1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

James J.,

Respondent Below, Petitioner,

v.) No. 22-562 (Kanawha County, Civil Action No. 21-D-915)

Sarah C., 

Petitioner Below, Respondent.

MEMORANDUM DECISION

Petitioner James J., by counsel Scott L. Summers, appeals the Circuit Court 

of Kanawha County’s June 8, 2022 Final Order limiting the amount of unsupervised 

time that his parents can spend with his minor daughter, L.J.1 Respondent Sarah C. 

appears by counsel Erica Lord, and D. Randall Clarke appears as L.J.’s guardian ad 

litem (hereinafter “guardian”). On appeal to this Court, Petitioner argues that the 

circuit court erred in imposing any limitations upon the unsupervised time that his 

parents may spend with L.J. Petitioner requests that this Court reverse the circuit 

court’s order and remand the case to the circuit court with directions to enter an order 

removing any and all restrictions upon L.J.’s ability to visit with her paternal 

grandparents. 

This Court has carefully considered the briefs and oral arguments of the 

parties, the submitted record, and the pertinent authorities. Upon review, we agree 

with the circuit court’s order restricting the amount of unsupervised time that L.J. is 

permitted to spend with her paternal grandparents. Accordingly, we affirm the 

circuit court’s order entered on June 8, 2022. Because there is no substantial 

question of law, a memorandum decision is appropriate pursuant to Rule 21 of the 

West Virginia Rules of Appellate Procedure.

The parties in this matter are the parents of one daughter, L.J. On March 3, 

2021, when L.J. was four years old, she disclosed to her day care teacher that she 

had been sexually abused by her then-eight-year-old cousin (hereinafter “minor 

1 We use initials where necessary to protect the identities of those involved in 

this case. See W. Va. R. App. P. 40(e). 

FILED

March 18, 2024

released at 3:00 p.m.

C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

cousin”) while both were at their paternal grandparents’ home.2 Respondent was 

called to L.J.’s school and informed of the disclosure. The disclosure was reported 

to Child Protective Services (hereinafter “CPS”). Respondent informed Petitioner 

and his current wife of the disclosure, and Petitioner, who was working out of state, 

returned home. Respondent also reported the disclosure to L.J.’s pediatrician, the 

Child Advocacy Center, and the St. Albans Police Department. Although the Child 

Advocacy Center declined to interview L.J., it referred Respondent to Colleen 

Moran, M.S., a licensed clinical psychologist at Harmony Mental Health, Inc.

3

 

Respondent and L.J. attended their first intake session with Ms. Moran 

approximately two weeks after L.J.’s initial disclosure.4

 Respondent continued to 

take L.J. to see Ms. Moran, and Petitioner attended one appointment on August 5, 

2021. Both parents were provided information regarding trauma experienced by

children. Ms. Moran advised that permitting L.J. to have continued contact with her 

minor cousin would re-traumatize her.

5 The following month, Petitioner got married, 

and pictures were taken at the wedding depicting L.J. and her minor cousin together.

6

 

Thereafter, Respondent instituted proceedings in the Family Court of Kanawha 

2 According to a police report from the St. Albans Police Department, L.J. 

disclosed during “circle time” that her minor cousin “would take her downstairs to 

a bathroom at her [paternal grandparents’] house” and “would make her pull down 

her pants and panties.” L. J. also indicated that her minor cousin “would kiss her 

private parts and her butt.” “She continued by stating [her minor cousin] had told 

her to lay on him with her pants down (his pants were down too) and his private was 

‘straight.’” L.J. indicated that she told her paternal grandmother, and her paternal 

grandmother confronted the minor cousin. During the January 3, 2022 hearing, the 

paternal grandmother denied that L.J. reported the minor cousin’s conduct to her or 

that she confronted the minor cousin. 

3 Ms. Moran was included on a list of counselors that was provided by the 

Child Advocacy Center. 

4 According to Ms. Moran, L.J. first disclosed the sexual abuse to her in April 

2021.

5 Ms. Moran’s report dated November 1, 2021, indicates that Petitioner 

“reluctantly” verbalized the need to protect L.J. from her minor cousin. 

