          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).




                                               i
              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


                                               ii
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).




                                            iii
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.

                                              1

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 elementary school 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.

                                               2

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.


                                              3

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




                                              4

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 July 10, 2014, C.M. was interviewed by Elizabeth 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.

                                            5

              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.




                                             6

              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 adjudicatory hearing, 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


                                              7

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 any indication 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.

                                              8

              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.

                                              9

              Uncontradicted evidence at the adjudicatory hearing 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




                                              10

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 constitutionally-

protected 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.

                                               11

                        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)).

                                                12

              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

                                               13

              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

                                             14

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


                                              15

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.

                                                16

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


       10
        According 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.

                                              17

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


       11
         In 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.

                                              18

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 adjudicatory hearing, 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


                                             19

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

                                             20

              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

                                              21

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


                                               22

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


       12
        The 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.

                                             23

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



       13
       A.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.

                                              24

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 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).




       14
         Although 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).

                                              25

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

expeditiously investigate 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




                                               26

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

allegations against the mother.

                                            Reversed and Remanded with Directions.




                                      27

