1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re B.S.-1, J.S., and G.S.

No. 18-0600 (Preston County 17-JA-33, 17-JA-34, and 17-JA-35)



### MEMORANDUM DECISION

Petitioner Father B.S.-2., by counsel Justin Gregory, appeals the Circ uit Court of Preston County’s June 1, 2018, order adjudica ting him as an abusing parent in regard to the children. 1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a re sponse in support of the circuit court’s orde r. The guardian ad litem (“guardian”), DeAndra Burton, filed a response on behalf of the chil dren in support of the circuit court’s order. On appeal, petitioner argues that th e circuit court erred in adjudicating him as an abusing parent.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

On May 2, 2017, the DHHR filed an abuse and ne glect petition allegi ng that petitioner exposed the children to emotional, psychological, and physical abuse due to his physical abuse of J.S. The DHHR also alleged that petitioner had a history of Child Protective Services (“CPS”)

involvement and that the mother abandoned the children. In January of 2017, the DHHR received a referral that J.S. “appeared at school w ith a large bruise about th e size of a quarter, but oblong on her left cheek that is pretty dark and fresh, along with a bruise on her chest about 5 1⁄2 inches long.” J.S. disclosed th at it was a rug burn as a result of petitioner throwing her on the floor after striking G.S. for playing in the ba throom sink. In April of 2017, another referral was made that reported that J.S. appeared at school with “two black eyes, scratches on her face, and multiple bruises in what appeared to be different stages of healing on the front and back of her lower legs.” On April 28, 2017, a DHHR worker interviewed J.S. and school personnel. The

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). Additionally, b ecause one of the children and petitioner share the same initials, they will be referred to as B.S.-1 and B.S.-2, respectively, throughout this

memorandum decision. 

### FILED

November 19, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 worker observed a knot on the right side of th e child’s head along her hairline. The child disclosed that petitioner kicked her in the side of the head that morning for opening a bag of dog food. Further, the DHHR alleged that J.S. and B.S. both had truancy issues during the 2016-2017 school year, that the mother’s whereabouts were unknown, and that her last contact with the children was reportedly four years prior. An amended petition was filed alleging that petitioner had substance abuse issues and a drug-related criminal history. An additional amended petition was filed in July of 2017 allegi ng that petitioner refused to s ubmit to a random drug screen as ordered by the circuit court on at least one occasion, and tested positive for opiates, benzodiazepines, and mar ijuana in June of 2017. 2 Petitioner waived the preliminary hearing.

The circuit court held an ad judicatory hearing over several months in 2017 and 2018. The DHHR presented the testimony of tw o teachers and the principal from the children’s school. The school personnel testified that both B.S. and J.S. of ten came to school with bruises, and that J.S. frequently had black eyes and various bumps. A ccording to the teachers and principal, J.S. disclosed that petitioner physically abused her on several occasions. J.S.’s kindergarten teacher testified that she considered the child’s bruising to be excessive. The principal testified that she took photographs of J.S.’s bruisi ng and addressed the children’s truancy i ssues. The DHHR also presented evidence that petitioner tested positiv e for illegal substances three times between May and September of 2017. Next, petitioner’s former liv e-in girlfriend testified that she lived with petitioner for approximately three years and never witne ssed petitioner hit, ki ck, or injure his children in any way. She testified that J.S.’s br uising was the result of playing with neighborhood kids. A nurse practitioner from Preston County Ur gent Care testified th at she examined the children following the alleged abuse by petitione r, but did not see signs of physical abuse. However, in regard to her tes timony, the circuit court found that sh e did not speak to the children about the abuse, nor was she specifically trained to notice abuse. Petitioner testified that any bruises on his children were likely caused by “r ough playing.” The circuit court noted that it gave “great credibility” to the testimony of the school personnel. The circuit court found that the children had excessive bruising and that B.S. and J.S. had twenty-five and twenty-two unexcused absences from school, respectively. The circuit cour t adjudicated petitioner as an abusing parent in its June 1, 2018, adjudicatory order. It is from this order that petitioner appeals.

The Court has previously establishe d 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 sh all 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. Th ese findings shall not be set aside by a

2 The amended petitions also included allegatio ns that a court in Tennessee previously found by clear and convincing evidence that pe titioner sexually abused his four-year-old stepdaughter, a child not at issue in this a ppeal. The Tennessee court also found by clear and convincing evidence that petitioner abused his biol ogical son, S.C., who is not at issue in this appeal. Additionally, the DHHR alleged that peti tioner voluntarily reli nquished his parental rights to two other children in Taylor County, West Virginia, in 2015. T hose two children have since reached the age of majority.3 reviewing court unless cl early erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the revi ewing 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 diffe rently, 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, this Court finds no error in the pr oceedings below.

