IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2024 Term FILED _____________ November 13, 2024 No. 23-416 released at 3:00 p.m. C. CASEY FORBES, CLERK _____________ SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re D.H., M.H., and J.S.
________________________________________________
Appeal from the Circuit Court of Berkeley County The Honorable Bridget Cohee, Judge Juvenile Action Nos. CC-02-2022-JA-124, CC-02-2022-JA-125, and CC-02-2022-JA-126
AFFIRMED ________________________________________________
Submitted: October 23, 2024 Filed: November 13, 2024
Christian J. Riddell, Esq. Patrick Morrisey, Esq. Riddell Law Group Attorney General Martinsburg, West Virginia Charleston, West Virginia Attorney for the Petitioner Mother Lee Niezgoda, Esq. Assistant Attorney General Fairmont, West Virginia Catherine Bond Wallace, Esq. Attorneys for the Respondent Zoey Vilasuso, Esq. Department of Human Services ChildLaw Services, Inc. Martinsburg, West Virginia Guardians ad Litem for the Minor Debbie Flowers Payne, Esq. Children, D.H., M.H., and J.S. Law Office of Debbie Flowers Payne Martinsburg, West Virginia Attorney for the Respondent Father JUSTICE BUNN delivered the Opinion of the Court.
JUSTICE WOOTON dissents and may write separately. SYLLABUS BY THE COURT
1. “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 of Tiffany Marie S., 196 W. Va.
223, 470 S.E.2d 177 (1996).
2. “Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415
(1995).
i 3. “‘The West Virginia Rules of Evidence and the West Virginia Rules
of Civil Procedure allocate significant discretion to the trial court in making evidentiary
and procedural rulings. Thus, rulings on the admissibility of evidence . . . are committed to
the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary
and procedural rulings of the circuit court under an abuse of discretion standard.’ Syl. Pt.
1, in part, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995).” Syllabus
point 3, In re J.S., 233 W. Va. 394, 758 S.E.2d 747 (2014).
4. “Where there is a direct and fundamental encroachment by one branch
of government into the traditional powers of another branch of government, this violates
the separation of powers doctrine contained in Section 1 of Article V of the West Virginia
Constitution.” Syllabus point 2, Appalachian Power Co. v. Public Service Commission of
West Virginia, 170 W. Va. 757, 296 S.E.2d 887 (1982).
5. “Under [West Virginia Rule of Evidence] 702, a trial judge has broad
discretion to decide whether expert testimony should be admitted, and where the evidence
is unnecessary, cumulative, confusing[,] or misleading the trial judge may properly refuse
to admit it.” Syllabus point 4, Rozas v. Rozas, 176 W. Va. 235, 342 S.E.2d 201 (1986).
ii BUNN, Justice:
The petitioner, T.S.1 (“Mother”), appeals to this Court from the Circuit Court
of Berkeley County’s June 26, 2023 dispositional order terminating her parental rights to
her children D.H., M.H., and J.S. Mother’s assignments of error are without merit because
the circuit court was authorized to order the West Virginia Department of Human Services
(“DHS”)2 to join the prosecution of the underlying abuse and neglect case; and further, it
did not err in denying Mother’s motion to hire an expert, finding the allegations of abuse
and neglect were proven by clear and convincing evidence, and ultimately terminating
Mother’s parental rights.
I.
FACTUAL AND PROCEDURAL HISTORY
Prior to the abuse and neglect proceeding at issue, the DHS received multiple
referrals over a period of years regarding allegations of abuse and neglect against Mother.
Child Protective Services (“CPS”) investigated those referrals, but the DHS did not file a
petition at that time because it failed to substantiate the allegations. D.H. and M.H.’s father
1 We use initials where necessary to protect the identities of those involved in this case. See W. Va. R. App. P. 40(e). 2 Pursuant to West Virginia Code § 5F-2-1a, the agency formerly known as the West Virginia Department of Health and Human Resources was terminated. It is now three separate agencies—the Department of Health Facilities, the Department of Health, and the Department of Human Services. See W. Va. Code § 5F-1-2. For purposes of abuse and neglect appeals, the agency is now the Department of Human Services (“DHS”).
1 (“Father”) subsequently instituted an action in family court for a protective order after M.H.
disclosed sexual abuse that purportedly occurred in Mother’s home. The family court then
referred the matter to circuit court pursuant to Rule 48 of the Rules of Practice and
Procedure for Family Courts.3 The circuit court initiated an administrative action to
investigate the claims and appointed the children a guardian ad litem (“GAL”).
In August 2022, before the administrative action concluded, Father, with the
assistance of counsel, filed an abuse and neglect petition in the same circuit court alleging
that Mother physically abused the children, allowed others to abuse the children, engaged
in domestic violence with a boyfriend in the presence of the children, and engaged in
substance abuse affecting her parenting ability.4 The children’s GAL joined the petition.
