CHILD ABUSE AND NEGLECT CASELAW DIGEST

TABLE OF CONTENTS

  1. CHILD ABUSE AND NEGLECT: GENERAL DEFINITIONS AND PRINCIPLES

  2. TIME STANDARDS FOR PROCESSING ABUSE AND NEGLECT CASES

  3. EMERGENCY CUSTODY

  4. CHILD ABUSE AND NEGLECT PETITION

  5. RIGHT TO COUNSEL/DUTIES AND ROLES

  6. IMPROVEMENT PERIODS

  7. ADJUDICATORY HEARING

  8. DISPOSITIONAL HEARING

  9. MEDICAL AND MENTAL EXAMINATIONS

  10. TERMINATION OF PARENTAL RIGHTS

  11. APPEALS

  12. CRIMINAL PROSECUTION

  13. CRIMINAL OFFENSES INVOLVING ABUSE AND NEGLECT OF CHILDREN

  14. DIVORCE PROCEEDINGS INVOLVING ABUSE AND NEGLECT ALLEGATIONS



  15. CHILD ABUSE AND NEGLECT: GENERAL DEFINITIONS AND PRINCIPLES

    1. Abused Child-Neglected Child Defined
    2. Meaning of Term "Knowingly"
    3. Child Abuse --Scope
    4. Other Children in Abusive Home
    5. Non-Custodial Parents Can Be Found Abusive and/or Neglecting
    6. Relinquishment Associated with Adoption Not Abandonment
    7. Primary Goal in Abuse and Neglect Cases
    8. Abuse and Neglect by School Teacher
    9. Jurisdiction
    10. Multidisciplinary Treatment Teams
    11. Meaning and Purpose of Child Case Plan
    12. Difference Between Civil and Criminal Abuse and Neglect
    13. Imminent Danger

  16. TIME STANDARDS FOR PROCESSING ABUSE AND NEGLECT CASES

    1. High Priority for Courts' Attention
    2. When Criminal Investigations and Proceedings Are Pending
    3. Parents' Right to Revoke Relinquishment
    4. No Adoption During Pendency of Proceeding
    5. Continuance
    6. Court Finds Child Abused and/or Neglected

  17. EMERGENCY CUSTODY

    1. Imminent Danger Findings

  18. CHILD ABUSE AND NEGLECT PETITION

    1. Appoint Counsel at Filing of Petition
    2. Abandonment -- Non-Custodial Parent
    3. Plea Bargain -- No Dismissal of Petition
    4. Who May File an Abuse and Neglect Petition
    5. Hearing Attendance by Incarcerated Parents
    6. Duty to File Petition -- Prior Termination Involving Sibling

  19. RIGHT TO COUNSEL/DUTIES AND ROLES

    1. Children
    2. Mentally Ill Parent
    3. Custodian or Parent
    4. Duties of County Prosecutor and DHHR
    5. Duties of Guardians Ad Litem
    6. All Counsel Must Have Opportunity to Advocate
    7. Role of Counsel Generally

  20. IMPROVEMENT PERIODS

    1. Goal of Improvement Periods and Family Case Plans
    2. Parental Rights and Limitations
    3. Battered Woman's Syndrome
    4. Court must Make Ruling on Motion for Improvement Period
    5. Improvement Period Denied
    6. Abandonment by Parent
    7. Family Case Plan Required
    8. Formulation of Improvement Period and Family Case Plan
    9. Termination by Court of Improvement Period
    10. Conclusion of Improvement Period
    11. Extension of Improvement Period
    12. Responsibility for Initiation and Completion of Terms
    13. Prohibition Available to Challenge Improvement Periods
    14. Statutory Limits

  21. ADJUDICATORY HEARING
    1. Parties Having Custodial or Parental Rights
    2. Prove Conditions Existing at Time of Filing of Petition
    3. Procedure for Taking Testimony of Children
    4. DHHR Testimony and Burden of Proof
    5. Findings of Facts and Conclusions of Law
    6. Silence as Affirmative Evidence
    7. Introduction of Collateral Acts or Crimes and Expert Opinion Testimony
    8. Transcript of Criminal Case
    9. Rights of Criminally Accused
    10. Stipulation

  22. DISPOSITIONAL HEARING


    23.
    1. Adjudication Is a Prerequisite
    2. Voluntary Dispositional Plan
    3. Where Abandonment of the Child by Either Biological Parents Is Alleged or Proven
    4. First Degree Murder of Child's Parent
    5. DHHR -- Compliance with Notice Requirements
    6. Accelerated Disposition Hearings
    7. Permanent Out-of-Home Placement
    8. Reunification
    9. Child Case Plan and Permanency Plan

  23. MEDICAL AND MENTAL EXAMINATIONS


    24.
    1. Cannot Be Used in Subsequent Criminal Proceedings
    2. Involuntary Sterilization

  24. TERMINATION OF PARENTAL RIGHTS

    1. Nonprotecting Parent
    2. Finding of Imminent Danger Not Required
    3. Prior Acts of Violence Against Other Children Are Relevant
    4. Abuse Not by Parent
    5. Absent Parent
    6. Proof of Failure to Comply with Family Case Plan Unnecessary
    7. Least Restrictive Alternatives
    8. Adult Rights and Children Rights
    9. Gradual Transition Period
    10. Continued Visitation with Parents
    11. Continued Association with Siblings
    12. Preferred Placement -- With Siblings
    13. Foster Parents' Involvement in Proceedings
    14. Continued Association with Foster Parents
    15. Continued Association with Grand Parents
    16. Adoptive Home -- Preferred Permanent Placement
    17. Prior Involuntary Termination of Parental Rights to a Sibling
    18. Intellectual Incapacity of Parents
    19. Concurrent Planning
    20. Parents with Terminal Illness
    21. Parents -- Acknowledgment of Problem
    22. Standards
    23. Incarcerated Parent
    24. Relinquishment of Parental Rights
    25. Required Findings to Warrant Termination of Parental Rights
    26. Mandatory Procedure for Disposition of Child Abuse and Neglect Cases

  25. APPEALS

    1. Standard of Review for Abuse and Neglect Cases
    2. Transcripts
    3. Writ of Mandamus Against DHHR
    4. Prohibition Available
    5. Foster Parents Right to Appeal

  26. CRIMINAL PROSECUTION

    1. Prosecutors' Role
    2. Medical and Mental Examinations of Victims
    3. Expert Psychological Testimony
    4. Confidentiality of Statements Obtained During a Court-Ordered Examination

  27. CRIMINAL OFFENSES INVOLVING ABUSE AND NEGLECT OF CHILDREN
    1. Felonious Neglect
    2. Sexual Assault
    3. Abuse Creating Substantial Risk of Injury or Death

  28. DIVORCE PROCEEDINGS INVOLVING ABUSE AND NEGLECT ALLEGATIONS

    1. Transfer to Circuit Court
    2. Circuit Court Review Without Exceptions Where Abuse and Neglect Alleged
    3. Court Ordered Examination of Parent
    4. Emergency Change of Custody
    5. Allegations of Sexual Abuse
    6. Supervised Visitation
    7. Standard and Requirements for Supervised Visitation
    8. Supervised Visitation No Longer Necessary
    9. Fabrication or Exaggeration
  1. CHILD ABUSE AND NEGLECT: GENERAL DEFINITIONS AND PRINCIPLES

    1. Abused Child-Neglected Child Defined

      Syl. Pt. 1, State ex rel. Virginia M. v. Virgil Eugene S., 197 W. Va. 456, 475 S.E.2d 548 (1996) (Per Curiam); Syl. Pt. 1, State ex rel. Diva P. v. Kaufman, 200 W. Va 555, 490 S.E.2d 642 (1997)

      An "abused child" is defined in W. Va. Code § 49-1-3 [1994], as a child who is harmed or threatened by "[a] parent, guardian or custodian who knowingly or intentionally inflicts, attempts to inflict or knowingly allows another person to inflict, physical injury or mental or emotional injury, upon the child or another child in the home[.]" In addition, W. Va. Code § 49-1-3 [1994], defines a "neglected child" as a child who is harmed or threatened "by a present refusal, failure or inability of the child's parent, guardian or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care or education, when such refusal, failure or inability is not due primarily to a lack of financial means on the part of the parent, guardian or custodian[.]"

      Syl. Pt. 1, W. Va. DHHR v. Doris S., 197 W. Va. 489, 475 S.E.2d 865 (1996)

      Implicit in the definition of an abused child under W. Va. Code § 49-1-3 [1995] is the child whose health or welfare is harmed or threatened by a parent or guardian who fails to cooperate in identifying the perpetrator of abuse, rather choosing to remain silent.

      Syl. Pt. 3, In re Betty J.W., 179 W. Va. 605, 371 S.E.2d 326 (1988); Syl. Pt. 1, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995); Syl. Pt. 2, In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); Syl. Pt. 1, In re Jonathan Michael D., 194 W. Va. 20, 459 S.E.2d 131 (1995); Syl. Pt. 1, In the Matter of Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991)

      W. Va. Code § 49-1-3(a) [1984], in part, defines an abused child to include one whose parent knowingly allows another person to commit the abuse. Under this standard, termination of parental rights is usually upheld only where the parent takes no action in the face of knowledge of the abuse or actually aids or protects the abusing parent.

    2. Meaning of Term "Knowingly"

      Syl. Pt. 7, W. Va. DHHR v. Doris S., 197 W. Va. 489, 475 S.E.2d 865 (1996)

      The term "knowingly" as used in W. Va. Code § 49-1-3(a)(1) [1995] does not require that a parent actually be present at the time the abuse occurs, but rather that the parent was presented with sufficient facts from which he/she could have and should have recognized that abuse has occurred.

