1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re E.W.-D., E.W., A.M., and P.W.

No. 19-0855 (Monongalia County 19-JA-12, 19-JA-13, 19-JA-14, and 19-JA-15)

MEMORANDUM DECISION

Petitioner Mother S.W., by counsel Stephanie Nethken, appeals the Circuit Court of 

Monongalia County’s August 19, 2019, order adjudicating her as an abusing parent of the children

E.W.-D., E.W., A.M., and P.W.1 The West Virginia Department of Health and Human Resources 

(“DHHR”), by counsel Lee Niezgoda, filed a response in support of the circuit court’s order. The 

guardian ad litem (“guardian”), Teresa J. Lyons, filed a response on behalf of the children also in 

support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in 

adjudicating her as an abusing parent and finding that there were aggravating circumstances.2

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

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

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

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

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

Rules of Appellate Procedure.

Prior to the initiation of the instant proceedings, petitioner was the subject of abuse and 

neglect proceedings due to her issues with domestic violence. In that proceeding, petitioner was 

granted a preadjudicatory improvement period and was provided services such as parenting and 

adult life skills classes. Ultimately, that petition was dismissed and the children were returned to 

her care in July of 2018.

In January of 2019, the DHHR filed the instant child abuse and neglect petition against 

petitioner alleging that she sexually abused E.W. and E.W.-D. Specifically, the DHHR alleged that 

1

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

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

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

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

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

2

Petitioner does not assign as error the termination of her parental rights.

FILED

June 24, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

petitioner attempted to touch then-seven-year-old E.W.’s genitals and made sexual advances 

towards then-fifteen-year-old E.W.-D. The DHHR also alleged that following the dismissal of the 

prior abuse and neglect proceedings, petitioner sent A.M. and P.W. to Kentucky to live with A.M.’s

paternal grandmother and had not seen them or provided emotional or financial support for them

since.

The circuit court held an initial adjudicatory hearing in May of 2019. The DHHR presented 

the testimony of Officer Tyler Bradford of the Morgantown Police Department, who testified that 

he responded to petitioner’s home regarding an incident of sexual abuse. Upon arriving at the 

home, E.W.-D. disclosed to Officer Bradford that petitioner came home drunk and discovered that 

E.W. had written on himself with marker. E.W.-D. told the officer that petitioner instructed E.W. 

to take a shower. At some point, E.W.-D. entered the bathroom and observed petitioner’s head 

near E.W.’s genitals and heard petitioner tell E.W. to “stick it in.” Officer Bradford testified that 

E.W.-D. reported that she subsequently locked herself in her bedroom and that petitioner began 

beating on her door, screaming “I want to f*ck you” to E.W. The DHHR additionally presented 

the testimony of Officer Chad Webster of the Morgantown Police Department, who testified that 

he also responded to petitioner’s home regarding the incident of alleged sexual abuse. Officer 

Webster testified that, upon arriving at the home, he spoke with E.W., who was outside of the 

home in cold weather, did not have a shirt or shoes on, and had urinated on himself. Officer 

Webster stated that E.W. reported that petitioner instructed him to take a shower and that while he 

was in the shower, she began to touch his private parts. The child further pointed towards his groin 

while saying “private parts.” E.W. also disclosed that, after petitioner touched him, he told her that 

he did not like that and asked her to stop. Petitioner then “bashed” his shoulder. E.W. fled from 

the bathroom and hid under the table until he heard petitioner yelling for him. He then ran out of 

the house and approached a neighbor’s house for help but ran to the police when they arrived.

The DHHR then called Carly Wears, a therapist and forensic interviewer with the local 

Children’s Advocacy Center (“CAC”). Ms. Wears testified that she was a therapist for E.W.-D., 

who informed her that petitioner came home on the night of the incident and passed out on the 

living room floor due to her intoxication. Petitioner later asked E.W.-D. to turn the shower on for 

E.W. Petitioner then tried to shut E.W.-D. out of the bathroom. E.W.-D. reported to Ms. Wears 

that she entered the bathroom and observed petitioner attempting to “suck” her brother’s penis. 

