IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2010 Term
IN RE: KATELYN T. AND JOEL T.
Appeal from the Circuit Court of Harrison County
Honorable James A. Matish, Judge
Juvenile Action Nos. 08-JA-66-3 and 08-JA-67-3
REVERSED AND REMANDED
Submitted: March 3, 2010
Filed: April 14, 2010
Kaufman & McPherson, PLLC
Bridgeport, West Virginia
Petitioner and Guardian ad litem
on behalf of the minor children,
Katelyn T. and Joel T.
Bridgeport, West Virginia
Counsel for the Respondent,
Darrell V. McGraw, Jr.
Charleston, West Virginia
Katherine M. Bond
Assistant Attorney General
White Hall, West Virginia
Attorneys for the Petitioner,
West Virginia Department of
Health and Human Resources
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. Although conclusions of law reached by a circuit court are subject to
review, when an action, such as an abuse and neglect case, is tried upon the facts
without a jury, the circuit court shall make a determination based upon the evidence and shall
make findings of fact and conclusions of law as to whether such child is abused or neglected.
These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding
is clearly erroneous when, although there is evidence to support the finding, the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn a finding simply because it
would have decided the case differently, and it must affirm a finding if the circuit court's
account of the evidence is plausible in light of the record viewed in its entirety. Syllabus
point 1, In the Interest of: Tiffany Marie S.,
196 W. Va. 223, 470 S.E.2d 177 (1996).
2. 'W. Va. Code, 49-6-2(c) , requires the State Department of
Welfare [now the Department of Human Services], in a child abuse or neglect case, to prove
'conditions existing at the time of the filing of the petition . . . by clear and convincing
proof.' . . . . Syllabus Point 1, In Interest of S.C.
, 168 W. Va. 366, 284 S.E.2d 867 (1981).
Syllabus Point 1, West Virginia Department of Human Services v. Peggy F.
, 184 W. Va. 60,
399 S.E.2d 460 (1990).' Syllabus Point 1, In re Beth
, 192 W. Va. 656, 453 S.E.2d 639
(1994). Syllabus point 3, in part, In re Christina L.
, 194 W. Va. 446, 460 S.E.2d 692
3. 'Termination of parental rights of a parent of an abused child is
authorized under W. Va. Code
, 49-6-1 to 49-6-10, as amended, where such parent contends
nonparticipation in the acts giving rise to the termination petition but there is clear and
convincing evidence that such nonparticipating parent knowingly took no action to prevent
or stop such acts to protect the child. Furthermore, termination of parental rights of a parent
of an abused child is authorized under W. Va. Code
, 49-6-1 to 49-6-10, as amended, where
such nonparticipating parent supports the other parent's version as to how a child's injuries
occurred, but there is clear and convincing evidence that such version is inconsistent with the
medical evidence.' Syl. Pt. 2, In re Scottie D.
, 185 W. Va. 191, 406 S.E.2d 214 (1991).
Syllabus point 5, West Virginia Department of Health and Human Resources ex rel. Wright
v. Doris S.
, 197 W. Va. 489, 475 S.E.2d 865 (1996).
4. 'Implicit in the definition of an abused child under West Virginia Code
§ 49-1-3 (1995) is the child whose health or welfare is harmed or threatened by a parent or
guardian who fails to cooperate in identifying the perpetrator of abuse, rather choosing to
remain silent.' Syllabus Point 1, W. Va. Dept. of Health & Human Resources v. Doris S.
W. Va. 489, 475 S.E.2d 865 (1996). Syllabus point 2, In re Harley C.
, 203 W. Va. 594, 509
S.E.2d 875 (1998).
The appellants herein, the guardian ad litem for the minor children (hereinafter
GAL) and the West Virginia Department of Health and Human Resources (hereinafter
DHHR), jointly appeal from a February 25, 2009,
(See footnote 1)
order from the Circuit Court of Harrison
County. By that order, the circuit court dismissed the abuse and neglect case against the
appellee mother, April P.
(See footnote 2)
(hereinafter April or mother), and her boyfriend, Michael A.,
Sr. (hereinafter Michael or boyfriend),
(See footnote 3)
and ordered that the children, Katelyn T.
(hereinafter Katelyn) and Joel T. (hereinafter Joel), be returned immediately to their
mother's custody. On appeal to this Court, the GAL and the DHHR argue that the circuit
court rulings were in error. They contend that the clear and convincing evidence shows that
the minor children were sexually abused by the mother's boyfriend and, further, that the
mother's refusal to recognize the abuse illustrates her inability to protect them. Based on the
parties' arguments, the record designated for our consideration, and the pertinent authorities,
we reverse the rulings made by the circuit court, and remand the case for further proceedings
consistent with this opinion.
FACTUAL AND PROCEDURAL HISTORY
The minor children at issue in this case are Katelyn
(See footnote 4)
(See footnote 5)
biological parents April and Joshua T.