    3. Child Abuse -- Scope

      Syl. Pt. 4, W. Va. DHHR v. Doris S., 197 W. Va. 489, 475 S.E.2d 865 (1996)

      Pursuant to the provisions of W. Va. Code § 49-1-3(a)(1) [1995], the definition of child abuse encompasses a parent, guardian or custodian who knowingly allows another person to inflict physical injury upon another child residing in the same home as the parent and his/her child(ren), even though that child is not the parent's natural or adopted child.

      In the Matter of Taylor B., 201 W. Va. 60, 491 S.E.2d 607 (1997)

      "Contrary to the assertion of James B., civil abuse and neglect proceedings focus directly upon the safety and well-being of the child and are not simply 'companion cases' to criminal prosecutions." 201 W. Va. at 66, 491 S.E.2d at 613.

      Syl. Pt. 2, In the Matter of Lindsey C., 196 W. Va. 395, 473 S.E.2d 110 (1996)

      The procedure in abuse and neglect cases is governed by provisions internal to W. Va. Code § 49-1-1, et seq., and such other procedural requirements of the Code or general law as obtain. Except for Rules 5(b), 5(e) and 80, the West Virginia Rules of Civil Procedure for Trial Courts of Record are not applicable to such cases.

    4. Other Children in Abusive Home

      Syl. Pt. 2, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995); Syl. Pt. 8, State ex rel. Diva P. v. Kaufman, 200 W. Va. 555, 490 S.E.2d 642, (1997); Syl. Pt. 4, W. Va. DHHR v. Scott C., 200 W. Va. 304, 489 S.E.2d 281, (1997)

      Where there is clear and convincing evidence that a child has suffered physical and/or sexual abuse while in the custody of his or her parent(s), guardian, or custodian, another child residing in the home when the abuse took place who is not a direct victim of the physical and/or sexual abuse but is at risk of being abused is an abused child under W. Va. Code § 49-1-3(a) (1994).

      However, the Court has refused to adopt a blanket rule that parental rights must be terminated to all the children residing in the home based merely on the finding that one child has been abused. Instead, there must be clear and convincing evidence that the child's "health or welfare is harmed or threatened" by the conditions existing in the home. The circuit court must make a specific and independent finding of fact or conclusion of law that the other siblings were abused or would be at risk of being abused in order to terminate parental rights based upon the abuse of another child in the home. Of course, evidence of the abuse of one child is certainly relevant and probative to the issue of a parent's capacity to protect other siblings from abuse or the capacity of a parent not to abuse the other children in the home.

      In making its ultimate determination as to disposition of a child whose sibling has been abused, the circuit court should take into consideration both the evidence of the abuse of the other child, the possible reluctance of the sibling if returned home to notify anyone of abuse; and, the likelihood that a parent would not defend the sibling from further abuse and whether the parent is so deficient in the basic parental instinct to protect the child that determination of rights to siblings can be justified on that basis alone.

    5. Non-Custodial Parents Can Be Found Abusive and/or Neglecting

      Syl. Pt. 1, in part, In re Katie S. and David S., 198 W. Va. 79, 479 S.E.2d 589 (1996); Syl. Pt. 1, In re Christine Tiara W., 198 W. Va. 266, 479 S.E.2d 927 (1996)

      When the Department of Health and Human Services finds a situation in which apparently one parent has abused or neglected the children and the other has abandoned the children, both allegations should be included in the abuse and neglect petition filed under W. Va. Code § 49-6-1(a) (1992). Every effort should be made to comply with the notice requirements for both parents. To the extent that State ex rel. McCartney v. Nuzum, 161 W. Va. 740, 248 S.E.2d 318 (1978), holds that a non-custodial parent can be found not to have abused and neglected his or her child it is expressly overruled.

    6. Relinquishment Associated with Adoption Not Abandonment

      Syl. Pt. 4, State ex rel. Paul B. and Chris B. v. Hill, 201W. Va. 248, 496 S.E.2d 198 (1997)

      A parent’s relinquishment of his/her parental rights either in anticipation of future adoption proceedings or as a part of previously initiated adoption proceedings does not constitute abandonment for abuse and neglect purposes.

    7. Primary Goal in Abuse and Neglect Cases

      Syl. Pt. 3, In re Katie S. and David S., 198 W. Va. 79, 479 S.E.2d 589 (1996); Syl. Pt. 3, In the Matter of Taylor B., 201W. Va. 60, 491 S.E.2d 607 (1997); Syl. Pt. 2, In re William John R., 200 W. Va. 627, 490 S.E.2d 714, (1997); Syl. Pt. 2, W. Va. DHHR v. Scott C., 200 W. Va. 304, 489 S.E.2d 281 (1997); Syl. Pt. 4, W. Va. DHHR v. Billy Lee C., 199 W. Va. 541, 485 S.E.2d 710 (1997)

      Although parents have substantial rights that must be protected, the primary goal in cases involving abuse and neglect, as in all family law matters, must be the health and welfare of the children.

    8. Abuse and Neglect by School Teacher

      W. Va. DHS v. Boley, 178 W. Va. 179, 358 S.E.2d 438 (1987)

      Statutory provisions relating to child abuse and neglect are not applicable to remove or discipline a teacher who allegedly abused student; removal or disciplinary procedures are properly accomplished under provisions of teacher disciplinary statute.

    9. Jurisdiction

      Syl. Pt. 3, State ex rel. Paul B. and Chris B. v. Hill, 201 W. Va. 248, 496 S.E.2d 198 (1997); Syl. Pt. 2, State ex rel. Rose L. v. Pancake, 209 W. Va. 188, 544 S.E.2d 403 (2001)
      A circuit court has jurisdiction to entertain an abuse and neglect petition and to conduct proceedings in accordance therewith as provided by W. Va. Code § 49-6-1, et seq.

    10. Multidisciplinary Treatment Teams

      E.H. v. Matin, 201 W. Va. 463, 498 S.E.2d 35 (1997)

      Syl. Pt. 2: Multidisciplinary treatment teams must assess, plan, and implement service plans pursuant to W. Va. Code § 49-5D-3.

      Syl. Pt. 3: The language of W. Va. Code § 49-5D-3 is mandatory and requires the Department of Health and Human Resources to convene and direct treatment teams not only for juveniles involved in delinquency proceedings, but also for victims of abuse and neglect.

      Syl. Pt. 5: Circuit courts may specify direct placements of juveniles in out-of-state facilities only: (1) if in accord with the plan(s) of the juvenile’s multidisciplinary team, or if not in accord with that plan(s), then (2) after the circuit court has made specific findings of fact, following an evidentiary hearing, that the plan(s) of the juvenile’s multidisciplinary treatment team is inadequate to meet the child’s needs.

    11. Meaning and Purpose of Child Case Plan

      State ex rel. S.C. v. Chafin, 191 W. Va. 184, 444 S.E.2d 62 (1994)

      West Virginia Code § 49-6-5(a) defines the child case plan as a written document which includes, where applicable, the requirements of the family case plan set forth in W. Va. Code § 49-6D-3, as well as the additional requirements set forth in W. Va. Code § 49-6-5(a).

      Syl. Pt. 4: The purpose of the child's case plan is the same as the family case plan, except that the focus of the child's case plan is on the child rather than the family unit.

    12. Difference Between Civil and Criminal Abuse and Neglect

      Presence of respondent not required (no right to confrontation) - Kenneth B. v. Elmer Jimmy S., 184 W. Va. 49, 399 S.E.2d 192 (1990).

      Standard proof of clear and convincing evidence of abuse/neglect; then polar star is what is in best interest of child - State v. T.C., 172 W. Va. 47, 303 S.E.2d 685 (1983).

      Rules of Evidence - In the Matter of Jonathan P., 182 W. Va. 302, 387 S.E.2d 537 (1989); In the Interest of S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981); In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991); James M. v. Maynard 185 W. Va. 648, 408 S.E.2d 400 (1991).

    13. Imminent Danger

      In the Interest of Jonathan P., 182 W. Va. 302, 387 S.E.2d 537 (1989)

      "Imminent danger" defined to include lack of cooperation to provide adequate food and shelter.


  2. TIME STANDARDS FOR PROCESSING ABUSE AND NEGLECT CASES

    1. High Priority for Courts' Attention

      Syl. Pt. 1, in part, In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991); Syl. Pt. 6, W. Va. DHHR v. Scott C., 200 W. Va. 304, 489 S.E.2d 281 (1997); Syl. Pt. 3, In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996); Syl. Pt. 5, In the Matter of Brian D., 194 W. Va. 623, 461 S.E.2d 129 (1995); Syl. Pt. 3, Boarman v. Boarman, 190 W. Va. 533, 438 S.E.2d 876 (1993)

      Child abuse and neglect cases must be recognized as being among the highest priority for the courts' attention. Unjustified procedural delays wreak havoc on a child's development, stability and security.

      Syl. Pt. 5, In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991); Syl. Pt. 6, In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996); Syl. Pt. 5, Boarman v. Boarman, 190 W. Va. 533, 438 S.E.2d 876 (1993)

      The clear import of the statute [W. Va. Code § 49-6-2(d)] is that matters involving the abuse and neglect of children shall take precedence over almost every other matter with which a court deals on a daily basis, and it clearly reflects the goal that such proceedings must be resolved as expeditiously as possible.

      In the Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996)

      It is vital to the rule of law that legislative and appellate commands be honored. A judge is free, of course, to manage his or her own docket but, when such managerial decisions transgress appellate commands, it is incumbent upon the trial judge to avoid the further (and quite different) impression that he or she has crossed the line into disregard . . . A circuit court is not at liberty to disregard lawful directives of the Legislature and this Court simply because those directives conflict with the judge's individual notions of efficiency or docket control. In the last analysis, it is crucial to public confidence in the courts that judges be seen as enforcing the law and as obeying it themselves. Exactly so. This is the short of it--and there is no long of it.

      n16 Rule 8 of the Time Standards for Circuit Courts provides in full: Abuse and neglect proceedings.

