# In re L.H.-1, B.H., L.H.-2, E.H., and T.H.

> West Virginia Supreme Court · September 30, 2025

URL: https://www.frixlaw.com/law-library/cases/11148264

## Case

- **Court:** West Virginia Supreme Court
- **Decided:** September 30, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Juvenile
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

FILED
September 30, 2025
C. CASEY FORBES, CLERK
SUPREME COURT OF APPEALS
STATE OF WEST VIRGINIA OF WEST VIRGINIA
SUPREME COURT OF APPEALS

In re L.H.-1, B.H., L.H.-2, E.H. and T.H.

No. 24-301 (Clay County CC-08-2023-JA-11, CC-08-2023-JA-12, CC-08-2023-JA-13, CC-08-
2023-JA-14, and CC-08-2023-JA-15)

MEMORANDUM DECISION

Petitioner Father A.H.1 appeals the Circuit Court of Clay County’s April 24, 2024, order
terminating his parental rights to L.H.-1, B.H., L.H.-2, E.H. and T.H., arguing that the circuit court
deprived him of his meaningful right to be heard by denying his various motions and invoking the
rape shield law.2 Upon our review, we determine that oral argument is unnecessary and that a
memorandum decision affirming the circuit court’s order is appropriate. See W. Va. R. App. P. 21.

In May 2023, the DHS filed a petition alleging that the petitioner abused and neglected his
stepchildren, E.H. and T.H., by repeatedly sexually abusing them over the course of many years.
The DHS also alleged that the petitioner failed to provide all of the children appropriate housing,
free from the threat of sexual abuse, and engaged in domestic violence in the home.

On May 15, 2023, the court held a preliminary hearing at which the Child Protective
Services (“CPS”) worker who investigated the allegations testified as to her conversations with
the children. The witness stated that both fifteen-year-old E.H. and sixteen-year-old T.H. disclosed
that the petitioner would come into their bedroom at night and touch them inappropriately both
over and under their clothing.

1
The petitioner appears by counsel Ronald N. Walters Jr. The West Virginia Department
of Human Services appears by Attorney General John B. McCuskey and Assistant Attorney
General Lee Niezgoda. Because a new Attorney General took office while this appeal was pending,
his name has been substituted as counsel. Counsel Andrew C. Shaffer appears as the children’s
guardian ad litem.

Additionally, pursuant to West Virginia Code § 5F-2-1a, the agency formerly known as
the West Virginia Department of Health and Human Resources was terminated. It is now three
separate agencies—the Department of Health Facilities, the Department of Health, and the
Department of Human Services. See W. Va. Code § 5F-1-2. For purposes of abuse and neglect
appeals, the agency is now the Department of Human Services (“DHS”).
2
We use initials where necessary to protect the identities of those involved in this case.
See W. Va. R. App. P. 40(e). Additionally, two of the children share the same initials, so we use
numbers to differentiate between them.

1
On August 24, 2023, the petitioner filed two motions. The petitioner first moved to compel
a Child Advocacy Center (“CAC”) interview of the children’s minor cousin D.S., recordings of
the second CAC interviews of E.H. and T.H., medical records for D.S., and any other exhibits the
DHS intended to use at upcoming hearings. In the petitioner’s second motion, he requested that
the court compel a second CAC interview of D.S. In support, the petitioner claimed that he had
learned that D.S. informed her mother that she, E.H., and T.H. fabricated the allegations against
him so that E.H. and T.H. could pursue romantic relationships that the petitioner had disallowed.
By order dated August 25, 2023, the court denied the petitioner’s motion for a second CAC
interview of D.S., explaining that a second interview was not in the child’s best interest and that
the petitioner was free to present other forms of evidence regarding that child’s credibility. Then,
on October 16, 2023, the petitioner filed two more motions. In the first motion, he requested
discovery of E.H. and T.H.’s diaries and the results of a forensic evaluation on T.H.’s cell phone.
In the second motion, he moved to continue the October 17, 2023, adjudicatory hearing so that he
could obtain the requested evidence, which he believed contained exculpatory information.

On October 17, 2023, the parties convened for an adjudicatory hearing. The court first
addressed the petitioner’s motions and, based upon the DHS’s representation that no forensic
evaluation was performed on T.H.’s cell phone, denied the petitioner’s motion for discovery of the
same. The court similarly denied the request to obtain E.H. and T.H.’s diaries after the DHS
informed the court that it was unaware of the existence of those diaries. Accordingly, the court
also denied the petitioner’s motion to continue.

