1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re I.A.

No. 20

- 0 587 ( Berkeley County 1 9

- JA

- 67 )



### MEMORANDUM DECISION

Petitioner Father L .A.

, by counsel Christian J. Ridde ll

, appeal s the Circuit C ourt of Berkeley County’ s J u ly 15

, 20 20

, order terminating h is parental rights to I.A

. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley , filed a response in support of the circuit court’s order

. The gu ardian ad litem, Tracy Weese

, fil e d a

response on the child ’s behalf in support of the circuit court’s order

. On appeal, pet itioner argues that the circuit court erred in finding that he sexually abused I.A. ’ s sibling , T.R. ; erred in considering T.R. ’ s in

- ca mera testimony ; and erred in im p roperly ad mitting unqu al ified expert opinion testimony. 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 or al a rg ument. 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 cir cuit court’s order is approp ria t e under Rule 21 of the Rules of Appellate Procedure.

In May of 2019, t he DHHR filed a child abuse and neglect petition alleging that petitioner sexually abused T. R. 3 As alleged by the DHHR

, T. R. disclosed tha t , during one such

inst ance, petitioner p ut “ h i s private part into her pri vate part and it felt gross

. ” T.R. alleged that

1 Co nsist ent with o ur long

- standing p ractice in c ases with sensitive facts, we use initials

where necessa ry to protect the identities of those involved in this case. See In re K.H. , 235 W. Va. 254, 773 S.E.2d 20 (20 15); Melin da H. v. W illi a m R. I I

, 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. Edwa rd Charles

L. , 183 W. Va. 641, 398 S.E.2d 123 (1990).

2 Petitioner al leges no error in the termination of his parental rights.

3 Nota b ly, pe t itione r i s no t the natural f ather of T.R. and asserted no pare ntal rights or responsibilities to this chil d belo w

. 

### FILED

December 10, 2020

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 the most recent instance of sexual abu se o ccurred in D e cember of 2018, w hen T.R. was eleven years old

. According to the DHHR, T. R

. had previo usly disclosed that petitioner sex ua ll y abuse d

earlier in 2 018. The DHHR i nterview ed petitioner

, and he denie d having any sexual conta ct with

T. R. P etitioner waived his right to a preliminary hearing.

The circuit court held adj ud icatory hearing s in Septem ber , Octo be r, and N ovember of

201 9

. 4 P et itioner was called as a witness twice, in September and No vember of 2019, but he refused to testify, citing “his U.S. Constitution [Fifth] Amendment rights. ” The mo th er testi fied at the Septembe r 2019 hearing that T.R. twice alleged that petitioner h a d b ee n sexually a bus ing

her . However, the mother asserted that she questioned T.R. following the earlier alle gation s and

that T. R. admitted that she had lied

. The m other further testif ied that she did n ot be li eve petitioner sex ually ab used T.R.

, because s h e n ot iced no change in T.R

. or in the manner in wh ich

T.R

. ac ted towar d petitioner

. The mother explained that T. R. became rebellious when she turned eleven yea rs old and tha t the c hil d was angry wit h her and never liked petitioner, which

motivated T.R. to f ab ri cate the allegations. The mother further testified t hat she and petitioner

mov ed in together in 2016 or 2 017 . At that time

, T. R. was living with a relative and did not come

to l ive wi th peti tioner until 2017, when T. R. was ten and a half years old. T h e m ot her detailed the family ’s general schedule and tes tified tha t she did not believe petitio ner woul d have had an opportunity to be alone with T. R

. H ow ever, th e circuit court la ter found tha t , based on the

sc hedule t h e mother provided, “ there would hav e bee n occasions for [T.R.] and [petitioner] to be

alo ne toge ther. ”

Al so at the September 2019 adjudicatory hearing

, a Child Protective Services ( “CPS ”) investigator testified rega rding the pa r t ies ’ h istory o f referrals. She stated that in August of 2018

, T

. R. d isclosed that petitioner sexual ly abused her, but the matter was considered

“unsubstantiated ” because T. R. did not disclose sexual abuse d uring a lat er forensic intervie w

. T.R. was t e n ye ars old a t the time. Following T.R. ’ s second claim of se x u a l ab us e by petitioner

, t he in vestigat or interviewed T .R. in May of 2019 . During the i nterview, T.R. disclosed that petitioner had tou ched her breasts and her vagina. The in ve stigat or noted that T.R. had difficulty narrowing the time frame of abuse, but t h a t T. R

. s ta ted petitioner had not abused h er since h er eleventh birthday, which was in D ecember of 2018. The investi g ator al so test ified that T.R.

stated that the last time petitioner abuse d her , he put his mouth on her breasts. T.R. sta ted tha t
she was i n her m o th er ’s bed room at th e time and her mother was in t he kitch en.

