In re K.B.-R and L.R., 21-0362

Background

DHHR filed abuse-and-neglect petitions after Petitioner Mother discovered sexually explicit photos/videos of her children on the older child’s device; CAC and therapist interviews contained consistent disclosures implicating Respondent Father.
The circuit court held adjudicatory proceedings in July–August 2020 and conducted in camera interviews of the children (ages six and seven) in the judge’s chambers.
During L.R.’s in camera interview the judge repeatedly accused her of lying and left her crying; during K.B.-R.’s interview the judge used leading questions that elicited testimony about a supposed "plan" by Mother to fabricate allegations.
The children’s guardian ad litem (GAL) was present but did not object, did not protect or pause interviews, and later conceded limited contact with the children during the case.
The circuit court dismissed the petition largely on the in camera interviews, finding parental coaching; the West Virginia Supreme Court vacated that order, found the court’s questioning violated procedural and evidentiary rules and the GAL’s representation was deficient, and remanded for proceedings before a different judge with a new GAL.

Issues

Issue	Plaintiff's Argument (Mother)	Defendant/Court's Argument	Held
1) Were the in camera interviews conducted consistent with Rules of Procedure and Evidence?	Judge’s aggressive, accusatory and leading questioning harmed children and violated Rule 8 and Rule 611.	Court has discretion to examine children; leading questions sometimes necessary to develop testimony.	Held: Court’s manner violated Rule 8 (protecting children from psychological harm) and Rule 611 (protection from harassment; improper leading/coercive questioning).
2) Was it necessary or appropriate to conduct in camera interviews given existing CAC and other testimony?	Interviews were unnecessary because substantially equivalent CAC/video/other testimony already in record.	Implicitly: court had discretion to conduct interviews to develop record.	Held: Court assumed discretion to interview but noted it was not clear interviews were necessary; error rests on manner, not necessity.
3) Did the GAL provide effective representation?	GAL met minimally with children, failed to investigate or object during distressing in camera interviews, violating ethical and rule-based duties.	GAL defended conduct as appropriate.	Held: GAL’s representation was deficient—failed to maintain contact, failed to protect/advocate during interviews; new GAL must be appointed.
4) Appropriate remedy for procedural errors?	Vacatur and remand for new proceedings before a different judge with new GAL.	Respondent/State would rely on trial-court factfinding and discretion.	Held: Vacated dismissal; remanded for further proceedings before different circuit judge and with new GAL; decision is procedural only (no merits ruling).

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 bench findings in abuse/neglect cases)
In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (W. Va. 2011) (reiterating deferential review of circuit court factual findings)
In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (W. Va. 2001) (procedural rule violations in child-abuse proceedings may require vacatur/remand)
In re Emily G., 224 W. Va. 390, 686 S.E.2d 41 (W. Va. 2009) (vacatur/remand for substantial disregard of child-abuse procedural rules)
In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (W. Va. 1993) (child’s right to effective counsel and GAL duties)