In re A.C.-1, 20-0771

Background

DHHR filed an abuse-and-neglect petition (Apr 2020) alleging mother (A.C.-2) had mental-health and substance issues, left A.C.-1 isolated, behind in schooling, and engaging in self-harm; child placed with maternal grandmother and ultimately father (nonabusing) had custody/permanency.
Mother attended the preliminary hearing but repeatedly failed to appear at subsequent status and adjudicatory hearings, did not complete a court-ordered psychological evaluation, missed multidisciplinary meetings, and left counsel unaware of her whereabouts.
At an August 2020 adjudicatory hearing held in mother’s absence, the circuit court adjudicated abuse/neglect by clear and convincing evidence and denied a preadjudicatory improvement period for lack of cooperation.
The circuit court proceeded immediately to disposition and terminated mother’s parental rights; the DHHR had given Rule 32(b) notice that it would seek an accelerated dispositional hearing if mother again failed to appear.
On appeal, the West Virginia Supreme Court affirmed denial of the improvement period, held that virtual proceedings did not violate due process (and the issue was waived), but vacated the dispositional termination and remanded because the court proceeded to disposition without complying with Rules 31 and 32 (no case plan filing/waiver and no proper notice/consent).

Issues

Issue	Mother’s Argument	DHHR / Circuit’s Argument	Held
Denial of preadjudicatory improvement period	Additional time would let her separate from boyfriend and complete psychological evaluation; child safe with father	Mother failed to cooperate or participate in services, missed hearings and evaluations, unlikely to complete an improvement period	Affirmed: denial appropriate—mother did not show she was likely to participate
Termination via accelerated dispositional hearing without case plan or notice	Termination was improper because DHHR didn’t file a family case plan and hearing was noticed only as adjudicatory	Court proceeded under Rule 32(b) authority after warning; DHHR had given notice of intent at status hearing	Reversed/vacated as to disposition: circuit court substantially disregarded Rules 31 and 32; remand for properly noticed dispositional hearing and compliance with case‑plan requirement
Confrontation / virtual hearings (use of videoconferencing)	Virtual proceedings deprived her ability to confront witnesses and consult counsel; harmed participation	Remote hearings were permitted by appellate administrative orders during COVID; mother attended prior hearings and made no contemporaneous objection	No reversible error: remote hearings permitted; issue waived for failure to object
Alleged conflict/ineffective assistance and judicial notice of preliminary testimony	Shared counsel at preliminary hearing created conflict; new counsel lacked chance to cross-examine a DHHR witness whose testimony was judicially noticed later	Circuit court took judicial notice of preliminary hearing testimony; DHHR relied on prior testimony	Not decided on appeal: court vacated dispositional order and declined to address these claims now; mother may raise them at the new dispositional hearing

Key Cases Cited

In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (W. Va. 2011) (standard of review for bench-tried abuse/neglect cases)
In re Emily, 208 W. Va. 325, 540 S.E.2d 542 (W. Va. 2000) (parent is not unconditionally entitled to an improvement period)
In re Kaitlyn P., 225 W. Va. 123, 690 S.E.2d 131 (W. Va. 2010) (describing purpose of improvement period)
In re Timber M., 231 W. Va. 44, 743 S.E.2d 352 (W. Va. 2013) (failure to acknowledge problem can make improvement period futile)
In re Emily G., 224 W. Va. 390, 686 S.E.2d 41 (W. Va. 2009) (vacatur/remand required where rules for disposition are substantially disregarded)
In re Travis W., 206 W. Va. 478, 525 S.E.2d 669 (W. Va. 1999) (failure to comply with Rules 31 and 32 requires remand)
Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (procedural due process requires opportunity to be heard at a meaningful time and in a meaningful manner)
McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (W. Va. 1995) (abuse-of-discretion standard for evidentiary and procedural rulings)