E.W.-D. further reported that petitioner screamed at E.W.-D. that she wanted to “f*ck” her and 

“make [her] feel good.” Ms. Wears opined that E.W.-D. had not been coached and believed her 

disclosures were genuine. Ms. Wears also testified that she performed the forensic interview of 

E.W. According to Ms. Wears, E.W. refused to disclose sexual abuse during the interview, 

although he did describe petitioner as “unsafe.” However, Ms. Wears testified that, during the 

mental health screening she performed immediately after the interview, E.W. reported that 

petitioner had been drunk and acting crazy and that she had written something on him. E.W. further 

stated, “I did not lie to the police.”

The DHHR also called a Child Protective Services (“CPS”) worker who testified that 

petitioner abandoned her two younger children by leaving them in Kentucky with A.M.’s paternal 

grandmother around July of 2018, without providing emotional or financial support. After the CPS 

worker’s testimony, the circuit court continued the hearing.
3

In July of 2019, the circuit court took the in-camera testimony of E.W.-D. The child 

testified that she did not believe petitioner should regain custody of her children because she 

“raped” E.W. The child further explained that petitioner came home drunk on the night of the 

incident and instructed her to start a shower for E.W. E.W.-D. stated that petitioner groped her and 

inappropriately touched E.W. E.W.-D. described petitioner as “absolutely wasted” and stated that 

petitioner was “making like the worst comments that I could ever like think.” E.W.-D.’s testimony 

regarding petitioner’s actions and statements towards her was consistent with the testimony of Ms. 

Wears. E.W.-D. also testified that she pulled E.W. off of petitioner and instructed him to “just get 

out. Just run as far as you can. People are going to come and get you. Just run. Just get away.” 

E.W.-D. contacted a friend to call the police and waited in her bedroom until they arrived. E.W.-

D. stated that she opened her window when the police arrived and pointed to where E.W. was 

hiding outside. E.W.-D. testified that the situation was “really messed up” and that she “never 

want[ed] to deal with it again.” After the in-camera testimony, the circuit court continued the 

adjudicatory hearing.

The circuit court reconvened the adjudicatory hearing for a final time in August of 2019. 

Petitioner presented the testimony of three service providers who testified to the services petitioner 

received during her prior abuse and neglect case. The service providers testified that they observed 

no incidents of sexual abuse or intoxication during their sessions with petitioner in the prior 

proceedings and noted that petitioner complied with services. Petitioner also presented the 

testimony of her coworker, who testified that she was with petitioner on the night of the incident. 

The coworker testified that they drank a few beers and shots of alcohol at a bar to celebrate 

petitioner’s birthday. The coworker’s mother then drove them to petitioner’s home, where the 

coworker assisted petitioner to her door due to her intoxication. The coworker also testified that 

she overheard E.W.-D. arguing with petitioner earlier in the evening when she arrived to pick 

petitioner up. The coworker stated that E.W.-D. was angry that petitioner asked her to watch E.W. 

while petitioner went out.

Lastly, petitioner testified on her own behalf. Petitioner stated that she left A.M. and P.W. 

with A.M.’s paternal grandmother in Kentucky around October of 2018, and that she provided 

documentation for them to receive medical treatment while in the paternal grandmother’s care. 

Petitioner claimed that the children were to be returned to her around December of 2018 so that 

they could be reunited for Christmas. According to petitioner, she did not abandon A.M. and P.W.

Petitioner conceded that she received help from A.M.’s paternal grandmother and that she could 

not personally go to Kentucky to visit the children. However, petitioner claimed that the 

grandmother brought the children back to visit her once in November of 2018. Regarding the night 

of the incident, petitioner testified that she followed E.W. to the shower to “get the marker off of 

him.” Petitioner stated that she remembered that E.W. got upset, started screaming, and got out of 

the shower. After the child ran from the bathroom, petitioner got into the shower and did not follow 

E.W. Petitioner denied touching the child’s genitals, even to wash him, and further stated that 

E.W.-D. was never in the bathroom with them. Petitioner also denied screaming that she wanted 

to “f*ck” E.W.-D. Petitioner noted that E.W.-D.’s stories had changed throughout the proceedings. 

