STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

September 19, 2016 In re: C.W., K.W., and T.R. RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 No. 16-0019 (Wood County 14-JA-108, 14-JA-109, & 14-JA-110) 

MEMORANDUM DECISION 

Petitioner Father P.W., by counsel Debra Steed, appeals the Circuit Court of Wood 

County’s December 18, 2015, order terminating his parental, custodial, and guardianship rights 

to C.W. and K.W. and his custodial rights to T.R.1 The West Virginia Department of Health and 

Human Resources (“DHHR”), by counsel Lee Niezgoda, filed its response in support of the 

circuit court’s order. The guardian ad litem (“guardian”), Courtney L. Ahlborn, filed a response 

on behalf of the children also in support of the circuit court’s order. On appeal, petitioner alleges 

that the circuit court erred in adjudicating him as an abusing parent on insufficient evidence and 

in allowing the victim of his abuse to testify in the proceedings.2 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

In November of 2014, the DHHR filed an abuse and neglect petition against petitioner 

that alleged he sexually abused a ten-year-old child, L.H., who was a guest in his home. 

Additionally, the petition alleged that at least one of petitioner’s children was present in the room 

when the abuse took place. Prior to the petition’s filing, L.H. participated in an interview 

wherein she disclosed that while staying at petitioner’s home she awoke in the night to find 

petitioner touching her buttocks and genitals. As to petitioner’s children, C.W., K.W., and 

regarding T.R., who petitioner had legal custody of, the petition alleged that their mother 

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va. 

254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013); 

State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 

W.Va. 641, 398 S.E.2d 123 (1990). 

2

We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and 

recodified during the 2015 Regular Session of the West Virginia Legislature. The new 

enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and 

became effective ninety days after the February 19, 2015, approval date. In this memorandum 

decision, we apply the statutes as they existed during the pendency of the proceedings below. 

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previously had her parental rights to the children terminated in a separate abuse and neglect 

proceeding and that petitioner was instructed to not allow the mother unsupervised contact with 

the children in violation of the circuit court’s order. According to the DHHR, petitioner allowed 

the mother to have unsupervised visits with the children. Moreover, the petition alleged that 

petitioner’s wife had her parental rights to other children involuntarily terminated in a separate 

abuse and neglect proceeding. 

Following adjudicatory hearings held in January and August of 2015, the circuit court 

entered an order in October of 2015 that adjudicated petitioner as an abusing parent due to his 

sexual abuse of L.H. and the fact that he allowed the children’s mother to have unsupervised 

visitation with the children. During one of these hearings, L.H. testified to the allegations against 

petitioner. The victim detailed that petitioner awakened her at approximately 3:00 a.m. by 

touching her “butt and [her] private.” She further testified that when she awoke her pants and 

underwear had been pulled down to her knees and petitioner was touching her “private area[,]” 

which she gestured to establish was her vaginal area. The victim indicated that when she asked 

petitioner if she could go home, he left the room and indicated he would contact her parents. She 

later said that petitioner told her he had contacted her parents and that her mother was on the 

way. However, the victim testified that her mother never arrived. According to the victim, she 

went back to sleep only for petitioner to “tr[y] to do it again[,]” at which point the victim told 

him to stop and petitioner left the room. The victim further testified to the events following the 

sexual abuse, including the fact that she disclosed the abuse to petitioner’s wife the next morning 

and asked the wife to call her mother. Petitioner’s wife told the victim that her mother was 

visiting someone, which the child believed. As such, the victim spent another night in 

petitioner’s home. When the victim’s mother eventually picked her up, the victim asked her 

mother why she did not pick her up earlier. According to the victim’s mother, neither petitioner 

nor his wife ever called. Following her return home, the victim told her mother, father, and 

sister-in-law about petitioner’s sexual abuse. 

In his defense, both petitioner and his wife testified about the incident in question. 

According to their testimony, both petitioner and the wife came into the children’s room in the 

night because the victim, who takes medication to help with sleep, was having night terrors. 

According to petitioner, he touched the victim so that he could separate her from K.W., who was 

sleeping in the same bed, and put a body pillow between them to ensure the victim did not harm 

K.W. while thrashing in bed. According to petitioner’s wife, the victim’s mother did not send 

enough medication for the victim to stay at the house for two nights, so petitioner’s wife went to 

the victim’s home to obtain more medication the day after the abuse when she was unable to 

reach the victim’s mother. 

Following a dispositional hearing in December of 2015, the circuit court terminated 

petitioner’s parental, custodial, and guardianship rights to C.W. and K.W. and his custodial 

rights to T.R. It is from this order that petitioner appeals. 

