                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                FILED
In re: J.S.-1 and J.S.-2                                                   November 14, 2016
                                                                               RORY L. PERRY II, CLERK
No. 16-0472 (Kanawha County 14-JA-330 & 14-JA-331)                           SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Father T.S., by counsel Matthew A. Victor, appeals the Circuit Court of
Kanawha County’s April 26, 2016, order terminating his parental rights to seven-year-old J.S.-1
and nine-year-old J.S.-2.1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel S.L. Evans, filed its response in support of the circuit court’s order. The
guardian ad litem (“guardian”), Bryan B. Escue, 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
terminating his parental rights based on “unproven hearsay allegations of sexual abuse of a minor
infant.”2

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In October of 2014, the DHHR filed an abuse and neglect petition against petitioner in
which it alleged that he sexually abused his daughter, J.S.-1 (then five). According to the DHHR,
J.S.-1 accused petitioner of pulling down her pants and “humping” her; leaving her with another

       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). Additionally, because the children in this matter share the
same initials, the Court will refer to the children as J.S.-1 and J.S.-2 throughout this
memorandum decision.
       2
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective on May 20, 2015. In this memorandum decision, we apply the statutes as they
existed during the pendency of the proceedings below. It is important to note, however, that the
abuse and neglect statutes underwent minor stylistic revisions and the applicable changes have
no impact on the Court’s decision herein.
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man who inappropriately touched her; and allowing “a little boy who came to the house” to
“hump” her. During a forensic interview at the Child Advocacy Center (“CAC”), J.S.-1 told the
interviewer that petitioner “humped” her while she was sleeping; rubbed her “private” with his
hand and head; and did these things with his clothes off. The DHHR further alleged that
petitioner exposed the children to drug use and domestic violence in his home. According to J.S.­
2’s account, as relayed in the petition, petitioner choked and “body slammed” his girlfriend; cut
“white stuff” with a card or knife before smoking it or selling it in bars; gave the then seven­
year-old J.S.-2 marijuana and cigarettes; and called J.S.-2 a “dirty b****”. J.S.-2 could also
describe how to prepare a marijuana cigar or “blunt.” Finally, the DHHR noted petitioner’s
extensive criminal history, which included charges of battery, domestic battery, violation of a
protective order, wanton endangerment, transferring/receiving stolen property, delivery of a
controlled substance, kidnapping, and attempted murder.

        In March of 2015, the circuit court held an adjudicatory hearing. At that hearing, the
children’s mother testified that she and petitioner, who did not reside together, had joint custody
of the children through a parenting plan adopted by the Family Court of Kanawha County. She
explained that the children often stayed with petitioner overnight when there was no school. At
the outset of the children’s mother’s testimony, petitioner objected to the admission of any
evidence of the children’s out-of-court statements on hearsay grounds, and he argued that no
emotional and psychological harm had been established such that those statements were subject
to the protections available for child witnesses in child and neglect proceedings. The circuit court
overruled the objection. According to the children’s mother, J.S.-1 had been in counseling since
2014 and testifying about the underlying abuse would cause J.S.-1 emotional and psychological
harm.

       As to the allegations in the petition, the children’s mother testified that J.S.-1 initially
reported problems with her urination after returning from a visit with petitioner. It was at that
time that J.S.-1 revealed that petitioner had touched her and had “pulled down her pants and got
on top of her and was humping her. These are [J.S.-1’s] words.” J.S.-1 also told her mother that,
while in petitioner’s custody, another man touched her and a “little boy had humped her.”

        At the adjudicatory hearing, the circuit court also heard testimony from Maureen Runyon,
a forensic interviewer at the CAC. Ms. Runyon testified that J.S.-1 informed her during a
forensic interview that petitioner touched her vagina on multiple occasions and put his head on
her “private.” Ms. Runyon stated that, in an effort to illustrate petitioner’s act of putting his head
on her “private,” J.S.-1 turned around in her chair, buried her face in the cushion, and moved her
head. Ms. Runyon explained that J.S.-1’s sexual knowledge was very advanced for a five-year­
old and that her descriptions were credible given her detail and the lack of any indication that she
was coached to make the allegations against petitioner. Ms. Runyon also interviewed J.S.-2, and
she testified as to J.S.-2’s account of drug use and domestic violence in petitioner’s home, as
relayed in the petition.

        In his defense, petitioner and his girlfriend testified generally that the allegations
petitioner were false. Based on the evidence presented, the circuit court found Ms. Runyon’s
testimony to be more credible than petitioner’s and his girlfriend’s testimony. As such, the circuit
court adjudicated petitioner as an abusing parent.

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        In May of 2015, the circuit court held a dispositional hearing. At that time, petitioner was
incarcerated on a federal charge of illegally possessing a firearm, but he was present via
videoconferencing and was represented by counsel. At that hearing, petitioner testified that the
allegations against him were false and that he loved his children. The circuit court heard
testimony from the Child Protective Services worker, who recommended termination of
petitioner’s parental rights. The circuit court also took judicial notice of the evidence admitted at
the prior hearings in this matter. At the conclusion of the hearing, the circuit court found that the
conditions of abuse or neglect could not be corrected in the near future and that termination was
necessary for the children’s welfare. For those reasons, the circuit court terminated petitioner’s
parental rights to the children. This appeal followed.