According to petitioner, E.W.-D. first said she did not observe petitioner touch E.W., but later said 

that she had to pull E.W. off of petitioner. 
4

After petitioner’s presentation of testimony, the guardian presented the testimony of O.H., 

one of the family members E.W.-D. called on the night of the incident. O.H. testified that she 

received text messages and a phone call from E.W.-D. asking for help on the night of the incident. 

O.H. stated that E.W.-D. was “crying hysterically” and told her that petitioner was “hurting” E.W. 

O.H. went to petitioner’s house to retrieve the children and, upon her arrival, E.W.-D. informed 

her that petitioner “came home drunk” and “pulled [E.W.’s] pants down and started sucking” his 

penis.

Following the close of evidence, the circuit court adjudicated petitioner as an abusing 

parent. In making its findings, the circuit court found that petitioner “abused and/or neglected the 

children” due to her failure to provide financial and emotional support. The circuit court further 

found that petitioner perpetrated sexual abuse on E.W. and E.W.-D. The circuit court noted that 

E.W.-D.’s in-camera testimony was the “most credible testimony due to her complete honesty.” It 

is from the August 19, 2019, adjudicatory order that petitioner appeals.

3

 

The Court has previously established the following standard of review in cases such as this:

“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). 

On appeal, petitioner argues that the circuit court erred in adjudicating her as an abusing 

parent. Specifically, petitioner claims that the DHHR failed to prove by clear and convincing 

3

During a later-held dispositional hearing, petitioner’s parental rights to the four children 

were terminated. E.W.-D.’s father is deceased, and she was placed in the home of her maternal 

grandmother. The permanency plan for E.W.-D. is adoption by the maternal grandmother. P.W.’s 

father voluntarily relinquished his parental rights below. P.W. is currently placed with E.W.-D. in 

the maternal grandmother’s home, but the permanency plan for P.W. is adoption by a maternal 

aunt once an Interstate Compact for the Placement of Children is completed. E.W.’s father 

successfully completed a preadjudicatory improvement period during the proceedings below, and 

E.W. has been placed in his care with a permanency plan of remaining with his father. A.M. has 

been placed with his father, who was deemed a nonabusing parent below, and the permanency plan 

for A.M. is to remain in his care.
5

evidence that she sexually abused E.W. and E.W.-D. Petitioner claims that the children’s 

disclosures regarding what occurred are inconsistent. Petitioner notes that E.W.-D. did not initially 

tell responding officers that petitioner touched E.W. However, E.W.-D. later changed her story 

and told O.H. that petitioner attempted to “suck” E.W.’s penis. Thereafter, E.W.-D. told the circuit 

court that petitioner raped her brother. Petitioner claims that these inconsistencies render E.W.-

D.’s disclosures incredible. Petitioner contends that E.W.’s disclosures were likewise incredible. 

At first, E.W. told police officers that his mother touched him inappropriately and that he had 

written all over himself with a marker. Thereafter, E.W. refused to disclose any abuse during a 

forensic interview. However, during a mental health screening, E.W. stated that petitioner 

inappropriately touched him, but that petitioner was the one who drew on him. Additionally, 

petitioner claims that, although the evidence showed that she was intoxicated when police arrived, 

she was coherent enough to ask why they were there. Accordingly, she was not so intoxicated that 

she could not remember the events of the evening. Petitioner claims that the circuit court “should 

have taken all the inconsistencies of the children[’s] statements and the fact that [petitioner] did 

not know why the police were at her home when finding abuse and neglect with aggravated 

circumstances” and that “[i]t is clear that the [c]ourt could not establish a firm belief or conviction 

that the allegations actually occurred.”4

Regarding A.M. and P.W., petitioner claims that the circuit court erred in adjudicating her

as an abusing parent when there was insufficient evidence to find that she abandoned them. 

