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650 S.E.2d 243
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2007 Term
IN RE: THE MARRIAGE OF:
MISTY D. G.,
Petitioner Below, Appellee
RODNEY L. F.,
Respondent Below, Appellant
Appeal from the Circuit Court of Raleigh County
The Honorable Robert A. Burnside, Jr., Judge
Civil Action No. 02-D-346-B
Reversed and Remanded with Directions
Submitted: April 4, 2007
Filed: June 13, 2007
Steven K. Mancini
David S. Hart
Southern West Virginia Law Clinic Hayden & Hart, PLLC
Beckley, West Virginia
Beckley, West Virginia
Attorney for the Appellee Attorney for the Appellant
Stacey L. Daniel-Fragile
Fragile Law Office
Beckley, West Virginia
Guardian at Litem
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. 'In reviewing a final order entered by a circuit judge upon a review of, or
upon a refusal to review, a final order of a family court judge, we review the findings of fact
made by the family court judge under the clearly erroneous standard, and the application of
law to the facts under an abuse of discretion standard. We review questions of law de
' Syllabus, Carr v. Hancock
, 216 W.Va. 474, 607 S.E.2d 803 (2004). Syl. Pt. 1, Staton v. Staton
, 218 W.Va. 201, 624 S.E.2d 548 (2005).
2. Generally, out-of-court statements made by someone other than the
declarant while testifying are not admissible unless: 1) the statement is not being offered for
the truth of the matter asserted, but for some other purpose such as motive, intent,
state-of-mind, identification or reasonableness of the party's action; 2) the statement is not
hearsay under the rules; or 3) the statement is hearsay but falls within an exception provided
for in the rules. Syl. Pt. 1, State v. Maynard,
183 W.Va. 1, 393 S.E.2d 221 (1990).
3. The two-part test set for admitting hearsay statements pursuant to
W.Va.R.Evid. 803(4) is (1) the declarant's motive in making the statements must be
consistent with the purposes of promoting treatment, and (2) the content of the statement
must be such as is reasonably relied upon by a physician in treatment or diagnosis. Syl. Pt.
5, State v. Edward Charles L
., 183 W.Va. 641, 398 S.E.2d 123 (1990).
4. When a social worker, counselor, or psychologist is trained in play therapy
and thereafter treats a child abuse victim with play therapy, the therapist's testimony is
admissible at trial under the medical diagnosis or treatment exception to the hearsay rule,
West Virginia Rule of Evidence 803(4), if the declarant's motive in making the statement is
consistent with the purposes of promoting treatment and the content of the statement is
reasonably relied upon by the therapist for treatment. The testimony is inadmissible if the
evidence was gathered strictly for investigative or forensic purposes. Syl. Pt. 9, State v.
, 209 W.Va. 449, 549 S.E.2d 323 (2001), cert. denied
, 534 U.S. 1142 (2002).
5. In visitation as well as custody matters, we have traditionally held
paramount the best interests of the child. Syl. Pt. 5, Carter v. Carter
, 196 W.Va. 239, 470
S.E.2d 193 (1996).
6. Because of the extraordinary nature of supervised visitation, such
visitation should be ordered when necessary to protect the best interests of the children. In
determining the best interests of the children when there are allegations of sexual or child
abuse, the circuit court should weigh the risk of harm of supervised visitation or the
deprivation of any visitation to the parent who allegedly committed the abuse if the
allegations are false against the risk of harm of unsupervised visitation to the child if the
allegations are true. Syl. Pt. 3, Carter v. Carter
, 196 W.Va. 239, 470 S.E.2d 193 (1996).
This is an appeal by Rodney L. F. (hereinafter Appellant) from an order of
the Circuit Court of Raleigh County reversing a decision of the Family Court of Raleigh
County in this child custody matter. (See footnote 1) The Appellant contends that the lower court erred in
concluding that the family court improperly considered inadmissible hearsay and expert
witness opinion evidence in rendering its decision to grant the Appellant's petition for a
modification of child custody. The Appellant further contends that even if the circuit court
had been correct in its conclusion, the matter should have been remanded to the family court
for a determination regarding whether sufficient evidence remained to grant the modification
and whether the family court would permit the child to testify in light of the circuit court's
ruling. Upon thorough review of the briefs, arguments, record, and applicable precedent,
this Court reverses the decision of the Circuit Court of Raleigh County and remands this
matter with directions that the November 18, 2005, order of the family court be reinstated.