(See footnote 6)
The evidence shows that the children had resided
on the mother's family's farm for the majority of their lives. During their time on the family
farm, the children lived mainly with their maternal grandmother, Charlotte P. (hereinafter
grandmother or Charlotte), both with and without their mother. The maternal aunt, Janet
P. (hereinafter aunt or Janet), was materially involved with the children's care and
upbringing and lived at her own residence, also located on the family farm. At times, the
children lived in Janet's home. April lived on this family property for much of the time until
June 2007 when she left the farm and moved in with her boyfriend, Michael.
(See footnote 7)
moved from the family farm, the children continued to reside primarily with their
grandmother, Charlotte, at her residence. The testimony before the circuit court showed that
April, the mother, would take the children for weekends initially, and that this time grew to
be alternating weeks with the children spending a week at Charlotte's home, followed by a
week with April at her boyfriend's house.
(See footnote 8)
The grandmother and the aunt first became concerned when the children were
found, on two occasions, running around naked. When questioned about the behavior, the
children stated that the mother's boyfriend had told them to take their clothes off. The aunt
testified that she could no longer overlook the children's behavioral oddities after an incident
at the end of March 2008 when Katelyn stated that the boyfriend's pee pee had white
milk squirt from it, that she had touched it, and that it was big and ugly. On May 14, 2008,
the aunt, Janet, sought an emergency protective order based on the allegations set forth by
(See footnote 9)
The requested relief was granted, and a final hearing was held May 27, 2008. At
this final hearing, April agreed to continue the matter so that the children could undergo a
sexual abuse evaluation, and she further agreed that the children could continue to live with
the grandmother, with care also being provided to her children by the aunt. It was
determined that Margaret Tordella would perform the evaluations.
(See footnote 10)
A hearing was held on
June 6, 2008, and the emergency protective order was reaffirmed. On November 10, 2008,
during a hearing regarding the emergency protective order, the parties revealed the intent to
file a private abuse and neglect petition. On that date, an order was issued terminating the
emergency protective order, effective at the end of the day on November 14, 2008.
On November 10, 2008, a petition was filed by the maternal grandmother and
maternal aunt, alleging abuse and neglect by the mother and biological father. The DHHR
sought, and was granted, emergency custody of the children on November 14, 2008. The
basis of the abuse and neglect allegations was that the children had been sexually abused by
the mother's boyfriend, Michael A., Sr. Specifically, it was alleged that the boyfriend had
been masturbating while the children were in his care and that he placed Matchbox cars in
his pants and asked the children to retrieve them. Joel described milk coming out of the
boyfriend's pee bug, and Katelyn described the dog hair around his pee bug and the
milk that would squirt from it. The mother informed the aunt and grandmother that, upon
expiration of the emergency protective order, when the children would be returned to her
care, she planned to leave the state with them. This threat prompted the filing of the instant
petition. Emergency custody was granted to the DHHR on November 17, 2008, and the
children remained in the physical custody of the aunt.
An amended petition was filed on November 21, 2008, again by the aunt and
grandmother, and now joined by the DHHR, and adding the mother's boyfriend, Michael,
as a respondent. The petition contained the same allegations as the initial petition, with the
addition that Katelyn had told Ms. Tordella, a licensed social worker and counselor, that the
boyfriend had kissed her on the lips and that Joel told Ms. Tordella that the boyfriend placed
cars in his own butt and that Joel had to retrieve them. He described the cars as being
covered with poop when he retrieved them. Both children told Ms. Tordella that the
boyfriend was mean to them, and that the boyfriend played with the Matchbox cars on his
own pee bug, and that the boyfriend's pee bug squirted milk. The petition alleged that
the children had been exposed to unsafe conditions, that the mother had subjected them to
drug abuse, that the mother failed to provide Joel with appropriate medical care,
(See footnote 11)
the mother knew or should have known that her children were being sexually abused and
failed to protect them.
An adjudicatory hearing was held December 11, 2008, but had to be continued
so that the children could undergo a second sexual abuse evaluation, performed by Chanin
Kennedy, upon agreement of the parties. The adjudicatory hearing continued on January 22,
2009; February 2, 2009; and February 4, 2009. During the adjudicatory hearings, two expert
opinions were introduced on behalf of the petitioners. The experts, Margaret Tordella and
Chanin Kennedy, both testified on behalf of the children.
Margaret Tordella began working with the children prior to the filing of the
abuse and neglect petition. In performing her evaluation, Ms. Tordella interviewed the
children a total of seventeen times from May 30, 2008, through December 5, 2008. The
interviews, with the exception of two occasions, occurred with the presence of both children
because attempts to separate them for private sessions were unsuccessful.