According to the petition, the family court set a custody schedule giving Father primary
custody, while Mother had visitation of D.H. and M.H. every other weekend. Father
3 Rule 48 of the Rules of Practice and Procedure for Family Courts requires a family court to report “suspected abuse or neglect to the state child protective services agency, pursuant to W. Va. Code §§ 49-6A-2 [sic], and the circuit court” when the family court has “reasonable cause to suspect any minor child involved in family court proceedings has been abused or neglected[.]” 4 The petition also named T.C., the alleged biological father of J.S., and W.C., Mother’s then boyfriend, as respondents. In an update to this Court, the DHS indicated that T.C. failed to appear, and his paternity of the child could not be confirmed. Accordingly, the DHS amended the abuse and neglect petition to include the unknown father of J.S. This amended petition is not included in the record before us. The circuit court ultimately terminated J.S.’s unknown father’s parental rights on July 23, 2023.
2 contended that D.H. and M.H. returned to his home with bruises after spending time with
Mother. The children explained that Mother and her boyfriend, W.C., repeatedly hit them
with belts. In a forensic interview with the Child Advocacy Center, M.H., then seven years
old, disclosed that Mother threatened to physically harm her, allowed inappropriate people
in the home, failed to care for J.S., and allowed W.C. to physically harm her. D.H., then
eleven years old, reported in a forensic interview that Mother engaged in substance abuse,
harmed him physically, threatened to harm him physically, failed to keep sufficient food
in the home, and failed to care for J.S. D.H. revealed a time when Mother took him with
her to a “sketchy alley” to “buy weed” and he also indicated that marijuana and drug
paraphernalia were in her home.
On August 16, 2022, the court held a preliminary hearing. In the following
order, the court stated that it had “previously ordered [the DHS] to join in the petition and
[had] noted [the DHS’s] objection on the record.”5 The court further found that “[i]t was
appropriate for [Father and GAL] to . . . file the petition based upon the allegations of
[Mother’s] abuse and neglect of the children.”
5 Neither party included in the record on appeal the hearing transcript where this exchange occurred.
3 Throughout the proceedings, Mother questioned the veracity of the children,
contending they were coached to make their disclosures. She particularly questioned the
veracity of D.H.’s complaints, stating he had a propensity to exaggerate and lie. On
September 21, 2022, Mother filed a motion requesting public funding for an expert witness
to review the children’s forensic interviews for signs of coaching or other indicia of
unreliability. Following additional briefing and a hearing in December 2022, the court
issued an order denying Mother’s motion for public funding and further denied her
permission to hire an expert to independently review the forensic interviews. The court
explained that Mother’s suggested expert was not trained in the Child First Protocol used
by forensic interviewers and found that the suggested expert “would not be helpful to the
[c]ourt and goes outside of the purpose of forensic interviews of children.”
The GAL submitted a Birth to Three referral for J.S. “due to significant
delays and concerns reported by his caregivers.”6 On October 27, 2022, the GAL filed Birth
to Three evaluations with the court demonstrating that J.S. had twenty-five to forty percent
delays in every category of development and that he suffered partial hearing loss. Prior to
the adjudicatory hearing, the circuit court conducted in camera interviews with D.H. and
M.H.
6 “West Virginia Birth to Three is an early intervention program that partners with families and caregivers to build upon their strengths by offering coordination, supports [sic], and resources to enhance children’s learning and development.” In re N.H., No. 17- 0358, 2017 WL 3868015, at *1 n.3 (W. Va. Sept. 5, 2017) (memorandum decision).
4 The court conducted several evidentiary hearings related to Mother’s
adjudication and a final adjudicatory hearing in March 2023. At the start of the adjudicatory
hearings, the court informed the parties that it had conducted in camera interviews with
D.H. and M.H. and concluded that their in camera disclosures were consistent with their
previous forensic interviews.7 The DHS informed the court that it was a co-petitioner but
deferred the lead questioning to Father and the GAL. The DHS took part in questioning the
witnesses and submitted exhibits for admission into evidence.
During the adjudicatory hearings, Father testified and recounted the events
that led to his filing of the petition, including disclosures from D.H. that Mother physically
harmed D.H., failed to provide sufficient food, engaged in substance abuse, and allowed
inappropriate people into the home. Mother also testified and denied many of the
allegations in the petition. Mother did admit during her testimony that she previously pled
guilty to reckless driving after law enforcement stopped her for driving more than 100
miles per hour with J.S. in the vehicle and that she allowed W.C., a known drug addict,
around her children. However, she repeatedly testified that she did not abuse or neglect her
children. Mother insisted that D.H. and M.H. lied or were coached regarding the
disclosures made to the court and in their forensic interviews. The maternal grandmother
7 Consistent with the allegations in the petition, D.H. and M.H. informed the court that Mother threatened physical abuse, engaged in physical abuse, abused substances, failed to care for J.S., and allowed others in the home to abuse the children.
5 testified that Mother took excellent care of J.S. and that Mother and D.H. had a good
relationship.