The Court has previously established the following standard of review: 

“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 

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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 Interest of Tiffany Marie S., 196 W.Va. 223, 

470 S.E.2d 177 (1996). 

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). 

First, the Court finds no error in the circuit court adjudicating petitioner as an abusing 

parent. In support of this assignment of error, petitioner argues that the circuit court erred in 

finding that he sexually abused L.H. The Court, however, does not agree.3 According to 

petitioner, the evidence below was insufficient because the DHHR failed to provide any evidence 

to corroborate the victim’s allegations against him; his own testimony and that of his wife 

directly contradicted the victim’s testimony; the DHHR failed to establish that he touched the 

victim for sexual gratification; and the victim’s testimony was inherently unreliable and 

contained contradictions. The Court notes, however, that petitioner’s argument on this issue 

ignores our prior case law dealing with the sufficiency of evidence in cases concerning sexual 

abuse and, moreover, misrepresents the evidence below. 

In addressing sufficiency of the evidence claims in regard to abuse and neglect 

proceedings, we have set forth the following standard: 

“W.Va.Code [§] 49-6-2(c) [now West Virginia Code § 49-4-601], requires 

the [DHHR], 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 [DHHR] is obligated to meet this burden.” Syllabus Point 

1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981). 

Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (internal citations omitted). 

Pursuant to West Virginia Code § 49-1-201, “sexual abuse” is defined, in relevant part, as 

3

In support of this assignment of error, petitioner also alleges that the circuit court erred 

in finding that he allowed the children to have unsupervised visitation with their biological 

mother. However, because the circuit court’s finding that petitioner sexually abused L.H. is a 

sufficient basis for his adjudication as an abusing parent, we decline to address this argument on 

appeal. 

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“sexual contact, . . . which a parent, guardian or custodian engages in . . . with a child[.]”4 That 

statute goes on to indicate that “sexual contact” in abuse and neglect proceedings is the same as 

the definition of that term as set forth in West Virginia Code § 61-8B-1(6), which states that 

“[s]exual contact” means any intentional touching, either directly or through 

clothing, of the breasts, buttocks, anus or any part of the sex organs of another 

person, . . . where the victim is not married to the actor and the touching is done 

for the purpose of gratifying the sexual desire of either party. 

According to petitioner, the DHHR failed to put on any evidence that his alleged 

touching was done for sexual gratification, especially in light of the fact that the DHHR did not 

introduce any evidence of his lustful disposition toward young children. However, the record is 

clear that the DHHR did submit such evidence, which petitioner simply ignores. Namely, the 

victim in this matter testified that petitioner pulled her shorts and underwear down to her knees 

and touched her buttocks and vaginal area. Contrary to petitioner’s assertion that the child never 

testified that he touched her vaginal area, the record clearly indicates that she testified that 

petitioner touched her “private area” and that she gestured toward her vagina. In fact, the circuit 

court specifically noted that the victim “pointed to her vagina area.” While this may not 

constitute direct evidence of petitioner’s intention to achieve sexual gratification from the 

touching, it certainly amounts to circumstantial evidence and is sufficient to support the circuit 

court’s finding of abuse. 

In support of this assignment of error, petitioner relies heavily on his allegation that the 

victim’s testimony lacked credibility and that his testimony and that of his wife directly 

contradicted the victim’s. Specifically, petitioner argues that certain aspects of the victim’s 

testimony, including when the children went to sleep, when she told her parents about the abuse, 

and when Child Protective Services was notified, are contradictory or inherently unreliable. 

Again, petitioner’s argument ignores our prior holdings. As the trier of fact, the circuit court was 

tasked with making credibility determinations as to the various witnesses and these findings are 

entitled to deference on appeal. See Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 

S.E.2d 531, 538 (1997) (“[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.”). Contrary to petitioner’s argument 

on appeal, the circuit court found the victim to be credible. Moreover, the circuit court found that 

the testimony of petitioner and his wife lacked credibility. Specifically, the circuit court found 

that “[t]he testimony of [petitioner] is largely not credible and contradicted by the credible 

testimony of the child, . . . of Brittany Harris, a Child Protective Services Worker who conducted 

an investigation of the child’s accusations, and of Nicole Lim, a nurse practitioner who treated 

[the child].” The circuit court also found that petitioner’s wife “attempted to protect [petitioner] 

throughout these proceedings and during the investigation of sexual abuse allegations prior to the 

filing of a petition.” Ultimately, as it found petitioner’s testimony lacked credibility, the circuit 

court further found that petitioner’s wife’s testimony was “supportive of or identical to the 

4

Because the adjudicatory hearing concluded after the new version of West Virginia Code 

§§ 49-1-101 through 49-7-304 took effect, we will apply the new version to the circuit court’s 

adjudicatory rulings. 

