No generalized adjudications: West Virginia high court requires child-specific findings and upholds neglect finding for extended, unsupervised visits with a registered child sex offender

No generalized adjudications: West Virginia high court requires child-specific findings and upholds neglect finding for extended, unsupervised visits with a registered child sex offender

Introduction

This memorandum decision from the Supreme Court of Appeals of West Virginia addresses two recurring issues in abuse and neglect adjudications:

  • When does a parent’s decision to allow a child to spend extended time in the home of a registered child sex offender amount to neglect?
  • What findings must a circuit court make, child-by-child, to validly exercise jurisdiction and adjudicate abuse or neglect?

In re B.E., E.W., R.S., and O.S. arose from an amended abuse and neglect petition filed by the Department of Human Services (DHS) in Braxton County. The petitioner mother (S.E.) appealed an order adjudicating her as an abusing and/or neglecting parent to all four of her children: B.E. (an infant), E.W. (age six), R.S., and O.S. The allegations as to S.E. included: (1) abandonment of B.E. after she placed him with would-be adoptive guardians; (2) failure to protect by permitting T.E. (B.E.’s father) to reside in the home while using controlled substances; and (3) permitting six-year-old E.W. to travel unaccompanied to Texas for multiple, extended visits in the home of J.D. (the mother’s father), a registered child sex offender whose prior felony conduct involved a seven-year-old child.

The circuit court rejected the abandonment and drug-use theories, but adjudicated S.E. as an abusing and/or neglecting parent based solely on the Texas visits with J.D., and it applied that adjudication to all four children. S.E. appealed, arguing there was insufficient clear and convincing evidence to adjudicate her as neglectful as to E.W. merely because J.D. was a registrant—especially where his risk level was “low,” his conduct was two decades old, and she believed the child was never alone with him. She further argued there was no basis to adjudicate her as to the other children.

Summary of the Opinion

The Supreme Court affirmed in part and vacated in part:

  • Affirmed (as to E.W.): The Court held that clear and convincing evidence supported the circuit court’s adjudication that S.E. neglected E.W. by sending her for repeated, extended, unaccompanied visits to J.D.—a registered child sex offender whose prior offense involved a child of similar age—despite prior warnings from family court/CPS and without the ability to ensure J.D. never had unsupervised contact. The Court emphasized deference to the circuit court’s plausible account of the evidence and credibility determinations.
  • Vacated (as to B.E., R.S., and O.S.): The Court held the circuit court erred by broadly adjudicating neglect as to the other three children without making child-specific findings establishing how each child’s health or welfare was harmed or threatened by the mother’s conduct. Under In re B.V., generalized findings are insufficient to confer jurisdiction; the circuit court must make specific factual findings for each named child based on conditions at the time of filing.

Justice Bunn concurred in part (vacatur as to the three children) and dissented in part (she would also vacate the E.W. adjudication), criticizing the circuit court’s sparse findings and what she viewed as an impermissible per se rule—i.e., that allowing a child to reside in the home of any registrant automatically constitutes neglect without further evidence about the nature and circumstances of the registration offense and the actual risk to the child.

Detailed Analysis

Factual and Procedural Background

  • Guardianship/abandonment allegation: Shortly after B.E.’s birth in December 2022, S.E. signed a release permitting B.G. and S.G. to take physical custody with the intent to adopt. She later changed her mind and sought B.E.’s return; after they refused, the circuit court named B.G. and S.G. as temporary guardians pending investigation. The amended petition alleged abandonment and failure to provide a suitable home. The circuit court ultimately found DHS failed to prove abandonment or that S.E. knowingly permitted a drug-using adult (T.E.) to live in the home and care for the children.
  • Texas visits with J.D.: The petition and hearing established that J.D. is a lifetime registrant in Texas for indecency with a child by contact involving a seven-year-old female; the registry listed his risk level as “low.” S.E. acknowledged she had been advised in a prior family court matter and during an earlier CPS investigation not to allow the children around J.D., but she nevertheless allowed E.W. to travel to Texas for approximately six weeks in the summer, on multiple occasions, without S.E. accompanying her. S.E. said the stepmother worked from home and E.W. was never alone with J.D., yet conceded she could not know that with certainty.
  • Adjudication below: The circuit court rejected the abandonment and drug-use theories but found that allowing E.W. to stay in J.D.’s home for an extended period placed E.W. at risk of abuse and neglect. It adjudicated S.E. as abusing/neglecting all four children based on that conduct.

Standards of Review and Governing Law

  • Standard of review: Findings of fact are reviewed for clear error; conclusions of law de novo. See Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011); Syl. Pt. 1, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).
  • Adjudicatory burden: DHS must prove by clear and convincing evidence that the child is abused or neglected and that the respondent is an abusing or neglecting parent, based on conditions existing at the time of filing. W. Va. Code § 49-4-601(i); see also In re C.S., 247 W. Va. 212, 875 S.E.2d 350 (2022).
  • Definitions: A “neglected child” includes one whose physical or mental health is harmed or threatened by a parent’s refusal, failure, or inability to provide necessary supervision. W. Va. Code § 49-1-201.
  • Child-specific findings: To exercise subject-matter jurisdiction, the circuit court must make specific findings explaining how each child’s health and welfare are harmed or threatened by the alleged conduct. Generalized findings are insufficient. Syl. Pt. 3 (in part), In re B.V., 248 W. Va. 29, 886 S.E.2d 364 (2023).

