In Re: D.L.-1 and D.L.-2, 17-0799

Background

DHHR investigated allegations that petitioner (step‑father S.L.) sexually abused three‑year‑old E.Y.; E.Y. disclosed that petitioner touched her "piggy bug" (vagina) at night in her bedroom.
DHHR filed abuse and neglect petition against petitioner and the mother; twins D.L.-1 and D.L.-2 (one‑year‑old) were also children at risk.
The circuit court conducted in camera testimony of E.Y. and ordered a competency evaluation; the evaluator found E.Y. not competent to testify because she could not fully appreciate truthfulness.
The DHHR worker testified to E.Y.’s out‑of‑court disclosures (and consistent reports to father and paternal great‑grandmother); the court continued hearings to receive the competency report and later admitted the worker’s testimony without objection.
The circuit court found E.Y.’s statements consistent, reliable, and unmotivated by fabrication; adjudicated petitioner an abusing parent and, at disposition, terminated his parental rights to the twins as being at continued risk.

Issues

Issue	Petitioner's Argument	DHHR/Court's Argument	Held
Whether petitioner may be adjudicated an abusing parent based on statements from a child found incompetent to testify	The adjudication rested on E.Y.’s in camera testimony and other statements from a child deemed incompetent to testify, so the evidence should have been disregarded	The court relied on additional admissible evidence (DHHR worker’s testimony about E.Y.’s consistent out‑of‑court statements), and petitioner did not object to that testimony below	Adjudication affirmed: child’s statements (including through DHHR worker) were reliable and admissible; competency finding did not preclude consideration of consistent out‑of‑court statements
Whether hearsay objections to DHHR worker’s testimony were preserved	Petitioner contends the court improperly relied on hearsay from the DHHR worker recounting E.Y.’s statements	Petitioner failed to object at trial; failure to object waives evidentiary objections on appeal	Hearsay objection waived for failure to object; testimony constitutes part of record
Whether considering in camera testimony and related statements was unfairly prejudicial	Implied claim that admitting such statements was prejudicial given child’s incompetence	Court found statements probative, consistent across time and reporters, with no motive to lie or coercion; petitioner raised no Rule 403 objections	No abuse of discretion in admitting/considering the statements; no undue prejudice shown
Whether termination of parental rights was supported by clear and convincing evidence	Implied: petitioner suggests insufficient reliable evidence justified termination	Court applied clear and convincing standard, finding sexual abuse proved and twins at continued risk; no reasonable likelihood conditions could be corrected; termination in children’s best interest	Dispositional termination affirmed as supported by clear and convincing evidence

Key Cases Cited

In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (W. Va. 1996) (standard for reviewing circuit court factual findings in nonjury abuse and neglect cases)
In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (W. Va. 2011) (articulating standard of review for abuse and neglect cases)
State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (W. Va. 1998) (abuse of discretion standard for evidentiary rulings)
State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (W. Va. 1994) (Rule 403 balancing of relevance and unfair prejudice)
State v. Trail, 236 W.Va. 167, 778 S.E.2d 616 (W. Va. 2015) (discussing admissibility and relevance principles)
Brown v. Gobble, 196 W.Va. 559, 474 S.E.2d 489 (W. Va. 1996) (definition of clear and convincing standard)
W.Va. Dep't of Health & Human Res. ex rel. Wright v. Doris S., 197 W.Va. 489, 475 S.E.2d 865 (W. Va. 1996) (silence or failure to rebut probative evidence may be considered by court)