T .R

. ’s forensic interviewer appeared at the September 2019 hearing and was recognized by the court as an expert in the field of forensic interviewing of juv eniles . The for ensic

in terviewer te s tif i e d th a t she interview ed T.R. t wice

, first in September of 2018, and second in

M ay of 2019. The first interv iew in S ept em ber of 2 018 followed T.R. ’s or iginal disclos ure of

abuse

. During the first inter view and prior to the typical r apport building b e tw een a n interview er and a child , T.R. sta t ed that she was “there to talk about somet hing th at she n eede d to clear up,

that she had lied about some thing

, ” and ultimately recan ted the allegation against petitioner that

she made in Au gust o f 201 8 . The inter v ie wer n o ted that T.R. was transpor ted to th e Se ptember

4 P e titioner and the mother share Spanish as their first language and utilize d interpreters throughout the se proceeding s.3 of 201 8 in terview by her mother and her a unt. Th e foren sic interv i ewer explained that the validity of forensic inter views can be af fected by the perso n who transport s the child to the

inter view. T he f or e nsic i nterviewer testified that if the m ot her “did not beli eve the allegation, [she] would not [have been] an appropriate person to bring the child for an interview. ”

The forensic interviewer also provided testimony regarding the se co nd, May 2019

, interv i e w , d u ring which T.R. detailed the instances of sexual abuse. She discl osed that petitioner

first touched her in appropriately when she was s even yea rs old . S peci fically, T.R. advised that he

touched her b reast and her leg. T.R. disclosed “ several o ther in stan ce s ” of abuse involving

touchin g on the br east and dis closed that there was an incident in w hich petitioner inserted two fingers into her vagina and that he had “p ut his pri vate part into her private p art ” on at least on e occasion

. T.R. also st a ted tha t pe ti t ioner tried “to put a ballo o n in her wh en she was lying on the

bed. ” The intervi ewer test ifie d that T.R. was “able to answer concrete questions

, ” but she had

di ff iculty a nswering abstract question s, putting events in order, w eighing time f ra m es, and

rec al l ing how many events took pla ce. The int er vi ewer explained that a child ’s ability to answe r

qu estions abo ut when an event took place and how many times an event oc cu r r ed t ypically develop s between age s ten and twe lve, so she was not surprised that T. R., th en

- age eleven, had

d ifficulty answering t hose questions. The intervi ewer believed that T.R. was credible due to the

descr iptive details s he was able to provide.

In Octobe r of 2019, a handwritten sta tement from T.R. ’ s journal , dated the day after th e Se pt em ber 2019 adjudicatory hea ring

, was d iscover ed and brought before the circuit court . Th e

co ntents of the statement indicated that T.R. had lied about the al legations of se xu al abuse

contained in t he petition

. As a re sult, the parties agreed to recal l s o me w itnesses , and the circuit

co urt dete rmined it was necessary to take T.R. ’s in

- camera t esti mony. On November 14, 2019,

T.R. test ified that her recantation of the alleg ations in the S eptemb er of 2 01 8 interview was fal se ,

as was t h e most rece n t handwr itte n st atement , which stated that she had lied about the May of

2019 sexual abuse all egations . T.R. explained t hat her mother pressured her to recant the allegations and her aunt pressured her to write the statement. She t estified definitively th a t petiti one r h ad sexu al l y abu sed her, stating “ [h] e did it

, ” which the circu it court found “trut hful and compe lling, particularly given [T.R. ’s] dem eanor and emotional presentation. ” T.R. also

testified that the mother visited her at the aunt ’s home, where s he was pla c ed pe nding t h ese

p roceedings. T.R. testified that she was told n ot to tell anyone about the visits and that she complied bec au se “she knew they were going to take her mom away from her. ” The cir cuit court

referenced the mother ’s testimony that s he wen t to the k inship pla cemen t to visit T

. R. ’s brothe r, bu t av oided contact with T.R. The circuit court found t h at the mother ’ s testimony was “not

credible and [was] false ” and that the mother ’s subterfuge in maint aining unsuperv ised contact
with the ch i l dren

, des pite t he court ’ s orde r pr oh ibit in g such conta ct, was “dist urbing evidence of her lack of parental protec tive cap acity

. ”