Precedents Cited and Their Influence

  • In re Cecil T. and In re Tiffany Marie S. anchor the deferential clear-error review of factual findings and insist that appellate courts affirm where the circuit court’s account is “plausible” in light of the whole record.
  • State ex rel. Diva P. v. Kaufman, 200 W. Va. 555, 490 S.E.2d 642 (1997), Martin v. Randolph County Board of Education, 195 W. Va. 297, 465 S.E.2d 399 (1995), and Gum v. Dudley, 202 W. Va. 477, 505 S.E.2d 391 (1997), underscore the trial court’s advantage in evaluating witness demeanor and drawing reasonable inferences—reinforcing the majority’s deference here.
  • In re B.V. (2023) is dispositive on the jurisdictional requirement of child-by-child findings, compelling vacatur as to B.E., R.S., and O.S. because the circuit court made no specific findings about those children tied to the conditions at filing.
  • In re C.S. (2022) is cited for the principle that adjudicatory findings must be grounded in conditions existing at the time the petition was filed.
  • The dissent draws on a line of cases emphasizing the clear-and-convincing standard and the need for adequate adjudicatory findings to enable review, including In re B.L.-1, 251 W. Va. 92, 909 S.E.2d 127 (2024), In re A.M., 243 W. Va. 593, 849 S.E.2d 371 (2020), In re F.S., 233 W. Va. 538, 759 S.E.2d 769 (2014), and State v. T.C., 172 W. Va. 47, 303 S.E.2d 685 (1983).

Legal Reasoning: Why the Court Ruled as It Did

As to E.W., the majority concluded the record provided clear and convincing evidence of neglect. The key elements, taken together, were:

  • Serious, child-focused prior offense: J.D.’s predicate offense involved indecent contact with a seven-year-old—a child of similar age to E.W.—and he is a lifetime registrant.
  • Extended, unaccompanied, and effectively unsupervised exposure: E.W. traveled to Texas alone for multiple six-week summer stays. Although S.E. believed the stepmother’s presence negated risk, she conceded she could not be sure E.W. was never alone with J.D.
  • Repeated warnings to avoid exposure: S.E. had been told by family court that J.D. “was a risk based upon his sex offense,” and CPS had instructed her not to send E.W. during a prior open investigation.

Anchored by deference to the circuit court’s view of the evidence, the majority found the adjudication “plausible” and not clearly erroneous. The Court expressly avoided substituting its own judgment for that of the fact-finder and emphasized that it was not “left with the definite and firm conviction that a mistake has been committed.”

By contrast, as to B.E., R.S., and O.S., the Court identified a categorical error: the circuit court made no child-specific findings showing how these children were abused or neglected at the time the petition was filed. Indeed, the circuit court rejected the DHS theories of abandonment and drug-risk and acknowledged only E.W. had been sent to Texas for an extended visit. As a result, the generalized adjudication swept too broadly and ran afoul of In re B.V.’s jurisdictional requirement for individualized findings.

The Concurring/Dissenting Opinion and Its Significance

Justice Bunn agreed that the order must be vacated as to the three children for want of individualized findings. But she would also vacate the E.W. adjudication because the circuit court’s findings were, in her view, too sparse and effectively treated registration status as a per se proof of risk:

  • Sparse record: DHS presented only a two-page Texas registry printout (listing a “low” risk level, with no clear indication of conviction) and the mother’s testimony. There were no details about the offense’s circumstances beyond what the registry noted, and no evidence of any repeat conduct across two decades.
  • Per se concern: The circuit court stated “any parent” who allows a child to live in a home where someone is required to register “does commit abuse and neglect.” Justice Bunn argued that neither the statute nor prior cases adopt such a categorical rule; rather, DHS must prove clear and convincing evidence of threatened harm in the particular case.
  • Analogy to “reasonable efforts” exceptions: She pointed to statutory provisions allowing a court to relieve DHS of “reasonable efforts” only after considering “the nature and circumstances” of the sex offense (W. Va. Code §§ 49-4-602(d)(2)(F), 49-4-604(c)(7)(D)), arguing that an adjudication premised on exposure to a registrant should receive no less scrutiny.

Her opinion highlights a cautionary boundary: while this case’s facts may support an adjudication, courts should avoid transforming registration status into a shortcut that relieves DHS of proving how and why the child was threatened under the facts of the case.