      1. Applicability. The time standards set forth in this rule are not intended to supersede, but to supplement, statutory provisions applicable to civil abuse and neglect proceedings.

      2. Pre-adjudicatory motions. An order shall be entered on pre-adjudicatory motions within one week of hearing on the motion.

      3. Preliminary hearing. If a preliminary hearing is held, it shall be conducted within two weeks from the filing of the petition.

      4. Adjudication. Unless continued for good cause to a date certain or unless a pre-adjudicatory improvement period is granted, the adjudicatory order shall be entered within one month of the filing of the petition if the child is not in temporary custody. If a pre-adjudicatory improvement period is granted, the adjudicatory order shall be entered within two weeks of the end of the pre-adjudicatory improvement period.

      5. Disposition. If abuse or neglect is found, the dispositional order placing the child shall be entered within six weeks of the adjudicatory order.

      6. Post-adjudicatory improvement period. A further dispositional order shall be entered within two weeks of the end of the post-adjudicatory improvement period.

      7. Monitoring improvement period. An assessment of the status of the child(ren) and the progress of the parent(s) towards satisfying the conditions of the improvement period shall be conducted on a monthly basis.

      8. Modification. An order shall be entered on a motion to modify within one month of the filing of the motion.

      9. Foster care review. A further dispositional order shall be entered within one month of the filing of a petition for foster care review.

      10. Reporting standard. The reporting standard from the filing of the petition to disposition shall be twelve months.

      n17 Under our supervisory authority over circuit courts, we may require the courts to follow procedures deemed desirable form the viewpoint of sound judicial policy and practice although they are not specifically commanded by the Constitution or the Legislature.

      State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 470 S.E.2d 205 (1996)

      Delay of eight months in holding evidentiary hearing and of two months in making determination of neglect were in clear contravention of directive that matters involving abuse and neglect of children take precedence over almost every other matter and that abuse and neglect proceedings must be resolved as expeditiously as possible.

      W. Va. DHHR v. La Rea Ann C.L., 175 W. Va. 330, 332 S.E.2d 632 (1985)

      State of West Virginia ex rel. S.C. v. Chafin, 191 W. Va. 184, 444 S.E.2d 62 (1994)

    2. When Criminal Investigations and Proceedings Are Pending

      Jennifer A. v. Burgess, No. 21009 (W. Va. Supreme Court unpublished order entered May 15, 1992)

      Abuse and neglect proceedings should be instituted even though criminal investigations and proceedings are pending.

    3. Parents' Right to Revoke Relinquishment

      W. Va. DHS v. La Rea Ann C.L., 175 W. Va. 330, 332 S.E.2d 632 (1985)

      Where child has spent substantial period of time at home of foster parents, pending ruling by trial court on whether to approve minor parent's relinquishment of custody to licensed private child welfare agency or to DHS, best interest of child must be given primary importance by trial court; in such case, minor parent's right to revoke relinquishment ceases to be absolute, due to passage of unreasonable period of time.

    4. No Adoption During Pendency of Proceeding

      Alonzo v. Jacqueline F., 191 W. Va. 248, 445 S.E.2d 189 (1994)

      Syl. Pt. 1: W. Va. Code § 49-6-5(a)(6), which deals with the disposition by a court of a case involving a neglected or abused child, provides, in part: "no adoption of a child shall take place until all proceedings for termination of parental rights under this article and appeals thereof are final."

      Syl. Pt. 2: Where a child abuse and neglect proceeding has been filed against a parent, such parent may not confer any rights on a third party by executing a consent to adopt during the pendency of the proceeding.

    5. Continuance

      In the Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996)

      "The sacred rights of the affected children" must be considered in deciding whether to grant a continuance.

    6. Court Finds Child Abused and/or Neglected

      Syl.Pt.1, State ex rel. S.C. v. Chafin, 191 W. Va. 184, 444 S.E.2d 62 (1994)

      If the court adjudicates, pursuant to W. Va. Code § 49-6-2, that the child is abused or neglected, then both the DHHR and the court, no later than 60 days after the child is placed in the temporary custody of the DHHR, are to proceed with the disposition of the child in compliance with W. Va. Code § 49-6-5. West Virginia Code § 49-6-5(a) requires the DHHR to file with the court a copy of the child's case plan, including permanency plan for the child.

  3. EMERGENCY CUSTODY
    1. Imminent Danger Findings

      In the Interest of Renae Ebony W., 192 W. Va. 421, 452 S.E.2d 737 (1994)

      The infant, Renae Ebony W., through an emergency removal by DHHR, was taken from her parents custody. The circuit court ratified the emergency removal, but returned the child to the parents for a three month in-home improvement period.

      This Court held that where a child is initially removed from the custody of his or her parents pursuant to W. Va. Code § 49-6-3, and where such emergency taking is subsequently ratified on the basis of a finding of imminent danger, the child shall remain in the temporary legal and physical custody of the State or some responsible relative within the meaning of W. Va. Code § 49-6-3 and out of the alleged abusive home during the improvement period until the circumstances which constitute the imminent danger have ceased to exist, or the alleged abusing person has been precluded from residing in or visiting the home.


  4. CHILD ABUSE AND NEGLECT PETITION
    1. Appoint Counsel at Filing of Petition

      Syl. Pt. 8, In the Matter of Lindsey C., 196 W. Va. 395, 473 S.E.2d 110 (1995); Syl. Pt. 2, In the Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996)

      Circuit courts should appoint counsel for parents and custodians required to be named as respondents in abuse and neglect proceedings incident to the filing of each abuse and neglect petition. Upon the appearance of such persons before the court, evidence should be promptly taken, by affidavit and otherwise, to ascertain whether the parties for whom counsel has been appointed are or are not able to pay for counsel. In those cases in which the evidence rebuts the presumption of inability to pay as to one or more of the parents or custodians, the appointment of counsel for any such party should be promptly terminated upon the substitution of other counsel or the knowing, intelligent waiver of the right to counsel. Counsel appointed in these circumstances are entitled to compensation as permitted by law.

    2. Abandonment -- Non-Custodial Parent

      Syl. Pt. 1, In re Katie S. and David S., 198 W. Va. 79, 479 S.E.2d 589 (1996); Syl. Pt. 1, In re Christine Tiara W., 198 W. Va. 266, 479 S.E.2d 927 (1996)

      When the DHHS finds a situation in which apparently one parent has abused or neglected the children and the other has abandoned the children, both allegations should be included in the abuse and neglect petition filed under W. Va. Code § 49-6-1(a) [1992]. Every effort should be made to comply with the notice requirements for both parents. To the extent that State ex rel. McCartney v. Nuzum, 161 W. Va. 740, 248 S.E.2d 318 (1978) holds that a noncustodial parent can be found not to have abused and neglected his or her child it is expressly overruled.

      Syl. Pt. 6, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995); Syl. Pt. 8, In the Matter of Brian D., 194 W. Va. 623, 461 S.E.2d 129 (1995)

      When the DHHR seeks to terminate parental rights where an absent parent has abandoned the child, allegations of such abandonment should be included in the petition and every effort made to comply with the notice requirements of W. Va. Code § 49-6-1.

    3. Plea Bargain -- No Dismissal of Petition

      Syl. Pt. 2, In the Matter of Taylor B., 201 W. Va. 60, 491 S.E.2d 607 (1997); Syl. Pt. 4, State ex rel. Lowe v. Knight, 209 W. Va. 134, 544 S.E.2d 61 (2000)

      A civil child abuse and neglect petition instituted by the DHHR pursuant to W. Va. Code § 49-6-1, et seq., is not subject to dismissal pursuant to the terms of a plea bargain between a county prosecutor and a criminal defendant in a related child abuse prosecution.

    4. Who May File an Abuse and Neglect Petition

      State ex rel. Paul B. and Chris B. v. Hill, 201 W. Va. 248, 496 S.E.2d 198 (1997)

      Not only the DHHR has "standing" to file an abuse/neglect petition, any "reputable person" with knowledge of the facts may. W. Va. Code § 49-6-1(a).

    5. Hearing Attendance by Incarcerated Parents

      State ex rel. Jeanette H. v. Pancake, 207 W. Va. 154, 529 S.E.2d 865 (2000)

      Syl. Pt. 10: Whether an incarcerated parent may attend a dispositional hearing addressing the possible termination of his or her parental rights is a matter committed to the sound discretion of the circuit court.

      Syl. Pt. 11: In exercising its discretion to decide whether to permit an incarcerated parent to attend a dispositional hearing addressing the possible termination of his or her parental rights, regardless of the location of the institution wherein the parent is confined, the circuit court should balance the following factors: (1) the delay resulting from parental attendance; (2) the need for an early determination of the matter; (3) the elapsed time during which the proceeding has been pending before the circuit court; (4) the best interests of the child(ren) in reference to the parent’s physical attendance at the termination hearing; (5) the reasonable availability of the parent’s testimony through a means other than his or her attendance at the hearing; (6) the interests of the incarcerated parent in presenting his or her testimony in person rather than by alternate means; (7) the affect of the parent’s presence and personal participation in the proceedings upon the probability of his or her ultimate success on the merits; (8) the cost and inconvenience of transporting a parent from his or her place of incarceration to the courtroom; (9) any potential danger or security risk which may accompany the incarcerated parent’s transportation to or presence at the proceedings; (10) the inconvenience or detriment to parties or witnesses; and (11) any other relevant factors.

