SHARON BW v. GEORGE BW

• Decision Date: 14 July 1998
• Docket Number: No. 24638, No. 24639.
• Citation: 203 W.Va. 300,507 S.E.2d 401
• Court: West Virginia Supreme Court
• Parties: SHARON B.W., Plaintiff below, Appellee, v. GEORGE B.W., Defendant below, Appellant.

507 S.E.2d 401

203 W.Va. 300

SHARON B.W., Plaintiff below, Appellee, v. GEORGE B.W., Defendant below, Appellant.

Nos. 24638, 24639.

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1998.

Decided July 14, 1998.

Thomas J. Gillooly, Esq., Charleston, West Virginia, R. Brandon Johnson, Esq., Lewisburg, West Virginia, Attorneys for Appellee.

Beverly S. Selby, Esq., Charleston, West Virginia, Guardian Ad Litem, Attorney for Appellant Child.

James T. Cooper, Esq., Lovett, Cooper & Glass, Michael T. Clifford, Esq., Clifford, Mann & Swisher, Charleston, West Virginia, Attorneys for Appellant.

PER CURIAM:¹

Beverly Selby, guardian ad litem ("GAL") for Ben W.² ("child"), and George B.W., father of the child, appeal a June 4, 1997 order of the Circuit Court of Kanawha County that returned custody of the child to Sharon B.W. ("appellee"), mother of the child. Prior to the order George B.W. ("appellant") had temporary custody of the child. During this period he sought a change of custody, alleging that the appellee's boyfriend had sexually abused the child. The circuit court denied the request.

On appeal, appellant and the GAL argue that the circuit court was clearly wrong not to find that the child had been sexually abused, that the court had erred in failing to qualify a child psychologist as an expert witness, and that the court erred in evaluating the issue of sexual abuse on a preponderance of evidence standard. After reviewing the extensive record in this case and the arguments of the parties, we affirm the circuit court, in part, and remand this matter for further proceedings.

I.

The appellant and the appellee were married on May 21, 1988 and separated on or about April 7, 1995. The appellee thereafter filed for divorce in the Circuit Court of Kanawha County.³ During the course of the marriage the couple had one child who was approximately 4 years old at the time the parties separated. Following the separation, the appellee was temporarily awarded custody pending a final disposition. The appellant was given liberal visitation.

During the summer of 1996, the appellant father had an extended visitation with the child. During the visitation period the child allegedly accused the appellee's boyfriend of sexual abuse.⁴ Following the accusations, the appellant obtained the services of Dr. Timothy Freeman, a child psychologist. The appellant also successfully obtained from the circuit court an emergency order granting the appellant temporary custody of the child based on the sexual abuse allegations.⁵ He thereafter filed a petition to change custody.

Attorney Beverly Selby was appointed as guardian ad litem for the child for further proceedings. The custody issue came before the family law master who directed the appellant to make the child available for examination by the appellee's experts. Apparently the appellant resisted, and the appellee filed a motion in the circuit court to compel the appellant to present the child to appellee's selected expert for a psychological evaluation. The motion was granted.

The appellant promptly sought a writ of prohibition in this Court—our first George B.W. case. The appellant contended that the order permitting an evaluation by the appellee's experts was an abuse of discretion. That issue and others were addressed in State ex rel. George B.W. v. Kaufman, 199 W.Va. 269, 483 S.E.2d 852 (1997).

In George B.W. we granted the writ as moulded, requiring the circuit court to take evidence to determine the appropriateness of the appellee's request for an additional evaluation of the child. The matter was remanded to the circuit court for further proceedings on the issues of expert evaluation of the child, modification of custody and supervised visitation.

Following remand, the parties conducted discovery, and a 6 day hearing was held before the circuit court.

During the course of the hearing, the circuit court refused to qualify Dr. Timothy Freeman as an expert, who was offered by the appellant to support appellant's suspicions of sexual child abuse. The court found that the while the witness was a clinical psychologist, the witness did not have the necessary training, in-class and/or clinical experience to be an effective and competent witness in a child sexual abuse case. The court further found that Dr. Freeman was not "qualified to testify in this matter as an expert witness in the area of child sexual abuse."