The court heard testimony from D.H.’s therapist who opined that since the
court removed D.H. from Mother’s care, D.H. had been happier and less stressed, and his
behavioral issues had decreased. The children’s forensic interviewer stated that D.H. and
M.H. disclosed allegations of Mother threatening physical abuse, engaging in physical
abuse, abusing substances, failing to care for J.S., and allowing others in the home to
physically abuse the children. The DHS caseworker who removed J.S. from Mother’s home
testified that when she removed J.S. he was “not . . . the cleanest” and was hungry. The
DHS caseworker who conducted the initial investigation and that worker’s supervisor also
provided testimony. The DHS supervisor essentially conceded that the initial investigation
was not conducted fully. Another DHS supervisor testified that the DHS no longer resisted
pursing the case based on what it had learned.
At the conclusion of the case-in-chief, Mother moved to dismiss the abuse
and neglect petition arguing that the circuit court’s order directing the DHS to join the
petition violated Supreme Court cases and that the DHS did not choose to prosecute this
case and had given over prosecution of the case to Father and the GAL. In response, the
DHS argued that it “participated in each and every phase of this proceeding[,]” including
multidisciplinary team meetings and hearings. The DHS further asserted that it believed it
6 “technically prosecuted the case.” The GAL also contended that the DHS was involved
throughout the prosecution of this case and that the GAL, Father’s counsel, and the
prosecutor consulted via email and in person prior to every hearing to strategize.
The circuit court denied the motion to dismiss the petition in an order
explaining that the law relied on by Mother was inapplicable under the circumstances of
this case. The court further found that D.H. and M.H.’s forensic interviews were credible
and there was no evidence of coaching. Ultimately, the court found that Mother abused and
neglected the children due to her substance use and its effect on her parenting ability, failure
to protect the children from inappropriate individuals in the home, excessive corporal
punishment, and failure to provide for the children’s basic needs. Therefore, the court
adjudicated Mother as an abusing and neglecting parent and found the children to be abused
and neglected. Mother filed a motion for a post-adjudicatory improvement period.
The circuit court proceeded to disposition and held a hearing on June 16,
2023, where it also considered Mother’s motion for a post-adjudicatory improvement
period.8 Both DHS and the GAL supported termination of Mother’s parental rights. The
court found that Mother was not likely to participate in an improvement period because
Mother continued to deny that she abused and neglected her children and maintained that
8 The parties did not include the dispositional hearing transcript in the record on appeal.
7 no aspect of her parenting needed to be corrected. The court terminated Mother’s parental
rights, explaining that there was no reasonable likelihood that the conditions of abuse or
neglect could be substantially corrected in the near future and that reunification would not
be in the children’s best interests. Mother now appeals.
II.
STANDARD OF REVIEW
We review a circuit court’s factual determinations and legal conclusions in
an abuse and neglect case pursuant to the following well-established 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.
Syl. pt. 1, In Int. of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). Furthermore,
“[w]here the issue on an appeal from the circuit court is clearly a question of law or
involving an interpretation of a statute, we apply a de novo standard of review.” Syl. pt. 1,
8 Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). Finally, we have
held that
“The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence . . . are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard.” Syl. Pt. 1, in part, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995).
Syl. pt. 3, In re J.S., 233 W. Va. 394, 758 S.E.2d 747 (2014).
III.
DISCUSSION
Mother asserts that the circuit court committed reversible error by
(1) ordering the DHS, after its objection, to prosecute the abuse and neglect case;
(2) refusing to allow Mother to hire an expert to review the forensic interviews of the
children for signs of coaching or other indicia of unreliability; (3) finding the allegations
of abuse and neglect had been proven by clear and convincing evidence; and
(4) terminating Mother’s parental rights. We address each of these assignments of error in
turn and conclude that the circuit court did not err.
9 A. DHS Ordered to Join in the Abuse and Neglect Petition
Mother contends that the DHS investigated the allegations, elected not to file
an abuse and neglect petition, and objected to joining in Father’s petition. Therefore,
Mother argues that the circuit court violated the separation of powers doctrine of the West
Virginia Constitution by stepping into the role of the executive branch when it ordered the
DHS to join the petition. We disagree.
Pursuant to the West Virginia Constitution, “[t]he legislative, executive and
judicial departments shall be separate and distinct, so that neither shall exercise the powers
properly belonging to either of the others[.]” W. Va. Const. art. V, § 1, in part. In other
words, “[w]here there is a direct and fundamental encroachment by one branch of
government into the traditional powers of another branch of government, this violates the
separation of powers doctrine contained in Section 1 of Article V of the West Virginia
Constitution.” Syl. pt. 2, Appalachian Power Co. v. Pub. Serv. Comm’n of W. Va., 170
W. Va. 757, 296 S.E.2d 887 (1982). This Court has never “hesitated to utilize the doctrine”
to curtail government actions which violate it. Id. at 759, 296 S.E.2d at 889.