6 Petitioner told the guardian that Respondent was aware that the minor cousin 

was going to be at his wedding. 
3

County.7 Because neither of the parties had a court order establishing them as 

custodial parent or setting parenting time with L.J., both parties filed petitions for 

allocation of custodial responsibility.8

 

At the request of the parties, the family court appointed a guardian ad litem

for L.J., and on December 1, 2021, the guardian filed his report. A hearing was held 

on December 8, 2021, and, at that time, the parties informed the family court that 

they had reached an agreement “on the majority of the issues” that were before the 

court. The parties agreed, among other things, to the exercise of parenting time, 

shared decision making, the elementary and middle school that L.J. would attend, 

and a method to select a new counselor for L.J. In addition, the parties accepted 

some of the recommendations made by the guardian. For purposes of this appeal, 

the relevant recommendations to which the parties agreed from the guardian’s report 

are as follows:

[L.J.] shall under no circumstances come into direct or 

indirect contact with her minor male cousin [] until further 

Order of the Court. 

[L.J.] is not permitted in the home of the paternal 

grandparents when her minor male cousin [] is present in 

their home. 

If [Petitioner] permits [L.J.] to be in the home of the 

paternal grandparents when her minor male cousin [] is 

present in their home, then the father’s parenting time with 

the minor child will be suspended until a hearing can be 

held before the Court upon the issue of the modification of 

his parenting time with the minor child and until further 

Order of the Court. 

Although the recording system failed or malfunctioned and the proceedings 

on December 8, 2021, were not recorded, the order from that hearing clearly 

informed the parties that another hearing would be held on January 3, 2022, at which

“[t]he Court will take testimony and hear argument on whether there should be 

7

 Petitioner filed a Petition for Allocation of Custodial Responsibility and a 

Motion for Emergency Temporary Relief. 

8 Following Respondent’s filing, Petitioner filed a Counter Petition to 

Establish Allocation of Custodial Responsibility and Parenting Plan. 
4

restrictions placed upon the ability of the Father to leave the minor child alone with 

the Paternal Grandparents, Child Support and Medical Support.” At the beginning 

of the hearing on January 3, 2022, the parties informed the family court that they had 

reached agreement with respect to child support and medical expenses. They also 

informed the family court that they had been unable to reach an agreement as to the 

issue regarding L.J.’s visitation with the paternal grandparents, and the family court 

proceeded with a hearing related to that issue. 

During the January 3, 2022 hearing, the family court heard testimony from 

the parties and the paternal grandmother. According to the testimony, L.J.’s 

disclosure in March 2021 was not the first time there had been an issue relating to

the minor cousin. In October 2020, L.J. indicated that her minor cousin showed her 

an inappropriate video, which resulted in Petitioner asking his parents to agree that 

L.J. and the minor cousin would not be left alone together. The testimony of the 

paternal grandmother revealed that she does not believe L.J.’s allegations of sexual 

abuse. Although the paternal grandmother testified that she would “guarantee” that 

she would not permit the minor cousin to be in her home when L.J. was present or 

to come into contact with L.J., she also testified that she wants to see both of her 

grandchildren and that she “want[s] them to be together.” She further testified that 

these two children “miss each other.” The family court expressed some concern 

about the paternal grandmother’s testimony and specifically noted that “the tone in 

her voice caused me to doubt her credibility just a little bit.” The family court 

concluded that the paternal grandparents enjoyed a close relationship with L.J., and 

it attempted to fashion relief “that preserves [L.J.’s] relationship with the Paternal 

Grandparents while at the same time protecting [her] from harm in the future.” 

Ultimately, the family court ordered that Petitioner not be permitted to leave L.J. in 

the unsupervised care of his parents for more than two (2) days per week and not 

more than three (3) hours at a time. However, the family court declined to impose 

any restrictions on the paternal grandparents’ interaction with L.J. as long as 

Petitioner or his wife are present, and the minor cousin is not present. 

Petitioner appealed the family court’s decision to the circuit court and argued 

that the family court “inappropriately limit[ed] and restrict[ed] [his] rights as an 

equal custodial parent to make decision[s] concerning his minor child.” By order 

entered on June 8, 2022, the circuit court affirmed the family court’s order. 

Petitioner’s appeal to this Court followed. 

Although this appeal comes to us from the circuit court, we focus our review 

on the family court’s January 12, 2022 order which the circuit court affirmed. As 

we have previously stated, 
5

[i]n reviewing a final order entered by a circuit court 

judge upon a review of, or upon a refusal to review, a final 

order of a family court judge, we review the findings of 

fact made by the family court judge under the clearly 

erroneous standard, and the application of law to the facts 

under an abuse of discretion standard. We review 

questions of law de novo. 

