In Re F.S. and Z.S. , 233 W. Va. 538 ( 2014 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2014 Term
FILED
______________ May 9, 2014
released at 3:00 p.m.
No. 13-0918 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
IN RE: F.S. AND Z.S.
Appeal from the Circuit Court of Wood County
The Honorable J.D. Beane, Judge
Abuse and Neglect Case Nos. 12-JA-68 and 12-JA-69
REVERSED AND REMANDED
Submitted: April 9, 2014
Filed: May 9, 2014
Reggie R. Bailey, Esq. Eric K. Powell, Esq.
Parkersburg, WV Parkersburg, WV
Guardian ad Litem for the Petitioners Counsel for the Respondent Father
Patrick Morrisey, Esq.
Attorney General
Lee A. Niezgoda, Esq.
Assistant Attorney General
White Hall, WV
Counsel for the Department of
Health and Human Resources
The Opinion of the Court was delivered PER CURIAM.
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. “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.” Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589(1996).
i
3. “‘“‘W. Va. Code, 49-6-2(c) [1980], requires the State Department of
Welfare [now the Department of Human Services], in a child abuse or neglect case, to prove
“conditions existing at the time of the filing of the petition . . . by clear and convincing
proof.” The statute, however, does not specify any particular manner or mode of testimony
or evidence by which the State Department of Welfare is obligated to meet this burden.’
Syllabus Point 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).” Syllabus Point
1, West Virginia Department of Human Services v. Peggy F., 184 W.Va. 60, 399 S.E.2d 460(1990).’ Syllabus Point 1, In re Beth, 192 W.Va. 656, 453 S.E.2d 639 (1994).” Syl. Pt. 3,
In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).
ii
Per Curiam:
This is an appeal filed on behalf of F.S. and Z.S.1 by their guardian ad litem,
Reggie R. Bailey (hereinafter referred to collectively as “the petitioners”), from a decision
of the Circuit Court of Wood County dismissing a petition for abuse and neglect against their
father, C.S. (hereinafter “the respondent” or “the father”). The underlying abuse and neglect
petition was based upon allegations of sexual abuse by the father against F.S. The petitioners
contend that the circuit court erred by failing to find that clear and convincing evidence of
sexual abuse was presented. Based upon this Court’s thorough review of the appendix
record, arguments of counsel, and applicable precedent, we reverse the ruling of the circuit
court and remand this case for further proceedings consistent with this opinion.
I. Factual and Procedural History
On May 23, 2012, the Department of Health and Human Resources (hereinafter
“DHHR”) filed a petition for abuse and neglect, alleging that the respondent father had
1
The petitioners are siblings. F.S. is an eleven-year-old girl, and Z.S. is a fifteen-year­
old boy. They currently reside with their mother. In accordance with the customary practice
of this Court, we refer to children by their initials in cases involving sensitive facts. See, e.g.,
In re Michael Ray T., 206 W.Va. 434, 437 n.1, 525 S.E.2d 315, 318 n.1 (1999); State ex rel.
Diva P. v. Kaufman, 200 W.Va. 555, 559 n.2, 490 S.E.2d 642, 646 n.2 (1997); In re Tiffany
Marie S., 196 W.Va. 223, 226 n.1, 470 S.E.2d 177, 180 n.1 (1996).
1
repeatedly sexually abused and assaulted F.S.2 The petition asserted that the children had
visited their father every other weekend subsequent to a 2006 divorce between the
petitioners’ parents. The father had remarried in 2009, and his current wife, L.S., has two
daughters and one son. The three step-children also resided in the home when the petitioners
visited. The petitioner, F.S., typically slept in a bedroom with L.S’s daughters, sharing a top
bunk with a step-sister.3 Another step-sister slept in the bottom bunk in the same bedroom.
The petitioner, Z.S. shared a bedroom with L.S.’s son.
The DHHR first learned of the alleged sexual abuse of F.S. in July 2011. The
petitioners’ mother, M.S. (hereinafter “the mother”), reported that F.S. said the respondent
father had performed sexual acts on her. She was eight years old at the time of that report.
Specifically, the mother indicated that F.S. stated that her father would get in bed with her
2
On August 23, 2012, the DHHR filed an amended petition for abuse and neglect,
adding the respondent’s current wife, L.S., her ex-husband, W.S., and their children. The
amended petition alleged failure to protect the step-children from the respondent.
