Actual Notice Cures Rule 10 Witness-List Omission Absent Prejudice: In re T.F., F.F., and C.F.

Introduction

In a memorandum decision, the Supreme Court of Appeals of West Virginia affirmed the termination of a mother’s parental rights in an abuse and neglect case, rejecting a due-process challenge grounded in the State’s failure to formally disclose an expert witness under Rule 10 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings. The case centers on whether the Department of Human Services (DHS) may present expert toxicology testimony when it did not serve a formal witness list identifying the expert, and whether any procedural lapse caused prejudice warranting reversal.

The petitioner mother (A.F.) had been adjudicated as an abusing/neglecting parent after a DUI incident involving methamphetamine and two children in her vehicle. During a post-adjudicatory improvement period, both parents were ordered to remain sober, avoid association with drug users, and—because they lived together—were placed “under an affirmative duty” to report the other’s violations to DHS or counsel. After new criminal activity and a positive hair-follicle test for methamphetamine, DHS moved to revoke the improvement periods and seek termination. The mother objected to DHS’s use of a lab director from Omega Laboratories as an expert witness at disposition, asserting inadequate disclosure.

The Court affirmed, holding that (1) the mother had actual notice of the expert’s identity and expected testimony through a subpoena issued more than a week before the hearing and the trial court’s explicit on-the-record explanation of the purpose of the continued hearing, and (2) even if admitting the expert testimony were error, it was harmless because ample independent evidence supported termination.

Summary of the Opinion

The Supreme Court reviewed the circuit court’s factual findings for clear error and its legal conclusions de novo, citing syllabus point 1 of In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). The mother contended that DHS violated Rule 10(b)(5) by failing to provide a witness list and curriculum vitae for the lab director who testified that the mother’s hair test level exceeded the lab’s screening cutoff—i.e., a threshold designed to exclude mere environmental exposure as a cause of a positive result—and that the result was consistent with methamphetamine use between May and July 2024.

The Court concluded:

• Although DHS did not file a formal witness list under Rule 10, the subpoena issued to Omega’s lab director more than a week before the final dispositional hearing provided the name and address required by the rule, and the circuit court had already stated on the record that the purpose of the continued hearing was to hear from Omega regarding whether environmental exposure could explain the positive hair test. Accordingly, the mother had actual knowledge of both the witness and the subject matter of the testimony.
• Because the mother had actual notice and the record showed no prejudice, the lack of a formal Rule 10 witness list did not warrant exclusion or reversal.
• Even assuming error in admitting the expert testimony, termination was supported by independent evidence: the mother lived with the father while he was using methamphetamine, failed to report his violations despite an affirmative duty to do so, was charged with possession of methamphetamine shortly before disposition, and had not benefited from services. Under W. Va. Code § 49-4-604(c)(6) and (d)(1), the circuit court properly found no reasonable likelihood of correction in the near future and that termination was necessary for the children’s welfare.

The Court affirmed the October 4, 2024 order terminating the mother’s parental rights. The permanency plan is adoption in the children’s current placement.

Analysis

Precedents Cited

The Court cited:

• In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (Syl. Pt. 1): establishing the bifurcated standard of review in abuse and neglect appeals—clear error for factual findings and de novo review for legal conclusions.

While the memorandum decision does not survey prior authority on Rule 10 disclosures or expert notice, it aligns with general appellate principles requiring a showing of prejudice to obtain reversal for procedural missteps, and it situates the termination analysis within the statutory framework of W. Va. Code § 49-4-604(c)(6) and (d)(1).

Legal Reasoning

The Court’s reasoning proceeds in two tracks: an evidentiary-procedural track concerning Rule 10 disclosures and a dispositional-sufficiency track concerning termination standards and independent evidence.

1) Rule 10 expert disclosure, actual notice, and prejudice

Rule 10(b)(5) requires DHS to provide “a written list of names and addresses of all witnesses whom [DHS] intends to call in the presentation of the case-in-chief.” DHS did not file a formal witness list or provide the lab director’s curriculum vitae. Nevertheless, the Court emphasized two facts:

• DHS issued and filed a subpoena more than one week before the hearing that contained the expert’s name and address—i.e., the core information Rule 10(b)(5) requires.
• The circuit court had continued the initial hearing specifically “to hear from Omega Labs” on whether environmental exposure could explain the mother’s positive hair test, thereby placing the mother on actual notice of both the witness and the expected subject matter.

On these facts, the Court found no prejudice from the lack of a formal Rule 10 witness list. The mother acknowledged she knew “someone” would testify about the hair test; the subpoena provided the who and where. The combination of the subpoena and the court’s on-the-record explanation cured formal noncompliance and satisfied the practical purposes of Rule 10: alerting the opposing party to the witnesses and their expected testimony to enable preparation, investigation, and cross-examination.

The Court thus treats actual notice, timely provided, as functionally sufficient to meet Rule 10’s disclosure aims, at least absent a concrete showing of prejudice. The mother’s generalized assertions—that she lacked the CV and thus could not investigate qualifications, retain a rebuttal expert, or prepare cross—were insufficient to overcome the actual-notice record: identity disclosed a week in advance, known subject matter, and a continuance expressly designed to address the very issue (environmental exposure) she raised.

2) Harmless error and independent sufficiency for termination

The Court further held that, even assuming the expert should have been excluded, termination was independently warranted. The circuit court’s findings—unchallenged on appeal—included that:

• The mother continued to live with the father while he was using methamphetamine, contravening the improvement period terms.
• She had an affirmative duty to report the father’s drug use and failed to do so.
• She did not benefit from services and was charged with possession of methamphetamine less than two months before disposition.

