CHARLESTON – The circuit judge who has been accused of pointing a handgun at an attorney during a hearing also has been found to have violated court rules in his handling of a child abuse and neglect case by repeatedly accusing a child of lying.
The actions of Circuit Judge David Hummel also forced the state Supreme Court to vacate his ruling in the case and remand it back to circuit court before another judge.
Last week, it was discovered Hummel, who works the state’s Second Judicial Circuit, was being investigated by the FBI after he brandished a handgun during a hearing earlier this year and pointed it at Houston-based attorney Lauren Varnado during a hearing in a landowner royalties case.
William R. 'Bill' Wooton
| courtswv.gov
According to a state Supreme Court opinion in the child abuse and neglect case, Hummel conducted interviews of two children (then ages 6 and 7) where he repeatedly accused one of lying and bringing her to tears and concluded the other child implicated the mother in a “sinister plan” to falsify allegations against the father.
Hummel went on to find the allegations against the father to be unsupported and dismissed the abuse and neglect petition against him. The mother appealed the matter to the state Supreme Court. The court vacated Hummel’s order, remanded it back to Marshall County to be heard by a new judge.
According to court documents, the parents in the case are unmarried and have two biological children. They shared custody of the children. The mother had given the oldest child a deactivated cell phone to play games and to take photos and videos.
After the children had spent the night at the father’s house, the mother says she saw the oldest child deleting sexually explicit photos and videos of the children from the phone. The mother took the phone and asked the child about the photos. The child said the father had “allowed” the children to take them.
She says she immediately took the children and the phone to the Moundsville Police Department. She told Sgt. Brittany Earnest the children “told her that (the father) sleeps with them and touches them and himself.” Her statement also included specific instances of alleged sexual abuse the children had told the mother, including that the father inappropriately touched both children and digitally penetrated the oldest one. The children made consistent allegations in a subsequent police interview with a Harmony House Child Advocacy Center interviewer. They made consistent comments again later with a therapist.
On December 10, 2019, the state Department of Health and Human Resources filed the abuse and neglect petition against the father. In July 2020, Hummel heard arguments regarding supervised visits that the mother had caused one visit to be canceled because she allegedly demanded it only occur at the DHHR office and be recorded.
The mother denied making the demand, saying she only asked if the conditions could be met. Hummel then had a DHHR email saying the mother did make the demand.
“The court then called petitioner mother an ‘absolute liar’ and had her handcuffed under the guise of holding her in contempt of court,” the Supreme Court opinion states, adding that Hummel also said he might remove the children from the mother’s custody and place them with the paternal grandmother, with whom the father lived.
Soon thereafter, Hummel conducted another hearing that included his interviews of the children with a court-appointed guardian ad litem present. He asked the oldest child about the sexual abuse allegations and about the explicit photos and videos found on the cell phone. (The interviews below are excerpted from the state Supreme Court opinion, and have been slightly edited for brevity.)
“Oh, I think you’re lying,” Hummel said to the oldest child. “You know that. You know I think you’re lying.”
“I’m not,” the 7-year-old replied.
“Yeah, I think you are.”
Later in the interview, Hummel said, “You always get what you want, don’t you?”
“How come, when I asked you about the cell phone, all of the sudden you say, ‘Mommy gave it to me,’ and then the very next thing you say is, ‘(Father) told me to take the videos?’”
“Because I didn’t know that you were talking about that now,” the child replied. “I thought you wanted me to say that.”
The child soon began to cry as Hummel continued to question her. The child said the father said to take the videos and that no one had told the child to testify as such. The child again said the father digitally penetrated her anus and made her touch his penis.
Again, Hummel implied the child was lying.
“So, you don’t have to like (father), okay?” Hummel then told the child. “I’m not here to talk – not here to make you like (him) at all, but what I am here for is the truth. Okay?”
“Uh-huh,” the child replied.
“And the truth, that I see it, is (father) never stuck his finger where you said he did.”
“But he did.”
“And you never touched his penis.”
“I didn’t like it.”
“And you never touched his penis.”
“I did.”
“Can we agree that one of those is not true?”
“They both are.”
“Okay. What else is true?”
The child then begins to cry again.
Then, Hummel interviewed the youngest child.
“Can you tell me why we’re here today?” Hummel asked the youngest.
“To get rid of him,” the child replied.
“To get rid of who?” Hummel asked, and the child said the father. “What are we going to do about him? What’s our plan?”
“Put him in jail.”
“Are we? Who said that? That’s the plan, isn’t it? … Who’s going to do that?”
“The police.”
“Who knows about the plan?”
“Mom. Our mom, our dad (mother’s boyfriend). … Nobody else.”
“Huh. This is pretty close. This is pretty secret, isn’t it? … Who came up with this plan?”
“My mom.”
“And mommy came up with this plan? She’s really smart, isn’t she?”
Following the hearing, Hummel dismissed the petition, saying DHHR had not met its burden of establishing by clear and convincing evidence that the father had abused the children.
In the Supreme Court opinion, Justice Bill Wooton writes that Hummel’s interviews of the children violated the court’s Rules of Procedure for Child Abuse and Neglect Proceedings and Rules of Evidence. He also suggests Hummel’s interviews weren’t even necessary because the children had made consistent disclosures to at least three witnesses.
“From our review of the in camera (private) hearing transcript, we find that the manner in which the circuit court conducted the interviews of the children violated the protection from psychological harm afforded by Rule 8,” Wooton writes. “To accuse a 7-year-old of lying, thereby reducing that child to tears, and to strongly suggest – if not coerce – an even younger child to implicate a parent in a plot to fabricate allegations of abuse, is inconsistent with the court’s role as an impartial factfinder.”
The mother is being represented by Sherrilyn VanTassel of Toriseva Law in Wheeling, and the father is being represented by Mark Panepinto of Panepinto Law Offices in Wheeling. Thomas White of White Law Office in Moundsville was serving as guardian ad litem for the children, and Assistant Attorney General Andrew Waight is representing the DHHR.
West Virginia Supreme Court of Appeals case number 21-0362 (Marshall Circuit Court case numbers 19-JA-055 and 19-JA-056)