Syl., Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004). Guided by this 

framework, we will consider Petitioner’s appeal. 

We begin by noting that the restrictions at issue were requested by Respondent

in her motion for emergency temporary relief. She requested that the paternal 

grandparents have only supervised visits with L.J. because of L.J.’s allegation that 

she was sexually abused by her minor cousin while she was in the care of the paternal 

grandparents. In addition, the Respondent alleged that L.J. told her grandparents 

about the abuse, and they did not inform either parent of this disclosure. 

Before this Court, Petitioner contends that the family court improperly 

infringed upon his fundamental constitutional right as a fit parent to make decisions 

concerning the care, custody, and control of his daughter. Respondent argues that 

Petitioner’s fundamental rights of care and custody are not impacted by the family 

court’s order and, at most, the court’s order dictates only how long he is permitted 

to leave L.J. unsupervised with his parents. With respect to this constitutional right, 

we have held that: 

“[t]he Due Process Clauses of Article III, Section 10 

of the Constitution of West Virginia and of the Fourteenth 

Amendment of the Constitution of the United States 

protect the fundamental right of parents to make decisions 

concerning the care, custody, and control of their 

children.” Syl. Pt. 3, Lindsie D.L. v. Richard W.S., 214 W. 

Va. 750, 591 S.E.2d 308 (2003); see also In re Antonio 

R.A., 228 W. Va. 380, 388, 719 S.E.2d 850, 858 (2011) 

(“the right of a natural parent to the custody of his or her 

infant child ... is a fundamental personal liberty protected 

and guaranteed by the Due Process Clauses of the West 

Virginia and United States Constitutions.”) (citation and 

footnote omitted); Alyssha R. v. Nicholas H., 233 W. Va. 

746, 753, 760 S.E.2d 560, 567 (2014) (“The right of a 

parent to make decisions concerning the care, custody, and 
6

control of her children is among the most cherished 

fundamental liberty interests.”) (citation omitted); 

Hammack v. Wise, 158 W. Va. 343, 348, 211 S.E.2d 118, 

121-122 (1975) (“One’s right to conceive and to raise his 

children has found protection in the Due Process Clause of 

the Fourteenth Amendment and also on the Equal 

Protection Clause thereof, as well as the comparable 

clauses of the West Virginia Constitution.”) (citations 

omitted).9

In re Adoption of J.S. and K.S., 245 W. Va. 164, 169-170, 858 S.E.2d 214, 219-220 

(2021) (footnote added). While this right is well-established, it is important to 

recognize that this right does not apply only to Petitioner. Respondent also has the 

same fundamental right. Indeed, when faced with competing rights, albeit in the 

context of abuse and neglect cases, we have held that “[c]ases involving children 

must be decided not just in the context of competing sets of adults’ rights, but also 

with a regard for the rights of the child(ren).” Syl. Pt. 7, In re Brian D., 194 W. Va. 

623, 461 S.E.2d 129 (1995). 

Petitioner relies heavily upon this Court’s decision in In re Adoption of J.S. 

and K.S. in support of his argument that the family court erred in restricting his 

ability to decide how often his parents can see L.J. without supervision. In In re 

Adoption of J.S. and K.S., this Court overturned a restriction placed on an adoptive 

mother prohibiting her from permitting any contact between her children and her exhusband. Although Petitioner maintains that this holding supports his position that 

he has a constitutional right to permit L.J. to visit with his parents without the 

restrictions imposed in this case, we disagree. In the instant case, there is a clear 

conflict between Petitioner’s desire to have no restrictions on the unsupervised time 

that his parents spend with L.J. and the Respondent’s desire to maintain the 

restrictions on visitation with the paternal grandparents which the family court 

concluded were in the best interest of L.J. 

9 This fundamental right has also been recognized by the United States 

Supreme Court. See Troxel v. Granville, 530 U.S. 57, 65 (2000) (“[t]he liberty 

interest at issue in this case – the interest of parents in the care, custody, and control 

of their children -- is perhaps the oldest of the fundamental liberty interests

recognized by this Court.”).
7

The fundamental constitutional right at the heart of Petitioner’s argument is 

not absolute. See In re F.S. and Z.S., 233 W. Va. 538, 544, 759 S.E.2d 769, 775

(2014) (“while a parent’s right is fundamental, it is certainly not absolute.”) 

