IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2016 Term 

FILED 

February 11, 2016 

released at 3:00 p.m. No. 15-0451 RORY L. PERRY, II CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

IN RE: C.M., D.M., AND E.M. 

Appeal from the Circuit Court of Wood County
 

Honorable Jeffrey B. Reed, Judge
 

Civil Action Nos. 14-JA-60, 14-JA-61, 14-JA-62
 

REVERSED AND REMANDED
 

WITH DIRECTIONS
 

Submitted: January 13, 2016
 

Filed: February 11, 2016
 

Courtney L. Ahlborn, Esq. Charles R. “Rusty” Webb, Esq. 

Parkersburg, West Virginia Charleston, West Virginia 

Attorney for Petitioner Mother Attorney for Respondent Father 

Rhonda L. Harsh, Esq. Patrick Morrisey, Esq. 

Parkersburg, West Virginia Attorney General 

Guardian ad Litem for Charleston, West Virginia 

infant children Lee Niezgoda, Esq. 

Assistant Attorney General 

Fairmont, West Virginia 

Attorneys for Respondent 

West Virginia Department of 

Health and Human Resources 

JUSTICE LOUGHRY delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 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). 

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).” Syl. Pt. 2, In re F.S., 233 W.Va. 538, 759 S.E.2d 769 (2014). 

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3. “‘“‘“W.Va. Code, 49-6-2(c) [1980], requires the State Department of 

Welfare [now the Department of Health and Human Resources], 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).” Syl. Pt. 3, 

In re F.S., 233 W.Va. 538, 759 S.E.2d 769 (2014). 

4. “In cases involving the abuse and neglect of children, when it appears from 

this Court’s review of the record on appeal that the health and welfare of a child may be at 

risk as a result of the child’s custodial placement, regardless of whether that placement is an 

issue raised in the appeal, this Court will take such action as it deems appropriate and 

necessary to protect that child.” Syl. Pt. 6, In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 

(2013). 

5. “‘To facilitate the prompt, fair and thorough resolution of abuse and neglect 

actions, if, in the course of a child abuse and/or neglect proceeding, a circuit court discerns 

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from the evidence or allegations presented that reasonable cause exists to believe that 

additional abuse or neglect has occurred or is imminent which is not encompassed by the 

allegations contained in the Department of Health and Human Resource’s petition, then 

pursuant to Rule 19 of the Rules of Procedure for Child Abuse and Neglect Proceedings 

[1997] the circuit court has the inherent authority to compel the Department to amend its 

petition to encompass the evidence or allegations.’ Syl. Pt. 5, In re Randy H., 220 W.Va. 

122, 640 S.E.2d 185 (2006).” Syl. Pt. 10, In re T.W., 230 W.Va. 172, 737 S.E.2d 69 (2012). 

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LOUGHRY, Justice: 

This is an appeal initiated by S.M. (hereinafter “the petitioner mother” or “the 

mother”) from the April 17, 2015, order of the Circuit Court of Wood County through which 

the court dismissed a petition for abuse and neglect filed against the respondent father.1 The 

circuit court concluded that the West Virginia Department of Health and Human Resources 

(“DHHR” or “West Virginia DHHR”) failed to meet its burden of proving by clear and 

convincing evidence that the respondent father was abusive. After a thorough review of the 

appendix record, the written and oral arguments of counsel, and the applicable precedent, this 

Court concludes that the circuit court committed clear error. Accordingly, we reverse and 

remand this case for further proceedings consistent with this opinion. 

I. Factual and Procedural Background 

The petitioner mother and the respondent father are the parents of a daughter, 

C.M., who was born in April of 2006, and a son, D.M.,2 who was born in October of 2004. 

The parents were divorced in West Virginia in 2009 and the petitioner mother moved to 

1

Because this case involves children and sensitive matters, we follow our practice of 

using initials to refer to the children and their parents. See W.Va. R. App. P. 40(e); State v. 

Edward Charles L., 183 W.Va. 641, 645 n. 1, 398 S.E.2d 123, 127 n. 1 (1990). In this 

matter, both the respondent father and his minor daughter have the same initials. This 

opinion will refer to the father as “the respondent father” and to the child as “C.M.” 

2

D.M. was incorrectly denominated as C.M., Jr. in the underlying abuse and neglect 

petition and in the circuit court’s April 17, 2015, order. The style of this case has been 

modified to include his correct initials. 