    6. Duty to File Petition -- Prior Termination Involving Sibling

      In re George Glen B. Jr., 207 W. Va. 346, 532. S.E.2d 64 (2000)

      Syl. Pt. 1: When the parental rights of a parent to a child have been involuntarily terminated, W. Va. Code § 49-6-5b(a)(3) [1998] requires the Department of Health and Human Resources to file a petition, to join in a petition, or to otherwise seek a ruling in any pending proceeding, to terminate parental rights as to any sibling(s) of that child.

      Syl. Pt. 2: While the Department of Health and Human Resources has a duty to file, join or participate in proceedings to terminate parental rights in the circumstances listed in W. Va. Code § 49-6-5b(a)(3) [1998], the Department must still comply with the evidentiary standards established by the Legislature in W. Va. Code § 49-6-2 [1996] before a court may terminate parental rights to a child, and must comply with the evidentiary standards established in W. Va. Code § 49-6-3 [1998] before a court may grant the Department the authority to take emergency, temporary custody of a child.

  5. RIGHT TO COUNSEL/DUTIES AND ROLES
    1. Children

      Syl. pt 5, in part, In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); Syl. Pt. 3, W. Va. DHHR v. Scott C., 200 W. Va. 304, 489 S.E.2d 281 (1997); Syl. Pt. 4, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995)

      Each child in an abuse and neglect case is entitled to effective representation of counsel. To further that goal, W. Va. Code § 49-6-2(a) mandates that a child has a right to be represented by counsel in every stage of abuse and neglect proceedings. Furthermore, Rule XIII of the W. Va. Rules for Trial Courts of Record provides that a guardian ad litem shall make a full and independent investigation of the facts involved in the proceeding, and shall make his or her recommendations known to the court. Rules 1.1 and 1.3 of the W. Va. Rules of Professional Conduct, respectively, require an attorney to provide competent representation to a client, and to act with reasonable diligence and promptness in representing a client.

      Burdette v. Lobban, 174 W. Va. 120, 323 S.E.2d 601 (1984)

      A child who is the alleged victim of sexual abuse may not be interrogated at any time during the abuse or neglect proceeding without the presence of his or her counsel unless counsel waives that right on behalf of the child. When a child's capacity to testify that he/she was a victim of abuse or neglect is present, the Court should appoint a neutral child psychologist or psychiatrist to conduct a transcribed or otherwise recorded interview to inquire into the child's capacity to be a competent witness. "However, the Court may not force the child to be interviewed by the psychologist or psychiatrist alone unless both the court and the guardian ad litem agree that the interview is best conducted in that manner." The guardian ad litem must give permission, however, the trial court may refuse to allow the child to be a witness in the absence of an impeded interview with a child psychiatrist or psychologist who can then give some assurance of competency.

    2. Mentally Ill Parent

      In the Matter of Lindsey C., 196 W. Va. 395, 473 S.E.2d 110 (1995)

      This court reversed an order terminating parental rights for a mother who was hospitalized for mental illness in another state during the pendency of the proceedings and for whom no guardian ad litem was appointed. We held that (1) the appointment of a guardian ad litem is required for parents in abuse and neglect proceedings who are involuntarily hospitalized for mental illness and (2) the service of process on a guardian ad litem for a parent involuntarily hospitalized for mental illness, whether or not such adult respondents have also been adjudicated incompetent, but whose legal capacity has not been terminated by law, cannot serve as a substitute for service on the parent for purposes of an abuse and neglect proceeding.

    3. Custodian or Parent

      Bowens v. Maynard, 174 W. Va. 184, 324 S.E.2d 145 (1984)

      A custodian, like a parent, has a statutory right to be represented in any abuse or neglect proceeding concerning the child. This includes a meaningful opportunity to be heard, and the opportunity to testify and to present and cross examine witnesses.

    4. Duties of County Prosecutor and DHHR

      In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996)

      DHHR, as a party to this case (usually by its agent, an individual child protective services worker), has the right and responsibility to advocate whatever position it determines proper under the law and in the best interest of the child. However, DHHR also has the duty to follow the court's directives in working on the case from the perspective of the delivery of social services. In a case, such as this, where DHHR refuses to comply with court directives, a circuit court may appoint an agency independent of DHHR to assist in case management. DHHR, however, as the circuit court clearly recognized by virtue of its directive that DHHR remain a party, was not absolved of its statutory duties to Jonathan G. despite its removal as the case manager.

      Syl. Pt. 4, State ex rel. Diva P. v. Kaufman, 200 W. Va. 555, 490 S.E.2d 642 (1997); Syl. Pt. 1, In the Matter of Taylor B., 201 W. Va. 60, 491 S.E.2d 607 (1997)

      In civil abuse and neglect cases, the legislature has made DHHR the State's representative. In litigations that are conducted under State civil abuse and neglect statutes, DHHR is the client of county prosecutors. The legislature has specifically indicated through W. Va. Code § 49-6-10, that prosecutors must cooperate with DHHR's efforts to pursue civil abuse and neglect actions. The relationship between DHHR and county prosecutors under the statute is a pure attorney-client relationship. The legislature has not given authority to county prosecutors to litigate civil abuse and neglect actions independent of DHHR. Such authority is granted to prosecutors only under State criminal abuse and neglect statutes. Therefore, all the legal and ethical principles that govern the attorney-client relationship, in general, are applicable to the relationship that exists between DHHR and county prosecutors in civil abuse and neglect proceedings.

      Syl. Pt. 5, State ex rel. Diva P. v. Kaufman, 200 W. Va. 555, 490 S.E.2d 642 (1997)

      When county prosecutors represent the DHHR, they may not invoke the Supreme Court of Appeals' appellate or original jurisdiction in a civil abuse and neglect proceeding, unless they have the express consent and approval of DHHR.

      See also DHHR v. Clark, 209 W. Va. 102, 543 S.E.2d 659 (2000) (discussing investigative duties and powers of DHHR)

    5. Duties of Guardians Ad Litem

      Syl. Pt. 5, in part, In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); Syl. Pt. 3, W. Va. DHHR v. Scott C., 200 W. Va. 304, 489 S.E.2d 281 (1997); Syl. Pt. 4, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995); State ex rel. Jeanette H. v. Pancake, 207 W. Va. 154, 529 S.E.2d 865, 872 (2000)

      W. Va. Code § 49-6-2(a) mandates that a child has a right to be represented by counsel in every stage of abuse and neglect proceedings. Furthermore, a guardian ad litem shall make a full and independent investigation of the facts involved in the proceeding, and shall make his or her recommendations known to the court. The W. Va. Rules of Professional Conduct require an attorney to provide competent representation to a client, and to act with reasonable diligence and promptness in representing a client. The Court adopted the guidelines for guardians' ad litem in abuse and neglect cases as attached to the opinion in Appendix A. Finally, the Court upheld a minimum of three hours of continuing legal education per year, relating to representation of children, for guardians' ad litem to complete in order to ensure the effective representation of children.

      In the Matter of Lindsey C., 196 W. Va. 395, 473 S.E.2d 110 (1996)

      Syl. Pt. 9: If the appointment of a guardian ad litem is required for a parent or custodian, the trial court may also provide in its order appointing counsel, or in a later order, a direction that the appointment imposes on that counsel the additional status of guardian ad litem, with the attendant duties of protecting the interests of the persons for whom such counsel is appointed guardian ad litem and the attendant duty on the court to see to the protection of such person's interests until and unless it later appears that such person's circumstances do not require the continued protection of a guardian ad litem or that the two functions cannot be performed by the same attorney.

      Concerning a dual-status appointment as counsel and guardian ad litem, although conflicts in this dual role are typically rare, three particular areas of potential conflict in the roles of guardian ad litem and counsel, including cases involving counsel and guardians ad litem for children, are as follows: (1) when the best interests of the ward and the ward's wishes are not identical, (2) when a privileged communication is made, and the attorney's duty to protect that communication conflicts with his or her duty as guardian, and (3) when a court would require a guardian ad litem to actually testify in a case, a function that counsel ordinarily should not perform.

      The practice of dual appointments is recommended, but if such conflict arises, dual status of counsel should be terminated and a second attorney appointed as guardian ad litem.

      Burdette v. Lobban, 174 W. Va. 120, 323 S.E.2d 601, 603 (1984)

      A child who is the alleged victim of abuse may not be interrogated at any time during the abuse or neglect proceeding without the presence of his or her counsel unless counsel waives that right on behalf of the child. When a child's capacity to testify that he/she was a victim of abuse or neglect is present, the Court should appoint a neutral child psychologist or psychiatrist to conduct a transcribed or otherwise recorded interview to inquire into the child's capacity to be a competent witness. "However, the Court may not force the child to be interviewed by the psychologist or psychiatrist alone unless both the court and the guardian ad litem agree that the interview is best conducted in that manner." The guardian ad litem must give permission, however, the trial court may refuse to allow the child to be a witness in the absence of an impeded interview with a child psychiatrist or psychologist who can then give some assurance of competency.

    6. All Counsel Must Have Opportunity to Advocate

      Syl. Pt. 5, In re Mark M., III, 201 W. Va. 265, 496 S.E.2d 215 (1997), Syl. Pt. 3, State ex rel. Amy M. V. Kaufman, 196 W. Va. 251, 470 S.E.2d 205 (1996)

      There is a clear legislative directive that guardians ad litem and counsel for both sides be given an opportunity to advocate for their clients in child abuse or neglect proceedings. West Virginia Code § 49-6-5(a) (1995) states that the circuit court shall give both the petitioner and respondents an opportunity to be heard when proceeding to the disposition of the case. This right must be understood to mean that the circuit court may not impose unreasonable limitations upon the function of guardians ad litem in representing their clients in accord with the traditions of the adversarial fact-finding process.