3
The step-sisters do not report any knowledge of the respondent entering the bedroom.
2
and “rub his wiener on her and pee on her.”4 In response to these allegations of abuse, Child
Protective Services worker, Ms. Connie Carpenter, interviewed F.S. in August 2011. The
child informed Ms. Carpenter that her father got in bed with her on several occasions and
“wet” on her with his penis.5
Detective Shanna Modesitt of the Wood County Sheriff’s Office also
interviewed 6 F.S. in August 2011. F.S. told the detective that her father “wets” on her when
he gets in bed with her. During adjudicatory hearings held in late 2012 and 2013, the circuit
court reviewed a video recording of the child’s interview with Detective Modesitt.
According to the transcript of that video interview provided in the record to this Court, F.S.
specifically informed Detective Modesitt that her father has gotten in bed with her several
times when other family members were not home. She indicated that he placed his penis on
4
A detailed recital of the graphic sexual allegations of this case is necessary because
of the nature of the circuit court’s order this Court is called upon to review. Our task is to
determine whether, upon the facts available to it at the adjudicatory hearing, the circuit court
erred in dismissing the petition for abuse and neglect filed against the father.
5
Ms. Carpenter testified that F.S. described the “squishy” sounds made before her
father would wet on her.
6
Detective Modesitt had been certified to interview children concerning sexual abuse.
3
her legs and vaginal area, that it made “squishy noises,” and that it felt “sticky.”7 The child
also indicated that she sometimes slept on the bottom bunk if her step-sister was not at home.
She stated that her father pulled her pants down to her ankles and lifted her shirt to touch her
chest. She believed that the last of these incidents occurred when she was in third grade, and
she no longer had contact with her father by the time of the interview with Detective
Modesitt.
During the adjudicatory hearings, the respondent testified and denied any
sexual abuse of his daughter. He explained that the version of the alleged occurrences
presented by F.S. lacked credibility because he could not have accessed her on the top bunk
without awakening his step-daughters who also slept in the room. He also testified that he
sleeps downstairs and other children were always present when F.S. was visiting. Although
7
F.S. stated that her father “unzips and sometimes he wets on me.” She said, “I
pretend to go to the bathroom and I wipe it off.” She also informed Detective Modesitt that
it “smells disgusting.” She stated that “he’ll sometimes just unzip . . . and he’ll sometimes
pull down his underwear or he sometimes has a hole in his underwear.” She indicated that
“he just comes against me and stuff. He’ll just grab it out and kind of pull it and kind of just
rub it around me and rub it like right here . . .” on her vagina and buttocks. She explained
that she had tried to scoot away from him in bed, but “[e]very time I try to scoot over he’ll
keep on scooting until I can’t move anymore.” She also stated that he sometimes placed his
penis slightly into her vagina.
4
he acknowledged his failure8 of a polygraph test, he alleged that the failure resulted from
some “changed” questions by the administrator of the test.9
A clinical psychologist, Mary Longmore Gable, testified that she had
conducted approximately thirty-five sessions of therapy with F.S. Ms. Gable explained that
F.S. reported several issues regarding her father’s sexual conduct toward her,10 informing Ms.
Gable that her father lingered near her private areas while bathing and drying her. F.S. also
informed Ms. Gable that her father pulled down his “boy private parts” and would begin
“rubbing them on top of her.” F.S. reported specific details about how her legs were spread,
how her father would unzip his pants, and how his penis felt “squishy like a blob of jelly.”
Ms. Gable also explained that F.S. told her that she sometimes pretended to be sleeping, in
8
Detective Modesitt testified that the father failed the portions of the lie detector test
dealing with his sexual touching of F.S.
9
During questioning regarding the father’s failure of the polygraph test, the mother’s
attorney asked the respondent: “Well, did he rephrase questions, or - - I don’t understand
what you mean. Could you give an example.” The respondent explained that “[i]t’s been
quite some time. I’d have to recall that information. If you would give me a few minutes,
Mr. White. I just remember that the - - the question was different.” The mother’s attorney
then inquired regarding whether the test administrator asked “you a question twice, one
phrased differently than another?” The respondent replied, “I’m not sure. I just know it was
different.”
10
Prior to starting therapy with Ms. Gable, F.S. had refused to speak of the abuse when
interviewed by Magistrate Joyce Purkey and her assistant in conjunction with the mother’s
attempt to obtain a protective order against the respondent. At that time, F.S. denied any
inappropriate acts by her father. The child also failed to make any disclosure of abuse to her
brother’s family therapist, Jennifer Cozart. She later explained to Detective Modesitt that
she had refused to talk about the abuse when there was more than one other person present.