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North Carolina. Pursuant to an agreed parenting plan order, the children primarily resided 

with the respondent father in West Virginia, visiting their mother in North Carolina during 

their summer recesses from school and on certain holidays.3 The respondent father’s 

girlfriend, T.T., and their infant child together, E.M., also lived in the father’s home.4 

The petitioner mother testified that during the children’s visit to her home in 

the summer of 2013, C.M. disclosed that the respondent father made her watch sexually 

explicit videos. The petitioner mother says that when the children next visited her at 

Christmas of 2013, C.M. again revealed that her father forced her to watch inappropriate 

videos. In late December of 2013, the petitioner mother reported this information to the West 

Virginia DHHR. Pursuant to the terms of the parenting plan, the children returned to the 

respondent father’s home in West Virginia at the end of their Christmas break. 

On February 6, 2014, Pamela Hendrickson, a Child Protective Services 

(“CPS”) Worker with the West Virginia DHHR, went to the children’s elementaryschool and 

3

When the abuse and neglect petition was filed, C.M. and D.M. were removed from 

the respondent father’s home and placed with the petitioner mother full time. That placement 

has remained in effect pending the outcome of this appeal. 

4

Although there are no allegations that anyone abused E.M., he is also a subject of this 

abuse and neglect case because he was living in the respondent father’s home. See W.Va. 

Code § 49-1-3(1)(A) (2012) (now codified at W.Va. Code § 49-1-201 (2015)) (defining 

“abused child” to include another child in the home). T.T. was a party respondent in the 

underlying abuse and neglect case but has not participated in this appeal. 

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spoke separately with seven-year-old C.M. and nine-year-old D.M. Ms. Hendrickson did 

not make an audio or video recording of these interviews. According to Ms. Hendrickson’s 

testimony, the children told her that their father showed them sexually explicit movies in the 

living room of their home; that these movies were on DVDs and were stored in “boxes with 

numbers after them”; and that their father and C.M. had “special time” together when D.M. 

was made to leave the room. C.M. explained that the adults shown in the movies had their 

clothes off, and C.M. was able to accurately describe oral sex. C.M. also reported that her 

father made her remove her clothes, but she did not tell Ms. Hendrickson whether anything 

happened after she removed her clothes. Furthermore, both children told her that they 

watched their father, his live-in girlfriend T.T., and two other adults having sex. C.M. 

indicated to Ms. Hendrickson that she was afraid her father would hurt her if she told anyone. 

D.M. also expressed fear of what would happen if his father learned that he had disclosed 

these things. 

Ms. Hendrickson left the school and went directly to the home of the 

respondent father and T.T. According to Ms. Hendrickson, the respondent father and T.T. 

were cooperative and visibly upset by the allegations. The respondent father denied showing 

the children sexually explicit videos. Ms. Hendrickson was permitted to look around the 

house, but she left the respondent father alone in the living room while she and T.T. went 

upstairs. Although she declined to look into drawers that were opened by T.T., Ms. 

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Hendrickson looked at the titles of the DVDs she observed in the home and she reviewed the 

family’s Netflix viewing history. Ms. Hendrickson did not find any sexually explicit videos. 

Upon learning that the children had password-protected iPods, Ms. 

Hendrickson returned to the school that same day to unlock the iPods given to her by the 

respondent father. The children were called into the principal’s office to meet with Ms. 

Hendrickson again; these interviews were not recorded. Ms. Hendrickson testified that when 

she spoke with C.M. and D.M. on this second occasion, they recanted the reports they had 

made earlier in the day. According to Ms. Hendrickson, C.M. said she could not recall any 

abuse by her father; over Christmas break her mother had continually asked questions about 

whether the respondent father had touched her; and the information she reported earlier in 

the day is what her mother had told her to say. Ultimately, Ms. Hendrickson and her 

supervisor concluded that abuse could not be substantiated, so they closed the case. 

The petitioner mother testified that after the children arrived in North Carolina 

for the summer of 2014, the now-eight-year-old C.M. again revealed that her father had made 

her watch a movie with sexually explicit content. According to the petitioner mother, C.M. 

also made a new disclosure: after watching the movie, the respondent father removed his 

clothes, made C.M. remove her clothes, and he then touched his “private part” to her “private 

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part.”5 In addition, C.M. reported itching on her bottom. The petitioner mother took C.M. 

to a hospital emergency room in North Carolina, where C.M. was treated for a vaginal yeast 

infection. The petitioner mother also testified that an adult family member had previously 

observed C.M. and a young female cousin playing a “mommy/daddy game” where one child 

was lying on top of the other and they were kissing. A referral was made to the North 

Carolina Division of Social Services. 

