912 S.E.2d 885
W. Va.2025Background
- Petitioner (C.M.) struggled with substance abuse, putting her children H.M. and B.M. in guardianships before the filing of a third abuse and neglect petition.
- The Department of Human Services (DHS) filed the instant abuse and neglect petition in May 2022.
- C.M. stipulated to drug abuse in the presence of her children; the court found the children abused and neglected but left them in established guardianships.
- C.M. received a post-adjudicatory improvement period and entered treatment but continued to have issues with substance use, employment, and stable housing through 2023.
- After multiple hearings, the circuit court ordered legal guardianship of H.M. to A.H., her prior foster mother, dismissing C.M. from the case but not terminating her parental rights.
- C.M. appealed, arguing the order improperly denied her modification rights and visitation, and failed to follow statutory requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Compliance with Improvement Plan | C.M. substantially complied with her case plan; positive drug tests unreliable; efforts to obtain housing and employment ongoing | DHS argues petitioner did not make substantial progress—positive drug screens and instability in housing and employment | Circuit court did not abuse discretion finding non-compliance; affirmed |
| Statutory Compliance of Dispositional Order | Circuit court order failed to comply with statute by placing H.M. in "permanent" rather than temporary custody and denying C.M. right to seek modification | DHS/GAL assert order was proper; acknowledge possible need for clarification | Remanded for clarification—placement is temporary and parent may seek modification |
| Dismissal of Petitioner from Proceedings | Dismissal improperly denied petitioner right to participate in further review hearings as parental rights not terminated | Order complies with less restrictive alternatives; statute controls | Error to dismiss petitioner; vacated and remanded for correction |
| Visitation Rights | Order improperly made visitation discretionary to guardian though parental rights not terminated | DHS/GAL defend order; acknowledge issue re: statutory discretion | Error; visitation must be court-ordered if in child's best interest |
Key Cases Cited
- In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (standard of review in abuse/neglect cases)
- In the Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (clearly erroneous standard for factual findings)
- In re Jonathan Michael D., 194 W. Va. 20, 459 S.E.2d 131 (improvement periods focus on substantive, not checklist, compliance)
- In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (final disposition must focus on best interests of the child)
- In re Marley M., 231 W. Va. 534, 745 S.E.2d 572 (post-termination visitation standards)