Reaffirming the Rule 8(a) Presumption and Tightening Limits on Child Confrontation, Discovery, and Sexual-History Evidence in Abuse-and-Neglect Adjudications

Introduction

In re L.H.-1, B.H., L.H.-2, E.H., and T.H., No. 24-301 (W. Va. Sept. 30, 2025), is a memorandum decision of the Supreme Court of Appeals of West Virginia affirming an order that terminated a father’s parental rights following his adjudication as an abusing parent. The decision clarifies and reinforces several settled principles in West Virginia abuse-and-neglect practice:

The rebuttable presumption in Rule 8(a) of the Rules of Procedure for Child Abuse and Neglect Proceedings against compelling a child’s testimony remains robust; age and maturity alone do not rebut it.
There is no procedural due process right to confront and cross-examine a child in civil abuse-and-neglect proceedings.
Trial courts have broad discretion over discovery and evidentiary matters, including denials of speculative discovery (e.g., diaries and digital forensics not shown to exist) and refusals to order repeat Child Advocacy Center (CAC) interviews where contrary to a nonparty child’s best interests.
Evidence of a child’s sexual conduct with others is generally irrelevant and, independently, restricted by Rule 412 (rape shield) and West Virginia Code § 61-8B-11.
Appellate courts will not reweigh evidence or second-guess credibility determinations anchored in CAC interviews and live testimony.

The parties included Petitioner Father A.H., the West Virginia Department of Human Services (DHS), and the children’s guardian ad litem. The nonabusing mother retained custody as the children’s permanency plan, and one child (T.H.) reached the age of majority during the case.

Summary of the Opinion

The circuit court adjudicated the father as an abusing parent based on repeated sexual abuse of his two stepchildren (E.H. and T.H.) and attendant household conditions, crediting the children’s CAC interviews and corroborating testimony (including a boyfriend who saw the father exiting a bedroom at night). The court denied:

Petitioner’s motion to compel the children to testify (live or in camera) under Rule 8(a)’s presumption.
Discovery requests for diaries and a forensic phone evaluation (neither shown to exist or within DHS’s control).
A second CAC interview of the children’s cousin, D.S., as not in that nonparty child’s best interests and not shown relevant to the adjudication.
Lines of questioning into the children’s post-petition behavior and their sexual conduct with others, as irrelevant and contrary to Rule 412 and rape-shield principles.

On appeal, Father argued due process violations and a denial of a meaningful hearing. Applying deferential standards to discovery and evidentiary rulings and declining to reweigh credibility, the Supreme Court affirmed. The Court emphasized that:

Meaningful opportunity to be heard under W. Va. Code § 49-4-601(h) does not include a right to confront a child witness.
Rule 8(a) barred compelling child testimony absent rebuttal of the psychological harm presumption, which Father did not make.
Discovery rulings were logical and non-arbitrary; Petitioner did not substantiate the existence or relevance of the requested items or the need for repeat interviews.
Exclusion of sexual-history lines and post-petition behavior was proper and the CAC videos were properly authenticated and admitted.

Factual and Procedural Background

DHS filed a petition in May 2023 alleging Father’s sexual abuse of stepchildren E.H. (15) and T.H. (16), failure to provide safe housing, and domestic violence. A CPS worker testified to the children’s disclosures that Father entered their bedroom at night and touched them inappropriately, over and under clothing.

Petitioner sought to:

Obtain a second CAC interview of cousin D.S., and records purportedly showing fabrication motive.
Discover E.H. and T.H.’s diaries and a forensic evaluation of T.H.’s cell phone.
Compel the children to testify or be examined in camera.
Probe the CAC interviewer’s training and methods.
Introduce evidence of the children’s sexual conduct with others and their post-petition behavior.

The circuit court denied these requests. It received authenticated CAC recordings (May 2023 for both children and August 2023 for E.H.), found the children credible, and concluded the abuse occurred, making all five children abused. At disposition (uncontested on appeal), the court terminated Father’s parental rights, finding no reasonable likelihood the conditions could be corrected and that termination served the children’s best interests.