On July10, 2014, C.M. was interviewed byElizabeth Pogroszewski, a forensic 

interviewer employed by a Child Advocacy Center in North Carolina. This interview was 

video recorded. C.M. again revealed that her father showed her a “dirty” movie while they 

were in the living room of their house. When asked about the movie, C.M. said it involved 

“s-e-x,” spelling out the word, and that a woman without clothes was moving up and down 

on a man without clothes. C.M. said the man in the movie also put his “privates” in the 

woman’s mouth. According to Ms. Pogroszewski, C.M. gave clear details about the contents 

of the movie and where C.M. was located–the living room of her father’s home–when 

watching the movie. 

5

The record is unclear whether C.M. first reported molestation to her mother or her 

maternal grandmother, who lives next door to the mother’s home. 

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During the recorded interview, C.M. also described for Ms. Pogroszewski an 

occasion when her father placed his “privates” on and in C.M.’s “privates,” which she said 

felt “weird” and hurt a little. The interviewer confirmed that C.M. was referring to her and 

her father’s genitalia, and C.M. drew three stick figure sketches of her and her father naked 

together in the living room. One drawing depicts the respondent father, with an erect penis, 

kneeling beside her. C.M. explained that this occurred in the living room of their home after 

watching the “s-e-x” movie. C.M. said that she and her father put their clothes back on when 

they heard T.T. and D.M. coming into the home from outside. 

Following the interview, C.M. underwent a physical examination by Jennifer 

Benton, a nurse practitioner and pediatric sexual assault nurse examiner at the same Child 

Advocacy Center in North Carolina. During the examination, C.M. clarified that her father 

had put his “private” on and in her “private” “more than one time” during the incident she 

described in the living room. The examination revealed that C.M. had a hymenal opening 

that was larger and thinner than one would expect to see in a child of her age, and she had 

a notch and a mound on her hymenal ring. Ms. Benton explained that while these are not 

expected findings, they could constitute normal variances in the child’s anatomy and 

therefore are not determinative of sexual abuse. She added, however, that these physical 

findings are suspicious when accompanied by a disclosure of sexual abuse. 

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After receiving the information set forth above from the North Carolina Child 

Advocacy Center, the West Virginia DHHR reopened its case and filed a petition in the 

circuit court alleging abuse and neglect. During the adjudicatory hearing, C.M. testified that 

while they were in their living room, her father showed her a DVD of a “dirty” movie with 

“s-e-x” where the “boy would go on top of the girl . . . going up and down” and the people 

in the movie were not wearing clothes. However, she also recalled that there were “children 

. . . playing upstairs” in the movie. C.M. explained that her father then removed his pants, 

had her drop her pants to down around her ankles with her shoes still on, and he touched his 

“private” to her “private.” C.M. said that her father’s “private” went inside her and it felt 

“weird.” She further testified that while this was going on, her father moved his “private” 

back and forth. C.M. added that when she and her father heard T.T. and D.M. on the porch 

about to enter the house, they put their clothes on and her father threatened, “don’t tell 

anybody or I’ll give you a butt whipping.” At the adjudicatory hearing, she testified that this 

only happened one time. C.M. denied that her mother told her to say these, or any bad things, 

about her father. She testified that her mother had only told her to tell the truth. 

C.M. testified that D.M. had been in the living room watching the movie with 

them, but once the movie was over, their father told D.M. to go outside. In his testimony at 

the adjudicatoryhearing, ten-year-old D.M. confirmed that the respondent father showed him 

and C.M. adult movies on DVDs where a man and a woman who were not wearing clothes 

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were in bed together. However, he recalled that his father showed them these movies when 

D.M. was younger, “probably four or five” years old or “in the first grade.” Although D.M. 

recalled seeing the adult movies on multiple occasions, at the adjudicatory hearing C.M. 

testified to only one occurrence. D.M. stated that nobody told him to lie or directed him to 

give this testimony. 

During the adjudicatory hearing, the circuit court inquired of the forensic 

interviewer, Ms. Pogroszewski, whether there was anyindication that C.M. had been coached 

to make false allegations. She explained that children, especially younger children, have a 

hard time providing details if they are talking about something in which they did not actually 

participate. Also, if one parent coached the child with derogatory information about the other 

parent, the child might exhibit a change in demeanor when talking about one parent versus 

the other parent. Ms. Pogroszewski testified that C.M. gave details in response to focused 

questions, and exhibited no change in demeanor, when discussing the one incident in the 

living room: 

I felt like, even though, again, she was not extremely 

narrative, she did give me very clear details when I asked more 

focused questions, such as, what it felt like, and where she was, 

and the position, you know, that she was in. I did not feel like 

there was a change in her demeanor at all whether she was 

talking about dad or mom, meaning I didn’t feel like there was 

a strong allegiance versus one parent over the other parent, and 

her demeanor just kind of remained the same during the entire 

interview. And I thought she was able to provide very clear, 

concise details. 

