In re A.G., 878 S.E.2d 744

Background

A.G.-1 (born June 2018) was removed after DHHR filed a Feb. 2020 abuse-and-neglect petition against the mother and her boyfriend; the petition also named A.G.-2 as “Putative Father” and an “Unknown Father” as to alleged abandonment.
A.G.-2 appeared by phone at a preliminary hearing, requested paternity testing, and retained counsel; he missed some paternity appointments and some hearings; counsel for A.G.-2 remained involved.
An August 2020 adjudication against the mother and boyfriend set a September 2020 return for disposition and a “status hearing on paternity testing for [A.G.-2],” not explicitly as an adjudicatory hearing for him.
At the September 2020 hearing (when A.G.-2 did not appear), the court discussed abandonment of the “Unknown Father,” and the written order adjudicated the Unknown Father for abandonment; the bench also made statements suggesting abandonment by whoever the father was.
Paternity testing in Dec. 2020 proved A.G.-2 was the biological father; the circuit court later terminated A.G.-2’s parental rights (June 29, 2021).
The Supreme Court of Appeals vacated the adjudicatory and dispositional orders and remanded, holding A.G.-2 was not given notice that the September 2020 hearing would adjudicate him and thus was denied an adjudicatory hearing and due process.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether A.G.-2 received constitutionally adequate notice of an adjudicatory hearing	A.G.-2: Sept. 2020 hearing was a status/paternity hearing, not an adjudicatory hearing for him; he had no notice to present a defense	DHHR/Circuit: A.G.-2 failed to participate and to submit to testing; the Unknown Father adjudication applies to him	Held: No — court lacked proof A.G.-2 had notice the Sept. hearing would adjudicate him; vacated and remanded for a proper adjudicatory hearing
Whether the court could conflate ‘Putative Father’ (A.G.-2) with ‘Unknown Father’ at adjudication	A.G.-2: Conflation deprived him of a distinct adjudicatory process while paternity was unresolved	DHHR/Circuit: The facts supporting abandonment applied to the biological father and should apply to A.G.-2	Held: Court erred to conflate parties; separate status and counsel for each required until paternity was established
Whether disposition and termination could proceed without a prior §49-4-601 adjudication	A.G.-2: Disposition terminated rights without first adjudicating abuse/neglect as to him	DHHR/Circuit: Argued adjudication of Unknown Father sufficed; relied on record facts	Held: Disposition cannot lawfully proceed to termination absent a §49-4-601 adjudication of that parent; dispositional order vacated
Sufficiency of the evidence of abandonment	A.G.-2: No clear and convincing evidence supported abandonment	DHHR/Circuit: Evidence showed failure to assume parental responsibilities	Held: Court declined to address on merits because lack of notice was dispositive; remand required for proper adjudication

Key Cases Cited

In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996) (standard of review for bench findings in abuse-and-neglect cases)
In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) (parental custody is a fundamental right; notice and meaningful hearing required before termination)
State v. T.C., 172 W. Va. 47, 303 S.E.2d 685 (1983) (abuse-or-neglect finding is prerequisite to state intervention)
In re A.P.-1, 241 W. Va. 688, 827 S.E.2d 830 (2019) (two-stage process: adjudication under §49-4-601 then disposition under §49-4-604)
In re T.S., 241 W. Va. 559, 827 S.E.2d 29 (2019) (statutory and constitutional due-process protections for parental rights)
In re S.C., 245 W. Va. 677, 865 S.E.2d 79 (2021) (reciting procedural protections and appellate standard in abuse-and-neglect matters)
In re Emily G., 224 W. Va. 390, 686 S.E.2d 41 (2009) (vacatur and remand required when requisite procedural steps are not followed)