(See footnote 12)
sessions, the children revealed instances of inappropriate sexual behavior by Michael, the
mother's boyfriend. At the June 10, 2008, session, Joel referred to a matchbox car that he
saw on Ms. Tordella's desk. He offered that Michael put cars in Michael's butt and would
have Joel retrieve them. Joel stated that they would have poop on them when they came
out. On July 18, 2008, Joel disclosed to Ms. Tordella that Michael played with cars on his
pee-bug and that milk then came out of Michael's pee-bug. Katelyn was present and
agreed that this occurred. Joel was able to differentiate between the yellow urine that comes
out of his own penis as being different from the white milk that he saw coming out of
Michael's pee-bug. At a subsequent session, the children again referred to Michael
playing in his butt and on his pee-bug with Joel's cars. Further, Katelyn stated that she
saw hair on Michael's pee-bug. On October 31, 2008, the children again discussed the
white milk that comes out of Michael's pee-bug. According to Ms. Tordella, the
children indicated that all of these incidents occurred at Michael's home. While there was
testimony that the mother, April, was home during these occurrences, there was no indication
that she was in the room during any of the events in question. During her testimony at the
adjudicatory hearing, Ms. Tordella opined that the children's sexual knowledge was not
appropriate for their ages. Importantly, she found the children's reporting to be consistent
and credible, and further opined that she did not feel that the children had been coached.
Chanin Kennedy is a licensed psychologist who performed the sexual abuse
evaluation after the institution of the abuse and neglect petition. She met with the children
individually on January 8, 13, and 15, 2009. Even though she was able to separate the
children for their sessions, Ms. Kennedy agreed that the children were resistant to being
isolated from each other. Ms. Kennedy also met with the mother, April, on January 13, 2009,
and with the aunt, Janet, on January 14, 2009. According to Ms. Kennedy's testimony during
the adjudicatory hearings, both children were difficult to interview and both exhibited age-
inappropriate sexualized behavior. During one of the sessions, Katelyn revealed that her
mother's boyfriend, Michael, showed his pee pee to her and to her brother, and that it
squirted milk. In describing how his pee pee squirted milk, Katelyn stated that
Michael shaked it himself with his hand. Joel, during his individual sessions with Ms.
Kennedy, disclosed that Michael's pee pee squirts milk and that his sister, Katelyn, had
touched Michael on his pee pee. Ms. Kennedy reported that there was no evidence
presented by the children that the mother knew about any of the children's stories or that she
was present in the room when any of the actions occurred. Based upon her evaluation, Ms.
Kennedy also reported that she does not feel that the children are vulnerable to coaching by
others and their reporting was credible. Ultimately, Ms. Kennedy determined that the
children exhibited age-inappropriate sexual behavior and, further, that the children had, in
fact, been sexually abused.
Ms. Kennedy also testified about her sessions with the mother and the aunt.
As a result of those meetings, Ms. Kennedy was left with the impression that the mother did
not believe that anything inappropriate had occurred. She further testified that April stated
she was aware of the abuse allegations prior to the filing of the abuse and neglect petition.
While April stated that she would leave Michael if a court order required her to do so, she
also presented many excuses as to why she could not leave him. Ms. Kennedy found that the
mother presented a high risk factor for returning to Michael even if ordered to separate for
the benefit of the children. Further, Ms. Kennedy found that the aunt, Janet, sincerely was
concerned for the health and welfare of the children and that she had no other motive for her
The children's mother, April, also testified at the adjudicatory hearings. She
stated that she does not believe that her boyfriend, Michael, did anything sexually
inappropriate with the children. To explain her children's knowledge of age-inappropriate
sexual acts, she offered that perhaps they had walked in on her boyfriend's adult son while
he was watching cartoons with sexual content. April also suggested that Katelyn had walked
in on Michael while he was urinating in the bathroom. Further, she testified that they had
no matchbox-style cars in the home and that the only cars in the home were much larger than
a matchbox car; thus, she did not believe that her son, Joel, had created the story of the cars
being placed in Michael's rectum on his own but, rather, that someone had provided him
such information. However, all of these possible explanations for the children's exposure
to sexual knowledge were discounted and contradicted by the testimony of Michael's adult
son, who also lives in the home. Michael's son testified that the cartoons he watched
contained scenes of naked breasts, but no masturbatory scenes. Further, he testified that the
family members always made it a practice to lock the bathroom door behind them. Most
significantly, he testified that the house contained many matchbox-size cars, describing a car
size that directly contradicted the children's mother's testimony. He also stated that Joel has
a carrying case that holds at least thirty-two of the small matchbox-size cars.
The lower court issued its adjudicatory order orally on February 18, 2009,
(See footnote 13)
followed by its written order of February 25, 2009, which order is the subject of this appeal.
In its order, the lower court found that sexual abuse had not been shown by clear and
convincing evidence. The order states that the children have told inconsistent statements to
five individuals and, therefore, are not credible. Further, the circuit judge discounted the
findings of Ms. Tordella because she interviewed the children together instead of
(See footnote 14)
as would be normal protocol. Thus, the order reasoned that the children were
already tainted by the time they met with Ms. Kennedy, and her opinions were discounted
for that reason. The order also took issue with the legal maneuverings of the parties and
suggested that the aunt and grandmother had used and manipulated the system.