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The respondent father testified at the adjudicatory hearing and denied all of the 

allegations. He challenged the credibility of the children’s testimony by arguing that there 

were inconsistencies in the evidence, including differences in C.M.’s various reports about 

the frequency of the alleged misconduct. His lawyer also argued that C.M. would have 

suffered serious physical injury had the respondent penetrated her. In addition, two teachers, 

the school counselor, and the principal from the children’s school in West Virginia testified 

that C.M. and D.M. never disclosed abuse or exhibited signs of abuse. Dr. David Clayman, 

a psychologist retained by the respondent to review the file in this matter, raised concerns 

about the process used in the investigation. He testified that because the children were 

questioned multiple times, it is now difficult to determine whether parts of their statements 

come from information outside of their own recollections. This is complicated by CPS 

Worker Hendrickson’s failure to record her interviews. Dr. Clayman was also concerned that 

Ms. Pogroszewski’s use of the word “okay” after some of C.M.’s answers may have led the 

child to believe that the interviewer wanted her to say these things. Dr. Clayman concluded 

that the facts were too cloudy for him to render a forensic psychological opinion as to 

whether the sexual abuse occurred.6 

6

Dr. Clayman did not interview, or administer any diagnostic tests to, the children or 

the respondent father. 

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Uncontradicted evidence at the adjudicatoryhearing showed that the petitioner 

mother owed several thousands of dollars in unpaid child support to the respondent father, 

for which child support enforcement officials were pursuing a collection action during the 

same time period these abuse allegations surfaced. Although the circuit court did not make 

any findings of fact or conclusions of law regarding the child support matter, the respondent 

father argues that this debt would give the petitioner mother motivation to coach the children 

to fabricate abuse. The petitioner mother denies coaching or directing the children to lie. 

Although the respondent father claims that she is seeking to avoid paying child support, the 

petitioner mother explains that she has not taken action to eliminate her ongoing child 

support obligation. 

After hearing the testimony at the adjudicatory hearing, the circuit court 

concluded that the DHHR failed to meet its burden of proving, by clear and convincing 

evidence, that abuse and neglect occurred. Accordingly, the circuit court dismissed the abuse 

and neglect petition. This appeal followed. 

II. Standard of Review 

When reviewing a circuit court’s order in an abuse and neglect case, we apply 

a “compound standard of review: conclusions of law are subject to a de novo review, while 

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findings of fact are weighed against a clearly erroneous standard.” In re Emily, 208 W.Va. 

325, 332, 540 S.E.2d 542, 549 (2000). This standard of review is well established: 

“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 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). Bearing these precepts in 

mind, we proceed to consider where the circuit court erred in its adjudication ruling. 

III. Discussion 

A. The Respondent Father 

We begin our discussion by recognizing that a parent has constitutionallyprotected rights to the care and custody of his or her child. See, e.g., In re F.S., 233 W.Va. 

538, 543, 759 S.E.2d 769, 774 (2014); In re Jeffrey R.L., 190 W.Va. 24, 32, 435 S.E.2d 162, 

170 (1993). However, the rights of the parent must yield when the child’s health or welfare 

is harmed or threatened. 

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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. 

F.S., 233 W.Va. at 544, 759 S.E.2d at 775. “[T]he best interests of the child are paramount.” 

Id. (quoting In re Jeffrey R.L., 190 W.Va. at 32, 435 S.E.2d at 170.). Accordingly, when 

there is reason to believe that a child has been subjected to abuse or neglect, a petition is filed 

in circuit court pursuant to West Virginia Code § 49-6-2 (2012)7 and an adjudicatory hearing 

is held. At the conclusion of the adjudicatory hearing, the circuit court makes findings as to 

whether the child is abused or neglected. W.Va. Code § 49-6-2(c).8 While a finding of abuse 

or neglect at the adjudicatory stage must be supported by clear and convincing proof, the 

statute does not specify any particular evidence that is required to meet this burden: 

“‘“‘W.Va. Code, 49-6-2(c) [1980], requires the State 

Department of Welfare [now the Department of Health and 

Human Resources], in a child abuse or neglect case, to prove 

“conditions existing at the time of the filing of the petition . . . 

7

When considering whether the circuit court erred in this matter, we rely on the 

statutes in effect when the circuit court entered its dismissal order on April 17, 2015. 