5
an effort to reduce the likelihood that her father would touch her. Ms. Gable testified that
she believed F.S. had been sexually abused based on the consistency of the child’s
statements, the sensory details of the sexual events, her child-appropriate language, and the
emotions she expressed concerning the alleged occurrences. Ms. Gable additionally noted
that she had not detected any “red flags” indicating the F.S. had been coached or was
fabricating the claims of sexual abuse.11
Dr. Fred J. Krieg, a forensic psychologist, was called by the respondent.
Although Dr. Krieg had not personally interviewed F.S., he had reviewed all the records of
her allegations and testified that he was unable to “say whether or not [the child] was
sexually abused or not.” In his review of F.S.’s revelations to Detective Modesitt, he found
some indication that the child was attempting to determine whether her answers were
pleasing to the interviewer and that she seemed susceptible to suggestibility.12 Dr. Krieg also
noted that there was no physical evidence of abuse and that the child had refused to discuss
11
Ms. Gable acknowledged F.S.’s reluctance to talk about the sexual abuse, testifying
that the child did not initially “want to talk about it with me because she was afraid I
wouldn’t be her friend anymore.” Ms. Gable explained that such reactions were common
with children. Consistent with this emotional reaction, the child also informed Detective
Modesitt that she “would only talk . . . if there’s not two people.”
12
Dr. Krieg referenced F.S.’s statement at the conclusion of the interview with
Detective Modesitt. F.S. was asked whether there was anything else she wanted to talk about
with the detective, and she responded by saying, “It’s hard to think of something unless
because if you say it first and I’ll remember what to say.” Dr Krieg opined that this could
be a “sign that somebody outside has said, ‘These are the things you need to say.’”
6
the abuse when questioned in her father’s criminal trial and with one of the therapists, Ms.
Cozart.
On August 2, 2013, the circuit court dismissed the petition for abuse and
neglect, finding that the facts presented did not constitute clear and convincing evidence of
abuse by the respondent. In so ruling, the circuit court found inconsistencies in F.S.’s
allegations, such as the fact that she indicated she was always asleep throughout these
occurrences and said that she did not actually see her father performing the acts.13 Moreover,
the circuit court emphasized the fact that F.S. had refused to speak of the abuse and denied
anything inappropriate when interviewed by Magistrate Joyce Purkey and made no disclosure
of abuse to her brother’s therapist, Ms. Cozart. F.S. further refused to discuss the abuse at
the respondent’s criminal trial in April 2013, and he was consequently acquitted.14
The circuit court also noted inconsistencies in the mother’s statements with
respect to how and when she learned of the alleged abuse. The mother had informed Ms.
13
Although F.S. stated, during parts of the interview with Detective Modesitt, that she
did not see her father performing these sexual acts, she did describe seeing him standing in
her room and lying down beside her when these sexual incidents occurred. F.S. also
indicated that she sometimes pretended to be asleep in an attempt to prevent the inappropriate
touching.
14
As this Court recognized in In re Taylor B., 201 W.Va. 60, 491 S.E.2d 607 (1997),
acquittal of criminal charges has no bearing on abuse and neglect cases. “[C]ivil abuse and
neglect proceedings focus directly upon the safety and well-being of the child and are not
simply ‘companion cases’ to criminal prosecutions.” Id. at 66, 491 S.E.2d at 613.
7
Carpenter and Ms. Cozart that her son, Z.S., told her of the abuse toward F.S. However, she
told Detective Modesitt that F.S. made the original revelations of abuse. The circuit court
also noted that the mother maintained a significant grudge against the father15 and had
exaggerated the effects of the alleged abuse when discussing difficulties in F.S.’s school
performance. The principal of the school F.S. attended indicated that F.S. was progressing
well in school and had not experienced any behavioral problems.
In addressing the testimony of the psychologist, Ms. Gable, the circuit court
observed that she was not a forensic psychologist and had accepted F.S.’s statements as true,
without any independent investigation of her credibility or other indicia of reliability of her
claims. This Court’s review of the record reveals that Ms. Gable was initially unaware of
F.S.’s refusal to speak about the abuse to certain other individuals. The respondent’s counsel
questioned Ms. Gable during the adjudicatory hearing and informed her that the child had
sometimes refused to speak of the abuse. Upon learning this, Ms. Gable clearly indicated
that such knowledge would not necessarily alter her conclusion that F.S. had been abused.
