In re K.S., B.M., and O.S., 874 S.E.2d 319

Background

Mother (S.S.) of three children adjudicated abused/neglected after methamphetamine use; children placed with their biological fathers and mother stipulated to abuse/neglect.
Mother underwent multiple improvement periods, with periods of sobriety interspersed with two relapses; COVID-19 disrupted drug testing, services, and visitation in 2020.
DHHR recommended termination of parental rights at disposition; the guardian ad litem and the assistant prosecuting attorney recommended a less-restrictive disposition (a "disposition 5").
At the dispositional hearing DHHR presented no live witnesses or sworn evidence; the prosecutor stated she would not present testimony and relied on case summaries; mother presented testimony from herself and her therapist.
The circuit court terminated mother’s parental rights, citing the case duration and the mother’s “inconsistency,” and left post-termination visitation to the fathers’ discretion.
Supreme Court of Appeals vacated the termination and remanded because DHHR failed to meet its burden to present affirmative, seasonable evidence at disposition and the dispositional order lacked adequate factual findings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether DHHR met its burden at the dispositional hearing	Mother: DHHR failed to present sworn, seasonable evidence; termination unsupported	DHHR: Court could rely on cumulative record and DHHR case summaries in lieu of live testimony	Held: DHHR failed to meet its burden; vacated termination and remanded for a proper dispositional hearing with affirmative evidence
Whether a less-restrictive disposition (disposition 5) should have been ordered	Mother/GAL/assistant prosecutor: disposition 5 appropriate given progress and recommendations	DHHR: termination appropriate	Held: Merits rendered moot by vacatur; court noted GAL and prosecutor had recommended disposition 5 and remand must allow proper consideration of less-restrictive options
Whether the prosecuting attorney properly represented DHHR	Mother: prosecutor effectively declined to advocate DHHR’s position and did not present evidence	Prosecutor: expressed disagreement with DHHR’s recommendation and declined to call witnesses	Held: Prosecutors act as counsel for DHHR and must advocate the Department’s position; cannot independently oppose DHHR or decline to prosecute DHHR’s case
Whether post-termination visitation and sibling contact were properly addressed	Mother: post-termination and sibling visitation should be considered in children’s best interests	Fathers: wanted discretion or opposed contact	Held: Post-termination visitation and sibling contact are rights of the child and cannot be left to fathers’ whim; dispositional orders must specifically address and, if appropriate, structure these contacts

Key Cases Cited

McCormick v. Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996) (standard of review for circuit court factual findings and dispositional decisions)
In re S. W., 236 W. Va. 309, 779 S.E.2d 577 (2015) (adopting two-prong deferential review standard)
State ex rel. W. Va. Dep’t of Health & Hum. Res. ex rel. Chastity D. v. Hill, 207 W. Va. 358, 532 S.E.2d 358 (2000) (requirement of a disposition hearing addressing termination specifically)
In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) (clear, cogent, and convincing standard for termination)
In re S. C., 168 W. Va. 366, 284 S.E.2d 867 (1981) (burden of proof remains with DHHR even after improvement periods)
In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991) (court must review parent’s performance at conclusion of improvement period)
In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001) (orders terminating rights must include explicit factual findings; vacatur/remand where procedures disregarded)
In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995) (post-termination visitation may be ordered in child’s best interest)
James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991) (court should consider sibling visitation and enter orders preserving sibling contact when in children’s best interests)