Actual Notice Can Cure Rule 10 Witness-Disclosure Defects; Harmless Error Supports Termination in Abuse-and-Neglect Dispositions—In re T.F., F.F., and C.F.

Introduction

In a memorandum decision issued on September 30, 2025, the Supreme Court of Appeals of West Virginia affirmed the Circuit Court of Braxton County’s termination of a mother’s parental rights to her three children in In re T.F., F.F., and C.F., No. 24-629. The central appellate issue was whether the circuit court erred by admitting expert toxicology testimony where the West Virginia Department of Human Services (DHS) did not file a formal witness list or provide the expert’s curriculum vitae pursuant to Rule 10 of the Rules of Procedure for Child Abuse and Neglect Proceedings. The Court held that the mother suffered no prejudice because she had actual knowledge—via a subpoena and the court’s explicit advisement—of the expert’s identity and expected testimony, and that, in any event, ample independent evidence supported termination.

The decision, while a memorandum ruling under Rule 21 of the Rules of Appellate Procedure, meaning it does not announce new syllabus law, nonetheless offers practical guidance on two recurring issues in abuse-and-neglect litigation: (1) when actual notice and the absence of prejudice can cure defects in Rule 10 witness disclosures, and (2) how harmless-error analysis sustains a termination order where sufficient independent grounds exist apart from the challenged evidence.

Case Background

DHS filed an abuse-and-neglect petition in September 2023 alleging parental drug abuse, unsafe parenting, and unfit housing conditions. The petition detailed a July 2023 incident in which the mother, A.F., crashed her vehicle while allegedly under the influence of methamphetamine with two children present, resulting in criminal charges. The father had a history of criminal convictions and incarceration. By November 2023, the mother stipulated to adjudication and received a six-month post-adjudicatory improvement period requiring sobriety and treatment engagement. The father was later adjudicated as well and granted an improvement period after release on parole in March 2024.

At a review hearing in April 2024, both parents’ improvement periods were in effect. The court imposed a critical condition: because the parents were cohabiting, each had an affirmative duty to report the other’s violations of their improvement period terms to DHS or counsel. In July 2024, DHS moved to revoke both improvement periods and to terminate parental rights after parole officers reported the father’s methamphetamine use, found methamphetamine in the mother’s purse during a compliance check, and the mother produced a positive hair-follicle result after initially missing a scheduled screen.

The court conducted an initial dispositional hearing in August 2024. The mother disputed the accuracy of the Omega Laboratories hair test and attributed any positive result to environmental exposure due to the father’s use. The court terminated the father’s parental rights at that hearing but continued the mother’s dispositional hearing to permit testimony “from Omega Labs” to address whether environmental exposure could explain the positive hair test. DHS subpoenaed Omega’s lab director on September 10, 2024, and the final dispositional hearing was held on September 18, 2024. Over the mother’s objection—based on the absence of a formal witness list and CV— the lab director was qualified as an expert in toxicology and testified that the detected methamphetamine level exceeded the laboratory’s screening cutoff designed to rule out environmental contamination, supporting an inference of use within approximately May to July 2024.

The circuit court ultimately found the mother not credible in denying use, determined she cohabited with and failed to report the father’s methamphetamine use contrary to court orders, and concluded she had not benefited from services or her improvement period. It terminated her parental rights upon finding no reasonable likelihood of correction in the near future and necessity for the children’s welfare. The permanency plan was adoption in the current placement.

Summary of the Opinion

The Supreme Court affirmed. Applying the standard of review from In re Cecil T., the Court rejected the mother’s claim that expert testimony should have been excluded for lack of a Rule 10 disclosure. The Court emphasized:

Although DHS did not file a formal witness list under Rule 10(b)(5), it issued a subpoena identifying the Omega Laboratories expert’s name and address more than a week before the final dispositional hearing, and the circuit court had previously clarified on the record that Omega testimony would be received to address environmental-exposure issues.
The mother thus had actual knowledge of both the expert’s identity and the subject matter of the anticipated testimony, defeating her claim of unfair prejudice.
Even assuming the admission of the expert’s testimony was error, the termination order was supported by sufficient independent evidence—namely, the mother’s continued cohabitation with a drug-using partner, failure to report violations as ordered, failure to benefit from services, and a recent criminal charge for methamphetamine possession—satisfying West Virginia Code § 49-4-604(c)(6) and (d)(1).

The Court therefore affirmed the October 4, 2024 order terminating the mother’s parental rights.

