875 S.E.2d 350
W. Va.2022Background:
- DHHR filed an abuse-and-neglect petition (May 17, 2019) naming two children, C.S. (then in mother J.S.'s care) and B.S. (in a 2014 court-ordered legal guardianship with non‑abusing third parties).
- J.S. stipulated to abuse/neglect based on drug addiction as to C.S.; C.S. was removed and placed in foster care; B.S. remained with legal guardians.
- J.S. had intermittent participation in treatment, several positive drug tests, incarceration, and later some sobriety and outpatient counseling near the end of the case.
- On May 26, 2021 DHHR moved to terminate parental rights under W. Va. Code § 49-4-605(a)(1) because a child had been in foster care 15 of the last 22 months; the court granted termination at hearings in June–August 2021.
- The circuit court’s written dispositional orders lacked statutory findings required under W. Va. Code § 49-4-604(c)(6); the court also terminated rights to B.S., who had been outside mother’s custody for five years pursuant to a guardianship.
- Supreme Court vacated the dispositional orders and remanded: directed a new disposition hearing for C.S. where DHHR must present evidence and the court must make required findings; vacated termination as to B.S. for lack of subject‑matter jurisdiction.
Issues:
| Issue | Plaintiff's Argument (J.S.) | Defendant's Argument (DHHR/ GAL) | Held |
|---|---|---|---|
| Whether §49-4-605(a)(1) permits termination based solely on 15/22 months in foster care | §49-4-605(a)(1) cannot be sole basis; court must consider mother’s recent rehabilitation and evidence of fitness | §49-4-605 requires DHHR to seek termination once timeframe met; court properly terminated given prolonged foster care | Court: §49-4-605(a)(1) obliges DHHR to file/seek termination but does not relieve DHHR of its burden or obligate automatic termination; court must make §49-4-604(c)(6) findings based on evidence |
| Whether DHHR’s burden of proof shifts once §49-4-605(a)(1) is implicated | Mother: burden still on DHHR; court must evaluate affirmative evidence of current parental fitness | DHHR: procedural duty to file; termination is appropriate when timeframe met and reunification delayed | Court: Burden remains on DHHR to prove abused/neglected status and to support termination by clear, cogent, convincing evidence; timeframe triggers DHHR action but not automatic termination |
| Adequacy of circuit court’s dispositional orders | Orders failed to state factual findings and conclusions required for termination under §49-4-604(c)(6); termination improperly based on timeframe | DHHR and GAL argued court considered rehabilitation and permanency needs | Court: Written orders inadequate under In re Edward B.; vacated orders and remanded for new dispositional hearing where required findings must be entered |
| Jurisdiction over B.S. (child in pre-existing legal guardianship) | Mother: Raleigh County court lacked subject‑matter jurisdiction to terminate rights as to B.S.; B.S. was not abused/neglected at filing because under third‑party guardianship | DHHR: venue proper where mother/responsible party resided; guardianship and abuse proceedings are distinct; court could proceed | Court: B.S. was not an "abused" or "neglected" child at petition filing (resided with non‑abusing legal guardians); circuit court lacked subject‑matter jurisdiction to terminate rights to B.S.; vacated termination as to B.S. |
Key Cases Cited
- McCormick v. Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996) (standard of appellate review).
- In Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996) (findings of fact in bench trials reviewed for clear error).
- In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (application of appellate standards in abuse/neglect cases).
- In Interest of S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981) (burden of proof remains with DHHR).
- In re K.L., 233 W. Va. 547, 759 S.E.2d 778 (2014) (reaffirming burden and evidentiary requirements).
- In re George Glen B., Jr., 207 W. Va. 346, 532 S.E.2d 64 (2000) (DHHR duty to file under statute does not obviate evidentiary standards or court findings).
- In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001) (orders terminating parental rights must include explicit factual findings and statutory conclusions).
- In re A.T.-1, 243 W. Va. 435, 844 S.E.2d 470 (2020) (statute triggers DHHR to seek ruling when timeframe exceeded).