Analysis

Precedents Cited and Their Influence

In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011): Sets the standard of review—findings of fact are reviewed for clear error, legal conclusions de novo. Framed the appellate lens that favored affirmance absent clear error or legal misapplication.
In re J.S., 233 W. Va. 394, 758 S.E.2d 747 (2014), Syl. Pt. 7 (in part): Confirms there is no procedural due process right to confront and cross-examine a child in abuse-and-neglect proceedings. This directly defeated Father’s central due process claim.
In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176 (1997), Syl. Pt. 3 (in part): Addresses cross-examination during in-camera interviews when the court permits child testimony under Rule 8(b). The Court explained it was inapposite because the circuit court never permitted child testimony under Rule 8(a).
State ex rel. State Farm Mut. Auto. Ins. Co. v. Marks, 230 W. Va. 517, 741 S.E.2d 75 (2012), Syl. Pt. 7 (citing B.F. Specialty Co. v. Charles M. Sledd Co., 197 W. Va. 463, 475 S.E.2d 555 (1996)): Affirms broad trial-court discretion over discovery, reversible only for abuses “so arbitrary and unreasonable as to shock our sense of justice.” Guided the Court’s deferential treatment of the denied discovery requests.
In re Mark M., 201 W. Va. 265, 496 S.E.2d 215 (1997), Syl. Pt. 3 (in part) (quoting State v. Bush, 163 W. Va. 168, 255 S.E.2d 539 (1979)): Continuances rest in the trial court’s discretion. The denial of continuance flowed logically from prior discovery denials.
State v. Timothy C., 237 W. Va. 435, 787 S.E.2d 888 (2016) (quoting State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998)), Syl. Pt. 1: Evidentiary rulings are reviewed for abuse of discretion. This underpinned approval of the circuit court’s limits on cross, relevance rulings, and rape-shield application.
In re D.S., 251 W. Va. 466, 914 S.E.2d 701 (2025): Reiterates that appellate courts do not reweigh evidence or make credibility determinations in abuse-and-neglect cases. This foreclosed Father’s bid to relitigate the adjudicatory credibility call.
Statutes and Rules: W. Va. Code § 49-4-601(h) (meaningful opportunity to be heard), W. Va. R. P. Child Abuse & Neglect Proc. 8(a)-(b) (child testimony presumption and in-camera procedure), W. Va. R. Evid. 412 and W. Va. Code § 61-8B-11 (rape-shield protections), W. Va. R. App. P. 21 (memorandum decisions).

Legal Reasoning

The Court’s reasoning unfolds along discrete but reinforcing tracks:

Due process and the right to be heard: The statutory guarantee in § 49-4-601(h) ensures a meaningful opportunity to be heard, including presenting and cross-examining witnesses. The father in fact called five witnesses and cross-examined DHS witnesses. Crucially, In re J.S. confirms there is no right to confront a child in these civil proceedings. The Court therefore rejected the premise that excluding live or in-camera child testimony violated due process.
Rule 8(a)’s presumption against child testimony: There is a rebuttable presumption that potential psychological harm to a child outweighs the necessity of the child’s testimony. The petitioner attempted to rebut the presumption by pointing to the teenagers’ “age and maturity,” but the Court deemed that insufficient and unsupported by authority. Because the presumption remained unrebutted, the circuit court properly declined both live testimony and an in-camera alternative; reliance on Rule 8(b) was misplaced when Rule 8(a) precluded testimony in the first instance.
Admission and use of CAC interviews: The circuit court admitted the authenticated video recordings of CAC interviews for E.H. and T.H., and permitted cross-examination of the interviewer on certain matters (e.g., why certain questions were not asked), while properly disallowing redundant or methodology-anchored inquiries after sustaining the petitioner’s objection to qualifying the interviewer as an expert. The interviews were treated as substantive evidence of the disclosures; the father’s challenge was largely credibility-based, which is committed to the trial court’s discretion.
Discovery limits and trial management: Invoking Marks and B.F. Specialty, the Supreme Court deferred to the circuit court’s prudential control over discovery, particularly where (a) the requested items (diaries; a forensic report) were not shown to exist or to be in DHS’s possession, (b) the petitioner sought a second CAC interview of nonparty child D.S. contrary to her best interests without demonstrating relevance to the adjudication, and (c) a continuance sought solely to pursue already-denied discovery. None of these rulings were arbitrary or shocking to the judicial conscience.
Rape-shield and relevance: The court limited questioning intended to elicit the children’s sexual conduct with others, finding it irrelevant to whether the petitioner sexually abused them. The court also referenced W. Va. R. Evid. 412 and W. Va. Code § 61-8B-11 (rape-shield), which in any event restrict such inquiries. The Supreme Court affirmed, emphasizing that the exclusion rested on relevance and rule-based protections, not on any improper expansion of rape-shield doctrine.
Appellate restraint on credibility: The circuit court explicitly relied on demeanor and body language observed in the CAC videos and father’s testimony, and on corroborating testimony (T.H.’s boyfriend’s observation). Absent clear error, the Supreme Court declined to reweigh these credibility determinations, invoking In re D.S.

Impact

Although decided by memorandum decision, the Court’s analysis consolidates and clarifies vital practice points in child abuse-and-neglect litigation:

Child testimony remains exceptional: Practitioners should not assume that older minors will be compelled to testify. To rebut Rule 8(a), counsel must make a particularized, evidence-backed showing of necessity that outweighs potential psychological harm; mere assertions about age/maturity or generalized impeachment goals will not suffice.
No constitutional confrontation right: Defense strategies premised on a confrontation entitlement to the child’s live testimony are untenable in West Virginia’s civil abuse-and-neglect framework. Strategic emphasis should shift to robust cross of forensic interviewers, competing expert testimony (when appropriate), and corroboration-based impeachment through third parties and objective evidence.
Discovery must be concrete and relevant: Requests must identify existing items, establish likely possession or control, and demonstrate relevance. Fishing expeditions (e.g., unsubstantiated diaries or speculated phone forensics) are unlikely to succeed, and continuances premised on such discovery denials will rarely be granted.
Rape-shield and relevance operate in tandem: Efforts to unveil a child’s sexual conduct with others—framed as motive or fabrication theories—face steep hurdles. Counsel must be prepared to (a) proceed through the proper Rule 412 process if seeking an exception, and (b) link the evidence to a material issue with specificity, beyond generalized credibility attacks.
CAC recordings can carry adjudicatory weight: Properly authenticated CAC interviews may be admitted and credited substantially. Where a party objects to qualifying the interviewer as an expert, that tactical choice may limit the scope of permitted cross on methodology—counsel should weigh this trade-off carefully.
Appellate posture is uphill on credibility and discretion: Given the clear-error and abuse-of-discretion standards (and a de novo component for pure legal issues), appellants must build a meticulous trial record with proffers, third-party corroboration, and specific, preserved objections to have any realistic chance of reversal.

Complex Concepts Simplified

Adjudication vs. Disposition: Adjudication is the liability phase—did abuse or neglect occur? Disposition addresses remedies—what orders (e.g., services, termination) should follow? Father appealed dispositional termination by attacking the underlying adjudication.
Rule 8(a) Presumption: In abuse-and-neglect cases, there is a rebuttable presumption that compelling a child to testify would cause psychological harm that outweighs the testimony’s necessity. If the presumption stands, neither live testimony nor in-camera questioning proceeds.
In-camera examination (Rule 8(b)): If and only if the court allows child testimony (i.e., the 8(a) presumption has been overcome), the court may utilize in-camera procedures to minimize trauma. Here, 8(a) barred testimony altogether, so 8(b) was irrelevant.
Rape Shield (Rule 412; § 61-8B-11): Generally excludes evidence of a victim’s sexual behavior with others. In civil cases, such evidence is admissible only if a party shows its probative value substantially outweighs the danger of harm to the victim and unfair prejudice, and typically only after a specific motion and hearing. Relevance remains a threshold requirement.
CAC Interviews: Forensic interviews conducted by trained professionals at Child Advocacy Centers are often recorded. Courts may admit them if properly authenticated and otherwise compliant with evidentiary rules. They can be powerful evidence, especially where child testimony is not compelled.
Standards of Review:
- Findings of fact: clear error
- Legal conclusions: de novo
- Discovery/evidentiary rulings: abuse of discretion
- Appellate courts do not reweigh credibility
Meaningful Opportunity to be Heard (§ 49-4-601(h)): Guarantees the right to present evidence and cross-examine witnesses, but does not confer a constitutional confrontation right to compel a child’s testimony in civil proceedings.

Practice Notes and Strategic Guidance

Rebutting Rule 8(a): Bring concrete, noncumulative reasons why child testimony is indispensable (e.g., unique facts only the child can address that cannot be established via recordings or other witnesses), supported by expert affidavits on minimal harm or necessity. Age alone is not enough.
Challenging CAC Evidence: If the State seeks to qualify the interviewer as an expert, consider whether permitting expert status broadens your methodological cross. If you oppose expert qualification, be prepared for the court to limit technique-based questioning as irrelevant to lay testimony.
Discovery Precision: Identify who has the item, prove it exists, explain why it’s relevant, and articulate why other sources cannot supply the same information. Consider third-party subpoenas if DHS lacks possession/control.
Rape-Shield Compliance: If you believe sexual-history evidence is indispensable to a specific, material issue (not general credibility), file a Rule 412 motion with detailed proffers and be prepared for a focused in-camera hearing. Mere insinuations of fabrication will not unlock this evidence.
Preserve Proffers: When a line of questioning is excluded, make a clear, specific proffer on the record to enable meaningful appellate review.
Corroboration Matters: If alleging a fabrication scheme, present independent corroboration (e.g., testimony from the person who heard the recantation, texts, social media records, or other reliable third-party evidence). The absence of such support undercut the petitioner’s theory here.

Conclusion

In re L.H.-1, B.H., L.H.-2, E.H., and T.H. strongly reaffirms West Virginia’s established framework for protecting child witnesses in abuse-and-neglect adjudications while preserving a parent’s meaningful opportunity to be heard. The Supreme Court:

Upholds the Rule 8(a) presumption against compelling child testimony, rejecting age/maturity alone as sufficient to rebut it.
Confirms that civil due process does not guarantee confrontation of child witnesses.
Endorses trial courts’ broad discretion over discovery and evidence—including limiting speculative requests and enforcing rape-shield and relevance constraints.
Defers to trial-level credibility calls grounded in authenticated CAC interviews and live testimony.

The overarching message is clear: abuse-and-neglect adjudications will not be derailed by speculative discovery, generalized credibility assaults on child victims, or efforts to compel their testimony absent a compelling, particularized showing that overcomes the Rule 8(a) presumption. Counsel must tailor strategies to the evidentiary record they can build—through concrete proffers, corroboration, and careful navigation of the Rules of Evidence—rather than through attempts to reweigh credibility on appeal.