Analysis

Precedents and Authorities Cited

Standard of Review: Syllabus Point 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011): findings of fact reviewed for clear error; conclusions of law de novo.
Rule 10(b)(5), West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings: Requires DHS to provide “a written list of names and addresses of all witnesses” it intends to call in its case-in-chief.
West Virginia Code § 49-4-604(c)(6): Authorizes termination where there is no reasonable likelihood of correction in the near future and termination is necessary for the child’s welfare.
West Virginia Code § 49-4-604(d)(1): Provides that “no reasonable likelihood” exists when an abusing parent is addicted to controlled substances such that parenting is seriously impaired and the parent has not responded to appropriate treatment.
Rule 21, West Virginia Rules of Appellate Procedure: Permits resolution by memorandum decision without oral argument in appropriate cases.

Legal Reasoning

The Court’s reasoning proceeds in two steps. First, it assesses compliance with Rule 10(b)(5) and prejudice. Second, it applies harmless-error principles by considering whether sufficient independent evidence supported termination even if the expert should have been excluded.

On Rule 10, the Court acknowledges the formal defect: DHS did not file the written witness list contemplated by the rule. However, the Court attaches dispositive weight to two facts:

Actual notice via subpoena: DHS issued a subpoena naming the Omega lab director and listing his address eight days before the final dispositional hearing.
Actual notice via the court’s advisement: The circuit court stated on the record—when continuing the mother’s hearing—that it intended to hear from Omega regarding whether environmental exposure could explain the positive result.

Because the mother had actual knowledge of both the witness’s identity and the subject matter of his expected testimony, the Court concluded she could not show unfair prejudice from the lack of a formal witness list or CV. In other words, the defect in technical compliance was cured by actual notice sufficient to allow meaningful preparation.

Turning to the merits of termination, the Court emphasizes that even if it assumed error in admitting the expert testimony, termination was justified by the unchallenged findings and record evidence separate from the hair test:

The mother continued to live with the father, who was using methamphetamine.
She failed to report the father’s use despite an express “affirmative duty” to do so.
She did not benefit from services or her improvement period.
She was charged with methamphetamine possession less than two months before the dispositional hearings.

Those facts satisfy the statutory criteria for termination under § 49-4-604(c)(6) and (d)(1), rendering any arguable evidentiary error harmless.

How the Authorities Influenced the Outcome

The Court’s reliance on In re Cecil T. anchors the deferential review of the circuit court’s factual determinations (e.g., credibility and noncompliance with improvement-period obligations) and frames the de novo assessment of the Rule 10 question. Rule 10(b)(5)’s text requires disclosure of witness names and addresses, but the Court interprets the rule through the practical lens of abuse-and-neglect proceedings: where the opposing party actually knows—through a subpoena and the court’s prior statement—who will testify and on what topic, the central due-process concern (reasonable opportunity to meet the evidence) is satisfied.

The statutory termination provisions then provide the independent basis for affirmance. The mother’s ongoing association with a drug-using partner, failure to report as ordered, lack of demonstrated benefit from services, and proximate criminal conduct all supported the conclusion that there was no reasonable likelihood of correction in the near future and that termination was necessary for the children’s welfare. These findings are classic applications of § 49-4-604(c)(6) and (d)(1).

Impact and Significance

While a memorandum decision, the ruling has several practical implications:

Rule 10 compliance and “actual notice”: Trial courts may admit expert testimony despite imperfect Rule 10 disclosures where the respondent had actual knowledge of the witness’s identity and expected testimony sufficiently in advance of the hearing. Counsel challenging late-identified experts must show specific prejudice, not merely a technical violation.
Harmless-error safety net: Even where an evidentiary ruling is arguably flawed, termination will be affirmed if independent, untainted evidence meets § 49-4-604’s standards.
Affirmative duty to report violations: Courts may impose an affirmative reporting duty when parents cohabit during improvement periods; failure to report a co-parent’s drug use can weigh heavily at disposition.
Hair-follicle testing: The Court accepted testimony that results exceeding laboratory cutoff thresholds are designed to exclude environmental exposure, supporting an inference of use over a defined window. While not creating a categorical rule about admissibility, this will be cited by practitioners arguing reliability and probative value of hair testing in similar contexts.
Preservation and strategy: Respondent’s counsel who receive a subpoena identifying an expert should, if more time or information is needed, create a record by requesting the CV, moving to continue, or seeking leave for a rebuttal expert—steps that sharpen prejudice arguments on appeal.

More broadly, the case reinforces that abuse-and-neglect proceedings prioritize timely resolution and child welfare, and procedural lapses will rarely warrant reversal absent demonstrable prejudice and a record showing the error affected the outcome.