On the other hand, this Court “has long recognized that it is not possible that
division of power among the three branches of government be so precise and exact that
there is no overlapping whatsoever.” State ex rel. Sahley v. Thompson, 151 W. Va. 336,
341, 151 S.E.2d 870, 873 (1966), overruled on other grounds by State ex rel. Hill v. Smith,
10 172 W. Va. 413, 305 S.E.2d 771 (1983); see also Appalachian Power Co., 170 W. Va. at
759, 296 S.E.2d at 889 (“[W]e have recognized the need for some flexibility in interpreting
the separation of powers doctrine in order to meet the realities of modern day
government.”). Accordingly, “the doctrine of separation of powers does not seek to achieve
a complete divorce between the branches of government[.]” In re D.S., 763 N.E.2d 251,
262 (Ill. 2001), as modified on denial of reh’g (Feb. 4, 2002). “Inevitably, there are areas
in which separate spheres of governmental authority overlap and certain functions are
thereby shared. Such an overlap of governmental authority does not contravene the
separation of powers doctrine.” Id. This overlap is often necessary in abuse and neglect
proceedings, where there are concurrent obligations to protect the best interest of the
children involved. See, e.g., id. at 262-63 (“[D]ue to the unique nature of abuse, neglect[,]
and dependency proceedings . . . both the State’s Attorney and the circuit court have
concurrent obligations to protect the best interests of the minor.”).
While this Court has not considered whether a circuit court may order the
DHS to join in an abuse and neglect petition filed by someone other than the DHS, at least
one other jurisdiction has examined a similar question. In In re J.J., the Illinois Supreme
Court held that the separation of powers doctrine does not preclude a court from hearing
and deciding the merits of the State’s motion to dismiss a petition filed pursuant to the
Juvenile Court Act alleging abuse of a minor. 566 N.E.2d 1345, 1348-49 (Ill. 1991). In
other words, even when the State chooses to dismiss a petition alleging abuse and/or
11 neglect of a minor, the circuit court has a duty to examine the merits and determine whether
the best interests of the children involved are served by the dismissal. Id. In reaching this
conclusion, the court explained that under the applicable statutory provisions, both the
court and the prosecuting attorney “are charged with acting in the best interests of the
minor.”9 Id. at 1349.
Similarly, the West Virginia abuse and neglect statutory scheme provides for
intersecting obligations of the executive and the judiciary branches. This Court has
explained that the doctrine of parens patriae affords the State certain rights and obligations
in the abuse and neglect context,
“[t]he doctrine of [p]arens patriae, subsisting since feudal times and well documented in the common law of England, Virginia, and this State, accords the State rights just below that
9 The court further indicated that because the State’s prosecuting attorney has “exclusive executive discretion in the initiation and management of criminal litigation does not require a different result.” In re J.J., 566 N.E.2d 1345, 1348 (Ill. 1991). It reasoned that “neglect proceedings brought pursuant to the Juvenile Court Act are civil, not criminal, actions.” Id. at 1348. Accordingly, the court found that the
overriding purpose of the Juvenile Court Act is to ensure that the best interests of the minor, the minor’s family, and the community are served. . . . [N]ot only the court but the State’s Attorney is bound to act in furtherance of this purpose. . . . [I]n dependency and neglect proceedings, . . . both the State’s Attorney and the court are charged with the duty of ensuring that, at each step of the wardship adjudication process, the best interests of the minor, the minor’s family[,] and the community are served.
Id. at 1349.
12 of the natural parent in the health and welfare of minor children. For the protection of the child, the State has always moved expeditiously and decisively when a natural parent has been proved to be unfit to continue the trust of raising his child, when a child has been abandoned by his natural parent or when the parent, by agreement or otherwise, has permanently transferred, relinquished[,] or surrendered the custody of such natural child.”
In re A.G., 247 W. Va. 249, 253-54, 878 S.E.2d 744, 748-49 (2022) (emphasis omitted)
(quoting In re Willis, 157 W. Va. 225, 238, 207 S.E.2d 129, 137 (1973)). This parens
patriae interest rests with both the judicial and the executive branches. For example, the
judiciary has an “obligation to consider the ‘best interests of the child [as] paramount.’”
State ex rel. Paul B. v. Hill, 201 W. Va. 248, 257, 496 S.E.2d 198, 207 (1997) (quoting In
re Jeffrey R.L., 190 W. Va. 24, 32, 435 S.E.2d 162, 170 (1993)). Furthermore, “[t]his
judicial duty has also been characterized as a parens patriae role: ‘[t]his Court
cannot . . . ignore its parens patriae duty to protect the best interests of [the child].’” Paul
B., 201 W. Va. at 257, 496 S.E.2d at 207 (first alteration added) (citation omitted).
Regarding the executive branch’s similar interest, this Court has held that an abuse and
neglect “action is pursued solely on behalf of the State of West Virginia in its role as parens
patriae.” Syl. pt. 5, in part, In re B.C., 233 W. Va. 130, 755 S.E.2d 664 (2014).10 Therefore,
10 In support of her position, Mother relies on this Court’s decision in In re B.C., 233 W. Va. 130, 755 S.E.2d 664 (2014). Her reliance is misplaced. The issue before the Court in In re B.C. was entirely different than the issue before us now. In Re B.C. focused on whether a petition for a domestic violence protective order under West Virginia Code § 48-27-101 et seq., and a petition alleging abuse and/or neglect under West Virginia Code § 49-6-1 et seq., “may be filed upon the same facts without consequences” under the doctrines of res judicata or collateral estoppel. Syl. pt. 6, in part, In re B.C., 233 W. Va.
