1 

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re E.A.-1, J.A., Jr., and E.A.-2 

No. 22-688 (Jackson County 21-JA-81, 21-JA-82, and 21-JA-83) 

MEMORANDUM DECISION

The petitioner, J.A.G.1 appeals the July 25, 2022, order of the Circuit Court of Jackson 

County terminating his parental rights to his children, E.A.-1, J.A., Jr., and E.A.-2.2 He contends 

that the circuit court committed several errors during the proceedings below and failed to make the 

necessary findings to adjudicate him as an abusing parent and to terminate his parental rights. 

Having considered the parties’ briefs and oral arguments, the submitted record, and pertinent 

authorities, we find no substantial question of law and no prejudicial error. Accordingly, a 

memorandum decision affirming the circuit court’s order is appropriate pursuant to Rule 21(c) of 

the West Virginia Rules of Appellate Procedure. 

This abuse and neglect case commenced on July 6, 2021, when the respondent, the West 

Virginia Department of Human Services (“DHS”), filed a petition contending that the petitioner 

sexually abused his daughter, E.A.-1. The petition specifically alleged: 

 

1 The petitioner is represented by William B. Summers, Esq. Attorney General Patrick 

Morrisey, Assistant Solicitor General Grant A. Newman, and Assistant Attorney General Lee 

Niezgoda represent the West Virginia Department of Human Services. Nic Dalton, Esq., is the 

children’s guardian ad litem. 

Additionally, pursuant to West Virginia Code § 5F-1-2, the agency formerly known as the 

West Virginia Department of Health and Human Resources was terminated, effective January 1, 

2024, and is now three separate agencies—the Department of Health Facilities, the Department of 

Health, and the Department of Human Services. For purposes of abuse and neglect appeals, the 

agency is now the Department of Human Services (“DHS”). 

2 We use initials instead of full names to protect the identities of the juveniles involved in 

this case. See W. Va. R. App. Proc. 40(e). Two of the children have the same initials, and, 

therefore, we refer to them as E.A.-1 and E.A.-2. 

FILED

February 13, 2024

released at 3:00 p.m.

C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

[E.A.-1], an eleven (11) year old child in the home has

disclosed to her mother, [N.L.], on June 25, 2021 that on June 24, 

2021 she awoke to her father, [J.A.G.], laying in bed with her. The 

child stated that while in her bed, [J.A.G.] put his hand under her 

shirt and was flipping her bra and started to pull on her shorts. When 

[J.A.G.] realized that the child was awake, he told her to go back to 

sleep and left the room. The child was at [J.A.G.’s] home for a 

parent/child visitation. The child sent a text to her mother stating 

that she was scared and her mother picked her up immediately.3

(Footnote added). 

At the preliminary hearing held on August 6, 2021, the DHS and the guardian ad litem 

presented testimony from three witnesses. First, a deputy from the Jackson County Sheriff’s

Office testified that she had investigated the matter after N.L. made a police report and that the 

petitioner denied the allegations when she questioned him, stating he had just covered his daughter 

with a blanket. N.L. then testified about E.A.-1 texting her to come and pick her up in the early 

morning hours of June 25, 2021. Finally, Maureen Runyon, coordinator of the Child’s Advocacy 

Center at Women’s and Children’s Hospital in Charleston, testified that she interviewed E.A.-1 on 

July 12, 2021. Ms. Runyon relayed E.A.-1’s account of what happened on June 24, 2021. She

testified that,

[E.A.-1] explained to me that she was in bed and that her 

father came in, and that he laid down beside her, and it made her 

uncomfortable. She could feel him—she used the word “cuffing.” 

She said that he had put his hand up her shirt and pulled on her bra 

strap. She was laying on her stomach, so this was up her shirt from 

behind her back—and that he had pulled, like, the waist of her 

pants—had pulled her—had pulled them out, and then cuffed her 

butt with his hand on top of her clothing. 

. . . . 

She said that she wanted what was happening to stop, and so 

she kind of raised up quickly like she had awakened and that her 

father just told her to go back to sleep, and he left her room. He got 

up quickly from the bed, told her to go back to sleep, and left the 

room. 

