Reaffirming the Rule 8 Presumption and Evidentiary Limits in Abuse–Neglect Adjudications: No Due Process Right to Confront Child Victims; Rape Shield and Discovery Constraints Clarified

Reaffirming the Rule 8 Presumption and Evidentiary Limits in Abuse–Neglect Adjudications: No Due Process Right to Confront Child Victims; Rape Shield and Discovery Constraints Clarified

Introduction

In In re L.H.-1, B.H., L.H.-2, E.H., and T.H. (No. 24-301, Sept. 30, 2025), the Supreme Court of Appeals of West Virginia affirmed the Clay County Circuit Court’s order terminating the parental rights of petitioner A.H. The case arose from allegations that A.H. repeatedly sexually abused his teenage stepchildren, E.H. and T.H., and exposed all children in the household to unsafe living conditions, including domestic violence.

On appeal, A.H. did not mount a direct challenge to dispositional findings (no reasonable likelihood of correction and best interests), but rather attacked the adjudication, asserting that a series of trial-court rulings denied him a meaningful opportunity to be heard and violated due process. The core issues included:

  • Whether Rule 8(a) of the Rules of Procedure for Child Abuse and Neglect Proceedings permits exclusion of children’s live or in-camera testimony when their CAC interviews are admitted;
  • Whether a parent in an abuse–neglect adjudication has a procedural due process right to confront and cross-examine child witnesses;
  • The scope of discovery, including requests for purported diaries, a forensic phone examination, and a second CAC interview of a nonparty child;
  • The admissibility of CAC interviews and the limits of cross-examination of a CAC interviewer;
  • The applicability of rape shield principles (W. Va. R. Evid. 412 and W. Va. Code § 61-8B-11) in a civil abuse–neglect setting.

Summary of the Opinion

The Court affirmed. Applying established standards of review—clear error for factual findings and de novo for legal conclusions (Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011))—and abuse of discretion for discovery and evidentiary rulings, the Court held:

  • Rule 8(a) creates a rebuttable presumption that the psychological harm to a child from testifying outweighs the necessity of their testimony; the petitioner neither rebutted the presumption nor had a due process right to confront and cross-examine the children (Syl. Pt. 7, in part, In re J.S., 233 W. Va. 394, 758 S.E.2d 747 (2014)).
  • Discovery denials were within the trial court’s broad discretion: no second CAC interview of nonparty D.S.; no production of diaries or a forensic report that had not been shown to exist (see State ex rel. State Farm v. Marks, 230 W. Va. 517, 741 S.E.2d 75 (2012), adopting the B.F. Specialty “shock the conscience” standard).
  • Evidentiary rulings limiting inquiry into the CAC interviewer’s expertise and excluding lines of questioning about the children’s post-petition behavior and sexual conduct with others were proper exercises of discretion and relevancy determinations (W. Va. R. Evid. 412; W. Va. Code § 61-8B-11; State v. Timothy C., 237 W. Va. 435, 787 S.E.2d 888 (2016)).
  • The appellate court would not reweigh credibility determinations or revisit the trial court’s assessment of the CAC interviews and corroborative testimony (In re D.S., 251 W. Va. 466, 914 S.E.2d 701, 707 (2025)).

Concluding that the father had a “meaningful opportunity to be heard” within the meaning of W. Va. Code § 49-4-601(h) and that the trial court’s rulings reflected sound discretion tethered to child-protective policy, the Court affirmed the termination order.

