Admissibility and Primacy of CAC Interviews in West Virginia Abuse & Neglect Proceedings

Introduction

In In re K.H.-1, Z.H., N.H., C.H. & W.H., the Supreme Court of Appeals of West Virginia addressed a petition by the Department of Human Services (DHS) to terminate the parental rights of K.H.-2 (“the petitioner father”) over his five children. DHS alleged physical and sexual abuse of the children and domestic violence against their mother. Central to this appeal was the circuit court’s decision to admit videotaped Child Advocacy Center (“CAC”) interviews instead of compelling the children to testify live. The father also challenged the denial of various procedural motions (to compel, to preserve due process, to reconsider) and the imposition of child support while he was on home confinement.

Summary of the Judgment

• The DHS filed abuse and neglect petitions in July 2023, based on the children’s CAC disclosures and corroborating medical records.
• The father moved to compel live testimony; the court applied West Virginia Rule of Procedure for Child Abuse & Neglect 8(a) and excluded live testimony, finding unrefuted that psychological harm outweighed necessity.
• The court admitted the CAC interviews under the residual hearsay exception (W. Va. R. Evid. 807), after a detailed on-the-record analysis of trustworthiness, materiality, probative value, interests of justice, and notice.
• Additional motions—to preserve due process, to continue, to reconsider—were denied as unsupported by law or facts.
• At adjudication, the court found clear and convincing evidence of physical, sexual, and domestic‐violence abuse, and terminated the father’s rights.
• At disposition, the court attributed a minimum‐wage income to the father for child‐support purposes, despite his home confinement, and ordered support of $558.46/month.
• The Supreme Court of Appeals affirmed, holding (1) exclusion of live testimony and admission of CAC interviews was proper, (2) procedural denials were correct, and (3) child support attribution was supported by statute and record.

Analysis

1. Precedents Cited

• Rule 8(a), WV Rules of Procedure for Child Abuse & Neglect—creates a rebuttable presumption that potential psychological harm to the child outweighs necessity of live testimony.
• Rule 807, WV Rules of Evidence (residual hearsay exception)—requires trustworthiness, materiality, superior probative value, interests of justice, and advance notice.
• In re J.S., 233 W.Va. 394 (2014)—upheld admissibility of videotaped child interviews under residual exception after trustworthiness inquiry.
• In re A.E. (2020)—mem. dec’n—confirmed that recorded child-welfare interviews satisfy Rule 807’s criteria.
• In re Cecil T., 228 W.Va. 89 (2011)—standard of review in abuse/neglect appeals: factual findings for clear error, legal conclusions de novo.
• Michael D.C. v. Wanda L.C., 201 W.Va. 381 (1997)—trial court has exclusive credibility determination authority.
• In re Tiffany Marie S., 196 W.Va. 223 (1996)—circuit court discretion on continuances.
• In re Ryan B., 224 W.Va. 461 (2009)—termination order must normally impose post-termination child support per § 48-13-101 et seq.

2. Legal Reasoning

1. Exclusion of Live Testimony: Under Rule 8(a), the court found—and the father offered no evidence to rebut—that compelling the children to testify would cause undue psychological harm.
2. Admission of CAC Interviews: The court applied each prong of Rule 807:
   • Trustworthiness: Neutral, videotaped methodology by certified CAC interviewers.
   • Materiality: Directly related to abuse and neglect allegations.
   • Probative Supremacy: No less traumatic alternative to establish facts.
   • Interests of Justice: Protected children’s welfare while ensuring reliable evidence admitted.
   • Notice: The father received full advance notice of the CAC interviews and could have cross-examined interviewers.
3. Procedural Motions: The father’s motion to preserve due process (requesting a judicial order preventing the mother’s relatives from voluntarily speaking) conflicted with Rule 3.4(f) of the Professional Conduct Rules; no overriding authority was shown. His “motion for reconsideration” had no basis in abuse/neglect procedure rules.
4. Child Support Attribution: Under § 48-1-205(a), the court considered the father’s work history, home confinement terms, failure to seek approval for job efforts, and local labor market. Attributed minimum-wage earnings of $1,516.67/month and calculated support at $558.46/month per § 48-13-403.

3. Impact

This decision reinforces the reliability and admissibility of CAC interviews in West Virginia abuse and neglect cases when:

• Court makes an explicit, on-the-record Rule 807 inquiry;
• The child’s live testimony is presumptively excluded under Rule 8(a) unless rebutted;
• No other less traumatic, sufficiently probative evidence exists;
• Procedural safeguards (notice, opportunity to challenge) are honored.

Future litigants will find clear guidance on balancing a child’s well-being against the adversary system’s need for live testimony. The decision also underscores that abuse/neglect procedure rules diverge from civil practice—motions for reconsideration and continuances must track specialized rules.

Complex Concepts Simplified

• Rebuttable Presumption (Rule 8(a)): The court assumes testifying live is too harmful to child unless a party produces evidence otherwise.
• Residual Hearsay Exception (Rule 807): Rare circumstances allow out-of-court statements when they are as trustworthy as live testimony and more reliable than other evidence.
• Attributed Income: For child support, courts can impute earnings (e.g., minimum wage) to a non-earning parent based on personal and local labor factors.
• Professional Conduct Rule 3.4(f): A lawyer may ask a client’s family member not to volunteer testimony if the lawyer reasonably believes it won’t harm that relative’s interests.

Conclusion

The Supreme Court of Appeals definitively held that, in West Virginia abuse and neglect proceedings:

1. CAC interviews may replace live testimony when Rule 8(a)’s presumption of harm remains unrebutted;
2. Such recordings are admissible under Rule 807 after a thorough trustworthiness and necessity analysis;
3. Abuse/neglect cases follow specialized procedural frameworks, displacing certain civil-procedure motions;
4. Child support can be imputed despite a parent’s confinement, based on statutory guidelines and individualized assessment.

In re K.H.-1 thus clarifies evidentiary and procedural standards, protecting vulnerable children while preserving due process and guiding practitioners in future abuse and neglect litigation.