“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) (emphasis added). “[P]arental rights must sometimes yield in situations 

where they are in conflict with the best interests of the child[.]” In re Adoption of 

J.S. and K.S., 245 W. Va. at 170, 858 S.E.2d at 220. “In visitation as well as custody 

matters, we have traditionally held paramount the best interests of the child.” Syl. 

Pt. 5, Carter v. Carter, 196 W. Va. 239, 470 S.E.2d 193 (1996). “‘The best interests 

of the child is the polar star by which decisions must be made which affect children.’ 

Michael K.T. v. Tina L.T., 182 W. Va. 399, 405, 387 S.E.2d 866, 872 (1989).” 

Kristopher O. v. Mazzone, 227 W. Va. 184, 192, 706 S.E.2d 381, 389 (2011).10 

The family court properly considered the best interests of L.J. pursuant to 

Kristopher O. See id. Although the parties appear to have reached agreements as to 

many, if not all, of the other issues in this case, they were unable to reach an 

agreement about unsupervised visits between L.J. and her paternal grandparents. 

The family court expressly recognized that the paternal grandparents enjoyed a close 

relationship with L.J., and it concluded that it was “important to fashion relief that 

preserves the child’s relationship with the Paternal Grandparents while at the same 

time protecting the minor child from harm in the future.” The family court’s concern 

for potential harm in the future is supported by the testimony. L.J. disclosed that 

she had been sexually abused while in the care of her paternal grandparents. 

Petitioner testified that he understood if L.J. and her minor cousin are ever together 

10 Petitioner disagrees with the family court’s decision to weigh his rights 

against the court’s responsibility to protect the best interest of L.J. Specifically, 

Petitioner argues that this Court has found this rationale to be “without merit” and 

“improper” with regard to a fit parent’s determination of who should be permitted 

to see a child. However, given this Court’s cases cited supra, we find Petitioner’s 

argument in this regard to be unavailing. Further, Petitioner primarily relies upon 

cases involving the assertion by grandparents of their right to visitation, which is not 

present in the instant case. However, even if we were examining this case under the 

lens of the Grandparent Visitation Act, we would still have to consider the best 

interests of the child as “[t]he best interests of the child are expressly incorporated 

into the Grandparent Visitation Act.” Syl. Pt. 2, in part, In re Hunter H., 231 W. Va. 

118, 744 S.E.2d 228 (2013). 
8

in his parents’ home, that he would immediately lose his parenting time with his 

daughter. Although his mother also expressed her understanding of this restriction, 

she testified that she did not believe that L.J. had been sexually abused by the minor 

cousin while she was caring for both of the children. In addition, she testified that 

she thought the children missed one another and she wanted them to be together. 

The family court also heard testimony from Petitioner that his mother had been 

experiencing signs of forgetfulness. Although Petitioner believes that the risk of 

harm to L.J. has been removed by prohibiting her from being in contact with her 

minor cousin, the family court did not agree. After hearing the testimony in this 

case, the family court concluded that it had concerns with the paternal grandmother’s 

credibility. We will not disturb this credibility determination. See Mulugeta v. 

Misailidis, 239 W. Va. 404, 408-409, 801 S.E.2d 282, 286-287 (2017) (“It is within 

the sole province of the family court, as fact-finder, to decide issues of credibility, 

and this Court will not disturb those determinations.”) 

Petitioner maintains that because he is a fit parent, the court may not interfere 

with his parenting decisions as to whether L.J. can be left unsupervised with her 

paternal grandparents. Petitioner believes that the family court was required to 

conclude that he is unfit before it could proceed to make decisions concerning the 

care, custody, and control of L.J. This argument is based, in part, on this Court’s 

holding that “[t]here is a presumption that fit parents act in the best interests of their 

children.” Syl. Pt. 4, Lindsie D.L. v. Richard W.S., 214 W. Va. 750, 591 S.E.2d 308 

(2003). This is, however, merely a presumption, not a declaration that a fit parent 

can make unilateral decisions about a child that is involved in a family court matter. 

Family courts make decisions regarding the care, custody, and control of children 

on a daily basis, and these decisions are largely made without a finding that one 

parent is unfit.11 When two fit parents do not agree on an issue regarding their child

in a custody matter, it is often incumbent upon a family court to resolve the dispute. 

Such decisions necessarily affect the ability of one or both parents to make unilateral 

decisions regarding the child as it did here. 

