IN RE TONJIA M.

• Citation: 573 S.E.2d 354,212 W.Va. 443
• Decision Date: 01 November 2002
• Docket Number: No. 30404.,30404.
• Parties: In re: TONJIA M.
• Court: Supreme Court of West Virginia

573 S.E.2d 354

212 W.Va. 443

In re: TONJIA M.

No. 30404.

Supreme Court of Appeals of West Virginia.

Submitted September 18, 2002.

Decided November 1, 2002.

Steven Bagby, Esq., Weston, for Appellant Dorlen M.

Kourtney A. Ryan, Esq., Buckhannon, Guardian Ad Litem for Appellee.

Darrell V. McGraw, Attorney General, C. Carter Williams, Assistant Attorney General, Charleston, for Appellee West Virginia Department of Health & Human Resources.

PER CURIAM.

This appeal arises from an August 29, 2001 order of the Circuit Court of Lewis County, West Virginia terminating the parental rights of the appellant, Dorlen M., as to his daughter, Tonjia M.¹ The appellant asserts that the circuit court erred in four ways: first, by finding that Tonjia was an abused and neglected child; second, by denying the appellant's motion for an improvement period; third, by denying the appellant's request for supervised visitations with his daughter during the pendency of the case; and finally, by admitting into evidence photographs from a roll of undeveloped film found in the appellant's home.

I.

On May 5, 2000, a West Virginia Department of Health and Human Resources ("DHHR") Child Protective Services Worker, Jennifer Jonas Linger, filed a petition in Lewis County Circuit Court alleging that five-year-old Tonjia M. was an "abused and neglected child" as defined by W.Va.Code, 49-1-3 [1999].²

Specifically, the petition alleged that Tonjia's father, Dorlen M., had exposed Tonjia to sexually explicit adult movies, that he had struck her with his hand and with a switch, that he had touched and kissed her buttocks and genitalia, that Tonjia was afraid to return home to her father, and that Tonjia had gone to school dirty. The petition alleged other similar instances of neglect, unfitness, and improper parental care by Dorlen M. and by Tonya D., Tonjia's mother.

The circuit court determined that there was reasonable cause to believe that Tonjia' physical well-being was in imminent danger, placed Tonjia in the temporary custody of the DHHR pending further proceedings, and set the matter for preliminary hearing. The circuit court then appointed for Tonjia a guardian ad litem. Because Dorlen M. and Tonya D. were indigent, they were each appointed counsel.³

On May 11, 2000, Dorlen M. requested, and the circuit court granted, supervised visitation with Tonjia. The father had his first supervised visit with his daughter in late May 2000. Ms. Linger from the DHHR supervised the visit. On June 5, 2000, a hearing was held and Ms. Linger testified about Dorlen M.'s behavior during the supervised visit. Ms. Linger testified that Dorlen M. had acted inappropriately by repeatedly kissing his daughter "passionately" on the lips for a lengthy periods of time and that when the petitioner attempted to hold Tonjia, she would try to squirm away. Ms. Linger also testified that Tonjia's grandmother, who was also present during the visit, told Tonjia to "to stop telling stories, to stop lying" and that "she was getting him [her father] in trouble." According to Tonjia's foster parent, Tonjia was greatly upset by the visit with her father and grandmother. Ms. Linger further testified that Tonjia's psychologist had recommended cancelling visitation between Tonjia and her father and grandmother because of the effect it had on Tonjia. At the end of the hearing, the circuit court terminated Dorlen M.'s supervised visitation with Tonjia.⁴

On June 30, 2000, the circuit court reconvened the adjudicatory hearing, but then continued it because of the appellant's absence. However, at the hearing, Dorlen M.'s counsel sought permission to withdraw from representing Dorlen M. because of a conflict of interest.⁵ The circuit court judge granted the request to withdraw, appointed Dorlen M. new counsel, and rescheduled the adjudicatory hearing.

