In re In re D.S.
Citation | 758 S.E.2d 747,233 W.Va. 394 |
Decision Date | 25 April 2014 |
Docket Number | 13–0567.,Nos. 13–0583,s. 13–0583 |
Court | Supreme Court of West Virginia |
Parties | In re J.S. and D.S. In re D.S., B.S., I.S., F.S., and M.S. |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. Syl. Pt. 1, In re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).
2. “A trial court's ruling on a motion in limine is reviewed on appeal for an abuse of discretion.” Syl. Pt. 1, McKenzie v. Carroll Intern. Corp., 216 W.Va. 686, 610 S.E.2d 341 (2004).
3. Syl. Pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).
4. “In a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided.” Syl. Pt. 1, State ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972).
5. Syl. Pt. 2, North v. Bd. of Regents, 160 W.Va. 248, 233 S.E.2d 411 (1977).
6. “Under article [VIII], section three of our Constitution, the Supreme Court of Appeals shall have the power to promulgate rules for all of the courts of the State related to process, practice, and procedure, which shall have the force and effect of law.” Syl. Pt. 1, Bennett v. Warner, 179 W.Va. 742, 372 S.E.2d 920 (1988).
7. In a child abuse and neglect civil proceeding held pursuant to West Virginia Code § 49–6–2 (2009), a party does not have a procedural due process right to confront and cross-examine a child. Under Rule 8(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, there is a rebuttable presumption that the potential psychological harm to the child outweighs the necessity of the child's testimony. The circuit court shall exclude this testimony if it finds the potential psychological harm to the child outweighs the necessity of the child's testimony.
8. “Generally, out-of-court statements made by someone other than the declarant while testifying are not admissible unless: 1) the statement is not being offered for the truth of the matter asserted, but for some other purpose such as motive, intent, state-of-mind, identification or reasonableness of the party's action; 2) the statement is not hearsay under the rules; or 3) the statement is hearsay but falls within an exception provided for in the rules.” Syl. Pt. 1, State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990).
9. Syl. Pt. 5, State v. Smith, 178 W.Va. 104, 358 S.E.2d 188 (1987).
10. “ ‘ Syl. Pt. 6, In re Isaiah A., 228 W.Va. 176, 718 S.E.2d 775 (2010).
Jennifer D. Hewitt, Esq., Fayetteville, WV, for Petitioner Mother.
James Adkins, Esq., Assistant Public Defender, Fayetteville, WV, for Petitioner Father.
Patrick Morrisey, Esq., Attorney General, Angela Alexander Walters, Esq., Princeton, WV, for Respondent DHHR.
Thomas A. Rist, Esq., Rist Law Offices, LC, Fayetteville, WV, Guardian ad Litem for Children.
In this proceeding we address two appeals from the final order of the Circuit Court of Fayette County, West Virginia, entered on May 3, 2013. This is a child abuse and neglect matter brought against the petitioner father J.S.1 and the petitioner mother C.S. (hereinafter collectively “the petitioners” or individually “the father” and “the mother”). This Court considers the primary issue of whether the petitioners' procedural due process rights were violated when out-of-court statements of two children were admitted to prove allegations of sexual abuse when the petitioners were not given the opportunity to confront and cross-examine the children. The West Virginia Department of Health and Human Resources (“the DHHR”) and the guardian ad litem on behalf of the children contend the circuit court properly excluded the testimony of the children pursuant to Rule 8(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect because the petitioners offered no evidence to overcome the presumption that the potential psychological harm to the children outweighed the necessity of their testimony.
Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we find that the circuit court adequately safeguarded the petitioners' procedural due process rights. We find no error and affirm the termination of their parental rights.
This case arises out of a child abuse and neglect petition filed following allegations of sexual abuse and failure to protect. N.L. (age 11), the niece of the mother, reported that the father had sexually assaulted her. A DHHR child protective services case worker spoke with N.L. and the child disclosed in graphic detail repeated sexual assaults by the father. N.L. stated that she told the mother about the abuse but the mother did not believe her.
The father was living with the mother, their infant son J.S. Jr., N.L., and his son from a previous relationship, D.S. (age 14). N.L. reported that the father would lock D.S. in his room, put J.S. Jr. in his crib and sexually assault her when the mother was at work. The DHHR filed an amended petition that added allegations against the father concerning D.S. (discussed below). The DHHR alleged in the petition that the mother ignored repeated warnings from the DHHR that the presence of the father in the home presented a significant risk to the safety of the children.
The mother had guardianship of N.L. from the fall of 2009 until early June of 2011.2 In the guardianship case, the court ordered that the father was not to have contact with N.L. or reside in the home with N.L. and the mother due to substantiated prior sexual misconduct by the father.3 This order was ignored by the mother and she married the father in November of 2010. N.L. lived in the home with the mother and the father until June of 2011.4
As a result of filing the petition, D.S. and J.S. Jr. were removed from the home. The couple's infant daughter, D.S.,5 was born afterthe filing of the petition, and the DHHR sought her custody soon after birth due to these pending allegations.
Prior to the adjudicatory hearing, the DHHR filed a motion in limine to exclude the testimony of the children and instead procure the evidence through viewing previously recorded forensic interviews of N.L. and D.S. The DHHR informed the circuit court that the children feared having to testify against the father. The petitioners filed a response objecting to this evidence and asserting they had the right to cross-examine the children. At the beginning of the adjudicatory hearing, the circuit court granted...
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