In re In re D.S., Nos. 13–0583

CourtSupreme Court of West Virginia
Writing for the CourtWORKMAN
Citation758 S.E.2d 747,233 W.Va. 394
PartiesIn re J.S. and D.S. In re D.S., B.S., I.S., F.S., and M.S.
Decision Date25 April 2014
Docket Number13–0567.,Nos. 13–0583

233 W.Va. 394
758 S.E.2d 747

In re J.S. and D.S.
In re D.S., B.S., I.S., F.S., and M.S.

Nos. 13–0583, 13–0567.

Supreme Court of Appeals of
West Virginia.

Submitted March 5, 2014.
Decided April 25, 2014.


[758 S.E.2d 749]



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.” 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. “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).

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. “Applicable standards for procedural due process, outside the criminal area, may depend upon the particular circumstances of a given case. However, there are certain fundamental principles in regard to procedural

[758 S.E.2d 750]

due process embodied in Article III, Section 10 of the West Virginia Constitution, which are: First, the more valuable the right sought to be deprived, the more safeguards will be interposed. Second, due process must generally be given before the deprivation occurs unless a compelling public policy dictates otherwise. Third, a temporary deprivation of rights may not require as large a measure of procedural due process protection as a permanent deprivation.” 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. “The language of Rule 804(b)(5) of the West Virginia Rules of Evidence and its counterpart in Rule 803(24) requires that five general factors must be met in order for hearsay evidence to be admissible under the rules. First and most important is the trustworthiness of the statement, which must be equivalent to the trustworthiness underlying the specific exceptions to the hearsay rule. Second, the statement must be offered to prove a material fact. Third, the statement must be shown to be more probative on the issue for which it is offered than any other evidence the proponent can reasonably procure. Fourth, admission of the statement must comport with the general purpose of the rules of evidence and the interest of justice. Fifth, adequate notice of the statement must be afforded the other party to provide that party a fair opportunity to meet the evidence.” Syl. Pt. 5, State v. Smith, 178 W.Va. 104, 358 S.E.2d 188 (1987).

10. “ ‘ “ ‘Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, W.Va.Code, 49–6–5 [1977] may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under W.Va.Code, 49–6–5b [1977] that conditions of neglect or abuse can be substantially corrected.’ Syllabus Point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syllabus point 4, In re Jonathan P., 182 W.Va. 302, 387 S.E.2d 537 (1989).' Syl. Pt. 1, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993).” 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.

WORKMAN, Justice:

In this proceeding we address two appeals from the final order of the Circuit Court of

[758 S.E.2d 751]

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.

I. FACTUAL AND PROCEDURAL HISTORY

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 after

[758 S.E.2d 752]

the 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...

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30 practice notes
  • Frazier v. Talbert, No. 20-0134
    • United States
    • Supreme Court of West Virginia
    • 15 Junio 2021
    ...one facing a deprivation of rights.’ Clarke v. W. Va. Bd. of Regents , 166 W. Va. 702, 710, 279 S.E.2d 169, 175 (1981)." In re J.S. , 233 W. Va. 394, 402, 758 S.E.2d 747, 756 (2014). See also Syl. Pt. 2, in part, North v. West Va. Bd. of Regents , 160 W. Va. 248, 233 S.E.2d 411 (1977) ("App......
  • In re C.M., No. 14–0533.
    • United States
    • Supreme Court of West Virginia
    • 2 Marzo 2015
    ...of fact are weighed against a clearly erroneous standard.” In re Emily, 208 W.Va. 325, 332, 540 S.E.2d 542, 549 (2000).In re J.S., 233 W.Va. 394, 400, 758 S.E.2d 747, 753 (2014). We have also applied the following standard of review to cases involving abuse and neglect proceedings:Although ......
  • In re A.F., 21-0711
    • United States
    • Supreme Court of West Virginia
    • 31 Agosto 2022
    ...finds the potential psychological harm to the child outweighs the necessity of the child's testimony. 9 Syl. Pt. 7, in part, In re J.S., 233 W.Va. 394, 758 S.E.2d 747 (2014). In reviewing the court's admission of the forensic evaluator's and therapists' testimony, we begin with the well-est......
  • In re S.C., 20-0816
    • United States
    • Virginia Supreme Court of Virginia
    • 29 Octubre 2021
    ...court will be guided.' Syl. Pt. 1, State ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972)." 2 Syllabus Point 4, In re J.S., 233 W.Va. 394, 758 S.E.2d 747 (2014). 4. "In formulating the improvement period and family case plans, courts and social service workers should cooperate t......
  • Request a trial to view additional results
30 cases
  • Frazier v. Talbert, No. 20-0134
    • United States
    • Supreme Court of West Virginia
    • 15 Junio 2021
    ...one facing a deprivation of rights.’ Clarke v. W. Va. Bd. of Regents , 166 W. Va. 702, 710, 279 S.E.2d 169, 175 (1981)." In re J.S. , 233 W. Va. 394, 402, 758 S.E.2d 747, 756 (2014). See also Syl. Pt. 2, in part, North v. West Va. Bd. of Regents , 160 W. Va. 248, 233 S.E.2d 411 (1977) ("App......
  • In re C.M., No. 14–0533.
    • United States
    • Supreme Court of West Virginia
    • 2 Marzo 2015
    ...of fact are weighed against a clearly erroneous standard.” In re Emily, 208 W.Va. 325, 332, 540 S.E.2d 542, 549 (2000).In re J.S., 233 W.Va. 394, 400, 758 S.E.2d 747, 753 (2014). We have also applied the following standard of review to cases involving abuse and neglect proceedings:Although ......
  • In re A.F., 21-0711
    • United States
    • Supreme Court of West Virginia
    • 31 Agosto 2022
    ...finds the potential psychological harm to the child outweighs the necessity of the child's testimony. 9 Syl. Pt. 7, in part, In re J.S., 233 W.Va. 394, 758 S.E.2d 747 (2014). In reviewing the court's admission of the forensic evaluator's and therapists' testimony, we begin with the well-est......
  • In re S.C., 20-0816
    • United States
    • Virginia Supreme Court of Virginia
    • 29 Octubre 2021
    ...court will be guided.' Syl. Pt. 1, State ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972)." 2 Syllabus Point 4, In re J.S., 233 W.Va. 394, 758 S.E.2d 747 (2014). 4. "In formulating the improvement period and family case plans, courts and social service workers should cooperate t......
  • Request a trial to view additional results

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