I. Factual and Procedural History
The Appellant and Misty G. (hereinafter Appellee) were divorced on August
21, 2003. The parties had one child, L.N.F., born on May 25, 1999. Pursuant to the divorce
decree, primary custody of the child was granted to the Appellant. The parties exercised
custodial time with their daughter without incident until November 20, 2003, at which time
the Appellant filed a petition for modification and emergency relief, alleging that the child
had been sexually abused by the Appellee's boyfriend, Thomas G. (See footnote 2)
The family court
temporarily suspended the exercise of custodial rights by the Appellee until such time as a
hearing could be held by the court and appointed Stacy Lynn Daniel-Fragile to serve as
guardian ad litem for the child.
On January 16, 2004, the family court entered an order granting emergency
relief and ordering the Department of Health and Human Resources, Child Protective
Services, to investigate and determine whether supervised visitation could be arranged. The
family court further ordered as follows: The child is hereby referred for a sexual abuse
assessment by a suitably licensed sexual abuse counselor, Susan McQuaide, and the
Department of Health and Human Resources is ordered to assist [the Appellant] ensuring
that the child is suitably evaluated by the counselor identified by the Court herein.
On May 4, 2005, and September 8, 2005, the family court conducted hearings
on the Appellant's petition. The guardian ad litem submitted a report indicating her
conclusion that both the Appellee and Mr. G. had been deceitful concerning Mr. G.'s access
to the child during the time in which the abuse allegedly occurred. Evidence at the family
court hearing also included testimony by the Appellant indicating that the child had begun
experiencing vaginal soreness and irritation upon returning from visits at the Appellee's
home. The Appellant indicated that the child had also begun acting out in sexually
inappropriate manners. (See footnote 3)
Ms. McQuaide testified that she had counseled the child, that the child had
identified Mr. G. as the perpetrator of the abuse, and that the child had explicitly described
the elements of the sexual abuse. Based upon the evidence presented in the hearing, the
family court found that the Appellee had demonstrated a complete unwillingness to protect
the child from abuse by Mr. G. The family court specifically noted that the Appellee had
married Mr. G. at a time when she was uncertain of the truth of the allegations of abuse; that
the Appellee had not been truthful regarding Mr. G.'s access to her daughter; that the
Appellee denied that there were wooded areas around her home where the abuse allegedly
occurred; and that other family members had confirmed that such wooded areas did exist.
The family court granted the Appellant's petition for modification and ordered that all future
visitation between the child and the Appellee should occur under the supervision of the
Women's Resource Center Supervised Visitation Program in Beckley, West Virginia.
Upon the Appellee's appeal, the circuit court reversed the family court, finding
that the family court had improperly considered expert opinion evidence from the child's
counselor, Ms. McQuaide, and had applied an improper standard of proof in deciding the
Appellant's petition. Specifically, the lower court found that the family court impermissibly
permitted Ms. McQuaide to testify regarding whether Mr. G. had abused the child and
improperly admitted Ms. McQuaide's testimony, as well as that of other family members,
regarding statements the child had allegedly made. (See footnote 4)
The lower court restored the schedule of visitation initially ordered upon the
parties' divorce. The lower court did not remand the matter to the family court for a
determination of whether the evidence properly admitted would have been sufficient to
sustain the family court's modification of custody arrangements. The Appellant maintains
that a remand would also have permitted the family court to reconsider its decision not to
allow direct testimony from the child regarding the abuse, a decision initially made based
upon the availability of the child's counselor to introduce evidence of the child's statements
concerning the abuse.
On May 12, 2006, the lower court entered an order granting the Appellant's
request for a stay of the lower court decision pending appeal to this Court.
II. Standard of Review
In syllabus point one of Staton v. Staton, 218 W.Va. 201, 624 S.E.2d 548
(2005), this Court explained as follows:
In reviewing a final order entered by a circuit judge
upon a review of, or upon a refusal to review, a final order of a
family court judge, we review the findings of fact made by the
family court judge under the clearly erroneous standard, and the
application of law to the facts under an abuse of discretion
standard. We review questions of law de novo. Syllabus, Carr
v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).