(See footnote 15)
the lower court dismissed the case against the mother and the boyfriend and ordered that the
children be returned to their mother that same afternoon. The appeal by the GAL and the
DHHR is now before this Court.
STANDARD OF REVIEW
This case is before this Court on appeal from the circuit court's order
dismissing the abuse and neglect petition and finding a lack of clear and convincing evidence
of sexual abuse of the minor children. This Court has previously explained that, in the realm
of an abuse and neglect case,
[a]lthough conclusions of law reached by a circuit court
are subject to de novo review, when an action, such as an abuse
and neglect case, is tried upon the facts without a jury, the
circuit court shall make a determination based upon the evidence
and shall make findings of fact and conclusions of law as to
whether such child is abused or neglected. These findings shall
not be set aside by a reviewing court unless clearly erroneous.
A finding is clearly erroneous when, although there is evidence
to support the finding, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has
been committed. However, a reviewing court may not overturn
a finding simply because it would have decided the case
differently, and it must affirm a finding if the circuit court's
account of the evidence is plausible in light of the record viewed
in its entirety.
Syl. pt. 1, In the Interest of: Tiffany Marie S.,
196 W. Va. 223, 470 S.E.2d 177 (1996).
Mindful of the applicable standards, we proceed to consider the parties' arguments.
Before this Court, the GAL and the DHHR filed a joint petition for appeal
asserting the following three assignments of error: (1) the lower court erred in finding a lack
of clear and convincing evidence of sexual abuse, (2) the circuit court erred in holding the
legal maneuverings of the parties against the children and failing to rule in the best interests
of the children,
(See footnote 16)
and (3) the lower tribunal erred in dismissing the case against the mother
because she failed to acknowledge that her boyfriend sexually abused her children and,
therefore, failed to protect them. In response, April, the mother, argues that the rulings of
the circuit court should be affirmed because there was no evidence that she abused or
neglected her children or that she failed to protect them from abuse. She asserts that there
was no evidence that her boyfriend sexually abused her children. Further, she argues that
there was no evidence that she had knowledge of allegations of child abuse by her boyfriend
or that she failed to protect her children as a result of having any such information.
Finding it dispositive of this case, we will first address the GAL and DHHR's
argument that there existed clear and convincing evidence that the children were sexually
abused. In that regard, W. Va. Code § 49-1-3(a) (2007) (Repl. Vol. 2009) defines an
[a]bused child as a child whose health or welfare is harmed or threatened by . . . [s]exual
abuse or sexual exploitation[.] Pertinent to the facts of the present case, the term sexual
[a]ny conduct whereby a parent, guardian or custodian
displays his or her sex organs to a child, or procures another
person to display his or her sex organs to a child, for the purpose
of gratifying the sexual desire of the parent, guardian or
custodian, of the person making such display, or of the child, or
for the purpose of affronting or alarming the child.
W. Va. Code § 49-1-3(l)(C). In examining the evidence in this case, we are mindful that
[t]he findings [of abuse or neglect, if applicable] must be based upon conditions existing at
the time of the filing of the petition and proven by clear and convincing proof. W. Va. Code
§ 49-6-2(c) (2006) (Repl. Vol. 2009). We are guided by the proposition that
'W. Va. Code, 49-6-2(c) , requires the State
Department of Welfare [now the Department of Human
Services], in a child abuse or neglect case, to prove conditions
existing at the time of the filing of the petition . . . by clear and
convincing proof. . . . . Syllabus Point 1, In Interest of S.C., 168
W. Va. 366, 284 S.E.2d 867 (1981).' Syllabus Point 1, West
Virginia Department of Human Services v. Peggy F., 184
W. Va. 60, 399 S.E.2d 460 (1990). Syllabus Point 1, In re Beth,
192 W. Va. 656, 453 S.E.2d 639 (1994).
Syl. pt. 3, in part, In re Christina L.
, 194 W. Va. 446, 460 S.E.2d 692 (1995). While the
statute requires the DHHR to prove the conditions existing at the time of the filing of the
petition by clear and convincing proof, [t]he statute, however, does not specify any
particular manner or mode of testimony or evidence by which the [DHHR] is obligated to
meet this burden. Syl. pt. 1, in part, In the Interest of S.C.
, 168 W. Va. 366, 284 S.E.2d 867
In the present case, the circuit court stated as follows:
This Court realizes its duty to protect the children, but
parents also have rights and allegations of sexual abuse have
serious and lifelong consequences to those who are so accused.
However, the petitioners have the burden of proof by clear and
convincing evidence that these children have been abused or
neglected at the time the petition was filed and they have failed
to meet that burden not only with respect to these allegations,
but also all other allegations set forth in the Petition and
Amended Petition including the allegations that the mother has
a substance abuse problem or that Michael . . . or April . . .
physically abused the children.
