In Re F.S. and Z.S.
233 W. Va. 538
W. Va.2014Background
- DHHR filed abuse-and-neglect petitions alleging respondent father sexually abused his daughter F.S.; petitions also sought protection for sibling Z.S. because he lived in the home.
- Allegations first reported July 2011; F.S., then eight, described repeated incidents in which her father got into bed with her, rubbed his penis on her legs/vagina, and “wet” on her; she gave sensory details ("squishy," smell, position).
- Investigators (CPS worker Connie Carpenter and Detective Shanna Modesitt) and therapist Mary Gable interviewed F.S.; Gable conducted ~35 therapy sessions and found the child’s statements consistent with sexual abuse and saw no coaching indicators.
- Respondent denied abuse, pointed to inconsistencies (child sometimes said she was asleep or did not “see” acts), highlighted polygraph failure and instances where F.S. refused to disclose in other settings; a criminal trial resulted in acquittal.
- The circuit court dismissed the DHHR petition, finding doubts and inconsistencies left the State short of the clear-and-convincing standard; the guardian ad litem appealed.
- The Supreme Court of Appeals reversed, holding the totality of the evidence (consistent, sensory-detailed child statements and corroborating investigative/therapeutic testimony) met the clear-and-convincing standard and remanded for adjudication and disposition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence met the statutory clear-and-convincing standard to adjudicate F.S. abused | Child’s multiple interviews, consistent sensory details, therapist and CPS/deputy testimony establish sexual abuse by clear and convincing evidence | Inconsistencies (claims of being asleep, not seeing acts), prior refusals to disclose, polygraph failure, expert skepticism undermine proof | Reversed: totality of evidence produced firm conviction abuse was highly probable; clear and convincing standard satisfied |
| Whether credibility issues (inconsistencies, selective silence) required dismissal | These weaknesses do not overcome cumulative corroborative evidence and child-appropriate detail | Credibility flaws render testimony unreliable and insufficient for adjudication | Court gave deference to trial court credibility findings but concluded appellate review left firm conviction trial court erred; child’s credibility upheld sufficiently |
| Effect of lack of physical evidence and acquittal on civil adjudication | Absence of physical proof or criminal conviction does not preclude civil adjudication under lower standard | Acquittal and no physical evidence weigh against civil finding | Court: criminal acquittal irrelevant; civil clear-and-convincing standard is intermediate and satisfied despite no physical evidence |
| Whether sibling (Z.S.) is an abused child due to residing in home where abuse occurred | If abuse is proven, other children in home are at risk and qualify as abused children under WV law | Defense not directly contesting risk-based classification here | Court ordered adjudication of both children: abuse finding as to F.S. supports finding Z.S. at risk and adjudicated abused |
Key Cases Cited
- In re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (W. Va. 1996) (appellate standard: factual findings in bench trials reviewed for clear error; deference on credibility).
- In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (W. Va. 1996) (best interests of child paramount; parental rights substantial but not absolute).
- In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (W. Va. 1995) (State must prove conditions existing at filing by clear and convincing evidence).
- In re Tyler D., 213 W.Va. 149, 578 S.E.2d 343 (W. Va. 2003) (reversed dismissal where multiple experienced witnesses found child’s allegations credible despite no physical evidence).
- In re Katelyn T., 225 W.Va. 264, 692 S.E.2d 307 (W. Va. 2010) (reversal where evidence met clear-and-convincing threshold for sexual abuse).
- Brown v. Gobble, 196 W.Va. 559, 474 S.E.2d 489 (W. Va. 1996) (definition of clear and convincing standard).
- Cramer v. W. Va. Dept. of Highways, 180 W.Va. 97, 375 S.E.2d 568 (W. Va. 1988) (clear-and-convincing is intermediate standard).
- Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (parental rights as protected liberty interest).
- In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (W. Va. 1993) (children’s welfare as primary concern in abuse/neglect cases).