Next, the petitioner moved to compel the children to testify. The court denied the motion,
explaining that Rule 8 of the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings establishes a rebuttable presumption that the potential psychological harm to the
children outweighed the necessity of their testimony and that their CAC interviews were
admissible evidence. Then, the forensic interviewer who conducted the children’s CAC interviews
testified that she interviewed both E.H. and T.H. twice—once in May 2023 and once in August
2023. Video recordings of T.H.’s May 2023 interview, E.H.’s May 2023 interview, and E.H.’s
August 2023 interview were played in the courtroom and the interviewer testified that each video
was an unaltered, accurate account of the interviews she performed. Over the petitioner’s
objection, the three recorded interviews were entered into evidence. The children’s mother testified
that she obtained a domestic violence protective order for E.H. and T.H. on the day she became
aware of the allegations against the petitioner. Next, the petitioner’s counsel questioned E.H. and
T.H.’s grandmother about their recent behaviors, as the two children had been living with her for
around five months. As the grandmother began to discuss the children’s recent behaviors, the DHS
objected and the court stopped the witness, explaining that the children’s behaviors after the
petition was filed were irrelevant to adjudication and determined that evidence of E.H. and T.H.’s
sexual conduct with other individuals was also irrelevant under the West Virginia Rules of
Evidence and the West Virginia Rape Shield Statute. See W. Va. R. Evidence, 412; W. Va. Code
§ 61-8B-11. The petitioner called T.H.’s boyfriend to the stand and he testified to witnessing the
petitioner exit E.H.’s room in the middle of the night. Then, the petitioner testified and denied all
of the allegations against him, generally alleging that the children “plott[ed] to . . . get rid of [him].”

2
At the conclusion of the hearing, the circuit court noted that there was no evidence to
support the petitioner’s assertion that E.H. and T.H. fabricated the allegations nor was there any
evidence that E.H. and T.H. told any third parties that the allegations were false, as the petitioner
represented. The court explained that it observed and relied upon the body language and demeanor
of E.H. and T.H. in their interviews and that of the petitioner during his testimony. In the resulting
adjudicatory order, the court found that E.H. and T.H. were truthful during their CAC interviews
and that T.H.’s boyfriend confirmed that the petitioner was in E.H.’s bedroom in the middle of the
night. As such, the court adjudicated the petitioner of sexually abusing E.H. and T.H. and
concluded that this abuse resulted in all the children being abused children.

As the petitioner challenges only his adjudication, it is sufficient to note that in December
2023, the court held a dispositional hearing at which it found that there was no reasonable
likelihood that the conditions of abuse could be corrected in the near future and the children’s best
interest necessitated termination of the petitioner’s parental rights. Ultimately, the court terminated
his parental rights to the five children. It is from the dispositional order that the petitioner appeals.3

On appeal from a final order in an abuse and neglect proceeding, this Court reviews the
circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re
Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Before this Court, the petitioner challenges his
adjudication as an abusing parent, arguing “through the operation and decisions of the lower court,
[he] was denied a meaningful and full hearing . . . and his right to due process.” Indeed, the
petitioner was entitled to a meaningful opportunity to be heard, which includes the opportunity to
present and cross-examine witnesses. See W. Va. Code § 49-4-601(h) (“In any proceeding
pursuant to this article, the party or parties having custodial or other parental rights or
responsibilities to the child shall be afforded a meaningful opportunity to be heard, including the
opportunity to testify and to present and cross-examine witnesses.”). At the outset, we note that
the petitioner took this opportunity by presenting five witnesses and cross-examining the DHS’s
witnesses at the adjudicatory hearing. Despite this, the petitioner contends that certain decisions
of the circuit court resulted in him being denied a meaningful opportunity to be heard.

Denial of the Petitioner’s Motion to Compel the Testimony of T.H., E.H., and D.S. or,
Alternatively, Permit In-Camera Examination of T.H., E.H., and D.S.