The DHHR submitted testimony from two mental health experts to support its claims of
sexual abuse. The respondent mother and the mother's boyfriend presented no contrary
expert evidence. Thus, to find that no clear and convincing evidence existed, the circuit court
disregarded the testimony of two mental health experts, which was the only expert testimony
in the case. In regard to the first expert, Margaret Tordella, the circuit court found that
Tordella's interviewing of the children violated standard protocol of evaluation of children
suspected of sexual abuse in that she interviewed them together. Further, the lower court
stated as follows:
The Court finds that the interview techniques used by
Tordella regarding the interviewing [of] the children together;
the fact that on numerous occasions she got no information from
the children; the fact that the children would want to mirror and
do what the other was doing in the session; the lack and [sic]
consistency in what the children told her in sixteen joint
sessions; the fact that nothing was disclosed by Katelyn on the
one occasion in which she was alone with her and that was the
only occasion that her mother brought her to Tordella's office;
and that Tordella was trying to do both an evaluation and
therapy. Therefore, her opinion in this case as to whether or not
these children were sexually abused is not worthy of any belief.
In reviewing the testimony of the second expert, Chanin Kennedy, the lower
court found that Kennedy expressed concern over Tordella's deviation from standard
protocol in seeing the children together; in taking six months to do forensic interviews; and
if Tordella was doing both evaluations and therapy, it was inappropriate. Kennedy did not
get to see these children until after they were contaminated by Tordella. Thus, the circuit
court disregarded the findings made by Ms. Kennedy as being tainted due to the previous
inappropriate interview techniques employed by Ms. Tordella.
However, we determine this finding by the circuit court to be misguided. In
examining the testimony adduced at the adjudicatory hearing, it is significant that the only
expert testimony in this case was submitted by the DHHR. In her testimony, the following
information was elicited from Ms. Tordella:
Q. Okay. And did you meet with the children together or
A. I met with the children together. They would not
separate. I found the children to be very shy and clingy
to one another. They would not separate. They would,
you know, at the very first -- well, this was the very first
session because Janet had to be in the room for the other
one to provide some of the information, and they would
not separate. They would not even come down the
hallway with me alone, so she had to walk down the
hallway, and then made the excuse she needed to use the
restroom so she could leave.
. . . .
Q. -- is it fair to say that in all the sessions you saw the
A. In most of all the sessions. Towards the end after Katie
started in school and she was more willing to separate, I
saw her, I think, twice without Joel.
. . . .
Q. Let me ask you, these children at the outset when you
started seeing them were three and four years old?
Q. Is their sexual knowledge appropriate for their age?
A. No, it's not.
. . . .
Q. Have they been consistent in the information that they
have provided to you in your opinion?
A. Yes, they have. I mean they began telling me that --
telling me bits and pieces at the very beginning of, you
know, when I first started seeing them and they've been
consistent throughout --
A. -- telling me more.
. . . .
A. . . . I also attempted, too, to see the children separately.
In the very beginning there was no way. I had tried to
bring back, you know, had said, well, this will be Katie's
turn, and then Joel will have a turn. They cried and
carried on and would not agree to that. Now later on, I
did see Katie twice alone. One time was because Joel
was asleep and the other time was because Joel was
uncooperative. But I think part of what had happened is
Katie had started going to school, and so she was more
used to separating from Joel.
Q. Let me ask you, given the fact that the children saw you
jointly, and that the children heard what each other was
saying, do you believe that in anyway tainted the
statements you were receiving from the children?
A. No, because there was collaboration from the children
when they told me that. You know, one would make a
statement and another one would add to it.
Q. Did they appear to be spontaneous statements or rehearsed?
A. They were spontaneous because at times they took me by
surprise when they said them.
. . . .
Q. So would it be safe to say that you believe you would not
have this little bit of disclosure had you tried to separate
A. I don't believe they would've. I would've -- I think they
would've seen me as one of the mean people and would
not have talked to me.
Q. Do you believe the children were credible in what they
A. I believe they were credible because they were consistent
in reporting this. I mean there were gaps in my seeing
them because of -- Friday was the best day to see the
children because that was on a day that Katie was in
school so things were calmer and stuff, and it was always
later in the afternoon for convenience to the family. And
there were times -- a number of times where I had to
cancel because I got called out on a crisis. The children
through the fall seemed to be -- have, you know, pink --
they had pinkeye, ear infections, colds, so they had been
through a lot. There were a number of gaps yet they
would come back and be consistent in telling me what
Q. Based upon --
A. -- you know, the same information.
Q. -- your previous experience working with other children,
you had testified earlier you do not believe the children
A. No. You know, the standard is that if the child is able to
tell you three times then it's a believable statement. I
asked them in different ways. We would, you know,
there were times, you know, usually if a child is coached,
the first thing they tell you when they walk in -- and
especially children this young age, they would blurt
everything out because they would remember. We
would be in there playing. We would be in the room for
a period of time having played and talked and done
different things, and they would come out with this
information. You know, and it appeared that it was
information that they were remembering or responding
Further, on cross-examination, Ms. Tordella recognized that she violated the standard
protocol in interview techniques, but explained that my preference usually is to interview
children alone. I could not get these children to separate.