In evaluating standards of proof, this Court also recognizes that the matter
must be assessed within the context of a civil proceeding, rather than a criminal one. In Sharon B.W. v. George B.W., 203 W.Va. 300, 507 S.E.2d 401 (1998), this Court addressed
the evidentiary standards to be employed in determining whether a change in custory was
necessary where a mother's boyfriend had allegedly sexually abused a child. This Court
clearly articulated that the preponderance of the evidence was the appropriate standard to
be utilized. 203 W.Va. at 303, 507 S.E.2d at 404. With these standards of review as
guidance, we examine the arguments in this appeal.
The Appellant presents two assignments of error. First, the Appellant
maintains that the lower court erred in finding that the family court had improperly relied
upon inadmissible hearsay and expert witness testimony in rendering its decision. Second,
the Appellant contends that even if such conclusion had been correct, the lower court should
have remanded the matter to the family court for a determination of whether sufficient
evidence remained to justify the grant of custody modification and whether the family court
would reconsider its decision regarding presentation of testimony from the child. This
Court's examination of the Appellant's contentions will focus upon three distinct issues of
testimony admissibility: Ms. McQuaide's testimony regarding statements made to her by the
child during the course of treatment; Ms. McQuaide's opinion regarding the identity of the
perpetrator; and family member testimony regarding statements made by the child.
A crucial component of every facet of this evaluation is the definition of
hearsay as provided by Rule 801 of the West Virginia Rules of Evidence. Hearsay is defined
therein as follows: a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted. While hearsay
is generally not admissible, it may be admissible if it is contained within one of the
recognized exceptions. In syllabus point one of State v. Maynard, 183 W.Va. 1, 393 S.E.2d
221 (1990), this Court explained as follows:
Generally, out-of-court statements made by someone
other than the declarant while testifying are not admissible
unless: 1) the statement is not being offered for the truth of the
matter asserted, but for some other purpose such as motive,
intent, state-of-mind, identification or reasonableness of the
party's action; 2) the statement is not hearsay under the rules; or
3) the statement is hearsay but falls within an exception
provided for in the rules.
A. Testimony by Ms. McQuaide Regarding Statements of the Child
Pursuant to Rule 803(4) of the West Virginia Rules of Evidence, [t]he
following are not excluded by the hearsay rule, even though the declarant is available as a
(4) Statements for purposes of medical diagnosis or
treatment. _ Statements made for purposes of medical diagnosis
or treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.
See also Syl. Pt. 4, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990)
(restating that rule). In syllabus point five of Edward Charles L., this Court explained as
The two-part test set for admitting hearsay statements
pursuant to W.Va.R.Evid. 803(4) is (1) the declarant's motive
in making the statements must be consistent with the purposes
of promoting treatment, and (2) the content of the statement
must be such as is reasonably relied upon by a physician in
treatment or diagnosis.
The medical treatment exception to the hearsay rule, as it applies to
psychological treatment of alleged victims of child abuse, has received considerable attention
in recent years. The unique circumstances involved in such cases have prompted many states
to extend the medical treatment exception to situations in which the alleged victim makes
statements to a treatment provider regarding the identity of the abuser and information about
the abuse. Such discussions are perceived as being pertinent to the treatment being
undertaken. See Eakes v. State
, 665 So.2d 852 (Miss. 1995) (statement to physician as to
identity of abuser of child sexual abuse victim admissible under medical treatment
exception); State v. Vosika
, 731 P.2d 449 (Or. App. 1987) (allowed testimony of physician
who reasonably relied on child sexual abuse victim's identification of her abuser as a family
member in treating); Goldade v. State,
674 P.2d 721 (Wyo. 1983), cert. denied
, 467 U.S.
1253 (1984) (statements by victim to nurse and a physician identifying defendant as abuser
were admissible). (See footnote 5)
Courts have observed that 'testimony pertaining to the identity of the
defendant and the nature of the sexual assault [are] wholly relevant and pertinent to proper
diagnosis and treatment of the resulting physical and psychological injuries of sexual assault.