At a hearing on November 15, 2019, p etitioner called a n expert in forensic psycholog y to testify as to the “ reliability ” of T .R. ’s disc losu re s , w h i c h the expert s tated were based on “th e consiste ncy of t h e in dividual ’s st atem en ts. ” 5 The ex pert opined that T.R. ’s narratives were

5 Notabl y, p e titioner failed to i nclud e a transc ript of this pro ceeding in the appendix.4 “unreliable because of their in consistency

, ” due to her prior recantations. H e explained that an

asse r tion o f ab use wi th a recantation followed by a r easser t ion is “ by definition no t r eliable

. ”
However, the expert al so testified that “if [the m other] had been pressuring [T.R.] to re cant, [the

mother ] brin ging [the chi ld] to the [Se ptember of 2018 Child A d v ocacy Cent er ] interview would be significa nt. ” Th e expert furthe r noted that the c h ild made no refere nce to any fea r or “physical or emotional sequelae ” from the description of intercourse with petitioner. T. R. had describe d the

act in her second f orensic inte rv ie w as “gross and disgusting ” withou t furth er de tail as to how

she felt or w h at she was thinkin g , which the e xpert believed departed from the typical child ’ s

exper ience of se xual abuse. However, the expert testified t hat T.R. ’s reaction when describ ing

p et it io ner putting his mouth on her bre ast as “e w ” or “gr oss , ” was pr opo rtionate . The c i rcuit

court found that T.R

. provided sufficient physical and anatomical descriptions related to the

al lege d sexual intercourse ; T.R. described the act as “g r oss ” and “disg us ti ng , ” and, when asked

for a vis ual d escrip tion, T.R. stated tha t “[h]e is big. ”

A second CPS worker testifi ed that in September of 2019, s he received a te xt from T.R. ’s

aunt, w ith whom the children wer e placed at th at time

. The worker te s tified that , b as ed on that text, she believed th at T .R was with the mother , which was a violation of the circuit court ’ s orders

. The worker testified th at

, two days lat er, T.R. told th e w orker that she had “s om e bad

news ” and recan ted the allegations rais e d in the insta nt p etition. Accordin g to the wo rker

, T.R.

ex plained that family members had advised her that if she did not say sh e had li ed ab out the allegations, then she would be taken away fr om her mother permanently. Thereafter , the DHHR

m oved T.R. an d I.A., out of th e relative ’s home and into foster c are , where they stayed throughout the remainde r of the proceedings.

In considering the evidence

, the circuit court noted that petitioner ’s refusal to test if y in

this civil matte r cou ld properly be cons i dered “as affi rm ativ e evidence of [his] cu lpability

. ” 6 The

circuit court further reiterated that T.R. ’ s in

- camera testimony “ was truthful and comp elling ” and

that her “explanation of the inconsisten cies appe ar to arise from [he r ha nd w ritten journal entry]

, or otherwise, w ere not only adequate b ut completely un derstandable. ” The circ uit court concluded that petitioner had sexuall y abused T.R. The circuit court adjudicated the child as an ab used child a nd p etit ioner and the mother as abu sing parents. The cir c uit court also f ound that

the DHHR was not requ ire d to make reasonable efforts to preserve the family unit based upon its

fin ding that petitioner had sexually abused T.R. , which constitute d aggr a vated cir cums tances pursuant to W e st Vir ginia Code § 49

- 4

- 60 2 (d)(2)(E)

.

In J une of 20 20, the ci rcuit court held a dispositional hearing . P e titioner p resented no

evidence. The circuit c ourt found that petitioner failed to respond to T.R. ’ s sexual abus e allegations against him “ bot h at ad judicat ion and dispositi o n. ” Further, the c ir cuit court foun d

that there was no reasonable likelihood that petitioner could correct the conditions of neglect or

abuse and , given petitioner ’ s sexual abu se of T.R., it was necessary fo r I.A. ’ s welfare to

6 See Syl . Pt. 2, I n re K. P. , 235 W. Va. 221, 772 S.E.2d 914 (2015).5 term inat e petitioner ’ s paren t al rights . Ac c or di ng ly, the circuit cour t terminat ed petitioner ’ s parental rights by its July 15, 2020, order. Petitioner n ow appeals that order. 7

The Court has previously held :

“Although conclusions of law reached by a circ uit cou r t ar e subject to d e

nov o 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 co nclusions of law as to w h ethe r such ch i ld i s abu s ed or neglected. These findin gs shall not be set aside by a reviewing court unless clearly erroneou s. A finding is clearly erroneous when, although there is ev idence to support the finding, the reviewing cou rt on the entire

evidenc e is left with th e de fin i te and firm conv iction that a mistake has been committed. However, a reviewing court may not overtu rn a finding simply

because it would have decided the case d ifferently, and it must affirm a finding if

the circuit court’s a ccount o f th e evidenc e i s pl aus i ble in light of the record

vi ewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S. , 19 6 W.Va. 223, 470 S.E.2d 177 (1996).