Significantly, the second expert, Chanin Kennedy, directly addressed and
rebutted the circuit court's concerns in her testimony. The relevant portions of her statements
made during the adjudicatory hearing are as follows:
Q. Was it correct that these two children were very hard to
A. They were hard to separate from each other and they
were hard to separate from their maternal grandmother
and aunt who brought them to the session. It's standard
protocol to interview the children individually without
other adults present. And just getting them to cooperate
in general was very difficult. Getting them to sit at the
chairs. Sit at the table. Be directed to activities we were
working on. All of those things were very difficult.
. . . .
Q. But you interviewed them separately?
. . . .
Q. Did you believe from your sessions with the children that
they had been coached?
A. No. There was no evidence based on the information
that's been provided to me that the children have been
coached. Their statements are spontaneous. They've
given information that have [sic] not -- have [sic] not
been previously disclosed or known to their
grandmother, to Janet, or to any other party, including
Q. Now you're aware of the interviews with Peggy Tordella,
Q. Have you seen the reports from Peggy Tordella?
Q. Obviously there's a concern that Ms. Tordella
interviewed both children together?
Q. Could that have changed -- tainted what the children
disclosed to you?
A. It certainly complicates issues in the sense that the
children were interviewed together. And one disclosure
from one child could potentially contaminate the other
child, and so it makes it more difficult to be able to say
with any kind of certainty whether both children
experienced this or one did and heard the other talking
I think what has helped me have a better understanding
of the children's perspective is that Katie made a
disclosure to me that was not made to Peggy Tordella, to
her grandmother, or to her aunt, and is information that
a four-year old child could not just spontaneously make
up. It would be information that would had -- had to
have been observed and that's the shaking the penis to
make milk come out statement.
Q. Okay. So she said he shook the penis to make the milk
A. His pee-pee squirts milk. He shaked it himself with his
hands and milk squirted out.
Q. Okay. Did Joel make any independent disclosures that
he had not made previously?
A. Joel's statements were more consistent with what he had
talked about previously with Peggy, the milk squirting
out. Although Peggy documents that that was a
disclosure that Joel had made first to my recollection in
her sessions and that Katie -- that Katie had touched
. . . .
Q. . . . do you believe that the children have inappropriate
. . . .
Q. Do you believe, in looking at all the information that you
have, that these children have been consistent?
A. With the core details, the children have been consistent
regarding inappropriate sexual contact with their
mother's boyfriend, Mike. I think due to a lot of barriers
the children haven't been able to provide the level of
peripheral, the details around the core details, that I
would like to see. I think their age is a barrier. I think
the fact that they had previously been evaluated is a
barrier. I think these are kids that have a very
unstructured kind of day with grandma and it's very
difficult to get them used to a more structured forensic
interview. I think those have all been barriers to gain
Q. Do you believe that there's consistency from their
disclosures to Peggy Tordella up until the time of their
disclosures to you?
A. Your question is are the details consistent between
myself and Peggy?
A. Yes, they appear to be.
Q. Now given that Ms. Tordella interviewed the children
together, do the disclosures made to Ms. Tordella lack
credibility as far as you're concerned?
A. Not -- they don't lack credibility. They certainly make
it more difficult to fully assess the children because the
children were interviewed together, and as I've stated
before, an interview in front of another child questions
whether both children experienced this or just one.
It's my understanding that the children had given to their
grandmother and to their aunt some spontaneous
disclosures before they had ever met Peggy, suggesting
that both children had witnessed and or experienced
some level of inappropriate sexual contact with Mike.
Specifically that he -- Mike had told them to get naked
with him. Joel had said that Katie had touched Mike's
pee-pee. Katie had said that white milk had come out of
Mike's pee-pee. And so these were statements that were
made prior to contact with Peggy, and certainly
consistent with information they gave me.
. . . .
Q. After conducting all of your interviews, were you able to
come to any conclusions?
A. The children are exhibiting sexualized behaviors and
knowledge that are not age and or developmentally
appropriate. They're exhibiting emotional and
behavioral characteristics that are often seen in sexually
abused children. The children I have -- I believe are
having difficulty articulating what they've observed,
what they've -- what has happened to them because of
their young age.
I think I have identified concerns regarding their
mother's tendency not to respond to the allegations.
When I spoke to April she had a plan to stay -- stay with
Mike. She had -- she's pregnant with Mike's baby. She
didn't have a plan to separate. I asked her if the court
ordered her or required her to separate would she be able
to do that? And she was really vague about how she
would do that. Very inconsistent about whether she
would really be willing to follow through with that.