Under W. Va. Code § 49-4-604(c)(6), a court may terminate parental rights upon finding no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected in the near future and when necessary for the child’s welfare. Section 49-4-604(d)(1) elaborates that such a finding is appropriate when an abusing parent remains addicted to controlled substances to the extent that parenting is seriously impaired and has not followed through with recommended treatment. The evidence summarized above supplied a sufficient basis for termination without the contested expert testimony. In doctrinal terms, this is a classic harmless-error holding: even if a procedural error occurred, it did not affect the outcome given the independent grounds for the judgment.

Impact

The decision carries several practical and doctrinal implications for abuse and neglect litigation in West Virginia:

• Actual notice can cure formal Rule 10 defects absent prejudice. Where DHS fails to file a formal witness list, timely actual notice of a witness’s identity and expected subject matter—e.g., via subpoena and on-the-record statements by the court—will generally suffice unless the parent demonstrates specific prejudice (such as an inability to obtain a rebuttal expert despite diligent efforts, or surprise that could not be reasonably remedied).
• Harmless-error backstop. Even arguable evidentiary or procedural errors are unlikely to produce reversal if the record contains separate, adequate grounds for termination. Appellate counsel should therefore address all bases the circuit court cited, not just the contested evidence, and must marshal record-based arguments showing that any error was outcome-determinative.
• Hair-follicle toxicology and the “environmental exposure” defense. The Court endorsed testimony explaining that laboratory screening cutoffs are set to rule out positives caused by environmental contamination. Where an expert testifies that results exceed that cutoff and align with use over a defined window, the environmental-exposure theory will face substantial headwinds.
• Improvement-period obligations are enforceable—and bilateral. The circuit court’s requirement that each parent report the other’s violations created an affirmative duty. The mother’s failure to report the father’s drug use, while cohabiting with him, was probative of her failure to benefit from services and to protect the children. Practitioners should counsel clients that compliance includes monitoring household risks and reporting violations promptly.
• Preparation timelines matter. Here, more than one week’s lead time via subpoena, coupled with clear notice of the testimony’s purpose, weighed against a prejudice finding. Defense counsel should act swiftly upon receiving any subpoena or notice—seeking targeted discovery, requesting the expert’s CV, or moving for a continuance if additional time is genuinely needed to obtain a rebuttal expert.
• Strategic focus on statutory criteria. Because termination turned on the statutory “no reasonable likelihood of correction” standard and “necessary for the welfare” finding, parties should develop a comprehensive record on treatment engagement, sobriety supports, housing stability, and separation from substance-abusing partners—factors that can make or break the disposition irrespective of discrete evidentiary disputes.

Complex Concepts Simplified

• Rule 10 witness disclosures: In child abuse and neglect cases, DHS must ordinarily provide a written list identifying the witnesses it intends to call, along with addresses. The purpose is to prevent trial by ambush and allow meaningful preparation. This decision clarifies that if the opposing party actually knows who the witness is and what they will testify about—because, for example, a subpoena was issued and the court explained the purpose on the record—then failure to file the formal list may be treated as harmless unless specific prejudice is shown.
• Standard of review: Appellate courts defer to the circuit court’s factual findings unless they are “clearly erroneous,” but they review legal questions anew (de novo). This means credibility determinations and fact-weighing generally stand unless the record leaves a definite and firm conviction that a mistake has been made.
• Hair-follicle testing and “cutoff levels”: Labs set “screening cutoff levels” to filter out low-level contamination from the environment (for example, second-hand exposure or touching contaminated surfaces). When a test exceeds that cutoff, lab experts can often infer ingestion (use) rather than passive exposure, and they can estimate a usage window based on hair growth rates and the length of the sample.
• Improvement periods and “affirmative duty to report”: An improvement period is a court-supervised chance for parents to correct the conditions of abuse/neglect through sobriety, services, and compliance. Courts can impose affirmative duties—such as requiring cohabiting parents to report each other’s violations—to ensure child safety. Failing to fulfill those duties can be a basis for termination if it demonstrates noncompliance or an inability to protect the children.
• “No reasonable likelihood of correction” and “necessary for the welfare”: Under W. Va. Code § 49-4-604(c)(6), termination requires a finding that the parent is unlikely to correct the issues in the near future and that termination is necessary for the child’s welfare. Section (d)(1) explains that ongoing addiction impairing parenting, coupled with failure to follow through with treatment, can satisfy this standard.
• Harmless error and prejudice: Not every procedural error leads to reversal. If the error did not affect the outcome because other independent evidence supports the judgment, the appellate court will affirm. A party claiming procedural error should show how the lapse specifically impaired their case—e.g., by depriving them of the ability to locate a rebuttal expert despite diligent efforts within the available time.

Conclusion

In re T.F., F.F., and C.F. clarifies a practical and important point in abuse and neglect litigation: while Rule 10 requires DHS to disclose its witnesses, a formal witness list is not the only pathway to compliance where the record shows timely actual notice of the witness’s identity and expected testimony and the parent cannot demonstrate prejudice. The Court’s dual holding—actual notice suffices and any error was harmless—signals a strong preference for substance over form in the disclosure context, particularly when the trial court has already framed the evidentiary issue and the contested testimony is cumulative of a broader evidentiary picture supporting termination.

On the dispositional merits, the decision underscores that ongoing association with a substance-using partner, failure to report violations under an affirmative duty, new drug-related charges, and lack of progress in services can collectively support findings of no reasonable likelihood of correction and the necessity of termination for the children’s welfare. For practitioners, the case is a reminder to build comprehensive records on compliance and safety planning, to act immediately upon receiving expert subpoenas or notice, and to focus appellate arguments on demonstrating concrete prejudice and addressing all independent bases for termination.