Syl. Pt. 1, In re Ceci l T

., 228 W. Va. 89, 717 S.E.2d 873 (2011).

O n appeal, petitio ner fir s t argues t hat th e c i rcui t court er red in finding clea r and convincing evidence t hat he se xually abused T.R. He argues t hat T.R. ’ s statements regarding

sexual abuse were unr e liable and not credible

. Further, petitioner a sserts that T.R. incorrectly

describ e d the use of a c on do m, o r “ ball oon , ” in that she sta ted t hat he attempted to pl ac e it “ o n ”

her , which further discred its her allegations

. P eti tione r al s o asserts that the child ’ s limited description of physical se nsation was also i ncredible

. Fur ther, peti t ioner argues tha t th e ci rcuit

court ’ s erro neous findings were s upported

, in pa rt

, by an erroneous a pplication of evidenti ary rules. In particu lar, pet it ioner argu es tha t (1) t h e circuit court c onducted the in

- camera testimony

of T. R. improperly, in that t h e questions aske d th erei n were not consistent with the prot ocol s set
forth for CAC interviews

, and (2) be cause , while a transcript of the te stimony was provided to the parties

, it was not otherwise recorded. Petitioner also argues tha t the ci rcu it court a d mitte d

o pinion t es ti mony from T.R. ’ s forensic in terviewer, who was not q ualified to serve as an expert
witness

. We find p etitioner is entitled to no relief on appeal.

At the outset, it sho uld be noted that petitioner’ s brief f ai ls to comply with our Ru l es of Appellate Proc ed ure

. Specifically , petitioner’s arguments related to these evidentiary rulings

c onta in numerous citations to a transcript f or the November 2019 adjudica tory hearing that w as not made part of the appendix re cord on appeal and also exten sively quot es from th is t ranscript

in contravention o f Rul e 10(c) (7), wh ich requires that

7 The mother ’ s parental rights were also terminate d below , as well as T.R. ’ s father ’ s

p arental rights

. Accor din g to the parties, the pe rm anency pla n for the children is ado ption in their current foster place me nts.6 [ t ]he brief must contain an argument exhibiting clearly the po in ts of fact and law presented, the standard of review applicable, and citing the authorities relie d on .

.

. [and] must co ntai n appro p riate and specific c itati ons to the rec ord on appeal

, in cl ud i ng c itations that pinpoint when and now the issues in the as si gnments of

error were presented to the low er t ribu nal. The Court may disregard errors that are

no t adequatel y supported b y sp ecific r eferences to the rec ord o n appea l.

Add itionally, in an Ad mi n istr ative Order entered December 10, 2012, Re: Filings That Do Not Comply W ith the Rules of Appellate Procedure, the Court specifi cally noted that “[b]riefs wi th

argument s that

. . . do n ot ‘con t ain appropriate and speci fic cit ations to the record on ap pe a l . . .’ as required by rule 10(c)(7)” are not in compliance w ith this Cour t’s rules. According to petitioner, the e videntiar y rul ings t hat he now challenges w ere made du ring this Nov embe r 20 1 9 hearing. However, “[ t ]h e Supreme Cour t of Appeals is lim it e d in its authority to resolve assignments of nonjuri sdiction al errors to a consideration of those matters passed upon by the

court below and fairly arising upo n the porti ons of the recor d de sign a ted for appellate re view. ” Syl. Pt. 2, in part, Trent v. C oo k , 19 8 W. Va. 601, 602, 482 S.E.2d 218, 219 (1996)

. Petitione r has failed to show that the se evidentiary issues were p assed upon by the circuit court or

otherwi se preserve d. Accordingl y, we d ecli n e to address the se r ul ing s on appea l.

In regard to petit io n er ’ s argument that the circuit court er red in finding clear and convincing e vidence tha t he sexuall y abused T .R., we have held that

[a] t the conclus ion of the adjudicatory h earing, the cour t sh all m ake a

dete rminatio n based upon the evide nce and shall make findings of fact and

co nclusions o f l aw as to whether such child is abused or ne g lected . .

. . The finding s must be based upon conditions existing at the time of the fili n g of the

pet itio n an d pro ven by cle ar and c onvincing evidence.

