In re A.P.-1, A.P.-2, A.P.-3
827 S.E.2d 830
W. Va.2019Background
- DHHR filed a petition alleging abuse, neglect, and abandonment of three children; the father (petitioner) is serving a lengthy prison term (eligible for parole in 2029).
- At the initial adjudicatory hearing the circuit court declined to find abandonment because the father showed continued interest in the children despite incarceration.
- The circuit court later revisited its adjudication and, at the disposition stage, relied on the guardian ad litem’s argument and the In re Cecil T. factors to terminate parental rights based on lengthy incarceration and the nature of the offense (murder).
- The West Virginia Supreme Court majority remanded for a limited dispositional hearing and held the circuit court lacked continuing jurisdiction to proceed with disposition once it declined to adjudicate abandonment; it suggested DHHR could file a new petition or amend pleadings.
- Justice Workman concurred in part and dissented in part: he argued the court should have allowed the original proceedings to continue on remand, that long-term incarceration can constitute neglect/abandonment when statutes are read in pari materia, and that Cecil T. factors may be considered at adjudication and disposition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether long-term incarceration can constitute neglect/abandonment | DHHR: incarceration that prevents meeting basic parental duties is neglect and can support adjudication/termination | Father: continued interest in children defeats abandonment finding | Workman: incarceration can and should be considered as neglect/abandonment when statutes read together; Cecil T. factors relevant |
| Whether In re Cecil T. factors apply at adjudication or only disposition | DHHR/guardian: Cecil T. factors reflect considerations relevant to both stages | Majority: Cecil T. Syllabus Pt. 3 applies to disposition after adjudication; cannot use it if adjudication not found | Workman: reasons in Cecil T. are substantive and may be considered at adjudication and disposition when criteria met; majority opinion inconsistent |
| Whether circuit court retained jurisdiction to revisit adjudication and proceed to disposition without a new petition | DHHR: original broad petition alleged neglect/abandonment; court may reconsider and continue original proceedings | Majority: once court declined adjudication, it lacked continuing jurisdiction and DHHR should file amended/new petition per Rule 19(b) | Workman: court had inherent power and should have been allowed to modify adjudication and proceed; remand only for disposition was appropriate |
| Whether remand should permit continuation of original proceedings or require new petition | DHHR: allow continuity to avoid delaying permanency for children | Majority: suggested DHHR could file new petition; remanded for limited disposition hearing | Workman: majority’s approach risks indefinite delay (“death by due process”); remand should permit original case to proceed to disposition |
Key Cases Cited
- In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (discussion of incarceration, offense, and length as factors for termination)
- Smith v. State Workmen’s Comp. Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (statutory construction: give effect to each part to accomplish legislative purpose)
- State ex rel. Graney v. Sims, 144 W.Va. 72, 105 S.E.2d 886 (statutes in pari materia construed together)
- State ex rel. Acton v. Flowers, 154 W.Va. 209, 174 S.E.2d 742 (conviction alone does not forfeit parental rights)
- In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (advocacy for children; procedural posture in abuse and neglect cases)
- State v. Jarvis, 199 W.Va. 38, 483 S.E.2d 38 (trial courts may revisit issues to correct errors before judgment)
- In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (post-termination visitation may be considered in child’s best interest)