Ms. Gable explained that “it would depend on the change in consistency” and that she would
still look “at the emotional response, the language, and all of those things in combination.”
15
The mother had made an allegation of sexual misconduct by the father in 2006. At
that time, the mother had apparently indicated that the father had spent too much time bathing
the child’s private areas. That claim was found to be unsubstantiated and was not extensively
developed in the record currently before this Court. The allegations which form the basis for
the present issue occurred subsequent to that initial allegation.
8
Ms. Gable stated that F.S. “has too much that is consistent with children that are sexually
abused.”
The petitioners appeal the circuit court’s adjudicatory order, contending that
the circuit court erred in dismissing the petition for abuse and neglect. The petitioners argue
that the facts presented constitute clear and convincing evidence of sexual abuse.
II. Standard of Review
This case is before this Court on appeal from the circuit court’s order
dismissing the abuse and neglect petition and finding that the facts presented did not
constitute clear and convincing evidence of sexual abuse. Generally, this Court accords
plenary review to a circuit court’s resolution of questions of law, while factual
determinations made by the circuit court are reversible only if clearly erroneous. In In re
Emily, 208 W.Va. 325, 540 S.E.2d 542 (2000), this Court explained: “For appeals resulting
from abuse and neglect proceedings, such as the case sub judice, we employ a compound
standard of review: conclusions of law are subject to a de novo review, while findings of fact
are weighed against a clearly erroneous standard.” Id. at 332, 540 S.E.2d at 549. The
concept of mixed questions of law and fact was addressed in Burnside v. Burnside, 194
W.Va. 263, 460 S.E.2d 264 (1995), and this Court explained that “[a]lthough factual findings
are reviewed under the clearly erroneous standard, mixed questions of law and fact that
9
require the consideration of legal concepts and involve the exercise of judgment about the
values underlying legal principles are reviewed de novo.” Id. at 265, 460 S.E.2d at 266.
These standards were also expressed in syllabus point one of In re Tiffany
Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996):
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.
See also In re Samaria S., 347 S.W.3d 188, 200 (Tenn. Ct. App. 2011) (“Under this standard
of proof, the appellate court must distinguish between the specific facts found by the trial
court and the combined weight of those facts.” (internal quotes and citations omitted)). This
Court has also recognized that credibility determinations are uniquely within the province of
a circuit court. This Court explained this concept in Tiffany Marie S., as follows:
[w]hen findings are based on determinations regarding the
credibility of witnesses, Rule 52(a) [of the West Virginia Rules
of Civil Procedure] demands even greater deference to the trial
court’s findings[.] . . . Deference is appropriate because the
10
trial judge was on the spot and is better able than an appellate
court to decide whether the error affected substantial rights of
the parties.
196 W.Va. at 231, 470 S.E.2d at 185 (internal quotations and citations omitted). Guided by
those standards of review, we address the petitioners’ assignment of error.
III. Discussion
This Court has consistently recognized that a parent’s right to the care and
custody of his child is a firmly established liberty interest protected by the due process
clauses of the federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65 (2000);
In re Jeffrey R.L., 190 W.Va. 24, 32, 435 S.E.2d 162, 170 (1993). This Court in Jeffrey R.L.
acknowledged the manner in which child abuse and neglect cases are addressed, specifically
in conjunction with observance of the fundamental rights of a parent to the care and custody
of his child.
In the Court’s analysis of child abuse and neglect cases,
we must take into consideration the rights and interests of all of
the parties in reaching an ultimate resolution of the issues before
us. Although the rights of the natural parents to the custody of
their child and the interests of the State as parens patriae merit
significant consideration by this Court, the best interests of the
child are paramount. Thus, as an initial matter, we emphasize
that the health, safety, and welfare of [the child] must be our
primary concern in analyzing the facts and issues before us.
Jeffrey R.L., 190 W.Va. at 32, 435 S.E.2d at 170.
11
As this Court stated in syllabus point three of In re Katie S., 198 W.Va. 79, 479
S.E.2d 589 (1996), “[a]lthough 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.” Thus, while a parent’s right is fundamental, it is
certainly not absolute. A parent’s right may be limited or ultimately terminated where it is
relinquished, abandoned, or where the parent has engaged in conduct requiring restriction of
parental rights.