The adjudicatory hearing was held over the course of three subsequent dates: December 4, 2000, May 7, 2001, and June 27, 2001. On December 4, 2000, Lewis County Deputy John J. Burkhart testified and described the condition of Dorlen M.'s home at the time that Tonjia was removed from the home. Deputy Burkhart testified that the home was dirty and cluttered, and that, pursuant to a search warrant, he removed numerous adult magazines and magazine pages from Dorlen M.'s bedroom, plus four pornographic videotapes stacked next to the television in the living room. The pornographic tapes were found mixed with Tonjia's cartoon and video cassettes. Deputy Burkhart also testified that he seized an undeveloped roll of film from Dorlen M.'s residence. The Lewis County Sheriff's Department later developed the film and found it contained sexually explicit photographs of Tonjia's mother.

Dorlen M.'s counsel objected to admission of the developed pictures into evidence, arguing that the Sheriff's Department did not include the film on its inventory of the search warrant, and that Tonjia could not be exposed to the contents of an undeveloped roll of film. Although the judge initially declined to admit the pictures into evidence, ultimately the pictures were admitted over Dorlen M.'s counsel's objections.

Also at the December 2000 adjudicatory hearing, two mental health experts testified about whether Tonjia had been sexually abused or otherwise neglected. Margaret Tordella, a licensed clinical social worker and counselor, testified that she believed that Tonjia had been sexually abused and recommended no further contact between Tonjia and her father. Based on her ten interviews with Tonjia, Ms. Tordella testified that Dorlen M. had licked Tonjia's genitalia and buttocks, that Dorlen M. had sexual intercourse with his daughter five times, and had touched her between her legs. However, Ms. Tordella admitted that there were problems in consistency with the stories that Tonjia told, and that she had obtained information from Tonjia that some sexually inappropriate activity had occurred between Tonjia and another young boy in a foster home in which Tonjia was residing.

Next, Terry Laurita, a licensed psychologist, testified for Dorlen M. as a rebuttal to the testimony of Ms. Tordella. Ms. Laurita testified that there were numerous problems with Ms. Tordella's methodology, and that the evidence suggested that Tonjia could not tell the difference between the truth and fantasy. Notably, Ms. Laurita did not interview Tonjia. Additionally, Ms. Laurita could not conclude from the information presented whether or not Dorlen M. molested his daughter.

At the conclusion of testimony by the two experts, the circuit court, on its own motion, recessed the adjudicatory hearing to allow an independent evaluation by a third evaluator, child psychologist Chanin Kennedy. On May 7, 2001, Ms. Kennedy testified that she could neither affirm nor disprove whether Tonjia had been sexually abused by her father, but Ms. Kennedy concurred with the other evaluators in finding that Tonjia exhibited sexual behaviors inconsistent with children of her own age group.

At the conclusion of the adjudicatory hearing held on June 27, 2001, the circuit court found that Tonjia was the victim of sexual abuse by her father, and that she was as a matter of law an abused and neglected child. The circuit court also found that there was no substantial likelihood that the circumstances of neglect or abuse could be corrected.

The circuit court held a dispositional hearing on August 28, 2001. At the hearing, the circuit court denied Dorlen M.'s request for a post-adjudicatory improvement period and terminated his parental rights.

Dorlen M. asserts the following assignments of error: (1) that the circuit court erred in concluding that Dorlen M. sexually abused his daughter in light of the challenged expert witness testimony; (2) that the circuit court erred in denying Dorlen M.'s motion for a six-month out-of-home post-adjudicatory improvement period; (3) that the circuit court erred in denying Dorlen M.'s supervised visitation with Tonjia during the fifteen months the case was pending before the circuit court; and (4) that the circuit court erred in permitting the admission of sexually explicit photographs into evidence.

II.

Child abuse and neglect cases involve a delicate balancing between the interests of the parents and the rights of an innocent child. However, the law's overriding consideration is the best interest of the child or children involved. This Court has held that:

Although parents have substantial rights that must be protected, the primary goal in cases involving abuse and neglect, as in all family law matters, must be the health and welfare of the children.

Syllabus Point 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996). In abuse and neglect cases, we review the circuit court's findings under a clearly erroneous standard.

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.

Syllabus Point 1, In Interest Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

Because of the serious consequences of abuse and neglect proceedings, certain safeguards have been statutorily installed. Under W.Va.Code, 49-6-2(c) [1996],⁶ circuit courts must...