In re T.S., 827 S.E.2d 29

Background

DHHR filed an Imminent Danger Petition (Jan 2017) alleging domestic violence and medical abuse/overdiagnosis by parents; children placed in foster care. V.A. reported witnessing violence; T.S. alleged to have been left upset and soiled.
Petitioner (R.S.) and mother initially denied abuse; both later stipulated at adjudication that the children had been exposed to abuse/neglect and the petitioner admitted emotional harm to V.A.; petitioner was adjudicated an abusing and neglectful parent.
Petitioner received pre- and post-adjudicatory improvement periods; hearings were held and various service providers and therapists testified about the children and supervised visits.
At disposition, DHHR and GAL sought termination of petitioner’s parental rights; the mother moved for disposition under West Virginia Code § 49-4-604(b)(5). The circuit court refused termination and placed the children in the custody of guardians under § 49-4-604(b)(5), finding the petitioner unwilling or unable to provide for the children.
At the dispositional hearing the DHHR presented full evidence; the court then denied the petitioner the opportunity to call the CASA, other witnesses, or to testify in his own behalf, treating defense counsel’s statement as a proffer and citing time constraints.
Petitioner appealed, arguing he was denied a meaningful opportunity to be heard at disposition in violation of statutory and due process rights. The Supreme Court of Appeals reversed and remanded limited to affording petitioner the opportunity to testify and present witnesses at disposition.

Issues

Issue	Plaintiff's Argument (R.S.)	Defendant's Argument (DHHR/GAL)	Held
Whether petitioner was denied a meaningful opportunity to be heard at disposition	Court prevented him from calling CASA, other witnesses, and from testifying; counsel’s proffer was inadequate	Petitioner had counsel who argued on his behalf; court reasonably relied on counsel’s proffer and prior evidence	Reversed: statutory and constitutional law require opportunity to testify and present witnesses; remand for limited new dispositional hearing allowing petitioner to present evidence
Whether court could rely on DHHR’s full presentation without petitioner’s testimony	N/A (tied to first issue—petitioner needed to present his own evidence)	DHHR argued no need for additional petitioner witnesses given evidence and proffer	Court held DHHR need not repeat its case on remand; court may rely on existing transcripts, but petitioner must be allowed to present/testify; rebuttal allowed if needed
Whether disposition under § 49-4-604(b)(5) was appropriate without additional evidence from petitioner	Argued case should be dismissed and T.S. returned; sought post-dispositional improvement period	DHHR and GAL sought termination or supported disposition as appropriate	Court did not decide correctness of § 49-4-604(b)(5) disposition on merits, remanded solely for failure to afford opportunity to be heard
Whether counsel’s statement could substitute for petitioner’s testimony	Counsel claimed to present what petitioner would say; court treated it as proffer and declined petitioner testimony	DHHR/GAL said proffer sufficed and no testimony necessary	Court held counsel’s proffer cannot replace the statutory right to testify and present witnesses; petitioner must be allowed to testify on remand

Key Cases Cited

In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996) (standard of review for factual findings in abuse and neglect cases)
Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) (de novo review for questions of law/statutory interpretation)
In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) (parental rights cannot be terminated without notice and meaningful hearing)
In re Samantha M., 205 W. Va. 383, 518 S.E.2d 387 (1999) (due process protections in parental-rights proceedings)
State ex rel. H.S. v. Beane, 240 W. Va. 643, 814 S.E.2d 660 (2018) (statutory right to meaningful opportunity to testify and present/cross-examine witnesses)
In re Jonathon G., 198 W. Va. 716, 482 S.E.2d 893 (1996) (party with custodial rights entitled to meaningful opportunity to be heard)
State ex rel. C.H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540 (2018) (clarifying scope of statutory hearing rights)