Effective in May of 2015, the West Virginia Legislature repealed West Virginia Code §§ 49­

1-1 through 49-11-10 and recodified these statutes, with some revisions, at West Virginia 

Code §§ 49-1-101 through 49-7-304. 

8

If abuse or neglect is found during the adjudicatory stage, the case will proceed to 

post-adjudicatory matters and, ultimately, to disposition in accordance with the provisions 

of West Virginia Code § 49-6-5 (2012) (now codified at W.Va. Code § 49-4-604 (2015)). 

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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). 

F.S., 233 W.Va. at 539, 759 S.E.2d at 770, syl. pt. 3. 

Although we generally accord deference to a circuit court’s findings of fact, 

this Court will not hesitate to reverse if those findings are clearly erroneous. For example, 

in F.S. the circuit court dismissed an abuse and neglect petition where there was no physical 

evidence and the child’s testimony contained some doubtful or inconsistent elements. 233 

W.Va. at 545, 759 S.E.2d at 776. We concluded that sexual abuse was nonetheless proven 

by the child’s reiteration of sexually explicit details during multiple interviews. Id. at 546, 

759 S.E.2d at 777. The Court explained in F.S. that an abuse and neglect petition does not 

require the evidentiary equivalent of what is necessary to prove a criminal case: 

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 credibility 

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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)[.] 

233 W.Va. at 546, 759 S.E.2d at 777. 

In the case sub judice, the petitioner mother contends that the circuit court’s 

decision to dismiss this case was in error because there was clear and convincing evidence 

to adjudicate the respondent father as abusive. The DHHR, although denominated as a 

respondent in this matter, agrees that the respondent father should have been adjudicated as 

abusive. The children’s guardian ad litem was non-committal in her summary response to 

this Court, but during oral argument she expressed serious concern for the children’s welfare 

if they were to resume residency in their father’s home. As set forth above, the respondent 

father argues that the petition was correctly dismissed because there are too many 

inconsistencies in the record. The respondent father also argues that both C.M. and D.M. are 

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lying and must have been coached by their mother to fabricate these allegations. Upon 

review of the appendix record, we are left with the definite and firm conviction that a mistake 

was committed and that the circuit court erred by not adjudicating the respondent father as 

abusive. 

The record contains extensive evidence of abuse. As set forth above, on 

multiple occasions C.M. has described a sexually explicit video shown to her by her father, 

as well as specific acts of sexual contact inflicted on her by her father. She separately 

reported this information to her mother and/or maternal grandmother, CPS Worker 

Hendrickson, forensic interviewer Ms. Pogroszewski, and nurse practitioner Ms. Benton, and 

she testified in court about the sexual conduct. C.M., who was seven and eight years old 

during the investigation and adjudicatory proceedings, was able to recount detailed 

information about sexual behavior, including explaining the mechanics of oral sex and sexual 

intercourse. C.M. also explained how her father moved his penis and where he put his penis 

on her body, and she drew sketches depicting both her and her father’s genitalia. Ms. 

Pogroszewski testified that children of C.M.’s age do not typically know about oral sex and 

do not have very detailed knowledge of “different parts going in different places” during 

sexual episodes. Both C.M. and her brother D.M. testified that their father made them watch 

a “sex” movie or movies on DVDs while they were in the living room of their West Virginia 

home, and the children told Ms. Hendrickson that their father had “special time” alone with 

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C.M. There was also testimony that C.M. was discovered engaging in sexual acting-out 

behavior with her minor cousin. Finally, although the findings of the physical examination 

were not determinative, they raised suspicion for the sexual assault nurse examiner when 

combined with the child’s disclosure of abuse. 

When dismissing the case against the respondent father, the circuit court was 

concerned by inconsistencies in the DHHR’s evidence. While there are inconsistencies in 

this record, we nonetheless conclude that they are overstated and not fatal to the DHHR’s 

abuse and neglect petition. As we discussed in F.S., “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.” 233 W.Va. at 546, 759 S.E.2d at 777. 

In reaching its decision to dismiss the petition, the circuit court was influenced 

by the recantations during CPS Worker Hendrickson’s second trip to the school. The DHHR 

argues that this is easily explained by the fact that the children were fearful of their father and 

they knew Ms. Hendrickson had just come from talking to their father about these 

allegations.9 There was further concern that the children may have thought they were in 

9

Even if Ms. Hendrickson did not directly tell the children that she had just spoken 

with their father and T.T., Ms. Hendrickson now had in her possession the children’s iPods 

that were kept in their father’s home. 