       The Court has previously established the following standard of review:

               “Although conclusions of law reached by a circuit court are subject to de
       novo review, when an action, such as an abuse and neglect case, is tried upon the
       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). Further, our case law is clear that

               [t]he West Virginia Rules of Evidence . . . allocate significant discretion to
       the trial court in making evidentiary and procedural rulings. Thus, rulings on the
       admissibility of evidence . . . are committed to the discretion of the trial court.
       Absent a few exceptions, this Court will review evidentiary and procedural
       rulings of the circuit court under an abuse of discretion standard.

Syl. Pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).

        On appeal, petitioner argues that the circuit court erred in terminating his parental rights
to the children based on the “unproven hearsay allegations of sexual abuse of a minor infant.”
Petitioner claims that the circuit court erred in considering J.S.-1’s “hearsay” statements, as those
statements were presented in the testimony of the child’s mother and Ms. Runyon. In the context
of child testimony in abuse and neglect proceedings, this Court has held as follows:

              In a child abuse and neglect civil proceeding held pursuant to West
       Virginia Code § 49-6-2 (2009), a party does not have a procedural due process

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       right to confront and cross-examine 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, 397, 758 S.E.2d 747, 750 (2014). It is undisputed that the
children’s mother testified that J.S.-1 would suffer emotional and psychological harm if she were
to testify about petitioner’s abuse and that such harm outweighed the necessity of her testimony.
For that reason, the circuit court was within its discretion to exclude J.S.-1’s testimony under
Rule 8 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings.
However, as explained in In re J.S., following the exclusion of the children’s testimony due to
emotional and psychological harm, the admission of the children’s out-of-court statements into
evidence remains subject to the rule against hearsay.

        In In re J.S., this Court considered a hearsay challenge to the admission of videos of the
children in an abuse and neglect proceeding being interviewed about suffering sexual abuse at
the hands of their parents. In reviewing that evidence, this Court determined that the children’s
out-of-court video statements constituted hearsay, but explained that the videos fell under
hearsay exceptions that permitted their admission. This Court explained that

               [g]enerally, out-of-court statements made by someone other than the
       declarant while testifying are not admissible unless: 1) the statement is not being
       offered for the truth of the matter asserted, but for some other purpose such as
       motive, intent, state-of-mind, identification or reasonableness of the party’s
       action; 2) the statement is not hearsay under the rules; or 3) the statement is
       hearsay but falls within an exception provided for in the rules. Syl. Pt. 1, State v.
       Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990).

In re J.S., 233 W.Va. at 405, 758 S.E.2d at 758. Based on its review in that case, this Court
concluded that there was “no error in the circuit court’s decision to admit the videotaped
interviews of the children because the record reflects they fall under the residual exceptions to
the hearsay rules, embodied in West Virginia Rules of Evidence [Rule 807]” Id. at 406, 758
S.E.2d at 759.

         Similarly, in this case, the children’s out-of-court statements constitute hearsay, as they
were out-of-court statements by non-declarants admitted for the truth of the matter asserted, but
those statements fall under the residual exception to the hearsay rule. See W.Va. R. Evid. 801(c)
(defining hearsay); id. at Rule 807 (providing factors to evaluate residual exception to hearsay
rule). To fall under the residual exception to the hearsay rule, the out-of-court statements must
satisfy the following five factors:

              First and most important is the trustworthiness of the statement, which
       must be equivalent to the trustworthiness underlying the specific exceptions to the
       hearsay rule. Second, the statement must be offered to prove a material fact.

                                                 4


       Third, the statement must be shown to be more probative on the issue for which it
       is offered than any other evidence the proponent can reasonably procure. Fourth,
       admission of the statement must comport with the general purpose of the rules of
       evidence and the interest of justice. Fifth, adequate notice of the statement must
       be afforded the other party to provide that party a fair opportunity to meet the
       evidence.

Syl. Pt. 5, in part, State v. Smith, 178 W.Va. 104, 358 S.E.2d 188 (1987).

        Here, all five factors are satisfied. First, Ms. Runyon testified that J.S.-1’s statements
appeared trustworthy, and no evidence refuted that testimony. At the adjudicatory hearing, Ms.
Runyon stated that there was no indication that J.S.-1 was coached to provide her statements and
that her statements appeared credible due to their level of detail and their knowledge of sexual
acts. Second, the statements were admitted to prove that petitioner abused his children, a material
fact. Third, due to the nature of the sexual abuse allegations against petitioner, J.S.-1’s
statements against petitioner were clearly more probative on the issue of what occurred than any
other evidence the DHHR could have reasonably procured. Fourth, as was the case in In re J.S.,
the interest of justice was served by the admission of J.S.-1’s statements due to the restrictions on
taking the child’s testimony under Rule 8(a) of the West Virginia Rules of Procedure for Child
Abuse and Neglect. Finally, J.S.-1’s statements were relayed, not only in several areas of
discovery provided by the DHHR, but in the original abuse and neglect petition that initiated the
underlying proceedings. Therefore, because we find J.S.-1’s statements to have been admissible,
we find no merit to petitioner’s assignment of error.

       For the foregoing reasons, we hereby affirm the circuit court’s April 26, 2016, order.

                                                                                          Affirmed.

ISSUED: November 14, 2016


CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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