Petitioner states that although the CPS worker testified that A.M.’s paternal grandmother had had 

the children in her care since July of 2018, the DHHR never presented the testimony of the 

grandmother to determine whether that was true. Further, petitioner testified that she had contact 

with the children and that they had only been in the grandmother’s care since October of 2018. 

Petitioner also contends that she saw the children in November of 2018 and that the children were 

to return to her care in December of 2018. Petitioner states that “[b]ecause she kept in contact with 

the children[,] had Christmas presents ready for them when they were to return[,] and kept in 

contact with [the grandmother]” she did not engage in conduct that demonstrated she intended to 

“forego her duties and responsibilities as a parent.”

4

Petitioner claims that the circuit court should not have found that there were aggravated 

circumstances in this case. West Virginia Code § 49-4-604(7)(A) (2019) provides:

(7) 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[.]

As set forth more fully above, we find no error in the circuit court’s determination that petitioner 

perpetrated sexual abuse upon E.W. and E.W.-D. Because aggravated circumstances include 

instances of sexual abuse, we find no error in the circuit court’s finding that aggravated 

circumstances were present in the instant case.
6

Having reviewed the record, we find no merit in petitioner’s arguments and further find 

that there was sufficient evidence to adjudicate petitioner as an abusing parent with regard to all 

four children. We have said:

At the conclusion of the adjudicatory hearing, the court shall make a determination 

based upon the evidence and shall make findings of fact and conclusions of law as 

to whether such child is abused or neglected. . . . The findings must be based upon 

conditions existing at the time of the filing of the petition and proven by clear and 

convincing evidence.

In re F.S., 233 W. Va. 538, 544, 759 S.E.2d 769, 775 (2014). 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.” Id. at 546, 759 S.E.2d at 

777 (citing Brown v. Gobble, 196 W. Va. 559, 564, 474 S.E.2d 489, 494 (1996)). However, “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.’” Id. at 

546, 759 S.E.2d at 777 (quoting Cramer v. W. Va. Dep’t of Highways, 180 W. Va. 97, 99 n.1, 375 

S.E.2d 568, 570 n.1 (1988)).

Pursuant to West Virginia Code § 49-1-201, an abused child includes one whose health or 

welfare is being threatened by sexual abuse. Further, West Virginia Code § 49-1-201 defines a 

“neglected child” as a child

[w]hose physical or mental health is harmed or threatened by a present refusal, 

failure or inability of the child’s parent, guardian or custodian to supply the child 

with necessary food, clothing, shelter, supervision, medical care or education, when 

that refusal, failure or inability is not due primarily to a lack of financial means on 

the part of the parent, guardian or custodian.

We first address petitioner’s claims that there was insufficient evidence to adjudicate her 

as an abusing parent with regard to E.W. and E.W.-D. Contrary to petitioner’s claims, the 

children’s disclosures were not so inconsistent as to render them incredible. E.W.-D. told police 

that she observed petitioner’s head near E.W.’s groin and heard her say “stick it in.” When O.H. 

arrived on the scene later that evening, E.W.-D. reported that petitioner attempted to perform oral 

sex on E.W. E.W.-D. also told Ms. Wears, her therapist, that petitioner attempted to perform oral 

sex on E.W. While petitioner notes that E.W.-D. told the circuit court that petitioner attempted to 

rape E.W., it is clear that E.W.-D. went on to give a more exact description of the events and 

explained that petitioner had inappropriately touched E.W. E.W.’s disclosures were likewise 

consistent. E.W. told police that his mother touched his “private parts” and motioned towards his 

genitals. Although E.W. refused to make any disclosure during the forensic interview, in the 

mental health screening performed immediately after the interview he stated that he did not lie to 

the police regarding his disclosures. As such, it is clear that the children’s disclosures of sexual 

abuse were consistent throughout the proceedings. 
7

To the extent petitioner claims that her testimony, or that of her witnesses, was more 

credible than that of E.W.-D. and other DHHR witnesses, we note that the circuit court found 

otherwise. Specifically, the circuit court found that E.W.-D. was the “most credible” and that she 

testified with “complete honesty.” Moreover, we note 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) 