A petition for abuse and neglect16 may be filed in this state under the provisions
of West Virginia Code § 49-6-2 (2009). That statute enunciates the manner of evaluation of
such a case and directs the circuit court to make certain findings subsequent to an
adjudicatory hearing, as follows:
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 such child
is abused or neglected. . . . 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 § 49-6-2(c). In syllabus point three of In re Christina L., 194 W.Va. 446, 460
S.E.2d 692 (1995), this Court addressed this statute and observed:
“‘“W. Va. Code, 49-6-2(c) [1980], requires the State
Department of Welfare [now the Department of Human
16
An “[a]bused child” is defined in West Virginia Code § 49-1-3(a) (2009) as a “child
whose health or welfare is harmed or threatened by . . . [s]exual abuse or sexual
exploitation[.]”
12
Services], in a child abuse or neglect case, to prove ‘conditions
existing at the time of the filing of the petition . . . by clear and
convincing proof.’ The statute, however, does not specify any
particular manner or mode of testimony or evidence by which
the State Department of Welfare is obligated to meet this
burden.” Syllabus Point 1, In Interest of S.C., 168 W.Va. 366,
284 S.E.2d 867 (1981).’ Syllabus Point 1, West Virginia
Department of Human Services v. Peggy F., 184 W.Va. 60, 399
S.E.2d 460 (1990).” Syllabus Point 1, In re Beth, 192 W.Va.
656, 453 S.E.2d 639 (1994).
In this Court’s appellate review of the dismissal of petitions for abuse and
neglect, we have evaluated the dispositive issue of whether clear and convincing evidence
of abuse was established. For example, in In re Tyler D., 213 W.Va. 149, 578 S.E.2d 343(2003), the DHHR and the children’s guardian ad litem appealed an order of the circuit court
dismissing the petition for abuse and neglect. Upon review of the facts presented, this Court
reversed the circuit court and found “clear and convincing evidence that Tyler D. was
sexually abused.” Id. at 156, 578 S.E.2d at 350. We reasoned as follows:
While there was no physical evidence, three witnesses testified
that Tyler D’s reports of sexual abuse were credible. In
particular, Mr. Mayfield, Tyler’s psychotherapist, testified that
he believed that Tyler was telling the truth about being sexually
abused based upon the language he used, the consistency in his
statements, and the details he provided. Likewise, Beverly
Green, a child protective services investigator with the
Allegheny County Department of Social Services in Maryland,
testified that the consistency in Tyler’s statements about the
sexual abuse indicated that he was being truthful. Finally,
Glenda Razo, a case manager for child abuse and neglect in Fort
13
Knox, Kentucky, testified that Tyler’s allegations of sexual
abuse were credible. All three witnesses indicated that they
have considerable experience in dealing with sexually abused
children. This evidence cannot simply be ignored.
Id. at 156-57, 578 S.E.2d at 350-51. “Thus, given all of the above, we find that the circuit
court erred by concluding that there was no clear and convincing evidence that these children
were abused and neglected.” Id. at 157, 578 S.E.2d at 351.
Similarly, this Court reversed a circuit court’s dismissal of an abuse and neglect
petition in In re Katelyn T., 225 W.Va. 264, 692 S.E.2d 307 (2010). In that case, the
guardian ad litem and DHHR appealed the circuit court’s dismissal of an abuse and neglect
petition alleging sexual abuse, and this Court found that the evidence presented below
constituted clear and convincing evidence of the abuse. Id. at 278, 692 S.E.2d at 321.
In the present case, although there was no physical evidence of abuse, F.S.’s
testimony, presented to the circuit court through the video recording of her interview with
Detective Modesitt, provided explicit evidence of multiple episodes of sexual abuse. The
child’s statements to Ms. Carpenter and Ms. Gable also detailed the sexual abuse she
suffered. Significantly, the circuit court did not find that F.S. fabricated the claims of sexual
abuse. It appears that the circuit court dismissed the petition based upon particular elements
of doubt or components of uncertainty revealed within F.S.’s testimony. For instance, the
child referenced “sleeping” during the sexual abuse and stated, in at least one portion of her
14
questioning, that she did not “see” her father performing these acts. While these issues were
quite reasonably included in the court’s evaluation of the evidence and the child’s credibility,
those instances cannot be viewed in isolation from the extensive other evidence of sexual
abuse. The child’s testimony also revealed instances where she observed her father during
the occurrences and was awake and aware of his actions.17
17
Likewise, the child’s self-imposed rule of refusal to speak of the abuse where more
than one person was present must be evaluated in terms of her age and maturity. The
psychologist, Ms. Gable, testified that such emotional responses are common in children.
