In Re: C.B., 17-0613

In January 2017 the DHHR filed an abuse & neglect petition after C.B. suffered extensive non-accidental injuries (including a subdural hematoma and retinal hemorrhages). The petition alleged petitioner T.R. was the caregiver when the injuries occurred and that his explanations were inconsistent with medical evidence.
Petitioner moved repeatedly to be dismissed from the proceedings, arguing he was not a biological, adoptive, psychological, or step-parent and therefore lacked standing; he noted he had been alone with the child only on the date of the alleged abuse and was subject to a restraining order regarding the child’s mother.
Multiple medical professionals and a police officer testified at adjudication that the child’s injuries were caused by non-accidental trauma; petitioner admitted to police he had sole care of the child when the injuries occurred and presented no evidence at hearings.
The circuit court found petitioner was the child’s caretaker at the time of the injuries, that his explanations were inconsistent with the severity of the injuries, and that evidence supported abuse and neglect findings.
The circuit court concluded there was no reasonable likelihood petitioner could substantially correct the conditions of abuse and neglect, terminated his custodial rights on June 13, 2017, and placed the child with the non-offending biological father while the mother was given an improvement period.

Issue	Petitioner's Argument	DHHR/Respondent's Argument	Held
Whether petitioner should be dismissed for lack of standing/custodial status	Petitioner: not a parent or guardian; lacked statutory standing because he is not biological/adoptive/psychological/step-parent and had only been alone with the child once	DHHR: petitioner meets "custodian" definition because he shared actual physical possession/care/custody of the child and admitted sole care at time of injury	Court: Denied dismissal—petitioner was a "custodian" under W.Va. Code §49-1-204 due to actual care/possession and admission of sole care
Whether petitioner’s silence at hearings could be considered evidence of culpability	Petitioner: did not rebut allegations; argued dismissal nonetheless	DHHR/guardian: petitioner’s failure to present evidence supports considering his silence against him	Court: Permitted consideration of petitioner’s silence as probative; cited precedent that silence may be affirmative evidence in remedial abuse/neglect proceedings
Whether circuit court erred in dispositional findings and in ordering termination	Petitioner: argued lack of party status (standing) as basis for error	DHHR: evidence showed no reasonable likelihood of correction; termination appropriate	Court: No error—dispositional findings supported by record; termination affirmed

Tiffany Marie S. v. West Virginia, 196 W.Va. 223, 470 S.E.2d 177 (W. Va. 1996) (standard of review and clearly erroneous rule for bench-tried abuse & neglect cases)
In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (W. Va. 2011) (custodial-rights/termination standards and permanency timing requirements)
W.Va. Dep’t of Health & Human Res. v. Doris S., 197 W.Va. 489, 475 S.E.2d 865 (W. Va. 1996) (a parent/guardian’s silence may be considered affirmative evidence in remedial abuse/neglect proceedings)
State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (W. Va. 1998) (priority of securing a suitable adoptive home and considerations for permanent placement)
James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (W. Va. 1991) (guardian ad litem’s role continues until child is placed in a permanent home)