    7. Role of Counsel Generally

      In re Jeffrey R. L., 190 W. Va. 24, 435 S.E.2d 162 (1993); In the Matter of Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991); State ex rel. DDH. v. Dostert, 165 W. Va. 448, 269 S.E.2d 401 (1980); James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991); and, In the Interest of Carlita B, 185 W. Va. 613, 408 S.E.2d 365 (1991)

  6. IMPROVEMENT PERIODS
    1. Goal of Improvement Periods and Family Case Plans

      In the Interest of Renae Ebony W., 192 W. Va. 421, 452 S.E.2d 737 (1994)

      The goal [of improvement periods and family case plans] should be the development of a program designed to assist the parent(s) in dealing with any problems which interfere with the ability to be an effective parent, and to foster an improved relationship between parent and child with an eventual restoration of full parental rights a hoped-for result. The improvement period and family case plans must establish specific measures for the achievement of these goals, as an improvement period must be more than a mere passage of time. It is a period in which the DHS and the court should attempt to facilitate the parent's success, but wherein the parent must understand that he bears a responsibility to demonstrate sufficient progress and improvement to justify return to him of the child.

    2. Parental Rights and Limitations

      Burdette v. Lobban, 174 W. Va. 120, 323 S.E.2d 601 (1984)

      A parent accused of sexual abuse by his minor child has a constitutional right to know what his child accuses him of in order to prepare his defense.

      Syl. Pt. 1, In the Matter of Ronald Lee Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973); Syl. Pt. 6, State ex rel. Diva P. v. Kaufman, 200 W. Va. 555, 490 S.E.2d 642 1997); Syl. Pt. 2, In re Carolyn Jean T., 181 W. Va. 383, 382 S.E.2d 577 (1989); Syl. Pt. 1, W. Va. DHS v. Tammy B., 180 W. Va. 295, 376 S.E.2d 309 (1988); Syl. Pt. 1, In re Betty J.W., 179 W. Va. 605, 371 S.E.2d 326 (1988)

      In the law concerning custody of minor children, no rule is more firmly established than the right of a natural parent to the custody or his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the W. Va. and U.S. Constitutions.

      Syl. Pt. 5, In the Matter of Ronald Lee Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) ; Syl. Pt. 1, State v. Jessica M., 191 W. Va. 302, 445 S.E.2d 243 (1994); Syl. Pt. 3, In re Carolyn Jean T., 181 W. Va. 383, 382 S.E.2d 577 (1989); Syl. Pt. 1, State v. C.N.S., 173 W. Va. 651, 319 S.E.2d 775 (1984)

      Though constitutionally protected, the right of the natural parent to the custody of minor children is not absolute and it may be limited or terminated by the State, as parens patriae, if the parent is proved unfit to be entrusted with child care.

      In the Interest of Jamie Nicole H., 205 W. Va. 176, 517 S.E.2d 41 (1999)

      Since the procedural mechanisms for objecting to and modifying a family case plan are clearly in place, a parent cannot wait until the improvement period has lapsed to raise objections to the conditions imposed on him/her. The rules of procedure which govern abuse and neglect proceedings clearly require that a party seeking to modify a family case plan must act promptly and inform the court as soon as possible of the need for modification.

    3. Battered Woman's Syndrome

      In re Betty J.W., 179 W. Va. 605, 371 S.E.2d 326 (1988)

      Mother against whom, with father, neglect petition was filed should have been granted improvement period without custody of her five minor children before termination of her parental rights; record did not support conclusion that she had knowingly allowed father's sexual abuse, mother's perceived inability to break from the pattern of abuse was part of the "battered woman's syndrome," and there was no showing that any improvement plan had been developed which mother had failed to follow.

    4. Court must Make Ruling on Motion for Improvement Period

      In re Thaxton, 172 W. Va. 429, 307 S.E.2d 465 (1983) (Per Curiam)

      A motion for improvement period was made but never formally ruled upon. However, as a practical matter an improvement period did occur as mother and Department entered into voluntary agreement, subsequent to motion. Mother agreed to obtain housing, attend parenting classes, and visit her children. She failed to meet conditions and circuit court terminated her rights. This Court reversed, holding that the trial court never ruled on the motion for improvement period, and that when an improvement period is denied the court must state the compelling circumstances warranting the denial.

    5. Improvement Period Denied

      State v. C.N.S., 173 W. Va. 651, 319 S.E.2d 775 (1984)

      Four children, ages 2 months to 3 ½ years old. Although there was no evidence of deliberate misconduct or malicious neglect, the parents were so intellectually, socially, and culturally lacking in parenting ability in both physical and emotional levels, the circuit court finding that there was no reasonable likelihood that conditions of neglect or abuse could be substantially corrected in the near future was justified.

      Important factor justifying denial of the improvement period was the lengthy pattern of the parent's failure to improve despite concerted efforts of the Department to provide services and assistance.

    6. Abandonment by Parent

      James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991)

      A writ of prohibition was brought against the circuit court judge seeking relief from a court order which granted the father's motion for an in-home improvement period in Ohio and further ordered that two of the children, Timothy M. and James M. be immediately surrendered to their father, with the remaining two siblings to be surrendered within 30 days. The father had abandoned the wife and children (then ages 3, 2, and 1, with a fourth child on the way) in December, 1988, and did not become involved in the children's lives again until January, 1991. The natural mother was unable and or unwilling to care for them despite a great deal of assistance and intervention for more than two years after the abandonment. The children were placed in foster care by DHHR based on physical abuse and medical neglect. There was also evidence that two of the children had been sexually abused by their father.

      In granting the writ of prohibition, this Court held that abandonment of a child by a parent constitutes compelling circumstances sufficient to justify the denial of an improvement period.

    7. Family Case Plan Required

      Syl. Pt. 3, State ex rel. W. Va. DHS v. Cheryl M., 177 W. Va. 688, 356 S.E.2d 181 (1987); Syl. Pt. 9, State ex rel. Diva P. v. Kaufman, 200 W. Va. 555, 490 S.E.2d 642 (1997); Syl. Pt. 4, In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996); Syl. Pt. 3, In the Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996); Syl. Pt. 2, In re Elizabeth Jo "Beth", 192 W. Va. 656, 453 S.E.2d 639 (1994); Syl. Pt. 3, In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991)

      Under W. Va. Code § 49-6-2(b), when an improvement period is authorized, then the court by order shall require the DHS to prepare a family case plan pursuant to W. Va. Code § 49-6D-3.

      In re Elizabeth Jo "Beth" H., 192 W. Va. 656, 453 S.E.2d 639 (1994) (Per Curiam)

      W. Va. Code § 49-6D-3(b) further requires "the family case plan . . . shall be furnished to the court within thirty days after the entry of the order referring the case to the department[.]"

    8. Formulation of Improvement Period and Family Case Plan

      Syl. Pt. 4, In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991); Syl. Pt. 6, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001); Syl. Pt. 5, In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996); Syl. Pt. 4, In the Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996); Syl. Pt. 4, In the Matter of Brian D., 194 W. Va. 623, 461 S.E.2d 129 (1995); Syl. Pt. 3, In re Elizabeth Jo "Beth", 192 W. Va. 656, 453 S.E.2d 639 (1994); Syl. Pt. 4, Boarman v. Boarman, 190 W. Va. 533, 438 S.E.2d 876 (1993)

      In formulating the improvement period and family case plans, courts and social service workers should cooperate to provide a workable approach for the resolution of family problems which have prevented the child or children from receiving appropriate care from their parents. The formulation of the improvement period and family case plans should therefore be a consolidated, multi-disciplinary effort among the court system, the parents, attorneys, social service agencies, and any other helping personnel involved in assisting the family.

      State ex rel. W. Va. DHS v. Cheryl M., 177 W. Va. 688, 356 S.E.2d 181 (1987); Syl. Pt. 3, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001)

    9. Termination by Court of Improvement Period

      Syl. Pt. 2, In re Lacey P., 189 W. Va. 580, 433 S.E.2d 518 (1993); Syl. Pt. 6, In re Katie S. and David S., 198 W. Va. 79, 479 S.E.2d 589 (1996)

      Neither W. Va. Code § 49-6-2(b) nor W. Va. Code § 49-6-5(c) mandates that an improvement period must last for twelve months. It is within the court's discretion to grant an improvement period within the applicable statutory requirements; it is also within the court's discretion to terminate the improvement period before the time frame has expired if the court is not satisfied that the defendant is making the necessary progress.

      In the Matter of Brian D., 194 W. Va. 623, 461 S.E.2d 129 (1995)

      If a respondent refuses to participate in services designed to remediate the circumstances giving rise to the abuse and neglect, such as participation in individual counseling, then an improvement period will be considered "for naught". Therefore, a "circuit court always has the authority to terminate an improvement period if there is evidence that the parent is not following the conditions prescribed or is failing to make improvement." 461 S.E.2d at 142.

    10. Conclusion of Improvement Period

      Syl. Pt. 6, In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991); Syl. Pt. 7, In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996); Syl. Pt. 2, Jonathan Michael D., 194 W. Va. 20, 459 S.E.2d 131 (1995); Syl. Pt. 10, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002)

      At the conclusion of the improvement period, the court shall review the performance of the parents in attempting to attain the goals of the improvement period and shall, in the court's discretion, determine whether the conditions of the improvement period have been satisfied and whether sufficient improvement has been made in the context of all the circumstances of the case to justify the return of the child.

      State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 470 S.E.2d 205 (1996)

      A circuit judge overseeing a case such as this has an immensely difficult task, for in many abuse and neglect cases there is a genuine emotional bond as well as the natural biological bond between parent and child which courts are understandably hesitant to break if there is hope of meaningful change. In most abuse and neglect cases, the parent(s) may have redeeming qualities that create such hope that they will be able to make the necessary changes to become adequate parents.