I

n re F.S. , 233 W. Va. 538, 544, 759 S.E.2d 769, 775 ( 201 4). This Court has ex p laine d that

“‘clear a n d convincin g’ i s th e measu re or degree of proof that will produce in the mind of the

factf i nder a firm beli e f o r con viction as to the allegations sought to be established.” Id . at 546,

759 S.E.2d at 777 (citat ion omitted). However, “ t he cl ear and convin ci n g standard is

‘ inte rmediat e, being more than a mere preponderance, but not to the extent o f such certai nty a s i s

req uired beyo nd a rea sonable doubt as in cr iminal cases.’” Id. (citation omitted). Fu rther,

“[ W est Virginia Code § 49

- 4

- 601 (i ) ], requires t he [DHHR], in a ch ild abuse o r neglect case, to prove ‘conditions exi sting at the time of the filing of th e pe t iti on

. . . by cle ar and c onvincing [evidence].’ The statute, however, does not specify an y particula r m anner or mode of testi mony o r evidence by w h ich the [DH HR] is

o bligate d to meet this burden.” Syllabus Point 1

, In Interest of S.C. , 1 6 8 W.Va. 366, 284 S.E .2d 8 67 (1981).

Syl. Pt. 1, In re Joseph A. , 199 W. Va. 438, 485 S.E.2d 176 (1997) ( c itations om itt ed).

Here, the circ uit court found tha t T .R. provide d “truthful and compelling ” testimony that petitioner h ad sexually abused her

. T .R. ’ s allega tion s we re su pported by “ proportionate ” sen sory7 detai ls related to the sexual acts pet it ioner perpetrated upo n her. Although it is clear that T.R.

all eg e d and recan ted the sexual a buse multiple times, the evidence shows that she was pressured

t o do so by h er f a mil y mem bers . Inde ed, T.R. plainly testified tha t her aunt made her produce the

hand written journal entr y wherein she recanted the allegations of sexual a buse against petitio ner

. T.R. displa yed a fe ar of lo sing her moth e r and was sus cepti b le to pressu re e lici ted f r om her

fa mily members to recant her all egations or ri sk being taken aw ay from her mother. The c ircuit

court found that T.R. ’ s “explanation of the inconsistencies app ear s to arise from [he r h and written jour nal en t ry], o r otherwise

, were not on ly a dequ ate b ut complet ely understandable. ” Important ly, “[a ] revie wing court cannot assess witness credibili ty through a record. The trier of fact is uniquely situated to make su ch determinations and thi s Court is not in a p o sition to, and

wi l l not, secon d gu ess such determinat ions.” Michael D.C. v. Wanda L .C. , 20 1 W. Va . 381, 388, 497 S.E.2d 531, 538 (1997). As such, we rely on the circuit court ’ s ultimate conclusion that T.R.

wa s a credible witness

. Fur ther more, petit ioner f ailed to testify a nd, therefor e, f aile d to rebut

T.R. ’ s al legations.

“ ‘Because the pur pose of an abuse and neglect proceeding is remedial, where the parent or guardian fails to respond to probative evidence o ffered against him/her during the cou rse of an a buse and neglect proc e eding, a lo wer court may

prope rly consider that individual ’ s sil ence as affirmative evidence of that

individual ’ s cu lpability.’ Syl. Pt. 2, West Virginia Dept. of Health and Human

Resour ces ex rel. Wright v. Doris S., 197 W .Va . 489, 4 75 S.E.2d 865 (1 9 96). ” Syl. P t. 2

, In re D aniel D., 211 W.Va. 79, 562 S.E.2d 147 ( 2002 ).

Syl. Pt. 2, In re K.P.

, 235 W. Va. 221, 772 S.E. 2d 914 (2015)

. Thus, there is no error in the

c ircuit court ’ s finding that petitioner ’ s silence was “ affirm ati ve evidenc e ” of his culp a bility in

th i s m atte r. Vi ewing the record in its entire ty, we fin d th a t the circuit court did not err in adjudicating pet itioner as an abu sing parent based on clear and convincing evidence th a t he ha d

se xually abused T.R

.

For t he foregoing reasons, we fi n d no e r ror i n th e de cisio n of the c ircuit court, and its

J uly 15

, 20 2 0 , order is hereby affirmed.

Affirmed.

ISS UED : December 10, 2020

CONCURRED IN BY :

Chief Justice Tim Armstead Justice Margaret L. Workm an Justice Elizabeth D. Walker

Justic e E van H. Jen kins

Justi ce J o hn A. H utchis on