3 The petitioner and N.L. are divorced. Prior to the proceedings in this case, they had a 

shared custody arrangement with the children living with the petitioner Monday through Thursday 

and then staying with N.L. Friday through Sunday. N.L. was named as a non-abusing respondent 

in the abuse and neglect petition, and the permanency plan is for the children to remain in her sole 

custody. 
3

Ms. Runyon’s interview of E.A.-1 was recorded, and the circuit court admitted the recording into 

evidence upon motion of the DHS. Based upon all this evidence, the circuit court ratified the 

petition and scheduled an adjudicatory hearing. 

The parties appeared for the adjudicatory hearing on October 7, 2021. Over the petitioner’s 

objection, the circuit court granted a motion made by the DHS for the court to take judicial notice 

of the testimony given at the preliminary hearing. The petitioner then testified on his own behalf 

denying the allegations set forth in the petition and claiming that he just covered his daughter with 

a blanket. The petitioner stated that he and E.A.-1 had “a little argument” earlier in the evening 

because he had bought a toy for his youngest son and that he went into her room to check on her. 

When asked on cross-examination about E.A.-1’s contention that he had laid down beside her, the 

petitioner testified:

I just put my head down, just—when I covered her up, I just 

rub hers back, paw (phonetic) hers butt and just put my head down, 

like that and just leave. I just—but before I leave, I just see cookies 

at hers foot. I just grab the cookies and just walk away. I just went 

right to my bedroom, because I knew the next day that I get up early. 

 

On November 12, 2021, the circuit court entered its adjudicatory order, finding the 

petitioner to be an abusing parent. The court found that “there is evidence for this Court to 

conclude that [the petitioner’s] touching of [E.A.-1’s] back and buttocks was for the purpose of 

his own sexual gratification. While the evidence appears to support a finding of one isolated 

incident, the evidence still reveals inappropriate sexual contact . . . the testimony of [E.A.-1] 

indicated this to be an unusual pattern of behavior whereby [the petitioner] touched her back, 

including her bra strap, pulled on her shorts so he could see her naked buttocks, and touched the 

buttocks of a pre-teenaged girl while she was thought to be sleeping.” 

Upon entry of the adjudicatory order, the petitioner sought an improvement period which

was subsequently denied. Thereafter, the DHS filed a motion seeking termination of the 

petitioner’s parental rights. After two continuances, the disposition hearing was held on May 9, 

2022.4 At the beginning of the hearing, the petitioner sought to continue the matter again, arguing 

4 The first scheduled disposition hearing was continued because the petitioner was ill. The 

next hearing was continued because the petitioner sought to investigate potential exculpatory 

evidence. At the beginning of the third scheduled hearing on May 9, 2022, the petitioner’s attorney 

advised the circuit court that with regard to the alleged exculpatory evidence,

[I]nformation came to me that the child here had recanted 

her allegation against her father and had spoken to friends at school 

about that. We had continued the dispositional hearing to allow me 

to explore that issue, and I did, and spoke to the girls, the student, 

who brought this information forward. I spoke to her father on two 

occasions. He never would allow me to speak to the child, and he 

had told me that he would make arrangements to bring his daughter 

to my office so I could interview her, and he never did that.
4

the case should be continued until such time that he was indicted, noting that although he had been 

criminally charged for sexual abuse by a parent, he had not yet been indicted. The circuit court 

denied the motion and then heard testimony from the DHS’s Child Protective Services case 

manager who recommended termination of the petitioner’s parental rights. The case manager 

explained that in sexual abuse cases, the DHS does not seek to reunify the family. The circuit 

court then terminated the petitioner’s parental rights by order entered on July 25, 2022, finding no 

reasonable likelihood that conditions of abuse and neglect could be corrected in the near future. 

This appeal followed. 

Our standard of review for abuse and neglect cases is well established. In syllabus point 

one of In the Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996), this Court held:

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.

With this standard in mind, we consider the petitioner’s assignments of error. 