The appellant also called Dr. Christina Arco, Ph.D., a child psychologist, as a witness. Dr. Arco's testimony was limited to her review of Dr. Freeman's techniques. Dr. Arco was qualified by the circuit court as an expert witness in child psychology and as a forensic witness. Dr. Arco, who had not interviewed the child, testified that Dr. Freeman's procedures in interviewing the child were valid, as were questions presented to the child during the interview.

Dr. William Bernet, a child psychiatrist testifying for the appellee, was accepted by the court as an expert witness. Dr. Bernet testified that he did not believe that the child had been sexually abused, but rather was confused due to the pressures and strains the child was experiencing from his parents' separation.

The circuit court evaluated the evidence on sexual abuse under a preponderance of the evidence standard and determined that the sexual abuse allegations were not proven. The court refused to award full custody of the child to the appellant. The appellee's expert, Dr. Bernet, was directed by the court to develop a reunification plan between the child and the appellee, who was reassuming physical custody of the child. Dr. Bernet was also directed to establish a visitation plan for the child and the appellant. Since the June 4, 1997 circuit court order, Dr. Bernet has been coordinating the family plan for the parties.

II.

The standard of review in this case is as follows:

This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.

Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). See also, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995)

.

The first assignment of error we examine is whether the lower court erred in using a preponderance of the evidence standard, rather than a credible evidence standard, to determine if sexual abuse had been proven.

The appellant and the GAL rely on Syllabus Point 2 of Mary D. v. Watt, 190 W.Va. 341, 438 S.E.2d 521 (1992) for the proposition that "[a] finding that sexual abuse has occurred must be supported by credible evidence." Mary D., supra, 190 W.Va. at 348, 438 S.E.2d at 528. However in Mary D., we were examining the issue of supervised visitation in situations where the non-custodial parent has been charged with sexual abuse. This Court determined in Mary D., that when a non-custodial parent has been charged with abuse, the trial court may order supervised visitation in order to protect the child, and the allegation of sexual abuse need only be supported by credible evidence. The general standard of proof in civil cases is preponderance of evidence. See generally, Brown v. Gobble, 196 W.Va. 559, 563, 474 S.E.2d 489, 493 (1996)

. In Mary D., we stated that because termination of parental rights was not involved, but only supervised visitation, that the standard of credible evidence was sufficient.

In this case, allegations of sexual abuse were not made against a visiting or custodial parent, but rather a third party. For this reason, we do not extend the lower credible evidence standard to this case.

The appellant and the GAL next argue that the lower court was clearly erroneous in failing to qualify Dr. Timothy Freeman, Ph.D. as an expert witness. In determining who is an expert, circuit courts must conduct a two-step inquiry:

First, a circuit court must determine whether the proposed expert (a) meets the minimal educational or experiential qualifications (b) in a field that is relevant to the subject under investigation (c) which will assist the trier of fact. Second, a circuit court must determine that the expert's area of expertise covers the particular opinion as to which the expert seeks to testify.

Syllabus Point 5 in part, Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995). Dr. Freeman is a clinical psychologist who has worked with children since the 1980's. Dr. Freeman's graduate studies included work at a clinic where children who had been sexually abused were treated. He testified that, as a child psychologist, while he had worked with some sexually abused children, it was not the larger part of his primary practice. The circuit court acknowledged that Dr. Freeman was a child psychologist, but determined that because Dr. Freeman had testified in only three previous court matters, and because his practice did not encompass a great number of sexually abused children, Dr. Freeman did not qualify as an expert witness.⁶

Under Gentry we must first determine if Dr. Freeman meets the minimal educational or experiential qualifications. Dr. Freeman's extensive training and professional experience should obviously qualify him as an expert witness in a matters relating to child custody. We have held that courts should err on the side of admissibility. Gentry, supra, 195 W.Va. at 525, 466 S.E.2d at 184. When an expert witness is qualified by training or education, "it is an abuse of the trial court's discretion to refuse to qualify that individual as an expert." Cargill v. Balloon Works, Inc., 185 W.Va. 142, 146, 405 S.E.2d 642, 646 (1991) (per curiam). The testimony of Dr. Freeman was in a "field that [was] relevant to the subject under investigation." Gentry, supra.

Further, the testimony offered by Dr. Freeman would have assisted the trier of fact.

The second prong that circuit courts must examine is whether Dr. Freeman's area...