13 both the judiciary and the executive branch have an obligation to act in the best interests of
children.
Moreover, the specific abuse and neglect statutes at issue indicate that
overlapping obligations exist between the judicial and executive branches. West Virginia
Code § 49-4-601(a) makes it clear that either the DHS or a reputable person may file an
abuse and neglect petition.11 See also In re Willis, 157 W. Va. at 238, 207 S.E.2d at 137
(“Our statutes providing for the welfare of children establish a mechanism whereby the
courts may adjudicate questions arising when the State or a citizen thereof believes there
is necessity to change the custodial relationship of natural parent and child because of some
dereliction on the part of the parent or the child.”).12 Once the petition is filed by either
130, 755 S.E.2d 664. In re B.C. merely clarified that the DHS is a distinct and separate party from any reputable person who files an abuse and neglect petition and that a reputable person is not represented by the prosecuting attorney. 11 West Virginia Code § 49-4-601(a) provides that
[i]f the department or a reputable person believes that a child is neglected or abused, the department or the person may present a petition setting forth the facts to the circuit court in the county in which the child resides, or if the petition is being brought by the department, in the county in which the custodial respondent or other named party abuser resides, or in which the abuse or neglect occurred, or to the judge of the court in vacation. Under no circumstance may a party file a petition in more than one county based on the same set of facts. 12 This Court has explained the reasoning behind this statutory framework allowing the State or “a reputable person” to file a petition:
14 DHS or “a reputable person,” West Virginia Code § 49-4-601(c) requires the court to “set
a time and place for a hearing” and “appoint counsel for the child.” Subsection (d) of this
same provision provides that “[a]t the time of the institution of any proceeding under this
article, the department shall provide supportive services in an effort to remedy
circumstances detrimental to a child.” The Legislature has, therefore, determined that an
abuse and neglect petition may be initiated by an individual who is not a part of the DHS,
the DHS must be a part of the proceedings, and the courts must hold an initial hearing on
the petition and take further action and make certain decisions as warranted by the facts of
the case.13 See In re George Glen B., Jr., 207 W. Va. 346, 355, 532 S.E.2d 64, 73 (2000)
(“[C]ircuit courts are statutorily charged with promptly ruling upon the merits of an abuse
and neglect petition, W. Va. Code, 49-6-2 [1996] [now W. Va. § 49-4-601], and if abuse or
[b]y permitting an individual who believes that abuse and/or neglect is occurring, or has occurred, to file a petition alleging such circumstances, and by requiring this person to also have sufficient knowledge of the facts underlying this belief to verify the petition, the statutory framework attempts to protect parents, custodians, guardians, and care givers from unsubstantiated charges while permitting the filing of petitions seeking to protect the health, safety, and well-being of children.
State ex rel. Paul B. v. Hill, 201 W. Va. 248, 256, 496 S.E.2d 198, 206 (1997). 13 As we have previously explained, the Legislature “adopted our abuse, neglect[,] and child welfare statutes in 1915 as a way to afford special protection to persons of tender years, and crafted those statutes as an obvious expression of our lawmakers to join the then modern sociological trend by the codification of the doctrine of parens patriae.” In re B.C., 233 W. Va. at 137, 755 S.E.2d at 671 (quotations and citation omitted).
15 neglect is found, crafting a disposition to achieve an appropriate placement of an abused
and/or neglected child. W. Va. Code, 49-6-5 [1998] [now W. Va. § 49-4-604].).14
Considering our prior recognition of the role of the State and the court as
parens patriae as well as the statutory framework laying out mutual obligations on behalf
of both to move expeditiously towards the same goal of the best interest of the children,
we find that our abuse and neglect statutory scheme provides for corollary obligations of
the judiciary and the executive branch to protect the best interest of the children involved
in an abuse and neglect proceeding. For these reasons, the circuit court did not violate the
separation of powers doctrine by ordering the DHS to join in the abuse and neglect petition
filed by Father and joined by the GAL in this case, and therefore, did not err.15
14 The guardian ad litem also proffers that the Child Protective Services Policy handbook, revised by the DHS, provides guidance for this situation:
“[w]henever someone other than DHHR files a petition, the Circuit Court may order CPS to complete an initial assessment or be a party to the petition. . . . If an initial assessment is not ordered but the judge rules that CPS be a party to the proceeding, the child welfare worker must adhere to the court order and follow applicable CPS and Foster Care Policies.” 15 This Court has recognized that the DHS is required to prosecute abuse and neglect proceedings when the initial petition is filed by a reputable person. In In re Emily G., Emily G.’s grandparents filed an abuse and neglect petition pursuant to the reputable person provision against the child’s parents. 224 W. Va. 390, 393, 686 S.E.2d 41, 44 (2009) (per curiam). The circuit court dismissed the petition without holding a preliminary hearing or conducting any proceeding. Id. at 396, 686 S.E.2d at 47. This Court reversed and directed that the circuit court, at the very least, conduct a preliminary hearing. Id. We further directed that the circuit court should “ensure that the other requirements of W. Va.