Complex Concepts Simplified

1) Rule 10 Witness Disclosures vs. Actual Knowledge

Rule 10(b)(5) expects DHS to provide a written list of the witnesses—names and addresses—it plans to call. In this case, DHS did not file a formal list. However:

Actual knowledge means the party knew who the witness was and what the witness would talk about (identity and subject matter).
How it was satisfied here: A subpoena listed the lab director’s name and address eight days before the hearing, and the court expressly said it would hear from Omega on whether environmental exposure explained the positive test.
Why it matters: If you know the “who” and the “what” in time to prepare, courts are less likely to find prejudice from missing paperwork.

2) Expert Qualification and Hair-Follicle Testing

The circuit court qualified the Omega lab director as a toxicology expert. He testified that the detected methamphetamine level exceeded a “screening cutoff,” which laboratories use to eliminate positive results attributable to environmental contamination (such as passive exposure). He opined that the mother’s positive result indicated ingestion/use and placed the likely period of use between May and July 2024 based on hair-growth rates and sample length.

The takeaway is not that hair tests are infallible, but that courts may credit expert testimony that laboratory cutoffs and methodologies are designed to guard against environmental false positives, rendering such results probative of use over a retrospective window.

3) Improvement Periods and the Affirmative Duty to Report

An improvement period is a court-supervised chance to correct conditions of abuse or neglect (often including sobriety, treatment, and safe housing). Courts may condition it on:

Abstaining from drugs and alcohol and avoiding those who use;
Participating in services; and
Reporting the other parent’s violations if cohabiting.

Failure to meet these conditions—particularly by continuing to live with a person actively using drugs and not reporting violations—can demonstrate that the parent has not benefited from services or improved capacity to ensure child safety.

4) “No Reasonable Likelihood of Correction” and “Necessary for the Child’s Welfare”

To terminate parental rights under § 49-4-604(c)(6), a court must find:

No reasonable likelihood that the parent can correct the conditions in the near future. Under § 49-4-604(d)(1), ongoing addiction that seriously impairs parenting, coupled with failure to respond to appropriate treatment, is a statutorily recognized basis for this finding.
Necessity for the child’s welfare: Termination must serve the child’s safety, stability, and best interests.

The mother’s cohabitation with a drug-using partner, failure to report violations, lack of benefit from services, and recent methamphetamine-possession charge provided the court with a sufficient evidentiary foundation to make these findings.

What This Decision Does—and Does Not—Do

Does: Clarify that actual knowledge of an expert’s identity and expected testimony can cure a Rule 10 disclosure defect where the respondent cannot show prejudice.
Does: Reinforce that harmless-error review preserves termination orders supported by independent, sufficient evidence.
Does not: Make Rule 10 optional. Agencies should still file witness lists and provide timely disclosures.
Does not: Establish a per se rule that eight days’ notice is always adequate; sufficiency of notice remains context-dependent.
Does not: Hold that hair testing alone mandates termination; rather, it was one piece of a broader evidentiary mosaic.

Conclusion

In re T.F., F.F., and C.F. confirms two practical propositions in West Virginia abuse-and-neglect litigation: (1) When a respondent has actual knowledge of an expert’s identity and anticipated testimony—through a subpoena and the court’s advisements—technical noncompliance with Rule 10’s witness-list requirement will not, absent specific prejudice, bar the testimony; and (2) even if evidentiary error is assumed, termination will be upheld where independent, unchallenged evidence satisfies § 49-4-604’s termination standards. The Court’s analysis underscores the primacy of child welfare and timely resolution, while signaling to practitioners the importance of building a concrete record of prejudice (or, conversely, of actual notice) when discovery disputes arise close to disposition.

Key Takeaways

Actual notice (subpoena + on-the-record advisement of scope) can cure Rule 10 witness-list defects where no prejudice is shown.
Harmless-error analysis will sustain termination if independent evidence justifies findings under § 49-4-604(c)(6) and (d)(1).
Courts may impose and enforce an affirmative duty to report co-parent violations during improvement periods.
Hair-follicle results exceeding lab cutoffs may be credited as evidence of use rather than environmental exposure, when supported by expert testimony.
Defense counsel should promptly request CVs, seek continuances, or secure rebuttal experts upon receiving late subpoenas to preserve and substantiate prejudice arguments.

Court: Supreme Court of Appeals of West Virginia

Date: September 30, 2025

Disposition: Affirmed

Actual Notice Can Cure Rule 10 Witness-Disclosure Defects; Harmless Error Supports Termination in Abuse-and-Neglect Dispositions—Commentary on In re T.F., F.F., and C.F.