Impact and Practical Implications

  • For circuit courts:
    • Adjudications must include child-specific findings that connect the dots between the alleged conduct and the harm or threatened harm to each child at the time of filing. Generalized adjudications are vulnerable to vacatur under In re B.V.
    • When a registrant’s presence is the basis for alleged risk, avoid per se statements. Instead, make findings about the nature of the registrant’s underlying offense, the child’s age and vulnerability, the extent and quality of supervision, the recency or remoteness of the offense, compliance and risk assessments, and any prior warnings or court orders.
  • For DHS and guardians ad litem:
    • Build a robust record that goes beyond “status” evidence. Where available, obtain certified conviction records, offense narratives (police reports, probable cause affidavits), risk assessments, and any court orders or CPS directives previously communicated to the parent.
    • Establish the exposure facts clearly: frequency, duration, whether the child traveled unaccompanied, the quality and continuity of supervision, and the parent’s ability to ensure no unsupervised contact.
  • For parents and defense counsel:
    • Be aware that allowing extended, unaccompanied, or inadequately supervised contact between a young child and a registered child sex offender—particularly where the offender’s prior conduct involved a similar-age child and the parent has been warned—can constitute neglect.
    • To rebut risk, develop concrete, verifiable supervision plans; document who supervises, when, and how; and, where appropriate, avoid overnights or ensure third-party, continuous supervision that can be corroborated.
  • On “improvement periods” and jurisdiction:
    • Improvement periods are tied to valid adjudications. Here, although the circuit court later granted a post-adjudicatory improvement period as to all children and the children were returned, the Supreme Court noted that the court lacked jurisdiction to do so for the three children who were not validly adjudicated; only a pre-adjudicatory improvement period would have been proper as to them (W. Va. Code § 49-4-610(1)).
  • On the weight of a memorandum decision:
    • Although issued under Rule 21(d) as a memorandum decision, the Court’s application of In re B.V. and its analysis of neglect in this context are instructive and likely to be cited persuasively in future cases presenting similar facts.

Complex Concepts Simplified

  • Adjudication vs. disposition: Adjudication is the court’s determination that a child is abused or neglected and that a respondent is an abusing or neglecting parent. Disposition follows adjudication and addresses what happens next (e.g., improvement period, services, placement).
  • Clear and convincing evidence: A higher civil standard requiring proof that creates a firm belief or conviction in the fact-finder’s mind. It is more demanding than “preponderance” but less than “beyond a reasonable doubt.”
  • “Conditions at the time of filing”: The court evaluates whether abuse or neglect existed when the petition was filed, not solely at earlier or later times. Evidence must be tied to that snapshot to sustain adjudication.
  • “Neglected child” via inadequate supervision: A child is “neglected” when a parent’s failure to provide necessary supervision harms or threatens the child’s physical or mental health. Sending a young child for prolonged, unaccompanied visits to the home of a registrant can qualify where the facts show credible, non-trivial risk.
  • No per se rule: Registration status alone does not automatically equal abuse or neglect in every case. Courts must evaluate the particulars. The dissent warns that a per se approach is legally improper; the majority’s affirmance here turns on the totality of circumstances and deference to the fact-finder.
  • Deferred adjudication (Texas context): In Texas, courts may accept a plea, find evidence substantiates guilt, but defer formal adjudication and place a defendant on community supervision. A person may still be required to register as a sex offender even without a final adjudication of guilt. The mother’s reliance on Texas “deferred adjudication” did not negate the ongoing risk assessment or lifetime registration.

Key Takeaways

  • Child-specific adjudicatory findings are mandatory. Courts must make individualized findings linking each child’s harm or threatened harm to the alleged conduct at the time of filing; generalized adjudications will be vacated.
  • Extended, unaccompanied exposure to a registrant can support a neglect adjudication. Where the registrant’s prior offense involved a similar-aged child, the exposure is prolonged and effectively unsupervised, and the parent had been warned to avoid such exposure, a neglect finding is sustainable on clear-and-convincing proof.
  • Deference matters. On appeal, the Supreme Court will not reweigh evidence or substitute its judgment where the circuit court’s findings are plausible and supported by the record, even if another fact-finder might have decided differently.
  • Avoid per se reasoning. While this record sufficed as to E.W., courts and agencies should resist equating registration status with automatic neglect; the better practice is to develop and articulate case-specific risk factors and supervisory deficits.
  • Procedural precision affects remedies. Missteps in adjudication can ripple through subsequent phases (e.g., improvement periods), underscoring the importance of getting the adjudicatory findings right at the outset.

Conclusion

In re B.E., E.W., R.S., and O.S. crystallizes two important principles in West Virginia abuse and neglect law. First, courts must make specific, child-by-child adjudicatory findings grounded in the conditions existing at the time of filing; generalized statements do not confer jurisdiction and will be vacated. Second, although registration status alone is not automatically dispositive, the totality of circumstances here—particularly repeated, extended, unaccompanied visits by a six-year-old with a lifetime registrant whose prior offense involved a similar-aged victim, coupled with prior warnings and uncertainty about supervision—supported a neglect adjudication as to E.W. The majority’s deferential approach to the circuit court’s plausible inferences provides a roadmap for fact development and findings that will withstand appellate scrutiny, while Justice Bunn’s partial dissent offers a cautionary reminder to avoid per se reasoning and to insist on robust, particularized proof of threatened harm.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

Comments