Permitting Unsupervised Contact with a Registered Sex Offender as Neglect: Clear-and-Convincing Evidence and Specific Findings Requirement

Introduction

In re B.E., E.W., R.S., and O.S. (No. 23-540) is a March 25, 2025, memorandum decision of the Supreme Court of Appeals of West Virginia. The State Department of Human Services (“DHS”) filed an amended petition alleging that S.E., the biological mother, neglected or abused her four children. The core issue on appeal was whether permitting her six-year-old daughter, E.W., to travel unaccompanied for extended visits to the home of a registered child sex offender—her grandfather—constituted neglect.

Petitioner also challenged adjudication as to her other three children (B.E., R.S., and O.S.) for which the circuit court made no individualized findings. The Supreme Court affirmed the neglect finding as to E.W. but vacated the adjudications for the other three children for lack of specific, child-by-child factual findings.

Summary of the Judgment

The Supreme Court of Appeals held:

On E.W.: There was clear and convincing evidence of neglect when the mother allowed her six-year-old to stay unsupervised in the home of a grandfather who is a registered sex offender with a past indecency conviction against a child. Warnings had been given not to permit such contact. The court affirmed the circuit court’s finding of neglect.
On B.E., R.S., and O.S.: The DHS failed to prove abuse or neglect of these children and the circuit court made no specific findings as to each child. The Supreme Court vacated those portions of the order.
The decision emphasized that adjudications must rest on conditions existing at the time of the petition, proved by clear and convincing evidence, and require individualized findings for each child to support subject-matter jurisdiction.

Analysis

Precedents Cited

The court invoked a series of established authorities to frame its analysis:

Standard of Review
- 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.
- In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996): Clear-error standard defined; deference to trial court’s credibility assessments.
Clear and Convincing Evidence Requirement
- W. Va. Code § 49-4-601(i): Abuse/neglect must be proved by clear and convincing evidence based on conditions at petition time.
- In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176 (1997): Restates statutory burden of proof.
Specific Findings for Each Child
- In re B.V., 248 W. Va. 29, 886 S.E.2d 364 (2023): Circuit courts must make individualized jurisdictional findings for each child named in a petition.

Legal Reasoning

The court’s reasoning proceeded in two parts:

Neglect of E.W.
- The grandfather, J.D., is a registered sex offender due to a 2003 felony indecency-with-a-child conviction. The registry reflects lifetime registration and a “low” risk level.
- The mother knowingly sent E.W. on unsupervised extended visits to his home, despite family-court warnings and a prior DHS investigation advising against such contact.
- Under W. Va. Code § 49-1-201, a child is neglected when a parent fails to provide necessary supervision, threatening the child’s health or welfare.
- Given the history and warnings, the court held this conduct placed E.W. at risk of sexual abuse and satisfied the clear and convincing evidence standard.
Vacating Findings for B.E., R.S., and O.S.
- The circuit court explicitly found no proof of abandonment or neglect as to B.E. and no proof of substance-use endangerment as to R.S. and O.S.
- In the absence of child-specific findings showing threatened or actual harm, the court lacked jurisdiction to adjudicate neglect or abuse for those three children.

Impact on Future Cases

This decision establishes two key principles:

Permitting unsupervised contact with a registered sex offender may constitute neglect when proven by clear and convincing evidence, especially if prior warnings exist.
Judicial findings must be individualized for each child in abuse and neglect proceedings. Generalized or group findings will not confer jurisdiction over every child named.

Practitioners must gather and present detailed evidence regarding both the offender’s history and the precise nature and duration of a child’s exposure to substantiate neglect allegations.

Complex Concepts Simplified

Clear and Convincing Evidence: A level of proof that produces a “firm belief or conviction” in the mind of the factfinder—higher than preponderance but lower than beyond reasonable doubt.
De Novo vs. Clear Error Review:
- Legal conclusions are reviewed afresh (de novo).
- Findings of fact are upheld unless the appellate court is “left with the definite and firm conviction that a mistake has been committed.”
Adjudicatory Hearing: The trial stage in abuse/neglect cases where the court decides whether the child is abused or neglected.
Subject-Matter Jurisdiction: The court’s authority to decide a matter. In abuse and neglect cases, jurisdiction attaches only if the petitioning agency proves facts showing each child is at risk or harmed.

Conclusion

The Supreme Court of Appeals’ decision in In re B.E., E.W., R.S., and O.S. clarifies that:

Allowing a minor to reside unsupervised with a registered sex offender can amount to neglect when supported by clear and convincing evidence, especially in the face of prior warnings.
Courts must enter individualized findings as to each child in a multi-child proceeding before adjudicating neglect or abuse, or else the adjudication for those children must be vacated.

These principles will guide lower courts and child-welfare agencies in evaluating risk, structuring petitions, and drafting orders to ensure due process and meaningful appellate review.