16 B. Mother’s Motion to Hire an Expert
Mother next asserts that the circuit court erred by refusing to allow her to
hire an expert to review the forensic interviews of the children for signs of coaching or
other indicia of unreliability. Mother contends that her due process rights to meaningfully
participate in the abuse and neglect proceeding, including the right to present witnesses,
were violated by the court’s ruling.16 We find that the circuit court did not err.
Generally, West Virginia Rule of Evidence 702 “provides for the admission
of expert testimony . . . when the expert’s ‘knowledge will assist the trier of fact . . . to
determine a fact in issue.’ It does not require the admission of all proffered expert
testimony.” Rozas v. Rozas, 176 W. Va. 235, 240, 342 S.E.2d 201, 206 (1986) (quoting
W. Va. R. Evid. 702).17 Accordingly, we have held that “[u]nder [West Virginia Rule of
Code § 49-6-1 [now W. Va. Code § 49-4-601] have been complied with, particularly the statutory directives requiring participation by the [DHS.]” In re Emily G., 224 W. Va. at 396, 686 S.E.2d at 47. 16 See W. Va. Code § 49-4-601(h) (explaining, in part, that “In any proceeding pursuant to this article, the party or parties having custodial or other parental rights or responsibilities to the child shall be afforded a meaningful opportunity to be heard, including the opportunity to testify and to present and cross-examine witnesses.”). 17 West Virginia Code § 49-4-601(k) provides that “[t]he rules of evidence apply” to abuse and neglect proceedings. See also W. Va. Code § 49-4-603(a)(1) (“At any time during proceedings under this article the court may, upon its own motion or upon motion of the child or other parties, order the child or other parties to be examined by a physician, psychologist[,] or psychiatrist, and may require testimony from the expert, subject to cross-examination and the rules of evidence.”); W. Va. R. Evid 101 (clarifying that the Rules of Evidence apply to proceedings as set out in Rule 1101, and giving effect
17 Evidence] 702, a trial judge has broad discretion to decide whether expert testimony should
be admitted, and where the evidence is unnecessary, cumulative, confusing[,] or misleading
the trial judge may properly refuse to admit it.” Syl. pt. 4, Rozas, 176 W. Va. 235, 342
S.E.2d 201.
Moreover, in the criminal context, this Court has found that an expert witness
may not make credibility determinations because that task lies in the sole province of the
jury:
Credibility determinations may not be provided by an expert. State v. Martin, 224 W. Va. 577, 582, 687 S.E.2d 360, 365 (2009) (per curiam). “‘The jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses.’ Syl. Pt. 2, State v. Bailey, 151 W. Va. 796, 155 S.E.2d 850 (1967).” Syl. pt. 2, Martin, 224 W. Va. 577, 687 S.E.2d 360. . . . As stated in Martin, expert testimony regarding credibility “invade[s] the province of the jury.” Id. There is nothing in the record to find error on the part of the circuit court by excluding expert testimony relating to [the defendant’s] credibility.
State v. Delorenzo, 247 W. Va. 707, 716-17, 885 S.E.2d 645, 654-55 (2022).18
to evidentiary rules set out in any West Virginia statute so long as statutory rule does not conflict with Rules of Evidence); W. Va. R. Evid 1011 (confirming applicability of Rules of Evidence to abuse and neglect proceedings by not excluding them from scope of Rules). 18 See also Syl. pt. 7, State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990) (“Expert psychological testimony is permissible in cases involving incidents of child sexual abuse and an expert may state an opinion as to whether the child comports with the psychological and behavioral profile of a child sexual abuse victim, and may offer an opinion based on objective findings that the child has been sexually abused. Such an expert may not give an opinion as to whether he personally believes the child, nor an
18 Similarly, in the context of an abuse and neglect proceeding, because the
matter is tried 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.” Syl. pt. 1, in part, In Int. Tiffany Marie S., 196 W. Va. 223, 470
S.E.2d 177. In other words, “in the context of abuse and neglect proceedings, the circuit
court is the entity charged with weighing the credibility of witnesses and rendering findings
of fact.” In re Emily B., 208 W. Va. 325, 339, 540 S.E.2d 542, 556 (2000). Because the
circuit court is the fact finder in abuse and neglect proceedings, an expert witness is not
permitted to render credibility determinations in such cases.19
Here, Mother vaguely asserts that she required an expert witness to review
the children’s forensic interviews for “indicia of unreliability, coaching, or other undue
influence.” While the record is unclear as to the exact reasoning for Mother’s request to
hire an expert witness, it appears that much of the motivation for seeking expert testimony
opinion as to whether the sexual assault was committed by the defendant, as these would improperly and prejudicially invade the province of the jury.”). 19 Other courts have also acknowledged that an expert witness cannot make credibility determinations in a child abuse and neglect proceeding.19 See, e.g., In re B.J., 735 N.E.2d 1058, 1065 (Ill. App. Ct. 2000) (“[T]rial courts should reject the attempt to use purported expert testimony to bolster or attack a witness’ credibility.”); In re Tayler F., 958 A.2d 170, 190 (Conn. App. Ct. 2008), aff’d, 995 A.2d 611 (Conn. 2010) (“The respondent claims that the court abused its discretion by permitting [the expert witnesses] to testify about the ultimate issue in the case, the children’s credibility. We agree with the respondent . . . that the court abused its discretion when it permitted [the expert witnesses] to testify about the children’s credibility[.]”).
