In re L.N. and J.N.-1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED

In re L.N. and J.N.-1

May 14, 2018

No. 18-0033 (Randolph County 2017-JA-55 and 56) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

MEMORANDUM DECISION

Petitioner Father J.N.-2, by counsel Steven B. Nanners, appeals the Circuit Court of

Randolph County’s December 12, 2017, order terminating his parental rights to L.N. and J.N.-1.1

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 guardian ad litem

(“guardian”), Heather M. Weese, filed a response on behalf of the children also in support of the

circuit court’s order and a supplemental appendix. On appeal, petitioner argues that the circuit

court erred in adjudicating him as an abusing parent and improperly terminating his parental

rights based upon the erroneous adjudication.

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 2017, the DHHR filed a child abuse and neglect petition against petitioner,

alleging that petitioner abused the mother and both children mentally, emotionally, and

physically, and also abused L.N. sexually. The mother obtained a domestic violence protective

order (“DVPO”) against petitioner in relation to these acts. The children participated in forensic

interviews at the local Children’s Advocacy Center and disclosed that their father frequently

consumed alcohol and verbally abused them by calling them names such as “fat,” “lazy,” “slut,”

and “worthless.” The children also disclosed physical abuse by petitioner, including slapping

them in the face, pushing them down, and throwing objects at them. Petitioner also abused the

children’s pets in their presence, including choking and punching the dog and threatened the

children that he would beat them similarly if they did not obey. Both children expressed fear that

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, because one of the children and petitioner

share the same initials, we will refer to them as J.N.-1 and J.N.-2, respectively, throughout this

memorandum decision.

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their father would kill their mother for obtaining the DVPO against him. Finally, L.N. revealed

that petitioner sexually abused her by digitally penetrating her on three separate occasions and

penetrating her with his penis on one occasion. Petitioner waived his preliminary hearing.

The circuit court held an adjudicatory hearing in August of 2017. Petitioner was

transported to the hearing from the regional jail, where he was incarcerated for charges relating

to his sexual abuse of L.N. Petitioner indicated that he was willing to stipulate to certain

allegations contained in the petition, but his counsel advised the circuit court that due to pending

criminal charges, he would not stipulate to any allegations of sexual abuse. A discussion then

ensued on the record, during which the guardian provided her opinion regarding petitioner’s

partial stipulation. The guardian stated

I understand . . . the facts and circumstances as we find ourselves with regard to

[petitioner] to enter an admission to child abuse for which he bases him being

criminal [sic] incarcerated and the case law is clear in that regard that he has to

choose one or the other. His silence on that can be taken by this [c]ourt, to be

contrary to his acceptance to his responsibility in any type of argument involving

his parental rights, but he does that at the detriment of being used in his criminal

case.

At that time, the circuit court allowed petitioner to provide a stipulation. Petitioner attempted to

stipulate to some allegations of abuse, including his becoming intoxicated in the children’s

presence and “being mean” to them, but denied participating in domestic violence and denied

that his drinking affected his ability to parent. The circuit court found that petitioner’s stipulation

was insufficient and the matter proceeded to a contested adjudicatory hearing. The DHHR

presented the testimony of the forensic interviewer who personally interviewed L.N. and

observed the interview of J.N.-1. The forensic interviewer testified regarding the children’s

disclosures of abuse, including petitioner verbally insulting them, physically harming them,

abusing their pets, and sexually assaulting L.N. on four separate occasions. After hearing

evidence, the circuit court adjudicated petitioner as an abusing parent.