Analysis

1) Precedents and Authorities Cited and How They Shaped the Decision

  • Standard of Review: Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011), framed the appellate posture: clear error for facts, de novo for law. For discovery and evidentiary rulings, the Court relied on the abuse-of-discretion rubric, emphasizing the trial court’s “broad discretion” and intervention only for rulings that are “arbitrary and unreasonable as to shock the sense of justice” (State ex rel. State Farm v. Marks, 230 W. Va. at 519–20, 741 S.E.2d at 77, adopting Syl. Pt. 1, B.F. Specialty Co. v. Sledd).
  • Rule 8(a) Presumption and No Due Process Confrontation Right: The Court anchored its analysis in Rule 8(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, which creates a rebuttable presumption against compelling child testimony due to potential psychological harm. It reinforced the principle from Syl. Pt. 7, in part, In re J.S., 233 W. Va. 394, 758 S.E.2d 747 (2014): “a party does not have a procedural due process right to confront and cross-examine a child.” The petitioner’s reliance on In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176 (1997), was distinguished as a Rule 8(b) scenario (procedures for in-camera testimony when a child testifies), not applicable where the court has already determined under Rule 8(a) that the child will not be compelled to testify.
  • Discovery Discretion: The limits on compelling a second CAC interview of nonparty D.S., requiring production of alleged diaries, and seeking a nonexistent forensic phone report were upheld under the deferential discovery standard (Marks; Sledd). The Court emphasized the absence of a showing that the requested items existed or were relevant, and accepted the trial court’s best-interest finding as to D.S.
  • Evidentiary Rulings, Including CAC Interviews: The Court reviewed the trial court’s application of the Rules of Evidence under the standard set in State v. Timothy C., 237 W. Va. 435, 787 S.E.2d 888 (2016) (quoting State v. Rodoussakis), and found no abuse of discretion in admitting CAC interviews authenticated by the forensic interviewer, limiting examination into her expertise after declining to qualify her as an expert, and curbing questions that were cumulative of the recordings or irrelevant.
  • Rape Shield Principles and Relevancy: The trial court referenced W. Va. R. Evid. 412 and W. Va. Code § 61-8B-11 to exclude inquiries into the children’s sexual conduct with others as irrelevant. The Supreme Court endorsed that approach, treating the exclusion as a straightforward relevancy and protective ruling. Notably, Rule 412 by its terms applies in civil proceedings involving alleged sexual misconduct, providing an independent evidentiary basis to shield victims from probing into unrelated sexual history.
  • Appellate Deference to Credibility Findings: The Court cited In re D.S., 251 W. Va. 466, 914 S.E.2d 701 (2025), underscoring that it does not reweigh evidence or make credibility determinations. The trial court credited the children’s CAC interviews and corroborating testimony (e.g., T.H.’s boyfriend observing the father exiting E.H.’s room at night), and rejected the petitioner’s “conspiracy” theory as unsupported.

2) The Court’s Legal Reasoning

The Court’s analysis proceeds from child-protective procedural norms to discipline both discovery and trial conduct in abuse–neglect adjudications:

  • Meaningful Opportunity to Be Heard vs. Confrontation: W. Va. Code § 49-4-601(h) guarantees parents a “meaningful opportunity to be heard”—that is, the chance to testify, present evidence, and cross-examine witnesses who do testify. The petitioner exercised those rights, calling five witnesses and cross-examining DHS witnesses. But that statute does not create a right to compel children to testify or a due process right to confrontation akin to the Sixth Amendment. Per In re J.S., no such due process right exists in these civil proceedings. The trial court thus acted squarely within Rule 8(a), which presumes against compelling child testimony absent a showing that the need for the testimony outweighs psychological harm. The petitioner offered no persuasive rebuttal; mere assertions based on the children’s ages did not suffice.
  • Discovery Limits and Best Interests: The trial court refused a second CAC interview of nonparty D.S. based on best interests and allowed the petitioner to present other credibility evidence about D.S., which he did not do. Requests for diaries and a forensic phone evaluation failed because there was no competent evidence they existed, and DHS confirmed it possessed neither. Discovery is not a license for speculative fishing; the trial court’s denials fell comfortably within the “logic of the circumstances” standard.
  • Evidentiary Gatekeeping and Relevancy: The court limited cross-examination of the CAC interviewer after declining to qualify her as an expert, and properly treated the recordings as the best evidence of their own content. It also excluded post-petition behavior evidence as irrelevant to whether the alleged abuse occurred, and it barred questions about the children’s sexual behavior with others under Rule 412 and general relevance principles; the petitioner’s theory that such questioning would expose a “scheme” was not supported by independent evidence and remained speculative.
  • Reliance on CAC Interviews and Demeanor: The trial court expressly credited the children’s CAC interviews—finding them truthful—considered demeanor and body language, and noted corroboration via the boyfriend’s testimony. Appellate courts do not revisit these credibility calls. Given this evidentiary base, adjudication for sexual abuse of E.H. and T.H. was sustained, which in turn supported a finding that all children in the home were “abused children.”
  • Continuance Denial: Because the continuance requested was tethered to discovery the trial court had already denied, the denial of the continuance was within the court’s discretion (In re Mark M., 201 W. Va. 265, 496 S.E.2d 215 (1997); State v. Bush, 163 W. Va. 168, 255 S.E.2d 539 (1979)).