19 was to attack the credibility of the children’s testimony.20 Throughout the proceedings
below, Mother repeatedly indicated that her children had a history of lying and that the
children were being coached.21 As we acknowledged above, an expert witness is not
permitted to render credibility determinations in abuse and neglect cases. Accordingly, to
the extent that Mother sought to hire an expert witness for the purpose of opining as to the
credibility of the children’s disclosures during the forensic interviews, the expert witness
testimony was improper as it would have invaded the province of the court as the trier of
fact.22
20 In her motion below, Mother indicated that she required an expert to “form an opinion on the reliability of the investigation and [the forensic] interview[.]” 21 For example, during the adjudicatory hearing, Mother testified that her children were lying about the allegations against her:
[Father’s Counsel]: Q: . . . The statements your children have made do you find any of those statements credible? [Mother]: A. No. [Father’s Counsel]: Q. So is it your opinion that your children are not being truthful in their statements? [Mother]: A. Yes. 22 This Court recently found that under different circumstances, allowing an expert witness in an abuse and neglect proceeding to opine as to credibility issues was not error. In re M.J., No. 21-0591, 2022 WL 2135584, at *3 (W. Va. June 14, 2022) (memorandum decision). However, In re M.J. is distinguishable from the present matter. We recognized that an abuse and neglect proceeding is conducted through a bench trial and that we “expect[] a circuit court judge who conducts a bench trial to disregard any inadmissible evidence when rendering a decision.” Id. Additionally, while the circuit court judge noted the credibility testimony in its findings of fact, there was no indication that the circuit court relied on the credibility testimony in making its final decision on adjudication. Id. So, while the expert witness provided credibility testimony, there was no error because the circuit court, as the trier of fact, disregarded the inadmissible evidence. Here, there is
20 To the extent that Mother’s proposed expert witness would have testified
regarding the techniques and form of the forensic interview itself, we similarly find no
error under the circumstances of this case. As noted above, the Rules of Evidence allow
expert testimony when it will “assist the trier of fact . . . to determine a fact in issue[.]”
W. Va. R. Evid. 702. The circuit court, as the trier of fact, exercised its broad discretion to
determine that Mother’s proffered expert’s testimony was not necessary to inform its
findings of fact. During the hearing on the motion for Mother’s expert witness, the circuit
court explained that it was the trier of fact and that the proffered expert witness was not
going to be helpful in its decision-making:
The judge is the finder of fact. We don’t have issues where you have to educate me about how to read the demeanor of the child. I watch hundreds of child interviews, hundreds, so I don’t see that [this] is going to be helpful to the [c]ourt . . . . It goes outside the reason that we have [forensic] interviews of children to protect them in these proceedings from cross- examination.
The court memorialized this finding in its subsequent order.23 Significantly, aside from
receiving the testimony of the forensic interviewer at the adjudicatory hearing, the circuit
court reviewed the forensic interviews itself and conducted its own in camera interviews
similarly no error because the circuit court did not allow the inadmissible opinion testimony. 23 Furthermore, Mother’s counsel explored any inconsistencies in and other potential issues regarding the reliability of the children’s disclosures through cross- examination of their forensic interviewer.
21 of D.H. and M.H. In its adjudicatory order, the court noted that it had not only reviewed
the forensic interviews at the start of the matter, but also again during the adjudication
phase due to Mother’s concern that the children were coached. The court found the
children’s interviews to be credible and that there was “not . . . any evidence of coaching
but rather [the] children relay[ed] their first-hand experiences and [were] able to describe
with detail what they saw, heard, and felt.” Because the court, as the trier of fact, found the
proffered expert testimony would not aid its decision, and because the circuit court, as the
trier of fact, independently reviewed and conducted its own interviews, we find that the
circuit court did not abuse its broad discretion in denying Mother the opportunity to present
the testimony of an expert witness regarding the forensic interviews.24
C. Clear and Convincing Evidence
Turning to Mother’s third assignment of error, we must examine whether the
circuit court erred by finding the respondents proved the allegations of abuse and neglect
24 To the extent Mother contends that circuit court also erred by denying her public funding to hire the expert witness, we disagree. Because we find that the circuit court did not err in denying Mother the opportunity to hire an expert witness for this purpose, we similarly find the court did not err in denying her public funds for this purpose. In addition, to the extent that the forensic interviewer opined on credibility issues during the adjudicatory hearing, Mother has not raised this an error.
