In re A.S., 21-0100

Background

DHHR filed an abuse and neglect petition (Sept. 2020) after 13-year-old A.S. disclosed sexualized touching and incestuous jokes by her father, R.S. (breasts smacked, butt smacked, and poking above the vagina).
Child Advocacy Center interview and the paternal step-grandmother’s concerns corroborated the child’s disclosures; law enforcement conducted a welfare check.
At adjudication R.S. admitted flicking the child’s breasts, smacking her butt, and poking an area “below the panty line,” but claimed the conduct was nonsexual horseplay and that their relationship was more like “buddies.”
The circuit court found the child credible, adjudicated R.S. for sexual abuse (aggravated circumstances), and ordered services; R.S. was given parenting classes and a psychological evaluation.
R.S. was noncompliant with services, made inappropriate comments to providers, missed the dispositional hearing, and received a psychological evaluation showing a poor prognosis for adequate parenting.
The circuit court found no reasonable likelihood of correction and terminated R.S.’s parental rights (Jan. 6, 2021). The Supreme Court of Appeals of West Virginia affirmed on appeal.

Issues

Issue	R.S.'s Argument	DHHR/Court's Argument	Held
Whether R.S.’s conduct was sexually motivated/aggravated circumstances	R.S.: touching was inappropriate horseplay, not sexual abuse; he was willing to change	DHHR/Court: child's disclosures plus R.S.’s admissions show sexualized conduct; credibility supports sexual abuse finding	Court: Affirmed sexual abuse adjudication — conduct was sexual in nature and credible evidence supported aggravated circumstances
Whether a finding of aggravated circumstances improperly relieved DHHR of reasonable-efforts duty	R.S.: aggravated-circumstances finding precluded reunification efforts and prejudiced him	DHHR/Court: despite finding, DHHR still provided remedial services (classes, evaluation); R.S. failed to comply	Court: No error — services were offered and R.S. failed to participate; no prejudice shown
Whether termination of parental rights was warranted under WV Code §49‑4‑604(c)(6)	R.S.: should have been given a chance to demonstrate change; termination was premature	DHHR/Court: R.S. denied responsibility, did not follow rehabilitative plan, psych prognosis poor, posed continued risk	Court: Termination affirmed — no reasonable likelihood conditions could be corrected and termination was necessary for the child’s welfare
Whether appellate review should consider alleged defects in removal or preliminary hearing	R.S.: removal and change in family dynamic should have been explored without removal/termination	DHHR/Court: R.S. waived the preliminary hearing; nonjurisdictional procedural complaints forfeited on appeal	Court: Did not consider the waived preliminary-hearing argument; appellate review limited by waiver

Key Cases Cited

In re Cecil T., 228 W. Va. 89 (W. Va. 2011) (standard of review for abuse and neglect findings)
In re F.S., 233 W. Va. 538 (W. Va. 2014) (clear-and-convincing-evidence standard in adjudication)
In re K.P., 235 W. Va. 221 (W. Va. 2015) (victim’s testimony alone can prove sexual abuse)
In re Joseph A., 199 W. Va. 438 (W. Va. 1997) (definition of abused child and proof requirements)
Michael D.C. v. Wanda L.C., 201 W. Va. 381 (W. Va. 1997) (deference to trial court on witness credibility)
In Interest of S.C., 168 W. Va. 366 (W. Va. 1981) (DHHR’s burden under §49-4-601(i) and modes of proof)
In re Timber M., 231 W. Va. 44 (W. Va. 2013) (failure to acknowledge abuse undermines treatability)
In re Kristin Y., 227 W. Va. 558 (W. Va. 2011) (termination may proceed without less restrictive alternatives when correction is unlikely)
In re R.J.M., 164 W. Va. 496 (W. Va. 1980) (termination as the statutory "most drastic remedy")
State v. Michael M., 202 W. Va. 350 (W. Va. 1998) (priorities in permanent placement considerations)
James M. v. Maynard, 185 W. Va. 648 (W. Va. 1991) (guardian ad litem duties continue until permanent placement)