While perhaps unconventional, these issues do not entirely undermine the child’s credibility.
In State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990), this Court explained
that cases involving child victims
generally pit the child’s credibility against an adult’s credibility
and often times an adult family member’s credibility. Since
sexual abuse committed against children is such an aberrant
behavior, most people find it easier to dismiss the child’s
testimony as being coached or made up or conclude that any
touching of a child’s private parts by an adult must have been by
accident. In addition, children often have greater difficulty than
adults in establishing precise dates of incidents of sexual abuse,
not only because small children don’t possess the same grasp of
time as adults, but because they obviously may not report acts of
sexual abuse promptly, either because they are abused by a
primary care-taker and authority figure and are therefore
unaware such conduct is wrong, or because of threats of
physical harm by one in almost total control of their life. In
most cases of sexual abuse against children by a care-taker or
relative, the acts of sexual abuse transpire over a substantial
period of time, often several years.
Id. at 650-51, 398 S.E.2d 132-33 (footnote omitted).
15
Another element of uncertainty was created by the testimony of Dr. Krieg,
indicating that he had discerned signs of suggestibility in the child during his review of the
evidence. It is significant to note that Dr. Krieg never spoke directly with F.S.; nor did he
testify that she had fabricated the sexual abuse allegations. He concluded, “My testimony
is that in reviewing the documentation that led to this charge, that I don’t find reliable
evidence in the information to be able to tell us whether or not that child was sexually
abused.” Those individuals to whom F.S. spoke directly, however, painted a vastly different
picture. Ms. Gable, Ms. Carpenter, and Detective Modesitt testified concerning the child’s
assertions and the distinct graphic sensory details she provided, as set forth above. Ms.
Gable testified that F.S.’s language and emotional states were consistent with a child who has
been sexually abused. Further, Ms. Gable found no signs that F.S. was lying or had been
coached. Ms. Gable stated, “A few details may change, but overall the story does not.”
This is a classic case of the inability of a trial court to ascertain, with complete
certainty, the truth of the allegations of abuse. As indicated by the circuit court’s
adjudicatory order, one could quite effortlessly compile an inventory of doubts and
skepticism based upon the evidence presented. The evidence is simply not crystal clear,
beyond all doubt. However, that is not the standard to be employed in an abuse and neglect
case. In reviewing the entirety of the evidence, this Court must adhere to the appellate
standard of review set forth above, according significant weight to the circuit court’s
16
credibility determinations while refusing to abdicate our responsibility to evaluate the
evidence and determine whether an error has been committed.
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. This Court has explained that “‘clear and
convincing’ is the measure or degree of proof that will produce in the mind of the factfinder
a firm belief or conviction as to the allegations sought to be established.” Brown v. Gobble,
196 W.Va. 559, 564, 474 S.E.2d 489, 494 (1996) (internal citations omitted). We have also
stated that the clear and convincing standard is “intermediate, being more than a mere
preponderance, but not to the extent of such certainty as is required beyond a reasonable
doubt as in criminal cases.” Cramer v. W. Va. Dept. of Highways, 180 W.Va. 97, 99 n.1, 375
S.E.2d 568, 570 n.1 (1988); see also Colorado v. New Mexico, 467 U.S. 310, 316 (1984)
(holding that party with burden of persuasion may prevail only if he can “place in the
ultimate factfinder an abiding conviction that the truth of [his] factual contentions are ‘highly
probable.’”).
Reviewing the facts presented in the adjudicatory hearing to determine whether
they constituted clear and convincing evidence of abuse and employing the standards set
forth in Tiffany Marie S., this Court is “left with the definite and firm conviction that a
17
mistake has been committed.” Syl. Pt. 1, in part, Tiffany Marie S., 196 W.Va. at 224, 470
S.E.2d at 178. We find that the evidence presented below constitutes clear and convincing
evidence of sexual abuse by the respondent. Utilizing child-appropriate language and
reiterating the sexually explicit details during multiple interviews, F.S. explained episodes
during which her father got in bed with her, rubbed himself against her legs and vaginal area,
and wet on her. She described the multitude of sensory aspects of those experiences, in vivid
detail. These claims were investigated by the DHHR and the Wood County Sheriff’s Office
and discussed through the therapy of Ms. Gable. Based upon all the evidence presented on
these allegations, we conclude that the circuit court erred in dismissing the petition and
finding lack of clear and convincing evidence that the respondent abused his daughter.18
18
Having determined that the facts support a finding that clear and convincing
evidence of abuse was presented, the petitioners should be adjudicated as abused children.