The petitioner first contends that the circuit court erred by not complying with the 

timeframes for hearings as set forth in the West Virginia Rules of Procedure for Child Abuse and 

Neglect Proceedings. However, he also argues that the circuit court should have given him 

additional time to investigate potential exculpatory evidence. The record reflects that the 

continuances that were granted by the circuit court were upon motions of the petitioner. He sought 

a continuance before the preliminary hearing and three continuances of the disposition hearing, 

one of which was granted to provide him additional time to investigate potential exculpatory 

evidence. Notably, at the beginning of the May 9, 2022, disposition hearing, the petitioner’s 

counsel explained to the court the nature of the alleged exculpatory evidence but did not seek yet 

another continuance for that reason. Instead, the petitioner sought to further delay the disposition 

hearing until such time that he was indicted on a criminal charge. The circuit court did not err in 

denying that motion for a continuance as Rule 5 of the West Virginia Rules of Procedure for Child 

The DHS and guardian ad litem then informed the circuit court that they each investigated the 

alleged recantation and that it was denied by both the child to whom the recantation was 

supposedly made and E.A.-1. 
5

Abuse and Neglect Proceedings provides: “Under no circumstances shall a civil child abuse and 

neglect proceeding be delayed pending the initiation, investigation, prosecution or resolution of 

any other proceeding, including, but not limited to, criminal proceedings.” Having carefully 

reviewed the record, we find that at most there was a seventeen-day delay between the adjudicatory 

hearing and the circuit court’s first scheduled disposition hearing,

5 which was then continued upon 

the petitioner’s motion. The petitioner has not come forward with any evidence to show how he 

was prejudiced by this delay. While we have long expressed disapproval of “unjustified procedural 

delays”6 in abuse and neglect cases, in this instance, we are unable to find that the circuit court

“substantially disregarded or frustrated the abuse and neglect process”7 so as to afford the 

petitioner any relief, especially since the disposition hearing was further continued twice upon 

motions made by the petitioner. 

The petitioner next argues that the circuit court erred by denying the motion he made at the 

preliminary hearing to dismiss the abuse and neglect petition on the basis that it failed to set forth 

sufficient facts to support a finding of sexual abuse. Having carefully reviewed the petition, we 

find no merit to this argument. As set forth above, the petition provided the specific details of the 

disclosure made by E.A.-1 to N.L. In addition, the petition alleged that “a child in the home has 

been sexually abused pursuant to W.Va. Code § 49-1-201(1)(B).” This Court has previously held 

that “[i]f the allegations of fact in a child neglect petition are sufficiently specific to inform the 

custodian of the infants of the basis upon which the petition is brought, and thus afford a reasonable 

opportunity to prepare a rebuttal, the child neglect petition is legally sufficient.” Syl. Pt. 1, State v. 

Scritchfield, 167 W. Va. 683, 280 S.E.2d 315 (1981). Here, we find that the petition contained the 

requisite specificity to give the petitioner a reasonable opportunity to prepare a rebuttal and, 

therefore, was legally sufficient. 

The petitioner also challenges the circuit court’s decision at the adjudicatory stage of the 

proceedings to grant the DHS’s motion to take judicial notice of the testimony given at the 

5 Rule 32(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect 

Proceedings provides that the disposition hearing shall commence within forty-five days of entry 

of the adjudicatory order unless an improvement period is granted. Here, the adjudicatory order 

was entered on November 12, 2021, and the disposition hearing was initially scheduled for January 

13, 2022. There is no explanation in the record regarding why the hearing was not scheduled within 

the forty-five-day timeframe. 

 6 See Syl. Pt. 1, in part, In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991) (“Child 

abuse and neglect cases must be recognized as being among the highest priority for the courts’

attention. Unjustified procedural delays wreak havoc on a child’s development, stability and 

security.”). 

7 See Syl. Pt. 5, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001) (“Where it appears 

from the record that the process established by the Rules of Procedure for Child Abuse and Neglect 

Proceedings and related statutes for the disposition of cases involving children adjudicated to be 

abused or neglected has been substantially disregarded or frustrated, the resulting order of 

disposition will be vacated and the case remanded for compliance with that process and entry of 

an appropriate dispositional order.”). 
6

preliminary hearing. The petitioner argues that circuit court erred in that regard because the burden 

of proof at the adjudicatory hearing is clear and convincing evidence as opposed to probable cause,

the lower standard of proof that applies at the preliminary stage of the proceedings. Upon review, 

we find that the petitioner has misconstrued the effect of the circuit court’s granting of the DHS’s 

motion. In this circumstance, the circuit court does not accept the prior testimony as “true” as the 

petitioner claims, but rather considers the testimony along with any additional evidence submitted 

to determine whether the burden of proof applicable at the current stage of the proceedings has 

been met. For instance, in In re G.H., P.H. Jr., K.H. and H.H., No. 14-302, 2014 WL 4347173 