3) Impact and Practical Significance

While issued as a memorandum decision, the ruling reinforces several important, practitioner-facing principles in West Virginia abuse–neglect law:

  • Rule 8(a) has real bite: Efforts to compel child testimony—live or in camera—will be denied unless a respondent can concretely rebut the presumption of psychological harm. Age or general maturity is insufficient. Practitioners seeking child testimony must craft a specific, trauma-informed necessity showing and propose protective measures; otherwise, authenticated CAC interviews will often suffice.
  • No due process right to confront child victims: In civil abuse–neglect adjudications, confrontation is not a constitutional entitlement. The “meaningful opportunity to be heard” is satisfied where respondents can present their own witnesses and cross-examine those who testify.
  • Rape shield principles and Rule 412 apply in civil child-protection cases: Attempts to introduce evidence of a child’s sexual behavior with others will generally be excluded as irrelevant and unduly invasive absent a specific, admissible theory of relevance that satisfies Rule 412’s strictures. Mere speculation about a “scheme” or motive is insufficient.
  • CAC interviews remain central evidence: Properly authenticated CAC interviews can be admitted and credited; courts may restrict cumulative or improper attacks on interview content or interviewer credentials, especially where the interviewer is not qualified as an expert and the recordings “speak for themselves.”
  • Discovery must be grounded in evidence and relevance: Courts will deny requests for items not shown to exist (e.g., alleged diaries, rumored phone reports) or that would compromise child welfare without a demonstrated need (e.g., a second CAC interview of a nonparty child). Fishing expeditions will fail under the deferential abuse-of-discretion standard.
  • Appellate deference to fact-finding is robust: Credibility-based adjudications are difficult to overturn. Absent a clear legal error or an abuse of discretion “shocking the sense of justice,” the trial court’s assessment of CAC interviews, demeanor, and corroboration will stand.

Complex Concepts Simplified

  • Adjudication vs. Disposition: Adjudication decides whether abuse or neglect occurred. Disposition determines what happens next (e.g., services, termination). This appeal targeted adjudication; once that stands, termination is unlikely to be disturbed absent separate challenges to dispositional findings.
  • Rule 8(a) Presumption: A rule specific to child-protection cases that presumes calling a child to testify will cause psychological harm that outweighs the necessity for live testimony. The party seeking testimony must rebut that presumption with concrete evidence.
  • Meaningful Opportunity to Be Heard (W. Va. Code § 49-4-601(h)): Parents can testify, present witnesses, and cross-examine those who testify. It is not a guarantee that any particular witness (like a child) will be compelled to testify.
  • CAC Interview: A structured, recorded forensic interview of a child by a trained professional in a child-friendly setting, designed to elicit reliable disclosures while minimizing trauma. Courts can admit such interviews when properly authenticated and in conformity with the Rules of Evidence.
  • Rape Shield / Rule 412: Evidentiary protections that restrict admission of a victim’s other sexual behavior or predisposition. In civil cases (including abuse–neglect), such evidence is presumptively inadmissible unless strict relevance and balancing criteria are met.
  • Standards of Review:
    • Clear error (facts): Appellate courts defer to the trial court’s findings unless clearly wrong.
    • De novo (law): No deference; appellate court decides the legal question anew.
    • Abuse of discretion (discovery/evidentiary): Deferential; only overturned if illogical, arbitrary, or shocking to justice.