On appeal, petitioner argues th at the circuit court erred in adjudicating him as an abusing parent. In support, petitioner argue s that “[n]early all of the ev idence presented by the [DHHR] in its case in chief was unreliable hearsay.” Petiti oner asserts that his witnesses provided reliable evidence. Although petitioner argues that the DHHR’s witnesses’ testimony and the DHHR’s exhibits constituted hearsay, petitioner makes no reference to any objections to the same. 3
Further, in regard to the DHHR’ s evidence, we have held that

[t]he West Virginia Rules of Evidence de clare that parties must object to the wrongful offer of evidence at a particular time and with reasonable specificity. The failure to object at the time and in the manner designated by Rule 103(a) of the West Virginia Rules of Evidence is tr eated as a procedural default, with the result that the evidence, even if erroneous, becomes the facts of the case. West Virginia practice imposes the same duty of diligence in regard to nonjury cases. Silence in the circuit court typically constitutes a waiver of objection. See W.Va.R.Evid. 103(a)(1).

Tiffany Marie S. , 196 W.Va. at 234, 470 S.E.2d at 188. Ther efore, because petitioner failed to object to the DHHR’s evidence, petitione r waived the hearsay issue on appeal.

Moreover, based upon our review of the re cord, we find that th e circuit court had sufficient evidence to adjudicate petitioner as an abusing parent. We have held that

“W.Va. Code [§] 49-6-2(c) [now We st 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 th e petition . . . by clear and convincing [evidence].’ The statute, however, does not specify any particular manner or mode

3 Pursuant to Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, the argument must contain appropriate and specific citations to th e record on appeal, including citations that pinpoint when and how the issues in the assignments of error were presented in the

lower tribunal. Petitioner makes no reference to the record on appeal wherein he objected to the testimony of the adverse witne sses or the DHHR’s exhibits.4 of testimony or evidence by which the [DHH R] 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). This Court has explained that “‘clear and c onvincing’ is the measure or degr ee of proof that will produce in

the mind of the factfinder a firm belief or c onviction as to the alle gations sought to be

established.” In re F.S. , 233 W.Va. 538, 546, 759 S.E.2d 769, 777 (2014) (citing Brown v.

Gobble , 196 W.Va. 559, 564, 474 S.E.2d 489, 494 (1996)). However, “the clear and convincing standard is ‘intermediate, being more than a me re preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases.’” In re F.S. , 233 W.Va. at 546, 759 S.E.2d at 777 (quoting Cramer v. W.Va. Dep’t of Highways , 180 W.Va. 97, 99 n.1, 375 S.E.2d 568, 570 n.1 (1988)).

West Virginia Code § 49-1-201 provides the definitions of “abused child” and “abusing parent.” An “abused child” is a child “whose health or welfare is being harmed or threatened by: (A) A parent, guardian or custodian who knowingly or intentionally in flicts, attempts to inflict or knowingly allows another person to inflict, physical in jury or mental or emotional injury, upon the child or another child in the home.” Further, an “‘[a]busing parent’ means a parent, guardian or other custodian, regardless of his or her age, whose conduct has been adjudicated by the court to constitute child abuse or negl ect as alleged in the petition char ging child abuse or neglect.” Id. Here, sufficient evidence of petitioner’s abuse of the children existed to adjudicate him as an abusing parent. The record shows that J.S. of ten came to school with excessive bruising, black eyes, and various bumps. The child disclosed to teachers and other schoo l personnel that on one particular occasion, petitioner kicked her in the head for opening a bag of dog food. Her disclosure was corroborated by B.S.-1’s disclosure . The record also shows that B.S.-1 and J.S. had excessive absences from school during the 2016-2017 school year. Further, the circuit court found the school personnel’s testimony to be credible and compelling.

We have often noted that “[a] reviewing c ourt cannot assess witness credibility through a record. The trier of fact is uniquely situated to ma ke 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). The circuit court sp ecifically stated in its adjudicatory order that it gave “great credibility ” to the testimony of the school personnel. While petitioner argues that his witne sses’ testimony was reliable, the circuit court clearly found the DHHR’s witnesses’ testimony more credible and persuasive. In a ddition to the testimony from the school employees, the DHHR presented eviden ce that petitioner tested positive for illegal substances in May, June, and September of 20 17. Based upon this evidence, we find that the circuit court properly adjudicate d petitioner as an abusing pare nt. Accordingly, petitioner is

entitled to no relief.

Because the abuse and neglect proceedings are ongoing, this Court reminds the circuit court of its duty to establish pe rmanency for the children. Rule 39( b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires:

At least once every three months until permanent placement is achieved as defined in Rule 6, the court shall conduct a permanent placement review5 conference, requiring the multidisciplinary treatment team to attend and report as to progress and development in the case, for the purpose of reviewing the progress in the permanent pla cement of the child.

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of Procedure for Child Abuse and Neglect Proceed ings to find permanent placement for the

children within twelve months of the date of the dispositional orde r. As this Court has stated,

[t]he [twelve]-month period provided in Rule 43 of the West Virginia

Rules of Procedures for Child Abuse and Neglect Proceedi ngs for permanent placement of an abused and neglected child following the final dispositional order must be strictly followed except in th e most extraordinary circumstances which are fully substantiated in the record.

Cecil T. , 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Finally, “[t]he guardian ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard , 185 W.Va. 648, 408 S.E.2d 400 (1991).

For the foregoing reasons, we find no error in the decision of the circuit court, and its June 1, 2018, adjudicatory order is hereby affirmed.

Affirmed.

ISSUED : November 19, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Paul T. Farrell sit ting by temporary assignment