The petitioner complains that the circuit court erred by denying his motion to compel the
children to testify at the adjudicatory hearing. The petitioner asserts that he was denied the
opportunity to confront the children and his right to cross-examine the children after their
testimony was presented through their CAC interviews. Inasmuch as the petitioner argues that
examination of the children—either through live testimony or in-camera interviews—was
appropriate, we disagree. Rule 8(a) of the West Virginia Rules of Procedure for Child Abuse and
Neglect Proceedings establishes “a rebuttable presumption that the potential psychological harm
to the child outweighs the necessity of the child’s testimony” and directs that “the court shall
exclude this testimony if the potential psychological harm to the child outweighs the necessity of

3
The children’s permanency plan is to remain in the nonabusing mother’s care. T.H. has
reached the age of majority.

3
the child’s testimony.” The petitioner contends that he was denied the opportunity to rebut the
presumption because the court disallowed him from questioning the children either on the stand or
in-camera. Essentially, the petitioner argues that, in order to rebut the presumption, he required the
children’s testimony—the very testimony to which the presumption applied. Despite the
petitioner’s assertion that he was denied “his right to present evidence through the testimony of
witnesses,” the record shows that he called several witnesses during the adjudicatory hearing. The
petitioner also baldly asserts that the presumption was rebutted by the children’s “age[s] and
maturity” while providing no authority for this assertion. The petitioner concludes this portion of
his argument by stating that “any potential psychological harm to T.H. and E.H. does not outweigh
Petitioner’s procedural due process right to confront and cross-examine them.” However, we have
explained that “a party does not have a procedural due process right to confront and cross-examine
a child.” Syl. Pt. 7, in part, In re J.S., 233 W. Va. 394, 758 S.E.2d 747 (2014).4 The petitioner
exercised his right to present and cross-examine witnesses, and the circuit court exercised its
legitimate authority in determining that the petitioner failed to rebut the presumption. Accordingly,
the petitioner is entitled to no relief.

Denial of the Petitioner’s Motions for Discovery

Next, the petitioner challenges the circuit court’s denials of his motions for discovery.
Regarding a lower court’s authority to make discovery decisions, we have held that

“[a] trial court is permitted broad discretion in the control and management
of discovery, and it is only for an abuse of discretion amounting to an injustice that
we will interfere with the exercise of that discretion. A trial court abuses its
discretion when its rulings on discovery motions are clearly against the logic of the
circumstances then before the court and so arbitrary and unreasonable as to shock
our sense of justice and to indicate a lack of careful consideration.” Syllabus point
1, B.F. Specialty Co. v. Charles M. Sledd Co., 197 W.Va. 463, 475 S.E.2d 555
(1996).

Syl. Pt. 7 State ex rel. State Farm Mut. Auto Ins. Co. v. Marks, 230 W. Va. 517, 741 S.E.2d 75
(2012). The petitioner argues that the circuit court’s denial of his motion to obtain a second CAC
interview of D.S., a nonparty child, deprived him of “considerable evidence which would have
called into question the veracity of the allegations” due to “evidence that D.S. had recanted a
previous allegation against the petitioner.” However, the petitioner does not challenge the court’s

4
In support of this argument, the petitioner cites to a case where this Court held that “the
requirement of cross-examination is fully met when counsel for the parent or guardian is present
during the testimony of a child witness and is given the opportunity to fully cross-examine the
witness.” Syl. Pt. 3, in part, In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176 (1997). However, in
that case, the parent was excluded from an in-camera interview of the child pursuant to Rule 8(b)
of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings. In the case at
hand, the circuit court had already decided against forcing the children to testify pursuant to Rule
8(a) of the Rules of Procedure for Child Abuse and Neglect Proceedings. Thus, the petitioner’s
reliance on Rule 8(b) is misplaced, as is his reliance on the case to which he cites.

4
finding that a second interview was contrary to D.S.’s best interests, fails to explain how D.S.’s
experiences were relevant as to whether or not the petitioner abused T.H. and E.H., and makes no
argument as to D.S.’s first CAC interview, which was not admitted into evidence. Ultimately, the
circuit court denied the motion and noted that the petitioner was free to present other evidence as
to D.S.’s credibility but he did not. Accordingly, we perceive no abuse of discretion in the denial
of his motion.

The petitioner also argues that the circuit court erroneously denied his motion for discovery
requesting E.H. and T.H.’s diaries and a forensic evaluation of T.H.’s cell phone.5 The petitioner
failed to advance any evidence that those diaries existed other than the petitioner’s counsel
proffering that the children’s grandmother “mentioned” the diaries during a phone call. The DHS
represented that it had no diaries in its possession and did not intend to admit any diaries into
evidence. The petitioner also complains he was disallowed discovery of a forensic evaluation
conducted on T.H.’s cell phone, which may have contained inappropriate pictures of either T.H.
or E.H. Again, the petitioner failed to establish that an evaluation of that cell phone occurred and
failed to offer supportive evidence that there was relevant data on the cell phone.6 The circuit
court’s discovery rulings were in line with the “logic of the circumstances,” as the evidence the
petitioner requested did not exist, its decision was not “arbitrary and unreasonable as to shock our
sense of justice and to indicate a lack of careful consideration,” and the petitioner is entitled to no
relief. Id.