. . .' State v. Cruz
, 792 A.2d 823, 831 (Conn. 2002) (quoting State v. Kelly
, 770 A.2d 908,
928 (Conn. 2001)). Statements presented under the medical treatment exception which
identify the perpetrator of the sexual abuse are deemed allowable because medical
treatment in sexual abuse cases entails emotional and psychological injuries and the
necessity to protect the victim from the abuser. United States v. George
, 960 F.2d 97, 99-100
(9th Cir.1992). (See footnote 6)
Circumstances very similar to those encountered in the present case were
addressed in the criminal context in State v. Pettrey, 209 W.Va. 449, 549 S.E.2d 323 (2001), cert. denied, 534 U.S. 1142 (2002). In syllabus point nine of Pettrey, this Court explained
When a social worker, counselor, or psychologist is
trained in play therapy and thereafter treats a child abuse victim
with play therapy, the therapist's testimony is admissible at trial
under the medical diagnosis or treatment exception to the
hearsay rule, West Virginia Rule of Evidence 803(4), if the
declarant's motive in making the statement is consistent with the
purposes of promoting treatment and the content of the
statement is reasonably relied upon by the therapist for
treatment. The testimony is inadmissible if the evidence was
gathered strictly for investigative or forensic purposes.
209 W.Va. at 452, 549 S.E.2d at 326 (emphasis supplied); see also State v. Shrewsbury, 213
W.Va. 327, 329-30, 582 S.E.2d 774, 776-77 (2003). Applying that standard to the
circumstances of the present case, Ms. McQuaide's testimony relating the child's statements
would be admissible if the child's motive in making the statement was consistent with the
purposes of promoting treatment and the content was relied upon by Ms. McQuaide. The
testimony would be inadmissible if it was gathered strictly for investigative or forensic
This Court has thoroughly reviewed Ms. McQuaide's testimony, as contained
in the video-taped transcript from the family court hearing. The transcript contains extensive
discussion regarding the distinctions between forensic (investigative) and clinical (treatment)
elements. Ms. McQuaide unequivocally stated that she worked in a dual capacity, initially
evaluating the situation in a forensic manner in order to gather information necessary for
evaluation and treatment and subsequently treating the child over the course of numerous
counseling sessions. Thus, the information accumulated by Ms. McQuaide was not
gathered strictly for investigative or forensic purposes. Pettrey, 209 W.Va. at 452, 549
S.E.2d at 326. The child revealed intimate issues regarding the sexual abuse to her
counselor, Ms. McQuaide, in the process of participating in ongoing treatment. The content
of the child's statements was reasonably relied upon by Ms. McQuaide for treatment.
Consequently, this Court finds that the requirements of Pettrey for the introduction of Ms.
McQuaide's testimony regarding statements made to her by the child during counseling were
The circuit court order acknowledged that Pettrey would permit the testimony
if the motive in making the statement is consistent with the purposes of treatment. . . .
However, the circuit court found that Pettrey would not permit introduction of this testimony
because the use made of the child's out-of-court statements . . . was to find that the child
was sexually abused by the Petitioner's husband. The court concluded that it was therefore
clear that this evidence was considered not for purposes of treatment, but to support the
finding of fact that the Petitioner's husband committed the sexual abuse that was alleged.
This is an 'investigative or forensic' purpose forbidden by Pettrey.
We reverse the circuit court's finding that such testimony was inadmissible.
standard requires an examination of the child's motive in originally making
statement. On the contrary, the circuit court examined the matter in terms of the use
of the child's statement. (See footnote 7)
By so examining the statement, the circuit court
erroneously concluded that the testimony was inadmissible.
B. Ms. McQuaide's Opinion Regarding the Identity of the Perpetrator;
Family Member Testimony Regarding Statements of the Child
This Court affirms the decisions of the lower court with regard to the
inadmissibility of Ms. McQuaide's opinion that Mr. G. committed the abuse and the
inadmissibility of the child's family members' testimony regarding statements of the child.
The circuit court found that Ms. McQuaide (See footnote 8)
offered opinions beyond the field of counseling
when she was permitted to offer her personal opinion that Mr. G. had perpetrated the abuse.
Similarly, with reference to family members, the circuit court ruled that testimony by the
child's family members regarding statements made by the child constituted inadmissible
While we affirm the decisions of the circuit court that such testimony is
inadmissible, we find that the family court's error in admitting such testimony was harmless
and did not affect the ultimate outcome of this child custody modification matter. We
observe that none of the family court's seventeen findings refers to opinion evidence offered
by Ms. McQuaide regarding her personal conclusions about the identity of the perpetrator.
Nor does the family court appear to rely upon family member testimony regarding the child's
statements. The family court's ultimate alteration of custody is based upon the child's
statements as properly revealed through her counselor, Ms. McQuaide; testimony regarding
the child's physical condition; testimony regarding the child's knowledge and acting out of
sexual activity; and testimony from the child's guardian ad litem.