      Although it is sometimes a difficult task, the trial court must accept the fact that the statutory limits on improvement periods (as well as our case law limiting the right to improvement periods) dictate that there comes a time for decision, because a child deserves resolution and permanency in his or her life, and because part of that permanency must include at minimum a right to rely on his or her caretakers to be there to provide the basic nurturance of life.

    11. Extension of Improvement Period

      In the Interest of Jamie Nicole H., 205 W. Va. 176, 517 S.E.2d 41 (1999)

      Pursuant to West Virginia Code § 49-6-12(g), before a circuit court can grant an extension of a post-adjudicatory improvement period, the court must first find that the respondent has substantially complied with the terms of the improvement period; that the continuation of the improvement period would not substantially impair the ability of the Department of Health and Human Resources to permanently place the child; and that such extension is otherwise consistent with the best interest of the child.

      In re Lacey P., 189 W. Va. 580, 433 S.E.2d 518 (1993)

      Neither post-dispositional improvement period nor pre-dispositional improvement period for parent is required to extend for 12 months. [Same rule will probably be applied to improvement periods available under amended provisions].

    12. Responsibility for Initiation and Completion of Terms

      In re Katie S. and David S., 198 W. Va. 79, 479 S.E.2d 589 (1996)

      The respondent's argument concerning the stoppage of services by the Department after the children were removed, was based on the assumption that the Department, and not the mother, had the responsibility for initiating contact after the children were removed. The Court found, however, that "[a]lthough the Department is required 'to make reasonable efforts to reunify a family' (W. Va. Code § 49-6-12(i) (1996), the parents or custodians have the responsibility 'for the initiation and completion of all terms of the improvement period.' W. Va. Code § 49-6-12(d) (1996)". Therefore, the Court affirmed termination of parental rights.

    13. Prohibition Available to Challenge Improvement Periods

      State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 470 S.E.2d 205 (1996)

      Prohibition is available to abused and/or neglect children to restrain courts from granting improvement periods of greater extent and duration than permitted under governing statutes.

    14. Statutory Limits

      State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 470 S.E.2d 205 (1996)

      Statutory limits on improvement periods are mandatory and there comes a time for decision despite genuine emotional bonds. Children deserve resolution and permanency in their lives. Statutorily unauthorized extensions of improvement periods and procedural delays can be so protracted as to violate clear statutory constitutional and common law mandates.

      In re Emily and Amos B., 208 W. Va. 325, 540 S.E.2d 542 (2000)

      Syl. Pt. 5: The commencement of a dispositional improvement period in abuse and neglect cases must begin no later than the date of the dispositional hearing granting such improvement period.

      Syl. Pt. 6: At all times pertinent thereto, a dispositional improvement period is governed by the time limits and eligibility requirement provided by W. Va. Code § 49-6-2 (1996) (Repl. Vol. 1999), W. Va. Code § 49-6-5 (1998) (Repl. Vol. 1999), and W. Va. Code § 49-6-12 (1996) (Repl. Vol. 1999).

  7. ADJUDICATORY HEARING

    1. Parties Having Custodial or Parental Rights

      Syl Pt. 3, In re Joseph A. and Justin A., 199 W. Va. 438, 485 S.E.2d 176 (1997)

      W. Va. Code § 49-6-2(c), provides parties having custodial or parental rights the opportunity to testify during abuse and neglect proceedings and to present and cross-examine witnesses. The requirement of cross-examination is fully met when counsel for the parent or guardian is present during the testimony of a child witness and is given the opportunity to fully cross-examine the witness.

      Syl. Pt. 4, In re Michael Ray T., 525 S.E.2d 315 (W. Va. 1999)

      Former foster parents do not have standing to intervene in abuse and neglect proceedings involving their former foster child(ren).

      Syl. Pt. 4, W. Va. DHHR v. Doris S., 197 S.E.2d 489, 475 S.E.2d 865 (1996)

      Child abuse encompasses a parent, guardian or custodian who knowingly allows another person to inflict physical injury upon another child residing in the same home as the parent and his/here children, even though that child is not parent’s natural or adopted child.

    2. Prove Conditions Existing at Time of Filing of Petition

      Syl. Pt. 1, In the Interest of S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981); Syl. Pt. 5, W. Va. DHHR v. Scott C., 200 W. Va. 304, 489 S.E.2d 281 (1997); Syl. Pt. 1, In re Joseph A. and Justin A., 199 W. Va. 438, 485 S.E.2d 176 (1997); Syl. Pt. 1, W. Va. DHHR v. Brenda C., 197 W. Va. 468, 475 S.E.2d 560 (1996); Syl. Pt. 5, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996)

      W. Va. Code § 49-6-2(c) [1980], requires the State Department of Welfare [now the DHS], in a child abuse or neglect case, to prove 'conditions existing at the time of the filing of the petition . . . by clear and convincing proof.' The statute, however, does not specify any particular manner or mode of testimony or evidence by which the DHS is obligated to meet this burden.

    3. Procedure for Taking Testimony of Children

      Syl Pt. 4, In re Joseph A. and Justin A., 199 W. Va. 438, 485 S.E.2d 176 (1997)

      Rule 8(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings, which were approved by this Court on December 5, 1996, controls the procedure for taking testimony from children in abuse and neglect proceedings in future cases.

      n7 Rule 8(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings states: (b) Procedure for taking testimony from children. The presiding judicial officer may conduct in camera interviews of a minor child, outside the presence of the parent(s). The parties' attorneys shall be allowed to attend such interviews, except when the presiding judicial officer determines that the presence of attorneys will be especially intimidating to the child witness. When attorneys are not allowed to be present for in camera interviews of a child, the presiding judicial officer shall, unless otherwise agreed by the parties, have the interview electronically or stenographically recorded and make the recording available to the attorneys before the evidentiary hearing resumes. Under exceptional circumstances, the presiding judicial officer may elect not to make the recording available to the attorneys but must place the basis for a finding of exceptional circumstances on the record. Under these exceptional circumstances, the recording will only be available for review by the Supreme Court of Appeals. When attorneys are present for an in camera interview of a child, the presiding judicial officer may, before the interview, require the attorneys to submit questions for the presiding judicial officer to ask the child witness rather than allow the attorneys to question the child directly, and the presiding judicial officer may require the attorney to sit in an unobtrusive manner during the in camera interview.

      Burdette v. Lobban, 174 W. Va. 120, 323 S.E.2d 601 (1984); State v. Stacy, 179 W. Va. 686, 371 S.E.2d 614 (1988)

      A child who is the alleged victim of abuse may not be interrogated at any time during the abuse or neglect proceeding without the presence of his or her counsel unless counsel waives that right on behalf of the child. When a child's capacity to testify that he/she was the victim of abuse or neglect is present, the Court should appoint a neutral child psychologist or psychiatrist to conduct a transcribed or otherwise recorded interview to inquire into the child's capacity to be a competent witness. However, the Court may not force the child to be interviewed by the psychologist or psychiatrist alone unless both the court and the guardian ad litem agree that the interview is best conducted in that manner. The guardian ad litem must give permission, however, the trial court may refuse to allow the child to be a witness in the absence of an impeded interview with a child psychiatrist or psychologist who can then give some assurance of competency.

      In Re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)

      In the Matter of R.O., 180 W. Va. 190, 375 S.E.2d 823 (1988).

      In the Interest of Darla B., 175 W. Va. 137, 331 S.E.2d 868 (1985)

    4. DHHR Testimony and Burden of Proof

      Syl. Pt. 1, In the Interest of S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981); Syl. Pt. 6, W. Va. DHHR v. Scott C., 200 W. Va. 304, 489 S.E.2d 281 (1997); Syl. Pt. 1, In re Joseph A. and Justin A., 199 W. Va. 438, 485 S.E.2d 176 (1997); Syl. Pt. 1, W. Va. DHHR v. Brenda C., 197 W. Va. 468, 475 S.E.2d 560 (1996); Syl. Pt. 5, In the Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996)

      W. Va. Code § 49-6-2(c) [1980], requires the State Department of Welfare [now DHHR], in a child abuse and neglect case, to prove "conditions existing at the time of the filing of the petition . . . by clear and convincing proof." The statute, however, does not specify any particular manner or mode of testimony or evidence by which the State Department of Welfare is obligated to meet this burden.

      In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991)

    5. Findings of Facts and Conclusions of Law

      In the Interest of S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981)

      Findings of fact and conclusions of law required by W. Va. Code § 49-6-2(c) must be more than a bare statement couched in the language of the statute.

      n 14, In re Katie S. and David S., 198 W. Va. 79, 479 S.E.2d 589 (1996)

      The court again pointed out that the level of interest demonstrated by a parent in visiting his or her children while they are out of the parent's custody is a significant factor in determining the parent's potential to improve sufficiently and achieve minimum standards to parent the child. See In the Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 182, 191 (1996); State ex rel Amy M. v. Kaufman, 196 W. Va. 251, 259, 470 S.E.2d 205, 213 (1996)

      In re Lacey P., 189 W. Va. 580, 433 S.E.2d 518 (1993)

      In light of finding that four older children were neglected, trial court did not abuse discretion in placing mother's unborn child in protective custody such that child would come under auspices of DHHR once born.

    6. Silence as Affirmative Evidence

      Syl. Pt. 2, W. Va. DHHR v. Doris S., 197 W. Va. 489, 475 S.E.2d 865 (1996); Syl. Pt. 2, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002)

      Because the purpose of an abuse and neglect proceeding is remedial, where the parent or guardian fails to respond to probative evidence offered against him/her during the course of an abuse and neglect proceeding, a lower court may properly consider that individual's silence as affirmative evidence of that individual's culpability.