The Circuit Court’s Evidentiary Determinations

The petitioner’s remaining arguments challenge the circuit court’s determinations
regarding certain evidence and lines of questioning. At the outset, we note that “[a] trial court’s
evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under
an abuse of discretion standard.” Syl. Pt. 1, State v. Timothy C., 237 W. Va. 435, 787 S.E.2d 888
(2016) (quoting Syl. Pt. 4, State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998)).

The petitioner complains that the court erroneously sustained the DHS’s objection to his
counsel’s lines of questioning regarding the CAC interviewer’s interviewing techniques, training,
and experience. It is critical to note, however, that the circuit court sustained the petitioner’s
objection to the CAC interviewer being qualified as an expert witness; thus, the court determined

5
The petitioner further complains that the circuit court erred by denying his related motion
to continue. However, we have explained that “[a] motion for continuance is addressed to the
sound discretion of the trial court, and its ruling will not be disturbed on appeal unless there is a
showing that there has been an abuse of discretion.” Syl. Pt. 3, in part, In re Mark M., 201 W. Va.
265, 496 S.E.2d 215 (1997) (quoting Syl. Pt. 2, State v. Bush, 163 W. Va. 168, 255 S.E.2d 539
(1979)). The petitioner’s motion to continue was expressly for the purpose of obtaining additional
discovery which the circuit court had already denied. Thus, the circuit court acted within its
discretion in denying the motion to continue.
6
The parties do not dispute that there was a cell phone that was in the custody of law
enforcement for purposes of a related criminal case.

5
that the petitioner’s inquiries were irrelevant. Further, the petitioner was disallowed from asking
certain questions about specific statements in the CAC interviews because the interviews would
speak for themselves. However, he was permitted to inquire about why the interviewer did not ask
certain questions. The petitioner similarly complains that his counsel was disallowed from
questioning the children’s grandmother about their recent behaviors. The court acted within its
legitimate discretion when it found that evidence of the children’s actions after the petition was
filed was irrelevant to the question of whether the alleged abuse occurred and disallowed those
lines of questioning. As such, the court did not abuse its discretion in making its evidentiary rulings
and the petitioner is entitled to no relief in this regard.

Finally, the petitioner argues that the circuit court erroneously invoked West Virginia Code
§ 61-8B-11, commonly referred to as the West Virginia Rape Shield Law, thereby disallowing the
petitioner’s counsel from asking questions calculated to reveal “the scheme concocted by T.H.,
E.H., D.S., and [T.H.’s boyfriend, J.S.] to falsely accuse Petitioner of sexual assault and/or abuse.”
However, the court merely referenced the West Virginia Rape Shield Law and ultimately,
sustained the DHS’s objections to the petitioner’s inquiries about the children’s sexual behaviors
with others because that information was irrelevant. Accordingly, we perceive no abuse of
discretion in the court’s evidentiary determination in this regard.

The Circuit Court’s Credibility Determinations

While the petitioner assigns error to the circuit court’s administration of the proceedings,
denials of certain motions, and evidentiary determinations, the petitioner’s arguments hinge upon
his accusation that E.H. and T.H. were lying in furtherance of their conspiracy to “get rid of [him].”
It is clear that the petitioner’s true aim is for this Court to agree with his theory that E.H. and T.H.’s
CAC interviews were not credible and permit him to relitigate adjudication, as he is dissatisfied
with the circuit court’s credibility determinations and weighing of the evidence. We decline to do
so, as we will not substitute our own judgement in place of the circuit court’s. See In re D.S., 251
W. Va. 466, --, 914 S.E.2d 701, 707 (2025) (In abuse and neglect cases, “[w]e . . . do not reweigh
the evidence or make credibility determinations.”). As such, the petitioner is entitled to no relief.

For the foregoing reasons, we find no error in the decision of the circuit court, and its April
24, 2024, order is hereby affirmed.

Affirmed.

ISSUED: September 30, 2025

CONCURRED IN BY:

Chief Justice William R. Wooton
Justice C. Haley Bunn
Justice Charles S. Trump IV
Justice Thomas H. Ewing
Senior Status Justice John A. Hutchison

6

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11148264. Public record. Not legal advice.