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trouble because the second interviews occurred in the school principal’s office with some 

involvement by the principal.10 The circuit court dismissed these proffered reasons by 

finding that “a more plausible explanation for both [C.M.] and [D.M.] changing their story 

on the second interview by Ms. Hendrickson was because they realized that their father had 

been told of the allegations and that they may get into trouble for lying.” Critically, however, 

the circuit court failed to explain why this conclusion would be more plausible. Indeed, a 

review of the record supports the DHHR’s explanation. During the initial, separate 

interviews conducted by Ms. Hendrickson, both C.M. and D.M. expressed fear of their father 

learning that they were discussing these matters. C.M. also testified that her father had told 

her, “[d]on’t tell anybody, or I’ll give you a butt whipping.” The circuit court’s rationale 

presupposes that both children, questioned separately, told consistent lies during their initial 

interviews with Ms. Hendrickson, but a more reasoned conclusion is that C.M.’s advanced 

sexual knowledge negates a narrative based upon prevarication. 

The circuit court also found it “equally plausible” that the children were afraid 

of their maternal grandmother. The basis for this finding is apparently the children’s 

reluctance to reveal their iPod passwords. The evidence shows that the grandmother gave 

the children the iPods, set up the devices with accounts linked to her own credit card, and 

10According to Ms. Hendrickson, it was the school principal who obtained the iPod 

passwords from the children. Ms. Hendrickson testified that she had been alone with each 

child when she interviewed them earlier in the day. 

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instructed the children not to share the passwords. Although the children obeyed their 

grandmother’s instructions regarding the privacy of the passwords, we fail to see how this 

indicates any fear of her or how this would in any way suggest that the children lied about 

the abuse. Moreover, the children never testified that they were afraid of her; the only 

evidence on this issue was the mother’s testimony that C.M. enjoyed spending time with her 

grandmother. 

The circuit court also looked to Ms. Hendrickson’s hearsay testimony that 

during the second interviews at the school, the children told her their “mother had told them 

to say these things.” Both Ms. Hendrickson and the circuit court assumed that the children 

meant that their mother had instructed them to lie. However, in their courtroom testimony, 

both children denied that their mother ever told them to lie.11 

The circuit court’s order failed to even mention C.M.’s graphic sketches or her 

interview with Ms. Pogroszewski at the Child Advocacy Center, where C.M. revealed 

information very consistent with her testimony offered five months later at the adjudicatory 

11In addition, a review of C.M.’s testimony suggests that it is possible Ms. 

Hendrickson could have misunderstood C.M.’s meaning during the second interview. 

During the preliminary hearing, the questioner referenced C.M.’s testimony about the abuse 

and then asked, “[d]id your mom at any time tell you to say this?” C.M. responded “yes” to 

this question. However, when asked a follow-up question, “what did your mom tell you to 

say?” C.M. answered, “[s]he says to just–to tell the truth.” Because Ms. Hendrickson did not 

record the school interviews, it is impossible to know exactly what was asked or answered. 

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hearing. While the circuit court did discuss a statement the child made to nurse practitioner 

Benton at the Child Advocacy Center, the circuit court misstated this evidence. The circuit 

court’s recollection of Ms. Benton’s testimony was that C.M. said she was sexually abused 

by her father more than one time. However, a review of the transcript shows that Ms. 

Benton’s testimony did not concern how many overall instances of abuse had occurred. 

Rather, Ms. Benton was referring to multiple acts of penetration during the incident of abuse 

that C.M. described in the forensic interview. 

The circuit court further reasoned that if C.M. had told her mother about the 

video during C.M.’s visit in the summer of 2013, her mother would not have allowed the 

children to return to their father’s home. However, the petitioner mother testified that she 

tried to investigate what her daughter told her by sending a text message to the respondent 

father and, importantly, C.M. had not revealed any molestation at that time. The petitioner 

mother explained that during the disclosures in 2013, C.M. only mentioned the viewing of 

sexually explicit movies. 

The circuit court also considered an inconsistency regarding the whereabouts 

of C.M.’s infant half-brother, E.M. During the adjudicatoryhearing, when asked where E.M. 

was during the episode in the living room, C.M. answered that he was with his mother T.T. 

If there was only one instance of abuse, as C.M. testified at the adjudicatory hearing, and if 

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C.M. first told her mother about the video during the summer of 2013, the court reasoned that 

the abuse must have occurred prior to the summer of 2013–before E.M. was born. 