    7. Introduction of Collateral Acts or Crimes and Expert Opinion Testimony

      State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990)

      Court held that collateral acts or crimes may be introduced in cases involving child sexual assault or sexual abuse victims to show the perpetrator had a lustful disposition towards children generally or a lustful disposition to specific other children provided such incidents relate reasonably close in time to the incidents giving rise to the indictment. This holding overruled the Court's prior holding in State v. Dolin, 176 W. Va. 688, 347 S.E.2d 208 (1986) involving collateral acts.

      The lower court's admission of the child's statements to the treating psychologist was upheld under W. Va. R. Evid. 803(4) (statements for the purpose of medical diagnosis or treatment) and a two-part test for admitting statements under this exception was established:
      1. the declarant's motive in making the statements must be consistent with the purposes of promoting treatment, and

      2. the content of the statement must be such as is reasonably relied upon by a physician in treatment or diagnosis.

      The child's statements to his mother were also properly admitted under the exception found in W. Va. R. Evid. 803(24). The critical factor in upholding the admission under this exception was the fact that the children involved in this case both testified at trial, and neither the mother nor the psychologist added anything substantive to the children's testimony.

      Finally, this Court upheld the lower court's admission of opinion testimony by a psychologist. Expert psychological testimony in cases involving incidents of child sexual abuse is permissible and an expert may state an opinion based on objective findings that the child has been sexually abused. Children who are victims of sexual abuse and assault frequently exhibit behavioral and emotional characteristics indicative of child sexual abuse victims. Such an expert may not, however, give an opinion as to whether he personally believes the child, nor may he give an opinion as to whether the sexual assault was committed by the defendant.

      In the Interest of Betty J.W., 179, W. Va. 605, 371 S.E.2d 326 (1988)

      W. Va. DHS v. Tammy B., 180 W. Va. 295, 376 S.E.2d 309 (1988)

      In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991)

      State v. Graham, 208 W. Va. 463, 541 S.E.2d 341 (2000)

    8. Transcript of Criminal Case

      Syl. Pt. 2, in part, Mary D. v. Watt, 190 W. Va. 341, 438 S.E.2d 521 (1992); Syl. Pt. 2, State ex rel. George B. W. v. Kaufman, 199 W. Va. 269, 483 S.E.2d 852 (1997)

      If the sexual abuse allegations were previously tried in a criminal case, then the transcript of the criminal case may be utilized to determine whether credible evidence exists to support the allegations. If the transcript is utilized to determine that credible evidence does or does not exist, the transcript must be made a part of the record in the civil proceeding so that this Court, where appropriate, may adequately review the civil record to conclude whether the lower court abused its discretion.

    9. Rights of Criminally Accused

      n22, W. Va. DHHR v. Doris S., 197 W. Va. 489, 475 S.E.2d 865 (1996)

      Such a parent or guardian may be invoking his/her right to remain silent pursuant to the Fifth Amendment because that individual also may be facing criminal charges arising out of the abuse and neglect of the child. The right of the criminally accused are sufficiently protected, however, by the following statutory provisions: 1) W. Va. Code § 49-6-4(a) [1995] which allows medical and mental examinations of the child or other parties involved in an abuse and neglect proceeding provides that "no evidence acquired as a result of any such examination of the parent or any other person having custody of the child may be used against such person in any subsequent criminal proceedings against such person; 2) W. Va. Code § 49-7-1 [1995] provides that "all records of the state department, the court and its officials, law-enforcement agencies and other agencies or facilities concerning a child as defined in this chapter shall be kept confidential and shall not be released . . .[;]" and 3) W. Va. Code § 57-2-3 [1966] provides that "in a criminal prosecution other than for perjury or false swearing, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination.

    10. Stipulation

      W. Va. DHHR v. Brenda C., 197 W. Va. 468, 475 S.E.2d 560 (1996) (Per Curiam)

      Parties may stipulate as to adjudication and specific factual basis therefor; however, there must be compliance with the Rules of Evidence and follow appropriate procedure.

      The concurring opinion also addresses issues pertaining to the petition, notice, non-waiver of defects, adjudication, stipulations, finality of orders and termination of parental rights.

  8. DISPOSITIONAL HEARING
    1. Adjudication Is a Prerequisite

      Syl. Pt. 1, State v. T.C., 172 W. Va. 47, 303 S.E.2d 685 (1983); Syl. Pt. 2, W. Va. DHHR v. Brenda C., 197 W. Va. 468, 475 S.E.2d 560 (1996); Syl. Pt. 1, In the Matter of Brian D., 194 W. Va. 623, 461 S.E.2d 129 (1995)

      In a child abuse and neglect hearing, before a court can begin to make any of the dispositional alternatives under W. Va. Code § 49-6-5, it must hold a hearing under W. Va. Code § 49-6-2, and determine "whether the child is abused or neglected." Such a finding is a prerequisite to further continuation of the case.

    2. Voluntary Dispositional Plan

      State v. T.C., 172 W. Va. 47, 303 S.E.2d 685 (1983)

      Statutes governing child abuse and neglect proceedings do not foreclose the ability of the properly counseled parties, to make some voluntary dispositional plan; however, such arrangements are not without restrictions: (1) that plan is subject to approval of the court, and (2) the parties cannot circumvent the threshold question, i.e. the issue of abuse or neglect.

      Syl. Pt. 2, In re Beth Ann B., 204 W. Va. 424, 513 S.E.2d 472 (1998)

      In a child abuse and/or neglect proceeding, even where the parties have stipulated to the predicate facts necessary for a termination of parental rights, a circuit court must hold a disposition hearing, in which the specific inquiries enumerated in Rules 33 and 35 of the Rules of Procedure for Child Abuse and Neglect Proceedings are made, prior to terminating an individual's parental rights.

    3. Where Abandonment of the Child by Either Biological Parents Is Alleged or Proven

      State ex rel. W. Va. DHHR and Chastity D. v. Hill, 207 W. Va. 358, 532 S.E.2d 358 (2000)

      In this case the West Virginia DHHR sought a writ of mandamus to compel a circuit court judge to conduct disposition hearings pursuant to W. Va. Code § 49-6-5 in six child abuse and neglect cases in order to resolve the status of the parental rights of the biological fathers, who allegedly abandoned their children. The Court held that:

      Syl. Pt. 3: In a child abuse and neglect proceeding where abandonment of the child by either or both biological parents is alleged and proven, the circuit court should decide in the dispositional phase of the proceeding whether to terminate any or all parental rights to the child. Before making that decision, even where there are written relinquishments of parental rights, the circuit court is required to conduct a disposition hearing, pursuant to West Virginia Code § 49-6-5 (1999) and Rules 33 and 35 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, at which the issue of such termination is specifically and thoroughly addressed.

    4. First Degree Murder of Child's Parent

      Syl. Pt. 2, Nancy Viola R. v. Randolph W., 177 W. Va. 710, 356 S.E.2d 464 (1987); Syl. Pt. 2, Kenneth B. v. Elmer Jimmy S., 184 W. Va. 49, 399 S.E.2d 192 (1994)

      A conviction of . . . murder of a child’s mother by his father and the father’s prolonged incarceration in a penal institution for that conviction are significant factors to be considered in ascertaining the father’s fitness and in determining whether the father’s parental rights should be terminated.

    5. DHHR -- Compliance with Notice Requirements

      In re Travis W., 206 W.Va. 478, 525 S.E.2d 669 (1999)

      Syl. Pt. 2: "Circuit courts must comply with Rule 31 of the West Virginia Rules of Procedure for Child Abuse and Neglect by providing notice of the date, time, and place of the disposition hearing to all parties, their counsel, and the CASA representative, if one was appointed."

      "The end result of this case will doubtless be the same regardless of whether or not the court provides notice of and holds a disposition hearing. However, neither this Court nor circuit courts can simply ignore mandatory procedural requirements." (emphasis added) 525 S.E.2d at 677

      State ex rel. Daniel M. v. W. Va. DHHR, 205 W. Va. 16, 516 S.E.2d 30 (1999)

      Once a circuit court enters a final disposition order that fully complies with W. Va. Code § 49-5-13(b)(1997) and State ex rel. Ohl v. Egnor, 201 W. Va. 777, 500 S.E.2d 890 (1997), the West Virginia Department of Health and Human Resources cannot ignore or refuse to comply with the order. The Department of Health and Human Resources may seek relief by appealing the circuit court’s order to the West Virginia Supreme Court of Appeals.

    6. Accelerated Disposition Hearings

      Syl. Pt. 3, In re Travis W., 206 W. Va. 478, 525 S.E.2d 669 (1999)

      Pursuant to Rule 32 of the West Virginia Rules of Procedure for Child Abuse and Neglect, circuit courts may hold accelerated disposition hearings immediately following adjudication hearings if: (1) the parties agree; (2) the child's case plan which meets the requirements of W. Va. Code §§ 49-6-5 and 49-6D-3 is provided to the court or the party or parties waive the requirement that the child's case plan be submitted prior to disposition; and (3) notice is provided or waived.

    7. Permanent Out-of-Home Placement

      Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998)

      In determining the appropriate permanent out-of-home placement of a child under W. Va. Code § 49-6-5(a)(6)[1996], the circuit court shall give priority to securing a suitable adoptive home for the child and shall consider other placement alternatives, including permanent foster care, only where the court finds that adoption would not provide custody, care, commitment, nurturing and discipline consistent with the child's best interests or where a suitable adoptive home can not be found.

    8. Reunification

      In the Matter of Brian D., 194 W. Va. 623, 461 S.E.2d 129 (1995)

      If a court should eventually determine that the child should be reunified with a parent, such change should be accomplished with a sufficient gradual transition period to enable the child to accept the change with as little upheaval as possible to his life.

      If a court eventually reunifies a child with a parent, the court should "inquire into the relationship [the child] has formed with his foster parents and, if it is in his best interest, fashion a plan for continued association between the foster parents and the child. . . . [A] child has a right to continued association with those to whom he has formed an emotional bond." 461 S.E.2d at 144.

