The “Equal-Probability” Threshold:
West Virginia Supreme Court Clarifies the Clear-and-Convincing Standard in Child-Sexual-Abuse Adjudications

Introduction

On 26 June 2025 the Supreme Court of Appeals of West Virginia delivered its memorandum decision in In re K.B.–R. and L.R., No. 24-30. The Court affirmed a circuit court order that had (i) declined to adjudicate a father for alleged sexual abuse of his two daughters and (ii) immediately reinstated an equal shared-parenting schedule between the parents. The mother (S.R.) and the children’s guardian ad litem (GAL) appealed, arguing that the circuit court (1) misapplied the “clear and convincing” evidentiary standard, and (2) should have ordered a gradual re-introduction of contact with the father.

At its core, the Supreme Court’s decision articulates a new “equal-probability” principle: If the evidence leaves the fact-finder just as convinced that the allegations are fabricated as that they are true, the statutory clear-and-convincing burden is not met, and adjudication must fail. Coupled with a firm reminder of appellate deference to trial-level credibility findings, the ruling will guide future abuse-and-neglect litigation in West Virginia.

Summary of the Judgment

• The Court held that the circuit court did not commit clear error in finding the evidence insufficient to form a “firm belief or conviction” that sexual abuse occurred.
• Key reasons included internal inconsistencies within each child’s disclosures, inter-child discrepancies, demonstrably false assertions (e.g., claims of abuse during Halloween weekend 2022 when the children were indisputably elsewhere), and normal SANE/medical findings.
• The Court rejected the appellants’ invitation to re-evaluate credibility, emphasizing the limited scope of appellate review under In re Cecil T. (2011).
• Immediate reinstatement of the pre-petition shared-parenting plan was upheld because the father had not been adjudicated an unfit parent and had maintained ongoing contact during the proceedings.

Analysis

1  Precedents Cited and Their Influence

a. In re Cecil T., 228 W. Va. 89 (2011)

“Findings shall not be set aside unless clearly erroneous… the reviewing court may not re-weigh the evidence.”

The Court leaned heavily on this principle, characterising the appellants’ arguments as “a fundamental misunderstanding of our role as a reviewing court.” The precedent reinforced the deferential standard and insulated the circuit court’s factual determinations from appellate disturbance.

b. In re F.S., 233 W. Va. 538 (2014)

“Clear and convincing evidence” requires a firm belief or conviction of the truth of the allegations.

The Supreme Court adopted the circuit court’s articulation that an “equal likelihood” of abuse versus fabrication necessarily prevents formation of such a firm conviction. This refinement gives practitioners a measurable benchmark—equipoise defeats clear and convincing.

c. In re K.P., 235 W. Va. 221 (2015)

“Sexual abuse may be proven solely by the victim’s testimony, even if uncorroborated.”

Appellants relied on this dictum; the Court distinguished it, noting that the principle presumes testimony that is credible. Where the same testimony is riddled with contradictions or is “demonstrably false,” K.P. offers no safe harbour.

d. Other Authorities

• B.L-1, 251 W. Va. 92 (2024) – reiterated the clear-and-convincing burden in §49-4-601(i).
• C.M., 236 W. Va. 576 (2016) – cautioned about children’s difficulty fixing precise dates; the Court held the circuit judge did not demand undue precision.
• James M. v. Maynard, 185 W. Va. 648 (1991) – gradual transition guidance. Distinguished because father retained contact and there was no proven abuse.

2  Legal Reasoning of the Court

1. Credibility Matrix. The circuit court catalogued each disclosure, cross-referenced it with objective evidence (attendance records, phone metadata, SANE exams), and weighed competing expert testimony. Contradictions undermined reliability.
2. Application of Clear-and-Convincing Standard. Because the evidence left the court “as likely” to believe fabrication as abuse, the statutory burden was not met. The Supreme Court endorsed this binary formulation as a proper application of §49-4-601(i).
3. Appellate Deference. Under Cecil T., an appellate court cannot second-guess witness credibility absent clear error. The Supreme Court found the circuit judge’s factual account “plausible in light of the record viewed in its entirety.”
4. Reunification Principle. Because the father was not adjudicated as abusive, his fundamental parental rights mandated reinstatement of shared parenting (Antonio R.A., 2011). A gradual transition was unnecessary given ongoing contact and absence of risk factors.

3  Impact on Future Litigation and Practice

• The “Equal-Probability” Clarification.
  Trial courts now have explicit appellate endorsement that equipoise negates clear-and-convincing proof. Practitioners must marshal corroborating evidence sufficient to tip the balance decidedly in their favour.
• Elevated Scrutiny of Repeated, Contradictory Disclosures.
  Therapists, CPS workers, and GALs will need to document chronology meticulously. Inconsistent statements risk wholesale dismissal.
• Appellate Strategy Realignment.
  Appeals that essentially re-argue credibility face steeper odds. Litigants must target procedural or legal errors rather than factual determinations.
• Immediate Custody Restoration as Default.
  When no adjudication issues, courts may feel emboldened to restore original parenting plans swiftly—especially where a parent has maintained visitation.

Complex Concepts Simplified

Clear and Convincing Evidence

An intermediate evidentiary standard—higher than a “preponderance of the evidence” (51%), lower than “beyond a reasonable doubt.” It requires the decision-maker to form a solid belief in the truth of the allegations.

Equipoise (“Equal Probability”)

When evidence for and against a fact is evenly balanced, the fact-finder is in equipoise. Under this decision, equipoise = failure to meet clear and convincing burden.

Adjudication in Abuse & Neglect

A formal judicial finding that a parent abused or neglected a child, triggering dispositional remedies (services, termination, etc.). Without adjudication, a parent keeps full legal rights.

SANE Examination

Sexual Assault Nurse Examiner – a forensic medical evaluation seeking physical signs of sexual abuse. Normal findings do not rule out abuse but may undermine allegations of repeated penetration.

Conclusion

In re K.B.–R. crystallises a pivotal evidentiary lesson: Where the fact-finder is left in genuine doubt—believing abuse is no more likely than fabrication—the statutory clear-and-convincing threshold is not satisfied. The decision cements appellate deference to trial-court credibility determinations and signals that restoration of parental rights will follow promptly when adjudication fails. Future litigants must therefore ensure that child disclosures are internally consistent, corroborated where possible, and supported by objective data—else risk falling into the “equal-probability” gap that precludes adjudication.