Upon this Court’s thorough consideration of the record in this matter, we are 

unconvinced that the circuit court’s concerns warranted dismissal of the petition. Regardless 

of when C.M. first disclosed information about the movie or how often she was shown the 

movie(s), the record is clear that the children were exposed to sexually explicit video 

materials. On multiple occasions, C.M. gave detailed recitations of the sexual conduct she 

observed. Moreover, although C.M. only revealed one instance of abuse when questioned 

at her forensic interview and the adjudicatory hearing, Ms. Pogroszewski explained that 

children sometimes have a hard time discussing multiple occasions. The interview technique 

Ms. Pogroszewski used with C.M. focused on the one incident in the living room when T.T. 

was out of the home. We remain mindful that when young children reveal information about 

sexual abuse, they are not always completely consistent or quick to tell the full details of 

what happened–particularly when their abuser is an adult family member in the home: 

[Cases involving sexual abuse of a child] 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 

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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. Consequently, under the existing collateral acts 

rule, a child victim is unable to present the complete record of 

events forming the context of the crime. Lastly, there is a 

common misconception that children have a greater propensity 

than adults to imagine or fabricate stories of sexual abuse. 

Research indicates, however, that absent coaching, children are 

far less likely to lie about matters in the sexual realm than 

adults, and that absent sexual experience there is little means by 

which children can imagine sexual transactions. 

State v. Edward Charles L., 183 W.Va. 641, 650-51, 398 S.E.2d 123, 132-33 (1990) 

[footnotes and citations omitted]. 

Moreover, the circuit court failed to adequately consider that displaying 

sexually graphic videos to the children was, by itself, harmful to their welfare. Both children 

testified that their father showed them a video or videos, and C.M.’s explicit knowledge of 

the sexual activities of adults supports that she was exposed to such materials. In In re 

Joseph A., 199 W.Va. 438, 442-43, 485 S.E.2d 176, 180-81 (1997), we recognized that 

allowing children to view pornographic videos in the home constituted abuse and neglect. 

We did “not believe that it [was] necessary for the trial court to require the DHHR to present 

the testimony of an expert in order to conclude that watching pornography has harmful 

effects upon minor children.” Id. at 442, 485 S.E.2d at 180. Displaying pornographic 

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material to children has been deemed abuse and neglect in other cases of this Court. See, 

e.g., In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013); In re T.W., 230 W.Va. 172, 177 

n. 3, 737 S.E.2d 69, 74 n. 3 (2012); In re J.P., No. 14-0829, 2015 WL 2381310 (W.Va. May 

18, 2015) (memorandum decision); In re A.S., No. 11-1364, 2012 WL 2988799 (W.Va. Mar. 

12, 2012) (memorandum decision). 

Finally, as further support for the dismissal of the abuse and neglect petition, 

the circuit court relied on the children’s failure to disclose abuse to officials at their school. 

We find this to be of very little persuasive value. C.M. and D.M. had not attended this 

particular school for very long–C.M. was only there for second grade and part of third grade. 

C.M.’s third grade teacher testified that C.M. never disclosed abuse to him, but it is obvious 

to this Court that a young girl could be reluctant to reveal sexual conduct to a male teacher. 

Furthermore, the school counselor worked at this particular school only two days per week, 

was responsible for more than seven hundred children, and her only direct conversation with 

C.M. was after the filing of the abuse and neglect petition. 

After a careful review of the entire record, the Court is left with the definite 

and firm conviction that a mistake was committed and, consequently, that the circuit court’s 

dismissal of the abuse and neglect petition was clear error. See In re Cecil T., 228 W.Va. at 

91, 717 S.E.2d at 875, syl. pt. 1. To prove parental abuse and neglect in this civil case, the 

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DHHR did not need to prove sexual penetration or that the conduct occurred multiple times.12 

The appendix record reveals that the DHHR presented clear and convincing evidence that 

the respondent father showed a sexually explicit video to C.M. and D.M. and engaged in 

some sort of sexual conduct with C.M. Accordingly, this case is remanded to the circuit 

court for entry of an order adjudicating C.M., D.M., and E.M. as abused children and the 

respondent father as an abusive parent, and for further proceedings consistent with this 

opinion. 

B. The Petitioner Mother 

The DHHR’s underlying petition for abuse and neglect did not raise any 

allegations against the petitioner mother, with whom C.M. and D.M. have solely resided 

during the pendency of the circuit court proceedings and this appeal. However, while this 

matter was on appeal, the respondent father filed motions with this Court seeking to regain 

12The statute in effect at the time of the circuit court’s dismissal order defined an 

“abused child” as follows: 

“Abused child” means a child whose health or welfare is harmed 

or threatened by: 

(A) A parent, guardian or custodian who knowingly or 

intentionally inflicts, attempts to inflict or knowingly allows 

another person to inflict, physical injury or mental or emotional 

injury, upon the child or another child in the home; 

(B) Sexual abuse or sexual exploitation[.] 