Case Timeline and Key Rulings

  • May 2023: DHS files petition alleging sexual abuse of E.H. and T.H.; preliminary hearing hears CPS testimony about disclosures.
  • Aug. 2023: Petitioner moves to compel a second CAC interview of D.S. and production of additional materials; denied—second interview not in D.S.’s best interests; other credibility routes available.
  • Oct. 2023 (Adjudication): Motions for diaries and a forensic phone evaluation denied—no showing of existence; continuance denied; motion to compel children’s testimony denied under Rule 8(a); CAC interviews admitted over objection; grandmother’s testimony limited; rape-shield/relevancy applied to exclude questions about children’s sexual conduct with others. Petitioner denies allegations; boyfriend corroborates nighttime presence in E.H.’s room. Court finds children truthful and adjudicates abuse.
  • Dec. 2023 (Disposition): Parental rights terminated; court finds no reasonable likelihood of correction and that termination is in the children’s best interests.
  • Sept. 30, 2025 (Appeal): Supreme Court affirms; rejects due process, discovery, and evidentiary challenges; declines to reweigh credibility.

Practice Pointers

  • Challenging Rule 8(a): Offer a detailed, expert-supported proffer explaining why live or in-camera testimony is necessary and how tailored safeguards will mitigate harm. Age alone is not enough.
  • Building a Record for Discovery: Authenticate the existence and relevance of requested items (e.g., diaries, forensic reports) with affidavits, chain-of-custody evidence, or third-party confirmations. Speculation will be fatal.
  • Working with CAC Evidence: Prepare to impeach reliability within permissible bounds (e.g., omissions or inconsistencies) without relying on disallowed expert critiques if the interviewer is not qualified as an expert. Consider retaining a qualified expert, if appropriate, to educate the court on interviewing protocols and reliability—subject to evidentiary limits.
  • Navigating Rape Shield/Rule 412: If arguing for admissibility of sexual-history evidence, file a detailed motion under Rule 412(c) and be prepared to show direct, non-speculative relevance that outweighs harm and privacy interests. Mere “alternative motive” theories need independent corroboration.
  • Corroboration Matters: Third-party observations (like the boyfriend’s testimony) can substantially bolster CAC disclosures. Conversely, alternative-theory evidence must be concrete; absence of such proof leaves respondents vulnerable to credibility determinations they cannot shake on appeal.

Conclusion

The Supreme Court of Appeals of West Virginia’s decision in In re L.H.-1, B.H., L.H.-2, E.H., and T.H. solidifies—without expanding—the doctrinal pillars of abuse–neglect adjudications: a strong presumption against compelling child testimony (Rule 8(a)), no procedural due process right to confront child victims, rigorous limits on speculative discovery, and the applicability of rape shield principles in civil child-protection cases. The Court’s approach reflects deference to trial-level credibility assessments grounded in authenticated CAC interviews and corroborative testimony, and it underscores the appellate reluctance to disturb measured exercises of trial-court discretion in evidentiary and discovery domains.

For practitioners, the case is a reminder that effective advocacy in abuse–neglect adjudications turns on making precise, evidence-based showings—both to overcome protective presumptions and to justify invasive discovery or sensitive lines of questioning. Speculation and generalities will not overcome the child-centered safeguards built into West Virginia’s procedures and evidentiary rules.

Court: Supreme Court of Appeals of West Virginia | Decided: September 30, 2025 | Disposition: Affirmed

Concurring: Chief Justice Wooton; Justice Bunn; Justice Trump; Justice Ewing; Senior Status Justice Hutchison

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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