Based upon our review of the evidence and the reasoning of both the family
court and the circuit court, we conclude that the family court's error in admitting Ms.
McQuaide's opinion that Mr. G. committed the offenses and in admitting the family
members' hearsay testimony regarding statements of the child did not result in substantial
injustice or prejudice to substantive rights. Therefore, we consider such error harmless.
Rule 61 of the West Virginia Rules of Civil Procedure provides:
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order in
anything done or omitted by the court or by any of the parties is
ground for granting a new trial or for setting aside a verdict or
for vacating, modifying or otherwise disturbing a judgment or
order, unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every stage of
the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the
Rule 103(a) of the West Virginia Rules of Evidence also provides that [e]rror may not be
predicated upon a ruling which admits or excludes evidence unless a substantial right of the
party is affected. . . .
As this Court articulated in State v. Bradshaw,
193 W.Va. 519, 457 S.E.2d 456
(1995), cert. denied, Bradshaw v. West Virginia
, 516 U.S. 872, [t]he harmless error inquiry
involves an assessment of the likelihood that the error affected the outcome of the trial.
193 W.Va. at 539, 457 S.E.2d at 476. Our conclusion that the admission of the evidence at
issue was harmless is bolstered by the fact that this case was tried before the bench, rather
than a jury. Unlike a jury, a trial judge in a bench trial is presumed to know the law and
to follow it and 'this presumption may only be rebutted when the record affirmatively shows
otherwise.' People v. Thorne
, 817 N.E.2d 1163, 1177 (Ill. App. 2004) (quoting People v.
, 759 N.E.2d 138, 141 (Ill. App. 2001)). (See footnote 9)
The jurisprudence of this state has invariably adhered to the policy that the best
interests of the child must be the guiding force in any custody determination. The
Legislature succinctly stated:
The Legislature finds and declares that it is the public
policy of this state to assure that the best interest of children is
the court's primary concern in allocating custodial and
decision-making responsibilities between parents who do not
live together. In furtherance of this policy, the Legislature
declares that a child's best interest will be served by assuring
that minor children have frequent and continuing contact with
parents who have shown the ability to act in the best interest of
their children, to educate parents on their rights and
responsibilities and the effect their separation may have on
children, to encourage mediation of disputes, and to encourage
parents to share in the rights and responsibilities of rearing their
children after the parents have separated or divorced.
W.Va. Code § 48-9-101(b) (2001) (Repl. Vol. 2004). In advancement of this philosophy,
this Court has explained that [i]n visitation as well as custody matters, we have traditionally
held paramount the best interests of the child. Syl. Pt. 5, Carter v. Carter, 196 W.Va. 239,
470 S.E.2d 193 (1996). In Keith Allen A. v. Jennifer J.A., 201 W.Va. 736, 500 S.E.2d 552
(1997), this Court reiterated: 'In the difficult balance which must be fashioned between the
rights of the parent and the welfare of the child, we have consistently emphasized that the
paramount and controlling factor must be the child's welfare.' 201 W.Va. at 744, 500
S.E.2d at 560 (quoting In re Carlita B., 185 W.Va. 613, 629, 408 S.E.2d 365, 381 (1991)). (See footnote 10)
With specific regard to the protection offered through the mechanism of
supervised visitation, this Court has articulated the following at syllabus point three of Carter.
Because of the extraordinary nature of supervised
visitation, such visitation should be ordered when necessary to
protect the best interests of the children. In determining the best
interests of the children when there are allegations of sexual or
child abuse, the circuit court should weigh the risk of harm of
supervised visitation or the deprivation of any visitation to the
parent who allegedly committed the abuse if the allegations are
false against the risk of harm of unsupervised visitation to the
child if the allegations are true.
196 W.Va. at 241, 470 S.E.2d at 195. Recognizing that the best interests of the child are
paramount, this Court explained its ultimate rationale very concisely in In re Jason S., 219
W.Va. 485, 637 S.E.2d 583 (2006), by stating simply that [i]f the allegations of sexual
abuse are true, the risk of harm of allowing unsupervised visitation is much greater than any
harm caused by limiting . . . visitation rights. 219 W.Va. at 226, 637 S.E.2d at 590.
Upon thorough review of this matter, this Court finds that the circuit court
erred in reversing the holding of the family court. The family court correctly admitted the
testimony of Ms. McQuaide regarding the statements made by the child during treatment.
