STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED In re: P.F. 

June 19, 2017 

No. 17-0062 (Mingo County 16-JA-43) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father G.F., by counsel Jerry M. Lyall, appeals the Circuit Court of Mingo 

County’s December 6, 2016, order terminating his parental rights to P.F.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 guardian ad litem (“guardian”), Diana Carter Wiedel, 

filed a response on behalf of the children in support of the circuit court’s order and a 

supplemental appendix. On appeal, petitioner argues that the respondent withheld exculpatory 

evidence. 

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 March of 2016, the DHHR and the biological father of B.M. and K.M., as copetitioner, filed an abuse and neglect petition against petitioner and the mother alleging that 

petitioner, the mother, and three children, B.M., K.M., and P.F., lived in a camper without food, 

running water, or electricity.2 The petition further alleged that B.M. disclosed to her biological 

father that petitioner was sexually abusing her and her sister, K.M. According to the petition, the 

biological father took B.M. and K.M. to Cabell Huntington Hospital for a forensic physical 

examination. As set forth in the petition, the physical examination did not show evidence of 

abuse. The petition further alleged that petitioner and the mother engaged in domestic violence in 

the children’s presence. 

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

Petitioner is not the biological father of B.M. or K.M. As such, they are not the subject 

of his appeal before this Court. 

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In May of 2016, the circuit court held a preliminary hearing wherein it heard testimony 

from a DHHR worker, petitioner, and the mother. The DHHR worker testified that K.M. and 

B.M. were interviewed at the Mingo County Child Advocacy Center (“CAC”) and disclosed that 

petitioner sexually abused them, that petitioner and the mother engaged in sexual intercourse and 

domestic violence in the children’s presence, and that there was no food or running water in their 

home. B.M. also reported that the mother was aware of the sexual abuse. Both petitioner and the 

mother denied the sexual abuse and domestic violence allegations. Based on the evidence 

presented, the circuit court found, by clear and convincing evidence, that B.M. and K.M. 

suffered “horrific sexual abuse” by petitioner and the mother was aware of the abuse. 

In June of 2016, the circuit court held an adjudicatory hearing during which no further 

witness testimony was presented. The circuit court found that the children had been abused and 

neglected, that the mother failed to protect them, and that the home was in a deplorable 

condition. Petitioner requested an improvement period, and the motion was “emphatically 

denied” by the circuit court. 

In November of 2016, the circuit court held a dispositional hearing. The CAC interviewer 

testified that she interviewed B.M. and K.M. separately and each child made “disturbing 

disclosures” of sexual abuse by petitioner. According to the interviewer, B.M. and K.M. 

disclosed that petitioner did “bad things” to them, which B.M. later identified as “S.E.X.” B.M. 

disclosed that petitioner “pulled down his pants,” had sex with her, and tried to kiss her. She told 

the interviewer that petitioner “hurts her,” “f****s her,” and let another boy “[screw] her and her 

sister like dogs.” B.M. also disclosed that petitioner “touched her a 100 (sic) times on her boobs, 

monkey, and butt” and threatened to kill and “bury her.”3 Finally, B.M. reported that the mother 

was aware of the sexual abuse and told petitioner to “stop doing that. She is a kid.” K.M. told the 

interviewer that petitioner “licked her monkey” and identified her vagina as her “monkey.” 

Based on the evidence presented, the circuit court found that there was no reasonable likelihood 

petitioner could substantially correct the conditions of abuse and neglect and terminated his 

parental rights to P.F.4 It is from that December 6, 2016, 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 

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 

3

Both B.M. and K.M. used the term “monkey” to indicate their vaginas. 

4

The parental rights of both parents to P.F. were terminated below. Additionally, the 

mother’s parental rights to K.M. and B.M. were terminated below. J.M., the father of B.M. and 

K.M., was a non-offending parent. The guardian states that all three children were placed in 

J.M.’s home and the permanency plan is adoption into that home. 

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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). Upon our review, the Court finds 

no error in the circuit court’s order terminating petitioner’s parental rights to P.F. 

Petitioner’s argument on appeal is that the DHHR knowingly withheld “exculpatory 

evidence” from him and that such evidence tended to make the allegations against him “less 

probable.”5 Petitioner asserts that the reports of the forensic examinations performed at the CAC 

and the forensic physical examinations were withheld from him. We do not agree. 

It is clear from the record that the information of which petitioner complains was 

provided to him.6 The information that indicated that there was no physical evidence of sexual 

abuse of either B.M. or K.M. was contained in the petition initiating the proceedings against 

petitioner. The information was also obtained through the testimony of the DHHR’s witness at 

the preliminary hearing; upon questioning by the mother’s counsel, a DHHR worker testified that 

the examinations of B.M. and K.M. revealed no physical evidence of sexual abuse.7 The fact that 

there was no physical evidence of sexual abuse was clearly considered by the circuit court prior 

to petitioner’s adjudication. Further, the record on appeal clearly indicates that, at the time of the 

dispositional hearing, copies of the audio and video recordings of the children’s forensic 

interviews had been provided to all counsel of record. There was no indication in or on the 

record that petitioner did not receive copies of the interviews or that he requested additional time 

to review the recordings. Those interviews were admitted into evidence without any objection 

from petitioner. “Generally the failure to object constitutes a waiver of the right to raise the 

matter on appeal.” State v. Asbury, 187 W.Va. 87, 91, 415 S.E.2d 891, 895 (1992). Accordingly, 

we find no error below. 

5

On appeal, petitioner does not raise a specific assignment of error regarding the circuit 

court’s termination of parental rights. 

6

Petitioner contends that the DHHR was required to disclose so-called “exculpatory 

evidence.” In support of his argument, petitioner cites to Stickler v. Greene, 527 U.S. at 280 

(1999). (holding that “the duty to disclose such evidence is applicable even though there has 

been no request by the accused.”) Notwithstanding petitioner’s argument, it is clear from the 

record that he received the information he now requests during the underlying proceedings. 

Further, petitioner argues that he was denied his “constitutional right to equal protection and due 

process of law” because the DHHR withheld exculpatory evidence. Because petitioner received 

this information below, his additional arguments are without merit. 

7

We note that West Virginia Code § 49-1-201 and its definition of “abuse,” does not 

require the showing that a child suffered a physical injury. 

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For the foregoing reasons, we find no error in the decision of the circuit court, and its 

December 6, 2016, order is hereby affirmed. 

Affirmed. 

ISSUED: June 19, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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