In the abuse and neglect setting, this Court has recognized the rights of children residing in
the home, such the respondent’s son, Z.S., even where he was not alleged to have been a
victim. In syllabus point two of Christina L., this Court explained:
Where there is clear and convincing evidence that a child
has suffered physical and/or sexual abuse while in the custody
of his or her parent(s), guardian, or custodian, another child
residing in the home when the abuse took place who is not a
direct victim of the physical and/or sexual abuse but is at risk of
being abused is an abused child under W.Va. Code, 49-1-3(a)
(1994).
194 W.Va. at 447, 460 S.E.2d at 693.
18
IV. Conclusion
For the foregoing reasons, the order of the Circuit Court of Wood County
dismissing the petition for abuse and neglect is reversed.19 Accordingly, this case is
19
Having completed the threshold adjudicatory phase with the finding of abuse, this
case will proceed toward disposition in accordance with West Virginia Code § 49-6-5
(2009). The dispositional phase provides the circuit court with broad latitude to frame an
appropriate resolution of the issues. As this Court has recognized, the abuse and neglect
statutes do not authorize a court to intervene in the parent/child relationship until an
adjudication of abuse has been made. “In a child abuse and neglect hearing, before a court
can begin to make any of the dispositional alternatives under W. Va. Code, 49-6-5, it must
hold a hearing under W. Va. Code, 49-6-2, and determine ‘whether such child is abused or
neglected.’ Such a finding is a prerequisite to further continuation of the case.” Syl. Pt. 1,
State v. T.C., 172 W.Va. 47, 303 S.E.2d 685 (1983). If a court does not make that initial
finding of abuse, no further action is permitted in the abuse and neglect realm. As Justice
Workman suggested in a concurrence to In re Kasey M., 228 W.Va. 221, 719 S.E.2d 389(2010), an alternative at that juncture would be a request for modification of the custodial
responsibility.
Pursuant to W. Va. Code § 48-9-401 (2001) (Repl. Vol. 2009),
a decision on a motion for modification of custody requires a
determination of whether there has been a substantial change in
the circumstances of the child or of one or both parents and
whether a modification is necessary to serve the best interests of
the child, obviously a completely different standard than a
finding of abuse and neglect. The allegations of abuse and
neglect certainly constituted a change in circumstances, and
there were several other factors that indicated that it would be in
C.C.’s best interests to be placed in the custody of his mother.
Therefore, regardless of the outcome of the abuse and neglect
case, it seems that the circumstances probably warranted a
modification of custody pursuant to W. Va. Code § 48-9-401.
228 W.Va. at 226, 719 S.E.2d at 394 (Workman, J., concurring).
19
remanded to the circuit court for entry of an order adjudicating F.S. and Z.S. as abused
children based upon the sexual abuse perpetrated upon F.S. by the respondent and for further
proceedings consistent with this opinion.20 The mandate of this Court shall issue
contemporaneously herewith.
Reversed and Remanded.
20
This matter should be expedited. “Child abuse and neglect cases must be recognized
as being among the highest priority for the courts’ attention. Unjustified procedural delays
wreak havoc on a child’s development, stability and security.” Syl. Pt. 1, in part, In re
Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991). As the case proceeds in the dispositional
phase, this Court does not in any manner limit the discretion of the circuit court as provided
by statute; nor do we suggest any particular result. However, in the event the circuit court
elects to consider an order of visitation, the court must remain mindful of the principles
expressed in syllabus point three of Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996),
as follows:
Because of the extraordinary nature of supervised
visitation, such visitation should be ordered when necessary to
protect the best interests of the children. In determining the best
interests of the children when there are allegations of sexual or
child abuse, the circuit court should weigh the risk of harm of
supervised visitation or the deprivation of any visitation to the
parent who allegedly committed the abuse if the allegations are
false against the risk of harm of unsupervised visitation to the
child if the allegations are true.
Id. at 241, 470 S.E.2d at 195.
20