W.Va. Code § 49-1-3(1)(2012), in part. 

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physical custody of the children. He argued that the children were at risk in their mother’s 

care due to an incident that occurred after the entry of the circuit court’s April 17, 2015, 

order. According to a police “Incident/Investigation Report” submitted to this Court, the 

petitioner mother was arrested in North Carolina for possession of heroin, possession of drug 

paraphernalia, and child neglect. A narcotics officer stated in this report that the petitioner 

mother was found unresponsive with bleeding needle marks on her arm, in a car that had 

been traveling an estimated ninety miles per hour and had failed to stop for police. 

According to the police report, the petitioner mother’s three-year-old child, A.M., was in the 

back seat of the car, unrestrained, in the presence of needles, including a needle containing 

a substance that the officer suspected was heroin.13 The petitioner mother, by counsel, has 

denied any criminal culpability arising from this incident. 

The custodial arrangements for C.M. and D.M. are within the jurisdiction of 

West Virginia Courts. Their custody was established by a West Virginia family court order 

in the parents’ divorce, and in the course of this abuse and neglect case, that order was 

temporarily modified pending the outcome of this appeal. Although the circumstances 

surrounding the petitioner mother’s alleged conduct are not before us for decision, this Court 

is reluctant to ignore an official police report that raises serious concern that the mother may 

13A.M. is the petitioner mother’s child from a relationship after her divorce from the 

respondent father. A.M. is not a subject child in the case sub judice. 

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be engaging in drug use and other behavior contrary to the health or welfare of C.M. and 

D.M.14 When this Court is presented with information that a child may be at risk as a result 

of a child’s custodial placement, we will take action to ensure the child’s safety: 

In cases involving the abuse and neglect of children, 

when it appears from this Court’s review of the record on appeal 

that the health and welfare of a child may be at risk as a result 

of the child’s custodial placement, regardless of whether that 

placement is an issue raised in the appeal, this Court will take 

such action as it deems appropriate and necessary to protect that 

child. 

Timber M., 231 W.Va. at 47, 743 S.E.2d at 355, syl. pt. 6. This action may include ordering 

that an existing abuse and neglect petition be amended to include additional allegations: 

“To facilitate the prompt, fair and thorough resolution of 

abuse and neglect actions, if, in the course of a child abuse 

and/or neglect proceeding, a circuit court discerns from the 

evidence or allegations presented that reasonable cause exists to 

believe that additional abuse or neglect has occurred or is 

imminent which is not encompassed bythe allegations contained 

in the Department of Health and Human Resource’s petition, 

then pursuant to Rule 19 of the Rules of Procedure for Child 

Abuse and Neglect Proceedings [1997] the circuit court has the 

inherent authority to compel the Department to amend its 

petition to encompass the evidence or allegations.” Syl. Pt. 5, In 

re Randy H., 220 W.Va. 122, 640 S.E.2d 185 (2006). 

14Although C.M. and D.M. were not in the car during the alleged incident described 

in the police report, our law recognizes that children living in the same household of a child 

who is abused or neglected may also be at risk. See W.Va. Code § 49-1-201 (2015) (defining 

“abused child” to include another child in the home); Syl. Pt. 2, In re Christina L., 194 W.Va. 

446, 460 S.E.2d 692 (1995). 

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T.W., 230 W.Va. at 176, 737 S.E.2d at 73, syl. pt. 10. In T.W. this Court ordered that on 

remand, the DHHR was to amend its petition to include allegations of abuse and neglect that 

were not previously asserted. Id. at 181, 737 S.E.2d at 78. 

Accordingly, for the protection of C.M. and D.M., the DHHR is directed to 

expeditiouslyinvestigate the factual allegations as set forth in the police report and determine 

whether the mother poses a threat to the health or welfare of these children. If the 

accusations are substantiated, the DHHR shall immediately move to amend its abuse and 

neglect petition to include allegations against the mother. 

IV. Conclusion 

For the reasons set forth above, the circuit court’s April 17, 2015, dismissal 

order is reversed. The case is remanded to the circuit court for entry of an order adjudicating 

C.M., D.M., and E.M. as abused children based upon abuse perpetrated by the respondent 

father and adjudicating the respondent father as an abusive parent, and for further 

proceedings consistent with this opinion. In addition, the DHHR shall expeditiously 

investigate the factual allegations raised against the petitioner mother in the police report and, 

if there is reason to believe that she presents a threat to the health or welfare of C.M. or 

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D.M., the DHHR shall immediately amend the abuse and neglect petition to include 

allegations against the mother. 

Reversed and Remanded with Directions. 

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