    9. Child Case Plan and Permanency Plan

      State ex rel. S.C. v. Chafin, 191 W. Va. 184, 444 S.E.2d 62 (1994)

      Syl. Pt. 1, in part: If, pursuant to W. Va. Code § 49-6-2, the court finds the child to be abused or neglected, then both the DHHR and the court, no later than 60 days after the child is placed in the temporary custody of the DHHR, are to proceed with the disposition of the child, in compliance with W. Va. Code § 49-6-5. West Virginia Code § 49-6-5(a) requires the DHHR to file with the court a copy of the child's case plan, including the permanency plan for the child.

      West Virginia Code § 49-6-5(a) defines a case plan as a written document which includes, where applicable, the requirements of the family case plan as set forth in W. Va. Code § 49-6D-3, as well as the additional requirements set forth in W. Va. Code § 49-6-5(a).

      Syl. Pt. 4, in part: The purpose of the child's case plan is the same as the family case plan except that the focus of the child's case plan is on the child rather than the family unit.

  9. MEDICAL AND MENTAL EXAMINATIONS
    1. Cannot Be Used in Subsequent Criminal Proceedings

      Syl. Pt. 3, State v. James R. II, 188 W. Va. 44, 422 S.E.2d 521 (1992); Syl. Pt. 6, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002)

      No evidence that is acquired from a parent or any other person having custody of a child, as a result of medical or mental examinations performed in the course of civil abuse and neglect proceedings, may be used in any subsequent criminal proceedings against such person. W. Va. Code § 49-6-4(a).

      Syl. Pt. 7, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002)
      West Virginia Code § 49-6-4 was intended to constitute a full and comprehensive prohibition against criminal utilization of information obtained through court-ordered psychological or psychiatric examination, whether for diagnosis, therapy, or other treatment of any nature ordered in conjunction with abuse and neglect proceedings.


    2. Involuntary Sterilization

      In re Lacey P., 189 W. Va. 580, 433 S.E.2d 518 (1993)

      Court held that an order requiring the DHHR to assist a person with an involuntary sterilization could not be upheld.

  10. TERMINATION OF PARENTAL RIGHTS
    1. Nonprotecting Parent

      Syl. Pt. 2, In the Matter of Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991); Syl. Pt. 6, In the Matter of Taylor B., 201 W. Va. 60, 491 S.E.2d 607(1997); Syl. Pt. 5, W. Va. DHHR v. Doris S., 197 W. Va. 489, 475 S.E.2d 865 (1996); Syl. Pt. 4, In re Brianna Elizabeth M., 192 W. Va. 363, 452 S.E.2d 454 (1994)

      Termination of parental rights of a parent of an abused child is authorized under W. Va. Code §§ 49-6-1 to 49-6-10, as amended, where such parent contends nonparticipation in the acts giving rise to the termination petition but there is clear and convincing evidence that such nonparticipating parent knowingly took no action to prevent or stop such acts to protect the child. Furthermore, termination of parental rights of a parent of an abused child is authorized under W. Va. Code §§ 49-6-1 to 49-6-10, as amended, where such nonparticipating parent supports the other parent's version as to how a child's injuries occurred, but there is clear and convincing evidence that such version is inconsistent with the medical evidence.

      Syl. Pt. 3, In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); Syl. Pt. 5, In the Matter of Taylor B., 201 W. Va. 60, 491 S.E.2d 607 (1997); Syl. Pt. 3, W. Va. DHHR v. Billy Lee C., 199 W. Va. 541, 485 S.E.2d 710 (1997); Syl. Pt. 2, In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996); Syl. Pt. 4, In re Katie S. and David S., 198 W. Va. 79, 479 S.E.2d 589 (1996)

      Parental rights may be terminated where there is clear and convincing evidence that the infant child has suffered extensive physical abuse while in the custody of his or her parents, and there is no reasonable likelihood that the conditions of abuse can be substantially corrected because the perpetrator of the abuse has not been identified and the parents, even in the face of knowledge of the abuse, have taken no action to identify the abuser.

      In the Matter of Taylor B., 201 W. Va. 60, 491 S.E.2d 607 (1997)

      Where there is clear and convincing proof that (1) these injuries occurred in the sole presence of a parent, and (2) the explanations of both parents are contrary to the medical evidence, and (3) both parents fail to acknowledge that any abuse and neglect occurred, the circuit court is in error for failing to terminate the parental rights.

      Syl. Pt. 8, W. Va. DHHR v. Doris S., 197 W. Va. 489, 475 S.E.2d 865 (1996)

      A parent’s parental rights to his/her child(ren) may be terminated: 1) where there is clear and convincing evidence that the parent knowingly allowed another person to inflict extensive physical injury upon another child residing in the same home as the parent and his/er child(ren), even though the injured child is not the parent’s natural or adopted child; and 2) where there is no reasonable likelihood that the conditions of abuse can be substantially corrected because the perpetrator of the abuse has not been identified and the parent, even in the face of knowledge of the abuse, has taken no action to identify the abuser.

      In the Interest of Darla B., 175 W. Va. 137, 331 S.E.2d 868 (1985)

      In the Interest of Betty J.W., 179 W. Va. 605, 371 S.E.2d 326 (1988)

      In the Matter of Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991)

      State v. Jessica M., 191 W. Va. 302, 445 S.E.2d 243 (1994)

    2. Finding of Imminent Danger Not Required

      State v. Carl B., 171 W. Va. 774, 301 S.E.2d 864 (1983) (Per Curiam)

      Circuit court terminated parental rights after four improvement periods. State Supreme Court affirmed, holding: (1) there is no requirement that the court find that the children were in imminent danger; and (2) that immediate appointment of counsel for indigent parent in hearing following emergency taking was sufficient.

      Kenneth B. v. Elmer Jimmy S., 184 W. Va. 49, 399 S.E. 2d 192 (1994)

      Nancy Viola R. v. Randolph W., 177 W. Va. 710, 356 S.E.2d 464 (1987)

      In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991)

      James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991)

    3. Prior Acts of Violence Against Other Children Are Relevant

      Syl. Pt. 8, In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991); Syl. Pt. 7, State ex rel. Diva P. v. Kaufman, 200 W. Va. 555, 490 S.E.2d 642 (1997)

      Prior acts of violence, physical abuse, or emotional abuse toward other children are relevant in a termination of parental rights proceeding, are not violation of W. Va. R. Evid. 404(b), and a decision regarding the admissibility thereof shall be within the sound discretion of the trial court.

    4. Abuse Not by Parent

      Syl. Pt. 8, W. Va. DHHR v. Doris S., 197 W. Va. 489, 475 S.E.2d 865 (1996)

      A parent's parental rights to his/her child(ren) may be terminated: 1) where there is clear and convincing evidence that the parent knowingly allowed another person to inflict extensive physical injury upon another child residing in the same home as the parent and his/her child(ren), even though the injured child is not the parent's natural or adopted child; and, 2) where there is no reasonable likelihood that the conditions of abuse can be substantially corrected because the perpetrator of the abuse has not been identified and the parent, even in the face of knowledge of the abuse, has taken no action to identify the abuser.

    5. Absent Parent

      Syl. Pt. 2, In the Matter of Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991); Syl. Pt. 6, In the Matter of Taylor B., 201 W. Va. 60, 491 S.E.2d 607 (1997); Syl. Pt. 5, W. Va. DHHR v. Doris S., 197 W. Va. 489, 475 S.E.2d 865 (1996); Syl Pt. 4, In re Brianna Elizabeth M., 192 W. Va. 363, 452 S.E.2d 454 (1994)

      This appeal, brought by the guardian ad litem for the infant children, arose out of an action brought by the DHHR which sought to terminate the children's parents parental rights based upon abuse and neglect. The lower court refused to terminate the parental rights of the father because he was not present at the time the abuse took place. The DHHR failed to prosecute an appeal in this matter.

      Termination of parental rights of a parent of an abused child is authorized under W. Va. Code § 49-6-1 to 49-6-10 as amended, where such parent contends nonparticipation in the acts giving rise to the termination petition but there is clear and convincing evidence that such nonparticipating parent knowingly took no action to prevent or stop such acts to protect the child. Furthermore, termination of parental rights of a parent of an abused child is authorized under W. Va. Code §§ 49-6-1 to 49-6-10, as amended, where such nonparticipating parent supports the other parent’s version as to how a child’s injury occurred, but there is clear and convincing evidence that such version is inconsistent with the medical evidence.

      Syl. Pt. 3, In re Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991); Syl. Pt. 4, In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993)

      In a proceeding to terminate parental rights pursuant to W. Va. Code §§ 49-6-1- to 49-6-10, as amended, a guardian ad litem, appointed pursuant to W. Va. Code § 49-6-2(a), as amended, must exercise reasonable diligence in carrying out the responsibility of protecting the rights of children. This duty includes exercising the appellate rights of the children, if, in the reasonable judgment of the guardian ad litem, an appeal is necessary.

    6. Proof of Failure to Comply with Family Case Plan Unnecessary

      W. Va. DHS v. Peggy F., 184 W. Va. 60, 399 S.E.2d 460 (1990) (Per Curiam)

      DHS filed for temporary custody of six of the mother's eleven children alleging abuse and neglect. DHS was ordered to prepare and submit a family case plan. Following hearings on success of improvement period, the circuit court ordered termination of mother's parental right to five of the six children and ordered the child over fourteen to remain in the temporary custody of the DHS until her eighteenth birthday. The mother appealed and Supreme Court upheld the trial court's findings and conclusions, found that DHS was not required to prove its case by showing that the mother failed to comply with the family case plan, and found the trial court complied with the statutory requirements in terminating the parental rights.

      In the Interest of Tif