In re B.R. and H.R., 20-0835

Background:

DHHR filed an April 2020 abuse-and-neglect petition alleging petitioner (father), the children’s mother, and petitioner’s girlfriend (who was caring for the children) suffered mental health/substance issues and failed to protect/provide for the children (bed bugs, food insufficiency, children caring for bedridden girlfriend).
CPS implemented an in‑home safety plan and placed the children with grandparents after a preliminary hearing that found probable cause and gave DHHR legal and physical custody.
The circuit court ordered petitioner to undergo a psychological evaluation and denied his request to proceed pro se; petitioner repeatedly failed to appear at status hearings and missed the evaluation and other case events; his counsel had no contact with him.
At the August 2020 adjudicatory hearing petitioner was absent, counsel proffered no contact, the court found abuse/neglect by clear and convincing evidence, and the court proceeded immediately to disposition despite counsel’s objection.
The circuit court terminated petitioner’s parental rights by dispositional order dated August 26, 2020; petitioner appealed arguing the court failed to satisfy Rules 31 and 32 (notice, case plan, and party agreement/waiver) for an accelerated dispositional hearing.
The West Virginia Supreme Court vacated the dispositional portion of the order as to petitioner and remanded for a properly noticed dispositional hearing, holding the circuit court substantially disregarded the procedures in Rules 31 and 32.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court could proceed immediately to disposition after adjudication without meeting Rule 32 conditions	Petitioner: court erred; Rule 32 prerequisites (party agreement/case plan/notice) were not satisfied	DHHR: disposition may follow adjudication; contended prerequisites were met or that petitioner’s absences justified proceeding	Held: Court may proceed only if Rule 32 conditions met; circuit court did not determine agreement/waiver or case plan compliance, so accelerated disposition was improper
Whether notice requirement of Rule 31 was satisfied	Petitioner: no proper notice of dispositional hearing was given	DHHR: argued notice/waiver was adequate given petitioner’s nonappearance and prior warning	Held: Notice is mandatory; record shows dispositional notice was lacking (hearing notice listed only adjudication)
Whether petitioner’s absence and noncooperation justified skipping disposition procedures	Petitioner: absence cannot substitute for formal notice/agreement requirements	DHHR: petitioner’s failure to appear and cooperate warranted moving to disposition	Held: Nonappearance does not relieve court of Rule 31/32 obligations; counsel’s objection underscores lack of agreed accelerated disposition
Remedy when court substantially disregards Rules 31/32	Petitioner: vacatur and remand for properly noticed dispositional hearing	DHHR: likely argued affirmance or lesser remedy	Held: Substantial disregard of required process requires vacatur of dispositional order as to petitioner and remand for compliance with rules

Key Cases Cited

In re Travis W., 206 W. Va. 478, 525 S.E.2d 669 (1999) (failure to comply with Rules 31 and 32 requires remand)
In re Emily G., 224 W. Va. 390, 686 S.E.2d 41 (2009) (dispositional process must not be substantially disregarded; vacatur/remand appropriate)
In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001) (procedural compliance in abuse/neglect dispositions is mandatory)
In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (standard of review for circuit court findings in abuse and neglect cases)
In Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996) (reviewing-court standard for findings of fact in bench trials)