In evaluating the admissible evidence, this Court finds that the preponderance of the
evidence supports the family court's conclusion that the child suffered sexual abuse
perpetrated by Mr. G., now her mother's husband. Thus, the alteration in custody and
supervised visitation ordered by the family court was necessary and justified by the evidence
Based on the foregoing, the decision of the Circuit Court of Raleigh County
is hereby reversed, and this matter is remanded with directions that the November 18, 2005,
order of the family court be reinstated.
We follow our traditional practice in cases involving sensitive facts and use
initials to identify the last names of the parties. See In re Jeffrey R. L
., 190 W.Va. 24, 435
S.E.2d 162 (1993).
During the pendency of this action, the Appellee married Mr. G.
The sexually inappropriate actions included attempting to take nude
photographs of a child friend, inappropriate sexual touching of a child friend, and
demonstration of sexual knowledge beyond that of a young child.
The circuit court, however, did find that Ms. McQuaide was qualified as an
expert in the counseling of sexual abuse victims. The circuit court order explains as follows:
The record supports the conclusion that Ms. McQuaide has
sufficient credentials within the field of counseling sexual
offenders and sexual abuse victims. The Family Court was
correct in recognizing Ms. McQuaide as an expert on the basis
of her knowledge, skill, education and training in the field of
counseling of sexual abuse victims.
It appears, however, that the expert opinions offered by
Ms. McQuaide were not within her field of counseling. She was
permitted to offer an opinion that the Petitioner's husband had
committed the acts of abuse. Her opinion on that point is not
within her field of expertise, and it was error to admit it into
The fact that the treating entity is not a physician has not been a consistent
determining factor in these analyses. See Gohring v. State
, 967 S.W.2d 459, 461 (Tex. App.
1998) (allowing play therapist to testify child was abused by her father); Moyer v. State
S.W.2d 525, 527-28 (Tex. App.1997) (concluding statements made by patient to paramedic
were admissible); Macias v. State
, 776 S.W.2d 255, 258-59 (Tex. App.1989) (statements
made to psychologist admissible because they were made for purpose of medical diagnosis
and treatment); Torres v. State
, 807 S.W.2d 884, 886-87 (Tex. App.1991) (finding
emergency room nurse could testify as to victim's statement even though nurse was also
See also State v. Gregory,
338 S.E.2d 110, 112 (N.C. App. 1985) (permitting
testimony identifying perpetrator of sexual offenses, reasoning the physician not only
needed to know who the perpetrator was in order to plan for the psychological treatment of
the victim, but also to comply with the North Carolina child abuse reporting and treatment
As argued by the Appellant, the Circuit Court incorrectly stated that the
admissibility of the statements made by the child during sexual abuse counseling turned on
the purpose for which the statements were offered into evidence, rather than the purpose for
which the child was seeing the counselor in the first place.
The circuit court found that the record supported the conclusion of the family
court that Ms. McQuaide had sufficient credentials to be recognized as an expert on the basis
of her knowledge, skill, education, and training in the field of counseling sexual abuse
Many courts have specified that there is a presumption that a judge, in
reaching a verdict in a non-jury trial, has disregarded any improperly admitted evidence. See
State v. Clay
, 909 S.W.2d 711, 716 (Mo. App. 1995); State v. Rank
, 849 S.W.2d 230,
232-33 (Mo. App. 1993). In People v. Kriho
, 996 P.2d 158 (Colo. App. 1999), the court
explained that [t]here is a presumption that all incompetent evidence is disregarded by the
court in reaching its conclusions, and the judgment will not be disturbed unless it is clear
that the court could not have reached the result but for the incompetent evidence. 996 P.2d
at 172; see also State v. Gutierrez
, 618 P.2d 315, 317 (Haw. App. 1980) (the normal rule
is that if there is sufficient competent evidence to support the judgment or finding below,
there is a presumption that any incompetent evidence was disregarded and the issue
determined from a consideration of competent evidence only.).
See also Syl. Pt. 3, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589
(1996) (Although parents have substantial rights that must be protected, the primary goal
. . . in all family law matters . . . must be the health and welfare of the children.); David M.
v. Margaret M., 182 W.Va. 57, 60, 385 S.E.2d 912, 916 (1989) (The child's welfare is the
paramount and controlling factor in all custody matters.).