(W. Va. August 29, 2014) (memorandum decision), also an abuse and neglect case, this Court 

found “no error in the circuit court taking judicial notice of G.H.’s testimony from the [prior] 

guardianship proceeding.” Id. at *4. We noted that “the circuit court did proceed on the abuse 

and neglect petition de novo, the judicial notice of the prior guardianship proceedings 

notwithstanding” and “afforded [petitioner] the right to recall any of the witnesses [from the prior 

guardianship proceeding] to cross[-]examine them.” Id. (additional quotations omitted). Our 

review of the record in this case shows the same occurred here. While the circuit court took judicial 

notice of the preliminary hearing testimony, it advised the petitioner that he could call any 

witnesses he desired in rebuttal. Indeed, the petitioner had the opportunity to call the witnesses 

who testified at the preliminary hearing to provide additional testimony. Accordingly, we find no 

merit to this argument. 

The petitioner next asserts error because he was not given the opportunity to cross-examine 

E.A.-1 during the adjudicatory hearing. This Court has held:

In a child abuse and neglect civil proceeding . . . a party does 

not have a procedural due process right to confront and crossexamine a child. Under Rule 8(a) of the West Virginia Rules of 

Procedure for Child Abuse and Neglect Proceedings, there is a 

rebuttable presumption that the potential psychological harm to the 

child outweighs the necessity of the child’s testimony. The circuit 

court shall exclude this testimony if it finds the potential 

psychological harm to the child outweighs the necessity of the 

child’s testimony.

Syl. Pt. 7, In re J.S., 233 W. Va. 394, 758 S.E.2d 747 (2014). Here, the record reflects that the 

petitioner never came forward with any evidence to rebut the presumption. In fact, at the 

adjudicatory hearing, the petitioner, by counsel, conceded, “We don’t get to—We don’t get the 

opportunity, of course, to question her, so the Court, I guess—and the Court has taken judicial 

notice of the interview she gave Ms. Runyon.” Given that the petitioner never sought to elicit 

testimony from E.A.-1 during the proceedings below, he cannot now claim error in that regard. 

“‘Our general rule is that nonjurisdictional questions . . . raised for the first time on appeal, will 

not be considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W. Va. 333, 349 n.20, 524 S.E.2d 

688, 704 n.20 (1999).” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 

650, 653 (2009).

The petitioner next argues that the circuit court did not make adequate findings to 

adjudicate him as an abusing parent. Specifically, the petitioner challenges the circuit court’s 
7

finding that he sexually abused E.A.-1, contending that there was no evidence to support the 

element of sexual gratification. He also asserts that the circuit court’s determination that E.A.-1’s

testimony was more credible than his was erroneous. Under West Virginia Code § 49-1-201 

(2018) “sexual abuse” means “[s]exual intercourse, sexual intrusion, sexual contact, or conduct 

proscribed by § 61-8C-3 of this code, which a parent, guardian, or custodian engages in, attempts 

to engage in, or knowingly procures another person to engage in, with a child,” and “sexual contact 

means sexual contact as that term is defined in § 61-8B-1 of this code.” West Virginia Code § 61-

8B-1 (2007) defines “sexual contact” as 

any intentional touching, either directly or through clothing, 

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

person, or intentional touching of any part of another person’s body 

by the actor’s sex organs, 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. 

This Court has previously observed that the element of sexual gratification is a “matter[] which 

the average juror can understand from the facts surrounding the defendant’s conduct at the time 

the crime was committed based on his [or her] own common sense view of human affairs.” State 

v. Mitter, 168 W. Va. 531, 538, 285 S.E.2d 376, 380 (1981). 

Here, the circuit court as the trier of fact8 heard testimony from both the petitioner and the 

child through her recorded interview. In addition, the circuit court heard the testimony of Ms. 

Runyon, who was classified as an expert in the field of forensic interviews of children. With 

respect to the petitioner, the circuit court found: 

[Petitioner] admitted to touching [E.A.-1’s] butt. He further 

admitted being in her room after midnight. [Petitioner] asserted 

[E.A.-1] and he had gotten into an argument and he was there 

checking on her in that regard. Such testimony is not supported by 

the evidence. 

[Petitioner] further stated he put a blanket on [E.A.-1] and 

that is why he touched her buttocks.

The Court does not find this testimony credible. In fact, this 

Court finds that his testimony reflects various inconsistencies which 

further supports the minor’s interview. 