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account provided by [petitioner].” As such, it is clear that petitioner’s arguments regarding the 

credibility of the various witnesses below are without merit. 

Additionally, in addressing sexual crimes in the criminal context, we have held that “‘[a] 

conviction for any sexual offense may be obtained on the uncorroborated testimony of the 

victim, unless such testimony is inherently incredible . . . .’ Syl. pt. 5, State v. Beck, 167 W.Va. 

830, 286 S.E.2d 234 (1981).” Syl. Pt. 1, State v. Haid, 228 W.Va. 510, 721 S.E.2d 529 (2011). 

Given that the higher burden of proof for a criminal conviction can be supported by the 

uncorroborated testimony of the victim, so too can an adjudication of sexual abuse under a clear 

and convincing standard be supported by such testimony. However, it is important to note that, 

contrary to petitioner’s argument on appeal, the testimony of the victim in this matter was 

corroborated by other witnesses, as set forth above. For these reasons, the Court finds no error in 

the circuit court’s adjudication of petitioner as an abusing parent. 

Finally, the Court finds no error in the circuit court permitting the victim to testify in the 

proceedings below. On appeal, petitioner argues that Rule 8 of the West Virginia Rules of 

Procedure for Child Abuse and Neglect Proceedings required the circuit court to exclude the 

victim’s testimony because the potential psychological harm to the victim outweighed the 

necessity of the testimony. Upon our review, the Court finds no merit to this argument. 

According to Rule 8(a), 

[n]otwithstanding any limitation on the ability to testify imposed by this rule, all 

children remain competent to testify in any proceeding before the court as 

determined by the Rules of Evidence and the Rules of Civil Procedure. However, 

there shall be a rebuttable presumption that the potential psychological harm to 

the child outweighs the necessity of the child’s testimony and the court shall 

exclude this testimony if the potential psychological harm to the child outweighs 

the necessity of the child’s testimony. Further, the court may exclude the child’s 

testimony if (A) the equivalent evidence can be procured through other reasonable 

efforts; (B) the child’s testimony is not more probative on the issue than the other 

forms of evidence presented; and (C) the general purposes of these rules and the 

interest of justice will best be served by the exclusion of the child's testimony. 

Petitioner argues that the DHHR failed to put on any evidence to rebut the presumption that the 

potential psychological harm to the victim outweighed the necessity of her testimony. Again, 

however, petitioner’s argument ignores the evidence in the record. 

In order to protect the victim’s interest below, the circuit court appointed her a guardian 

ad litem independent of the guardian appointed to represent petitioner’s children. When the 

victim was called to testify, her guardian informed the circuit court that the only apprehension on 

the victim’s part was testifying in petitioner’s presence. As such, the victim’s guardian moved to 

exclude petitioner from the courtroom during the victim’s testimony, and the circuit court 

granted the same. According to the circuit court, the victim “was willing and able to testify 

without incurring further psychological harm so long as she was able to do so outside of 

[petitioner’s] presence[.]” Ultimately, the circuit court found that “the procedure used in 

connection with the [victim’s] testimony was within the parameters set out in the Rules of 

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Procedure for Child Abuse and Neglect Proceedings and adequately protected . . . against a risk 

of psychological harm to the child.” Accordingly, petitioner’s argument that there was no 

evidence to rebut the presumption that the child should not have testified is without merit. 

Further, given that the presumption was rebutted, the circuit court clearly had discretion 

to permit the testimony. On appeal, petitioner makes much of a recording of the victim’s prior 

statement regarding the allegations of abuse. According to petitioner, the circuit court failure to 

view this recorded statement violated its duty to determine if equivalent evidence could be 

produced. However, there is no indication in the record that petitioner or any other party moved 

to introduce this recorded statement as an equivalent means of evidence. To the contrary, the 

circuit court specifically found that the victim’s “alleged sexual abuse by [petitioner] was the 

principal allegation of abuse against him and no other person witnessed the abusive behavior.” 

As such, it is clear that the circuit court considered the victims’s testimony necessary and, as 

such, did not abuse its discretion in allowing the same. 

For the foregoing reasons, we find no error in the circuit court’s December 18, 2015, 

order, and we hereby affirm the same. 

Affirmed. 

ISSUED: September 19, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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