In December of 2017, the circuit court held a dispositional hearing wherein it took

judicial notice of the testimony presented and findings made at the adjudicatory hearing. The

DHHR proffered that due to the aggravated circumstances of sexual abuse it was not required to

make reasonable efforts to preserve the family, and based upon the evidence taken at the

adjudicatory hearing, requested that petitioner’s parental rights be terminated. Petitioner

presented no evidence and argued that his adjudication was improper. Further, petitioner

indicated that he was not requesting an improvement period because he did nothing wrong. The

guardian joined the DHHR’s motion to terminate his parental rights and advised the circuit court

that both children desired termination of petitioner’s parental rights. The circuit court found that

the evidence presented at the adjudicatory hearing created a sufficient basis for both adjudication

and disposition, especially in light of petitioner’s failure to request an improvement period or

accept responsibility for his wrong-doing. The circuit court also acknowledged the children’s

desire that his parental rights be terminated. Accordingly, the circuit court found that petitioner

was unable or unwilling to provide for the children’s needs, that there was no reasonable

likelihood that the conditions of abuse and neglect could be corrected in the near future, and that

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termination was necessary for the children’s welfare. It is from the December 12, 2017, order

terminating his parental rights that petitioner appeals.2

The Court has previously established the following standard of review in cases such as

this:

“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 circuit court erred in adjudicating him as an abusing

parent based upon insufficient evidence. Specifically, petitioner argues that the DHHR failed to

offer any evidence to support the allegations contained in the petition except for the testimony of

the forensic interviewer, who was erroneously qualified as an expert witness and testified as to

hearsay statements made by the children. Petitioner argues that the recorded interviews should

have been submitted into evidence rather than the forensic interviewer’s testimony. Finally,

petitioner argues that he was misinformed by the guardian as to whether his testimony could be

used against him in his criminal case. We find petitioner’s argument to be without merit.

First, petitioner acknowledges that he failed to object to the forensic interviewer’s

testimony but claims that the circuit court’s reliance upon the same instead of the recorded

interview constitutes plain error. We disagree and decline to review the matter under a plain error

analysis. Moreover, petitioner argues that the circuit court erroneously qualified the forensic

interviewer as an expert witness “without affording him the opportunity to object.” This

argument is entirely without merit as petitioner fails to explain how the circuit court should have

invited him to object or cite to any authority requiring such. Accordingly, we find that petitioner

has waived this argument on appeal. “‘Our general rule is that nonjurisdictional questions . . .

raised for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc.,

206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n.20 (1999).” Noble v. W.Va. Dep’t of Motor

Vehicles, 223 W.Va 818, 679 S.E.2d 650 (2009). The record is clear that petitioner objected to

2

The mother was a non-abusing parent throughout the proceedings below and the

permanency plan for the children is to remain in her care.

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neither the forensic interviewer’s testimony, nor her qualifications as an expert witness and, as

such, we decline to address these issues.

Second, we find no error in the circuit court’s adjudication of petitioner as an abusing

parent. We have held that

“W.Va.Code [§] 49-6-2(c) [now West 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 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) (citations omitted). Pursuant

to West Virginia Code § 49-1-201,

“‘[an a]bused child’ means: (1) [a] child whose health or welfare is being harmed

or threatened by: (A) [a] parent . . . who knowingly or intentionally inflicts, [or]

attempts to inflict . . . physical injury or mental or emotional injury, upon the

child or another child in the home . . . [or] (B) [s]exual abuse or sexual

exploitation[.]”

The DHHR presented the testimony of the forensic interviewer who interviewed L.N. and

observed J.N.-1’s interview. This interviewer testified that L.N. disclosed emotional, physical,

and sexual abuse perpetrated by petitioner. The interviewer also observed J.N.-1 disclose

emotional and physical abuse by petitioner. Both children disclosed that they had been slapped,

pushed, and had things thrown at them by petitioner. Both children also disclosed that petitioner

abused their pets in front of them and threatened to do the same to them. Importantly, petitioner

did not offer testimony or evidence to contradict this testimony. We have held that

[b]ecause the purpose of an abuse and neglect case proceeding is remedial, where

the parent or guardian fails to respond to probative evidence offered against

him/her during the course of an abuse and neglect proceeding, a lower court may

properly consider that individual’s silence as affirmative evidence of that

individual’s culpability.