The children, I think, are experiencing some adjustment
related problems as far as poor boundaries with others,
lacking trust of others, being withdrawn, some social
skills deficits that I believe could be worked on. And so
overall, that would be my diagnostic impressions.
Further, on cross-examination, Ms. Kennedy testified as follows:
Q. Given all of those criteria, and I think you said before
there was eight total, all of those criteria, do you believe
that the children's reporting is credible?
A. I've diagnosed them as sexually abused children and I
think that they demonstrated a level of credibility given
the barriers that we have, yes.
Thus, both experts squarely addressed and refuted the circuit court's basis for
disregarding their opinions, that being the failure of the first expert to follow the standard
protocol in interviewing these children. While we do not condone nor view lightly such a
failure to follow the normal procedure, we recognize that this Court encountered a similar
situation, involving the same mental health practitioner, in a previous case. In the case of In
re: Tonjia M.
, 212 W. Va. 443, 573 S.E.2d 354 (2002) (per curiam), this Court affirmed the
lower court's termination of the father's parental rights. In that case, Ms. Tordella was
involved in a sexual abuse case wherein her interview techniques with the child were called
into question by a subsequent expert. However, in the Tonjia M
. case, unlike the present
case, the second expert could not confirm Ms. Tordella's opinion and, rather, found that she
could neither confirm nor deny that sexual abuse had occurred. The lower court in Tonjia
recessed the proceedings to have a third mental health expert, Chanin Kennedy, who
happens to be the second expert in the case currently before this Court, perform an
independent evaluation. Ms. Kennedy, in the Tonjia M
. case, found that the child exhibited
sexual behaviors inconsistent with other children in her age group. Based on this testimony,
the lower court found that Tonjia M. was a victim of sexual abuse and terminated the parental
rights of her father. The termination was affirmed on appeal to this Court, based, in part, on
the opinion of Ms. Tordella and the two other experts in the case. While recognizing the
inadequacies in Ms. Tordella's interview tactics in this case, this Court, like the Court in
, will rely on her opinion due, in large part, to her full and adequate explanation as
to her reasons for deviating from standard protocol. Further, the subsequent explanation by
Ms. Kennedy, while recognizing the faults with Ms. Tordella's interview styles, fully
explained the impact of Ms. Tordella's actions. Ms. Kennedy further elaborated on her
ultimate opinion in the case, which was similar in all significant respects to Ms. Tordella's,
despite any procedural failures by Ms. Tordella.
Therefore, we find it was clear error for the circuit court to disregard the only
expert evidence in the case. Both experts addressed the deviation in the interview techniques
employed by Ms. Tordella, and, while Ms. Kennedy did not agree with the methodology,
both opined that it did not alter their final opinions in the matter. Not only did both experts
agree that the interview techniques did not change the outcome in this case, but both experts
also found that these children were credible reporters, were consistent with their disclosures
over time, and did not raise any suspicions that they had been coached. Importantly, Ms.
Kennedy, although not in agreement with Ms. Tordella's interview techniques, found that
it did not taint her examination of the children. The testimony of two independent mental
health professionals, who both reached the conclusion that the children were sexually abused
by the boyfriend engaging in self gratification, was clear and convincing evidence that abuse
In making this determination, we recognize that both experts stated that the
children reported that their mother was not present in the room when these instances took
place. Acknowledging that the statute requires that [t]he findings [of abuse or neglect, if
applicable] must be based upon conditions existing at the time of the filing of the petition and
proven by clear and convincing proof[,] W. Va. Code § 49-6-2(c), the lower court found
that April . . . was not present when any of the alleged events happened in Mike's house in
his living room. Further, the lower court found that
[a]t the time of the filing of this petition, the children had
not been in . . . Michael['s] . . . residence with their mother for
the last six months and there is no indication that the mother,
April . . . had sufficient information to know, or should have
known, that these two children had any in [sic] appropriate
sexual knowledge or were sexually abused by anyone.
Therefore, the lower court found, and April argues, that she could not have failed to protect
her children because they were never in her care after she became aware of the sexual abuse
allegations against her boyfriend. We find this argument to be without merit.
The present case has not developed to the point of necessitating a determination
of the appropriateness of terminating the mother's parental rights; however, we find guidance
from the applicable case law regarding a parent's nonparticipation in alleged abuse and the
effect on termination of rights. This Court, in Syllabus point 5 of West Virginia Department
of Health and Human Resources ex rel. Wright v. Doris S.
, 197 W. Va. 489, 475 S.E.2d 865
(1996), stated as follows:
Termination of parental rights of a parent of an abused
child is authorized under W. Va. Code, 49-6-1 to 49-6-10, as
amended, where such parent contends nonparticipation in the
acts giving rise to the termination petition but there is clear and
convincing evidence that such nonparticipating parent
knowingly took no action to prevent or stop such acts to protect
the child. Furthermore, termination of parental rights of a parent
of an abused child is authorized under W. Va. Code, 49-6-1 to
49-6-10, as amended, where such nonparticipating parent
supports the other parent's version as to how a child's injuries
occurred, but there is clear and convincing evidence that such
version is inconsistent with the medical evidence. Syl. Pt. 2, In
re Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991).
