STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

June 21, 2016 In re: K.H. and C.H. RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

No. 16-0129 OF WEST VIRGINIA
 (Kanawha County 15-JA-200 and 15-JA-201) 

MEMORANDUM DECISION 

Petitioner Father J.H., by counsel Jason S. Lord Jr., appeals the Circuit Court of Kanawha 

County’s January 11, 2016, order terminating his parental rights to K.H. and C.H.1 The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel Christopher S. 

Dodrill, filed its response in support of the circuit court’s order. The guardian ad litem 

(“guardian”), Jennifer R. Victor, filed a response on behalf of the children supporting the circuit 

court’s order. On appeal, petitioner argues that the circuit court erred in finding that he abused 

and neglected his children. 

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 2015, the DHHR filed an abuse and neglect petition alleging that petitioner 

sexually abused his girlfriend’s ten-year-old granddaughter, K.B. Upon the filing of the petition, 

petitioner sent his children, K.H. and C.H., to live with their paternal grandmother in Columbus, 

Ohio. The DHHR alleged that petitioner sent the children to the State of Ohio so that the DHHR 

could not remove them from his custody. The DHHR also alleged that all three children were in 

danger as a result of petitioner’s sexual abuse. 

In October of 2015, the circuit court held an adjudicatory hearing wherein it heard 

testimony from Maureen Runyon, of the West Virginia Child Advocacy Network, who 

interviewed K.B. Ms. Runyon testified that K.B. told her that petitioner forced her to perform 

anal and oral sex, digitally penetrated her vagina, and groped her breasts. Ms. Runyon testified 

that K.B. was very descriptive in her account of the sexual abuse and her recount of the abuse, 

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). 

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including a description of how she felt and what petitioner said to her. Ms. Runyon further 

testified that K.B. told her that petitioner physically abused her, K.H., and C.H. Petitioner 

testified and denied the abuse allegations. Petitioner blamed the abuse allegations on K.B.’s 

“vivid imagination” and claimed that K.B. watched too much television. Petitioner further 

testified that K.B. previously fabricated sexual abuse allegations when she lived in the State of 

Virginia, but he did not present any evidence to substantiate those allegations. Based on the 

evidence presented, the circuit court found by clear and convincing evidence that the children 

were abused and neglected. The circuit court also found that petitioner sexually, physically, and 

emotionally abused K.B., which the circuit court found were aggravated circumstances 

warranting a finding that petitioner abused all three children. 

In December of 2015, the circuit court held a dispositional hearing. Based on the 

evidence presented at the adjudicatory hearing and the aggravated circumstances of the abuse, 

the circuit court terminated petitioner’s parental rights to K.H. and C.H. by order dated January 

11, 2016. 

This 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 DHHR failed to satisfy its burden of proof at 

adjudication. Specifically, petitioner asserts that the circuit court should have believed his 

testimony that he never had a “sexual encounter” with K.B., that she previously fabricated sexual 

abuse allegations, and that K.B. “was not taking her medication.”2 Petitioner contends that the 

circuit court was presented with testimony of “one person’s word against another” and thus 

lacked the necessary evidence to find that he sexually abused K.B. The Court, however, 

disagrees. 

2

Petitioner offered no evidence that K.B. was prescribed any medications, or that a failure 

to take any certain medication would have called her testimony into question. 

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An abused child is one whose “health or welfare is harmed or threatened by [a] parent, 

guardian or custodian who knowingly or intentionally inflicts, attempts to inflict or knowingly 

allows another person to inflict, physical injury or mental or emotional injury, upon the child or 

another child in the home.” W.Va. Code § 49-1-201(A) (2012). We have also explained that 

“W.Va. Code, [§] [49-4-601(2)], 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) (internal citations omitted). 

Upon our review, we find that the record demonstrates that the circuit court was 

presented with ample evidence of petitioner’s abuse. Maureen Runyon testified that K.B. told her 

that petitioner sexually abused her for months, forced her to perform anal and oral sex, digitally 

penetrated her vagina, and groped her breasts. Ms. Runyon also testified that K.B. provided a 

descriptive account of the sexual abuse and indicated that petitioner physically abused her, K.H., 

and C.H.3 Based upon the record, the evidence of abuse and neglect is sufficient to support the 

circuit court’s findings that petitioner was an abusing parent and that the children were abused 

and neglected. 

Although petitioner denied abusing the children, the circuit court was not required to 

accept his testimony as true. We have previously held that “[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). 

Petitioner presented no evidence disputing the abuse allegations, other than his testimony that 

K.B. had a “vivid imagination” and she watched too much television. As such, we note that the 

circuit court was in the best position to weigh witness credibility, and we find no error in the 

findings of abuse and neglect to the children at issue. 

For the foregoing reasons, the circuit court’s January 11, 2016, termination order is 

hereby affirmed. 

3

With respect to K.H. and C.H., we have explained that 

[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 W.Va.Code, [§] 49-1-201(A)]. 

Syl. Pt. 2, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995). 

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Affirmed. 

ISSUED: June 21, 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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