22 by clear and convincing evidence. We conclude that the DHS, Father, and the GAL,
presented sufficient evidence to support Mother’s adjudication.25
In any abuse and neglect proceeding, the allegations set forth in the petition
must be proven by clear and convincing evidence:
(i) Findings of the court. — Where relevant, the court shall consider the efforts of the department to remedy the alleged circumstances. At the conclusion of the adjudicatory hearing, the court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether the child is abused or neglected and whether the respondent is abusing, neglecting, or, if applicable, a battered parent, all of which shall be incorporated into the order of the court. The findings must be based upon conditions existing at the time of the filing of the petition and proven by clear and convincing evidence.
W. Va. Code § 49-4-601 (emphasis added). See also In re C.L., 249 W. Va. 95, 102, 894
S.E.2d 877, 884 (2023) (“At the adjudicatory hearing, to have jurisdiction over an abuse
and neglect case, the circuit court must find by clear and convincing evidence that the
children named in the petition are abused or neglected based upon conditions that existed
25 We acknowledge that this Court has held that the DHS, in an abuse and neglect proceeding is required to “prove conditions existing at the time of the filing of the petition . . . by clear and convincing proof.” Syl. pt. 3, in part, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995) (quotations omitted). On appeal, Mother does not argue that the DHS did not satisfy this burden due to its co-petitioner status. Moreover, the DHS participated throughout the entirety of the abuse and neglect proceedings, providing services, attending multidisciplinary team meetings, attending hearings, examining witnesses during hearings, strategizing with the Father and GAL, and seeking to admit exhibits into evidence.
23 at the time of filing.”). “Clear and convincing evidence means that more than a mere
scintilla of evidence has been presented to establish the veracity of the allegations of abuse
and/or neglect, but it does not impose as exacting an evidentiary burden as criminal
proceedings which generally require proof beyond a reasonable doubt.” In re A.M., 243
W. Va. 593, 598, 849 S.E.2d 371, 376 (2020). See also In re F.S., 233 W. Va. 538, 546,
759 S.E.2d 769, 777 (2014) (per curiam) (“It is imperative to note that the evidence in an
abuse and neglect case does not have to satisfy the stringent standard of beyond a
reasonable doubt; the evidence must establish abuse by clear and convincing evidence.”).
Mother asserts that the evidence presented “was riddled with inconsistencies,
discrepancies, and acknowledged falsehoods” and that the circuit court disregarded each
such discrepancy. Yet, as noted above, credibility determinations belong to the trier of fact,
the circuit court, which must “weigh[]the credibility of witnesses and render[] findings of
fact.” In re Emily B., 208 W. Va. at 339, 540 S.E.2d at 556. We are reluctant to disturb
such findings, as “[a] reviewing court cannot assess witness credibility through a record.
The trier of fact is uniquely situated to make 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).
Prior to the adjudicatory hearing, the circuit court reviewed the children’s
forensic interviews from November 2021 and July 2022 and held in camera interviews with
24 D.H. and M.H. During the adjudicatory hearing, the court informed the parties of its actions
and noted the similarities and consistencies between the forensic interviews and the in
camera interviews.26 Then, the circuit court proceeded to hold several evidentiary hearings
and heard testimony from numerous individuals including Mother, D.H.’s therapist, several
CPS employees, a forensic interviewer, Father, and D.H and M.H’s stepmother. The record
contains extensive witness testimony and documentary evidence submitted for the court’s
consideration, including the forensic interviews and the in camera interviews detailing
Mother’s threats of physical abuse, actual physical abuse, abuse of substances, failure to
care for J.S., and failure to protect the children from abuse by other adults in the home.
Therefore, based on the record, we find that the circuit court did not err in finding that the
allegations of abuse and neglect had been proven by clear and convincing evidence.
D. Termination of Mother’s Parental Rights
Finally, Mother asserts that the circuit court erred in denying her a post-
adjudicatory improvement period and terminating her parental rights. Specifically, Mother
argues that the circuit court erroneously found that she refused to acknowledge the
26 The court further indicated that it reviewed the forensic interviews at the beginning of the proceeding and stated that it “viewed them again during the adjudication because of . . . Mother’s objection that coaching was present.” Ultimately, the court found the children to be credible.
25 existence of a problem when she admitted to failing to protect the children, even though
she claimed to be innocent of the other allegations. We disagree.
This Court has consistently explained that the “[f]ailure to acknowledge the
existence of the problem, i.e., the truth of the basic allegation pertaining to . . . abuse and
neglect . . ., results in making the problem untreatable and in making an improvement
period an exercise in futility at the child’s expense.” In re Timber M., 231 W. Va. 44, 55,
743 S.E.2d 352, 363 (2013) (quotations and citation omitted). In this matter, the record
demonstrates that Mother failed to admit to the full scope of abuse and neglect for which
she was adjudicated, and which was established by clear and convincing evidence.
Furthermore, Mother argued below that her children were liars and unreliable and she
maintains the same contentions on appeal. As such, the circuit court did not err by denying
Mother’s request for a post-adjudicatory improvement period and terminating her parental
rights based on Mother’s failure to fully acknowledge the extent of her abuse and neglect,
which rendered it untreatable.
IV.
CONCLUSION
For the foregoing reasons, we affirm the circuit court’s June 26, 2023
dispositional order terminating Mother’s parental rights to D.H., M.H., and J.S.
Affirmed.