In Re: A.J., 16-1015

DHHR filed an abuse-and-neglect petition (Sept 2015) after the mother was arrested for public intoxication with the then-16‑month-old child; CPS placed the child in foster care.
Petitioner Father (D.J.) sought custody but removed the child from West Virginia to Kentucky against CPS directions; CPS retrieved the child and returned her to foster care.
Petitioner waived a preliminary hearing, later stipulated to adjudication (Dec 2015), and received a post-adjudicatory improvement period.
At the dispositional hearing (Aug 2016) the parties agreed to proceed by proffer; the circuit court found petitioner failed to comply with services and denied an extension of his improvement period.
The circuit court terminated petitioner’s parental rights (Sept 29, 2016); DHHR and guardian supported termination and planed adoption in the foster home.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the circuit court erred by not eliciting testimony (including petitioner’s) about his alleged noncompliance with the improvement period	D.J.: Court should have elicited testimony supporting his compliance or contesting alleged noncompliance	DHHR/Court: No duty to elicit testimony; petitioner had burden to produce evidence and did not object to proffer procedure	No error. Court affirmed; petitioner had burden of production and did not show court prevented him from presenting evidence
Whether the court erred by not calling service providers to attest to petitioner’s compliance	D.J.: Service providers could have rebutted DHHR’s claims of noncompliance	DHHR/Court: No authority requires court to call witnesses for petitioner; petitioner failed to produce such evidence himself	No error. Court not required to elicit testimony for petitioner; burden remained with petitioner
Whether the court erred by not eliciting testimony about whether petitioner was informed he could not leave the State with the child	D.J.: Testimony would show he was not informed and thus challenge the petition’s allegation about removal	DHHR/Court: Matter was immaterial because petitioner stipulated to adjudication including allegation he left the State; petitioner invited error by stipulating and agreeing to proffer	No error. Stipulation and proffer waived that challenge; petitioner invited any alleged error

In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (W. Va. 2011) (standard of review for circuit-court factual findings in abuse-and-neglect cases)
In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (W. Va. 1996) (factual-findings clear-error standard)
In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (W. Va. 1981) (DHHR burden to prove conditions by clear and convincing evidence)
In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (W. Va. 1997) (clarifying burden and modes of proof in abuse-and-neglect cases)
In re Tax Assessment of Foster Foundation’s Woodlands Retirement Community, 223 W.Va. 14, 672 S.E.2d 150 (W. Va. 2008) (distinguishing burdens of persuasion and production)
Mayhew v. Mayhew, 205 W.Va. 490, 519 S.E.2d 188 (W. Va. 1999) (discussion of burden-of-production concept)
Maples v. West Virginia Dep’t of Commerce, 197 W.Va. 318, 475 S.E.2d 410 (W. Va. 1996) (a party may not invite error and then claim it on appeal)
Hopkins v. DC Chapman Ventures, Inc., 228 W.Va. 213, 719 S.E.2d 381 (W. Va. 2011) (invited-error doctrine applied)
State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (W. Va. 1966) (judgment not reversed for error introduced or invited by the appellant)