Moreover, we have counseled that
[i]mplicit in the definition of an abused child under
West Virginia Code § 49-1-3 (1995) is the child whose health or
welfare is harmed or threatened by a parent or guardian who
fails to cooperate in identifying the perpetrator of abuse, rather
choosing to remain silent. Syllabus Point 1, W. Va. Dept. of
Health & Human Resources v. Doris S., 197 W. Va. 489, 475
S.E.2d 865 (1996).
Syl. pt. 2, In re Harley C.
, 203 W. Va. 594, 509 S.E.2d 875 (1998). In the Harley C
this Court recognized that the applicable statute defining an abused child to include one
whose parent knowingly allows another person to commit abuse does not require that a
parent actually be present at the time the abuse occurs, but, rather, that the parent was
presented with sufficient facts from which he or she could have and should have recognized
that abuse has occurred.
While the facts as presented at the time of the filing of the petition are
paramount, this Court has recognized that evidence of a parent's progress, or lack thereof,
during the pre-adjudication improvement period in making a determination of whether the
subject child is an abused and/or neglected child is a proper consideration when it relates
back to conditions that existed at the time of the filing of the abuse and/or neglect petition,
and that were alleged in such petition. See generally State v. Julie G., 201 W. Va. 764, 500
S.E.2d 877 (1994). Significantly, termination of parental rights requires a specific and
independent finding of fact or conclusion of law that the child was abused or that the child
would be at risk of being abused if returned to that parent's custody. See generally In re
Christina L., 194 W. Va. 446, 460 S.E.2d 692.
In the present case, the mother was told by the aunt, the grandmother, and two
mental health professionals of the children's disclosures of sexual abuse. While the timing
of such disclosures to the mother is in question, Ms. Kennedy was quite clear in her
testimony that April knew of the allegations, by her own admission, prior to the filing of the
abuse and neglect petition.
(See footnote 17)
Yet, April continued to live with the alleged perpetrator and
believed him when he said he did not abuse the children. Her failure to acknowledge the
facts, even when confronted by mental health experts and their opinions that the children had
been sexually abused, shows her inability to protect the children from such behavior. In fact,
the mother fashioned stories to try to explain away the inappropriate sexual information
known by her children, even to the extent of lying about whether her son possessed any cars
the size of matchbox cars.
(See footnote 18)
The interview by Chanin Kennedy showed April to be at high
risk of returning to a relationship with Michael.
(See footnote 19)
Even in the face of serious allegations by
her children, which were supported by all of the experts in the case, April disregarded the
possibility that the allegations were true and has failed to take any actions to extricate herself
from a man who had abused her children. Significantly, she remains with this man, and they
have a newborn child together.
(See footnote 20)
Because April clearly knew of the sexual abuse allegations
prior to the filing of the abuse and neglect petition and because she has failed to take any
steps, even to the present, to absent herself from a man whom all experts agree committed
acts of sexual abuse against her children, it was error for the circuit court to dismiss the
petition against her.
For the foregoing reasons, the February 25, 2009, order by the Circuit Court
of Harrison County is reversed to the extent that it failed to find clear and convincing
evidence that sexual abuse of the minor children had occurred. Accordingly, this case is
remanded to the circuit court for entry of an order adjudicating Katelyn and Joel as abused
children based upon the sexual abuse perpetrated upon them by the boyfriend, Michael, and
based upon the failure of the mother, April, to acknowledge that such abuse had occurred and
her failure to take any actions to protect the children. This case is remanded to the circuit
court for further proceedings consistent with this opinion.
(See footnote 21)
The mandate of this Court shall issue contemporaneously herewith.
Recognizing the amount of time between the lower court's order and the
finalization of the appeal process before this Court, we remind the parties that the remand
proceedings should be disposed of forthwith. Child abuse and neglect cases must be
recognized as being among the highest priority for the courts' attention. Unjustified
procedural delays wreak havoc on a child's development, stability and security. Syl. pt. 1,
in part, In Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991). Further evidencing
the priority placed on cases involving abused and neglected children, this Court has also
stated that matters involving the abuse and neglect of children shall take precedence over
almost every other matter with which a court deals on a daily basis, and it clearly reflects the
goal that such proceedings must be resolved as expeditiously as possible. Syl. pt. 5, in part,
id. Prompt resolution in such cases attempts to protect children from the turmoil associated
with the lack of stability in their surroundings and in their caretakers. See Syl. pt. 3, in part,
James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991) ( It is a traumatic experience
for children to undergo sudden and dramatic changes in their permanent custodians.).