Petitioner further argues that Respondent did not articulate a rational basis for 

the restrictions at issue here. We are not persuaded by this argument. As we have 

previously noted, the family court heard testimony regarding the allegations of 

11 In this case, the family court would have decided the custody arrangement 

for L.J. had the parties not reached an agreement. In addition, family courts often 

make decisions such as where children attend school and whether parents can 

relocate with their children. 
9

sexual abuse against L.J. while she was in the care of the paternal grandparents. 

Despite testifying that that she did not believe L.J., the paternal grandmother testified 

that she would keep the minor cousin away from L.J. However, this testimony was 

followed by her declaration that she wants the children to be together. Given this 

testimony, as well as testimony regarding the paternal grandmother’s forgetfulness 

and the family court’s concerns with her credibility, the family court did not abuse 

its discretion in placing the restriction regarding unsupervised visits. 

Finally, although not raised or briefed by the parties, we remind family courts

in cases such as this of their obligation to report suspected abuse or neglect pursuant 

to Rule 48 of the West Virginia Rules of Practice and Procedure for Family Court. 

“If a family court has reasonable cause to suspect any minor child involved in family 

court proceedings has been abused or neglected, that family court shall immediately 

report the suspected abuse or neglect to the state child protective services agency, 

pursuant to W. Va. Code § 49-6A-2, and the circuit court.” W. Va. R. Prac. & Proc. 

For Fam. Ct. 48. Here, by the time the parties sought court intervention, at least two 

referrals had already been made to CPS regarding L.J.’s disclosure of sexual abuse. 

It appears that both of those referrals resulted in no further action due to the fact that 

the alleged perpetrator of the abuse was also a minor. Therefore, any referral that 

might have been made by the family court would have been duplicative. For this 

reason, we find the failure of the family court to make a referral under the facts of 

this case to be harmless. Although we find this to be harmless error, as we have 

noted in the past, we “believe that the better practice would be to follow the strict 

language of Rule [48] of the Rules of Practice and Procedure for Family Court” and 

report the suspected abuse even if other reports had previously been made to the state 

child protective services agency. Katherine B.T. v. Jackson, 220 W. Va. 219, 227, 

640 S.E.2d 569, 577 (2006). 

 For the foregoing reasons, we conclude that the family court did not abuse its 

discretion in imposing restrictions on L.J.’s visitation with her paternal grandparents. 

Accordingly, the circuit court did not err in affirming the family court’s order. Based 

upon all of the foregoing, the order of the circuit court is affirmed. 

Affirmed.

ISSUED: March 18, 2024

CONCURRED IN BY:
10

Chief Justice Tim Armstead

Justice Elizabeth D. Walker

Justice John A. Hutchison

Justice William R. Wooton

CONCURRING, IN PART, AND DISSENTING, IN PART: 

Justice C. Haley Bunn

BUNN, Justice, concurring, in part, and dissenting, in part:

I agree with the majority’s decision to uphold the limitations on grandparent 

visitation ordered by the family court. The allegations that L.J. was sexually abused 

by a cousin while in the paternal grandparents’ care, and the grandparents’ denials 

that the abuse occurred, demonstrate that it was in L.J.’s best interest to put 

appropriate and immediate safeguards in place. See Syl. pt. 5, Carter v. Carter, 196 

W. Va. 239, 470 S.E.2d 193 (1996) (“In visitation as well as custody matters, we 

have traditionally held paramount the best interests of the child.”). See also Syl. pt. 

3, in part, id. (“Because of the extraordinary nature of supervised visitation, such 

visitation should be ordered when necessary to protect the best interests of the 

children.”).

However, I respectfully dissent from the majority’s determination that the 

family court’s failure to refer the new allegations of abuse and neglect to Child 

Protective Services (“CPS”) and the circuit court was harmless error. The majority 

has overlooked the express, mandatory language of the governing rule and has not 

fully considered the factual circumstances giving rise to this appeal.

Pursuant to Rule 48 of the West Virginia Rules of Practice and Procedure for 

Family Court,

[i]f a family court has reasonable cause to suspect any minor 

child involved in family court proceedings has been abused or 

neglected, that family court shall immediately report the suspected 

abuse or neglect to the state child protective services agency . . . and the 

circuit court.

