presence[.]” Ultimately, the circuit court found that “the procedure used in
connection with the [victim’s] testimony was within the parameters set out in the Rules of

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Procedure for Child Abuse and Neglect Proceedings and adequately protected . . . against a risk
of psychological harm to the child.” Accordingly, petitioner’s argument that there was no
evidence to rebut the presumption that the child should not have testified is without merit.

        Further, given that the presumption was rebutted, the circuit court clearly had discretion
to permit the testimony. On appeal, petitioner makes much of a recording of the victim’s prior
statement regarding the allegations of abuse. According to petitioner, the circuit court failure to
view this recorded statement violated its duty to determine if equivalent evidence could be
produced. However, there is no indication in the record that petitioner or any other party moved
to introduce this recorded statement as an equivalent means of evidence. To the contrary, the
circuit court specifically found that the victim’s “alleged sexual abuse by [petitioner] was the
principal allegation of abuse against him and no other person witnessed the abusive behavior.”
As such, it is clear that the circuit court considered the victims’s testimony necessary and, as
such, did not abuse its discretion in allowing the same.

        For the foregoing reasons, we find no error in the circuit court’s December 18, 2015,
order, and we hereby affirm the same.


                                                                                        Affirmed.

ISSUED: September 19, 2016


CONCURRED IN BY:

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




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