Conversely, the circuit court found “the video interview of [E.A.-1] [is] credible. [E.A.-1] provided 

great detail regarding [petitioner’s] inappropriate behavior . . . [E.A.-1’s] testimony did not appear 

to be a result of coaching or prior preparation.” 

8 See In re Emily, 208 W. Va. 325, 339, 540 S.E.2d 542, 556 (2000) (“[I]n the context of 

abuse and neglect proceedings, the circuit court is the entity charged with weighing the credibility 

of witnesses and rendering findings of fact.”). 
8

This Court has made clear that credibility determinations are for the trier of fact, explaining 

that “[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.” Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 

531, 538 (1997). Based on the testimony presented and its credibility determinations, the circuit 

court ultimately found that there was evidence “to conclude [petitioner’s] touching of [E.A.-1’s] 

back and buttocks was for the purpose of his own sexual gratification” and that “based upon the 

totality of the circumstances in this case, that [petitioner] has abused [E.A.-1].”9 Under our 

standard of review, we “must affirm a finding if the circuit court’s account of the evidence is 

plausible in light of the record viewed in its entirety.” In the Interest of Tiffany Marie S., 196 W.

Va. at 180, 470 S.E.2d at 226, syl. pt. 1, in part. Upon review, we find no basis to set aside the 

circuit court’s findings. 

The petitioner’s final assignment of error is that the circuit court did not make adequate 

findings to terminate his parental rights. He asserts that the circuit court should have employed a 

less restrictive alternative disposition instead of accepting the DHS’s stated policy of termination 

in cases of sexual abuse. We find no merit to the petitioner’s argument because the DHS’s policy

in these circumstancesis controlled by statute. In that regard, West Virginia Code § 49-4-604(c)(7)

(2020), provides, in pertinent part:

For purposes of the court’s consideration of the disposition 

custody of a child pursuant to this subsection, the department is not 

required to make reasonable efforts to preserve the family if the 

court determines:

(A) The parent has subjected the child, another child of the 

parent or any other child residing in the same household or under 

the temporary or permanent custody of the parent to aggravated 

circumstances which include, but are not limited to, abandonment, 

torture, chronic abuse, and sexual abuse[.]

 

(Emphasis added). In addition, under West Virginia Code § 49-4-604(d)(5), there is no reasonable 

likelihood that the conditions of abuse and neglect can be substantially corrected when 

9 The circuit court further found that J.A., Jr., and E.A.-2 were abused children because,

“[w]here there is clear and convincing evidence that a child 

has suffered physical and/or sexual abuse while in the custody of his 

or her parent(s), guardian, or custodian, another child residing in the 

home when the abuse took place who is not a direct victim of the 

physical and/or sexual abuse but is at risk of being abused is an 

abused child under W. Va. Code, 49-1-3(a) (1994) [now W. Va. 

Code § 49-1-201 (2017)].” Syllabus point 2, In re Christina L., 194 

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

Syl. Pt. 3, In re A.M., 243 W. Va. 593, 849 S.E.2d 371 (2020). 
9

[t]he abusing parent or parents have repeatedly or seriously 

injured the child physically or emotionally, or have sexually abused 

or sexually exploited the child, and the degree of family stress and 

the potential for further abuse and neglect are so great as to preclude 

the use of resources to mitigate or resolve family problems, or assist 

the abusing parent or parents in fulfilling their responsibilities to the 

child[.] 

This Court has held that “‘[t]ermination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, [West Virginia Code § 49-4-

604 (2020)] may be employed without the use of intervening less restrictive alternatives when it

is found that there is no reasonable likelihood under [West Virginia Code § 49-4-604(c)] that 

conditions of neglect or abuse can be substantially corrected.’ Syl. Pt. 2, In re R.J.M., 164 W. Va. 

496, 266 S.E.2d 114 (1980).” Syl. Pt. 3, In re D.P., 245 W. Va. 791, 865 S.E.2d 812 (2021). 

Accordingly, the circuit court did not err in terminating the petitioner’s parental rights. 

For the reasons set forth above, we affirm the circuit court’s July 25, 2022, order. 

Affirmed.

ISSUED: February 13, 2024

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Elizabeth D. Walker

Justice John A. Hutchison

Justice William R. Wooton

Justice C. Haley Bunn