W. Va. R. Prac. & P. for Fam. Ct. 48(a) (emphasis added). As we have repeatedly 

recognized, “use of the word ‘shall’ renders the[] directive[] mandatory.” In re 

Z.S.-1, 249 W. Va. 14, __, 893 S.E.2d 621, 628 (2023) (citation omitted). See also

Syl. pt. 1, in part, Nelson v. W. Va. Pub. Emps. Ins. Bd., 171 W. Va. 445, 300 S.E.2d 

86 (1982) (“It is well established that the word ‘shall’ . . . should be afforded a 
11

mandatory connotation.”). Thus, the express language of Rule 48 imposes a 

mandatory duty upon family court judges to immediately report suspected child 

abuse and neglect. See Syl. pt. 3, in part, State ex rel. W. Va. Dep’t of Health & Hum. 

Res. v. Ruckman, 223 W. Va. 368, 674 S.E.2d 229 (2009) (referencing “mandatory

reporting of abuse or neglect pursuant to . . . Rule 48 of the Rules of Practice and 

Procedure for Family Court” (emphasis added)).

This mandatory reporting duty for family court judges is also codified in West 

Virginia Code § 49-2-803(a). See W. Va. Code § 49-2-803(a) (identifying “family 

court judge[s]” as among individuals who, upon having “reasonable cause to suspect 

that a child is neglected or abused, . . . shall immediately . . . report the 

circumstances to the Department of . . . Human [Services]” (emphasis added)). See 

also Syl. pt. 8, Katherine B.T. v. Jackson, 220 W. Va. 219, 640 S.E.2d 569 (2006) 

(“When any circuit court judge, family court judge, or magistrate has reasonable 

cause to suspect that a child is neglected or abused, the circuit court judge, family 

court judge, or magistrate shall immediately report the suspected neglect or abuse to 

the state child protective services agency pursuant to W. Va. Code, [49-2-803] and, 

if applicable, Rule 48 of the Rules of Practice and Procedure for Family Court.”).

Moreover, the majority conflates the allegations of abuse and neglect at issue 

before the family court with the original allegations that L.J. was sexually abused by 

a minor male cousin while the grandparents were caring for both children in the 

grandparents’ home in the Spring of 2021. The record reflects that both L.J.’s mother 

and teacher reported the original incident to CPS, and that the referral was “screened 

out” without investigation because it involved two children.

However, new allegations of abuse and neglect gave rise to the underlying 

custody proceeding that resulted in this appeal, and it is those new allegations of 

abuse and neglect that triggered the family court’s duty to refer the matter to CPS 

and the circuit court. After the Spring 2021 incident of sexual abuse, L.J.’s mother 

sought therapy for L.J., and the therapist recommended that L.J. not have contact 

with her minor male cousin because interacting with her abuser would be traumatic 

for her. The therapist also cautioned L.J.’s father against allowing further 

interactions between the two children.

Nevertheless, in the Fall of 2021, L.J.’s father married, and during the 

wedding reception, either the father or the paternal grandparents allowed L.J. and 

her minor male cousin to interact with each other. It is this incident of failing to heed 

the advice of the child’s therapist by knowingly allowing L.J. to have interactions 

with her alleged abuser that prompted L.J.’s mother to file the underlying custody 

proceeding. The interaction between the children potentially subjected L.J. to further 

trauma, and constituted new allegations of abuse and neglect by the child’s father 
12

and/or her paternal grandparents. The father’s and paternal grandparents’ failure to 

protect L.J. from additional interactions with her alleged abuser triggered the family 

court’s mandatory duty to refer such allegations to CPS and the circuit court. It does 

not appear from the appendix record that these new allegations concerning the 

actions of the child’s father or her paternal grandparents were ever referred to CPS 

for investigation or to the circuit court. Therefore, the family court’s failure to report 

this new incident of abuse and neglect constitutes reversible error, and the case 

should be remanded to the family court to require it to comply with the mandatory 

reporting duty in Rule 48.

Finally, even if, as the majority has suggested, the family court’s report of the 

allegations of abuse and neglect giving rise to the underlying case had been 

duplicative, this Court has cautioned that “the better practice would be to follow the 

strict language of Rule 4[8] of the Rules of Practice and Procedure for Family Court

even if the petition and incident had been previously reported to the [DHS]. This 

practice could help assure that no case ‘slips through the cracks.’” Katherine B.T., 

220 W. Va. at 227-28, 640 S.E.2d at 577-78 (footnote omitted). Therefore, the 

family court still should have reported the alleged abuse and neglect of L.J. to ensure 

the child’s safety and well-being.

For these reasons, I respectfully concur, in part, and dissent, in part, from the 

majority’s decision in this case.