In Re: E.Y., D.L.-1, and D.L.-2, 17-0791

Background

Three-year-old child E.Y. disclosed sexual touching by her stepfather S.L.; disclosures were made to a DHHR worker, the child’s father, and a paternal great-grandmother and were consistent over time.
DHHR filed abuse-and-neglect petitions against petitioner mother (D.L.-3) and S.L.; petition alleged mother knew of the abuse, failed to protect E.Y., and continued to allow S.L. contact with E.Y. and infant twins D.L.-1 and D.L.-2.
A competency evaluator found E.Y. incompetent to testify because she could not fully distinguish truth from lies; the court nevertheless took in camera testimony and considered the child’s statements as reliable based on consistency and lack of motive to lie.
Petitioner denied abuse could have occurred because S.L. was never alone with E.Y.; she admitted asking E.Y. to repeat allegations to S.L. and later continued to reside with and maintain a relationship with S.L. after the adjudication.
The circuit court adjudicated petitioner and S.L. as abusing parents, found petitioner negligently failed to protect E.Y., and at disposition found no reasonable likelihood conditions could be corrected; it terminated petitioner’s parental rights to all three children.
On appeal, petitioner argued the court improperly relied on incompetent and hearsay testimony; DHHR and guardian supported affirmance. The Supreme Court of Appeals affirmed.

Issues

Issue	Petitioner's Argument	DHHR/Court's Argument	Held
Whether the court could rely on E.Y.’s statements after a competency finding	E.Y. was found incompetent to testify; court erred to rely on her statements	Child’s disclosures were relevant and reliable due to consistency and no motive to fabricate	Court upheld use of child’s statements as admissible and properly weighed for credibility
Admissibility of DHHR worker’s testimony recounting child’s statements (hearsay)	Worker’s testimony was inadmissible hearsay and should not support adjudication or disposition	Petitioner failed to object at trial, waiving hearsay challenge; evidentiary rulings reviewed for abuse of discretion	Court found petitioner waived hearsay objection and testimony stands
Whether petitioner’s conduct constituted neglect/abuse (failure to protect)	Petitioner denied knowledge or possibility of abuse and argued testimony unreliable	Court found petitioner knew or should have known, failed to protect child, and testimony discredited petitioner’s denials	Court adjudicated petitioner as an abusing parent for failing to protect E.Y.
Whether termination of parental rights was proper	Petitioner argued conditions could be corrected; termination was undue	Court found petitioner refused to acknowledge abuse, maintained relationship with abuser, and offered no evidence of remediation; statutes require termination where no reasonable likelihood of correction	Court affirmed termination as necessary for children’s welfare

Key Cases Cited

In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (W. Va. 1996) (standard of review for circuit court factual findings in abuse/neglect cases)
In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (W. Va. 2011) (standard of review reiterated)
State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (W. Va. 1998) (evidentiary rulings reviewed for abuse of discretion)
State v. Trail, 236 W.Va. 167, 778 S.E.2d 616 (W. Va. 2015) (balancing relevance under Rules 401–403)
State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (W. Va. 1994) (Rule 403 exclusion for undue prejudice)
Brown v. Gobble, 196 W.Va. 559, 474 S.E.2d 489 (W. Va. 1996) (definition of clear and convincing standard)
In re F.S. and Z.S., 233 W.Va. 538, 759 S.E.2d 769 (W. Va. 2014) (discussion of clear-and-convincing proof in abuse and neglect cases)
In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (W. Va. 2013) (failure to acknowledge abuse makes the problem untreatable)
In re Charity H., 215 W.Va. 208, 599 S.E.2d 631 (W. Va. 2004) (acknowledgment of abuse necessary for rehabilitation)