Syl. Pt. 2, W.Va. Dep’t of Health & Human Res. ex rel. Wright v. Doris S., 197 W.Va. 489, 475

S.E.2d 865 (1996). Petitioner did not respond to probative evidence offered against him during

the proceedings below and, as such, it was in the circuit court’s discretion to consider his silence

as affirmative evidence. While petitioner argues that the guardian misinformed him regarding the

ramifications of remaining silent, a review of the record does not indicate that petitioner relied

upon the guardian’s statement to his detriment, especially in light of the fact that petitioner’s

counsel stated that he was not going to testify to any allegations regarding sexual abuse prior to

any statement made by the guardian. Moreover, the guardian’s statement that petitioner had to

choose between remaining silent or testifying to the detriment of said testimony being used in his

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criminal case cannot be construed to overstate the law as petitioner alleges.3 Based on the

evidence outlined above, we find no error in the circuit court’s decision to adjudicate petitioner

as an abusing parent based upon the testimony of the forensic interviewer regarding the many

forms of abuse and petitioner’s silence.

Petitioner also argues that the circuit court erred in terminating his parental rights based

upon the erroneous adjudication. However, we find no error in the circuit court’s adjudication of

petitioner, and we find no error in its decision to terminate petitioner’s parental rights. West

Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental, custodial,

and guardianship rights upon findings that there is “no reasonable likelihood that the conditions

of neglect or abuse can be substantially corrected in the near future” and that termination is

necessary for the child’s welfare. According to West Virginia Code § 49-4-604(c)(2) and (5), a

situation in which there is no reasonable likelihood the conditions of abuse and neglect can be

substantially corrected includes one in which

(2) [t]he abusing parent or parents have willfully refused or are presently

unwilling to cooperate in the development of a reasonable family case plan

designed to lead to the child’s return to their care, custody and control . . . [or]

....

(5) . . . have repeatedly or seriously injured the child physically or emotionally, or

have sexually abused or sexually exploited the child, and the degree of family

stress and the potential for further abuse and neglect are so great as to preclude

the use of resources to mitigate or resolve family problems or assist the abusing

parent or parents in fulfilling their responsibilities to the child[.]

3

We have previously noted that this Court is

satisfied that this rule allowing a trial court to consider one’s silence as

affirmative evidence of culpability, as set forth in [W.Va. Dept. of Health and

Human Resources ex rel. Wright v. Doris S., 197 W.Va. 489, 475 S.E.2d 865

(1996)], is soundly supported by the authorities and is consistent with the policy

of this State which encourages prompt hearing of abuse and neglect cases and a

paramount concern for the best interests of the children involved in such

proceedings. We are also satisfied that the rule does not offend the protections

against self-incrimination afforded by the Fifth and Fourteenth Amendments to

the Constitution of the United States and Article III, Section 5 of our State

Constitution. As applied to the issue of culpability, the rule simply confronts the

accused parent with a choice: Assert the privilege against self-incrimination with

the risk that silence will be considered in the civil proceeding as evidence of

culpability, or waive the privilege and offer such evidence as the accused may

alone possess to refute the charge of abuse and neglect.

In re Daniel D., 211 W.Va. 79, 87, 562 S.E.2d 147, 155 (2002).

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Here, the circuit court found that there was sufficient evidence to find that petitioner

abused the children physically, mentally, emotionally, and abused L.N. sexually, which

constituted aggravated circumstances. Moreover, petitioner did not request an improvement

period or desire to participate in the same because he continued to deny the allegations of abuse

and neglect throughout the proceedings. As such, petitioner’s failure to acknowledge the

conditions of abuse rendered the problem untreatable. See In re Timber M., 231 W.Va. 44, 55,

743 S.E.2d 352, 363 (2013). Finally, the children desired that petitioner’s parental rights be

terminated. Based upon the evidence outlined above and petitioner’s failure to acknowledge the

conditions of abuse and refusal to participate in a plan to correct the same, we agree with the

circuit court’s findings that there was no reasonable likelihood that petitioner could correct the

conditions of abuse and that termination was necessary for the children’s welfare. As mentioned

above, circuit courts are directed to terminate parental rights upon such findings.

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

December 12, 2017, order is hereby affirmed.

Affirmed.

ISSUED: May 14, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum

Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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