(citations omitted). During the proceedings below, the circuit court weighed all of the testimony 

presented and determined that “the testimony of [E.W.-D.] . . . was more credible than that of 

[petitioner].” Accordingly, we decline to reassess the circuit court’s credibility determinations, and 

we find that it properly adjudicated petitioner as an abusing parent with regard to E.W. and E.W.-

D. based upon the evidence and testimony presented.

We likewise find that there was sufficient evidence to adjudicate petitioner as an abusing 

parent with regard to A.M. and P.W. First, we note that contrary to petitioner’s claims, the circuit 

court did not adjudicate petitioner based upon abandonment. Rather, the circuit court found that 

petitioner abused and/or neglected the children based upon her failure to provide financial or 

emotional support. Indeed, the CPS worker testified that, during the course of her investigation, 

she discovered that petitioner left the children in the care of A.M.’s paternal grandmother shortly 

after the dismissal of her prior abuse and neglect proceeding and had not provided them with 

emotional or financial support since that time. As noted above, the definition of a neglected child 

is one whose “physical or mental health is harmed or threatened by a present refusal, failure or 

inability of the child’s parent . . . to supply the child with necessary food, clothing, shelter, 

supervision, medical care or education.” W. Va. Code § 49-1-201. Again, petitioner’s argument 

largely centers on the circuit court’s credibility determination. Petitioner claims that her testimony 

demonstrated that P.W. and A.M. had only been residing in Kentucky since October of 2018, that 

she saw the children in November of 2018, and that they were to return to her care in December 

of 2018. However, as we set forth above, this Court will not reassess credibility determinations. 

Michael D.C., 201 W. Va. at 388, 497 S.E.2d at 538. Here, the circuit court heard the testimony

of both the CPS worker and petitioner and afforded their testimony weight as it saw fit. 

Accordingly, we find no error in this regard.

In sum, the evidence presented below was sufficient to demonstrate that petitioner abused 

and/or neglected all four of her children. Therefore, we find no error in the circuit court’s 

adjudication of petitioner as an abusing parent. Petitioner is entitled to no relief.

Lastly, because permanent placement for the child P.W. has not yet been achieved, this 

Court reminds the circuit court of its duty to establish permanency for the child. Rule 39(b) of 

the Rules of Procedure for Child Abuse and Neglect Proceedings requires:

At least once every three months until permanent placement is achieved as defined 

in Rule 6, the court shall conduct a permanent placement review conference, 

requiring the multidisciplinary treatment team to attend and report as to progress 

and development in the case, for the purpose of reviewing the progress in the 

permanent placement of the child.
8

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of 

Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child 

within twelve months of the date of the dispositional order. As this Court has stated, 

[t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules 

of Procedure[] for Child Abuse and Neglect Proceedings for permanent placement 

of an abused and neglected child following the final dispositional order must be 

strictly followed except in the most extraordinary circumstances which are fully 

substantiated in the record. 

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 6. Moreover, this Court has stated that 

[i]n determining the appropriate permanent out-of-home placement of a 

child under [West Virginia Code § 49-4-604(b)(6) (2019)5

], the circuit court shall 

give priority to securing a suitable adoptive home for the child and shall consider 

other placement alternatives, including permanent foster care, only where the court 

finds that adoption would not provide custody, care, commitment, nurturing and 

discipline consistent with the child’s best interests or where a suitable adoptive 

home [cannot] be found. 

Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian 

ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the child 

is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 

(1991).

For the foregoing reasons, we find no error in the decision of the circuit court, and its 

August 19, 2019, order is hereby affirmed.

Affirmed.

ISSUED: June 24, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead 

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

5

Although the Legislature amended West Virginia Code § 49-4-604 effective June 5, 2020, 

including renumbering the provisions, the amendments do not impact this case.