1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re P.M.

No. 22-0162 (Putnam County 19-JA-8)

MEMORANDUM DECISION

Petitioner Mother A.C., by counsel Shawn D. Bayliss, appeals the Circuit Court of Putnam

County’s January 31, 2022, order terminating her parental rights to P.M.

1 The West Virginia 

Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and Mindy 

M. Parsley, filed a response in support of the circuit court’s order. The guardian ad litem, Rosalee 

Juba-Plumley, filed a response on behalf of the child also in support of the circuit court’s order.

On appeal, petitioner argues that the circuit court erred in terminating her parental rights.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds that the circuit court erred in terminating petitioner’s parental rights 

when no evidence or testimony was presented at the hearing on the child’s guardian’s motion to 

modify disposition. This case satisfies the “limited circumstances” requirement of Rule 21(d) of 

the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an 

opinion.

In January of 2019, the DHHR filed a child abuse and neglect petition against petitioner 

alleging that petitioner’s severe mental health issues impacted her ability to parent then-four-yearold P.M. The court appointed petitioner a guardian ad litem. In May of 2019, upon the 

recommendation of her counsel and her guardian, petitioner stipulated to the allegations contained 

in the petition. The circuit court accepted petitioner’s stipulation, adjudicated her as an abusing 

parent, and granted her a post-adjudicatory improvement period. However, petitioner denied any 

psychiatric issues and refused to participate in services. In August of 2020, based upon the 

recommendation of the child’s guardian and the DHHR, the circuit court terminated petitioner’s 

custodial rights so that she could seek to modify disposition in the future after having addressed 

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 

254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013); 

State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W. 

Va. 641, 398 S.E.2d 123 (1990). 

FILED

August 30, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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her mental health issues. Petitioner appealed, and this Court affirmed the September 23, 2020, 

dispositional order. See In re P.M., No. 20-0831, 2021 WL 2556579 (W. Va. Jun. 22, 

2021)(memorandum decision). 

At a status hearing in March of 2021, the guardian advised the circuit court that there had 

been several recent Child Protective Services (“CPS”) referrals against P.M.’s father, who had 

placement of the child. The guardian believed that petitioner was making the claims against the 

father and stated that the claims were unsubstantiated and disruptive to the child. The circuit court 

granted the guardian’s motion to order the DHHR to release the name of the reporter in the CPS 

referrals to ascertain if it was, in fact, petitioner making the unsubstantiated claims.2 The circuit 

court further ordered that petitioner’s phone calls with the child be suspended.

The circuit court held another status hearing in July of 2021. Petitioner requested that her 

phone calls with the child be reinstated. However, the circuit court denied the motion, finding that 

petitioner had not addressed her mental health issues, as evidenced by her behavior during the 

hearing, and that it was not in the child’s best interests to have contact with petitioner. The circuit 

court further ordered that it would not hear any more self-represented motions from petitioner and 

instructed petitioner that her counsel was to file any motions on her behalf. 

In September of 2021, the child’s guardian filed a motion to modify disposition by

terminating petitioner’s parental rights. The guardian reported that petitioner was obsessively 

contacting the child’s father and was making false CPS reports against him on a nearly weekly 

basis. According to the guardian, petitioner’s actions were upsetting the child. The guardian 

asserted that modifying disposition was in the child’s best interest. 

In November of 2021, the circuit court held a status hearing. Petitioner was incarcerated at 

that time but participated in the hearing via videoconferencing. The circuit court noted that, 

contrary to the court’s earlier order, petitioner had filed a self-represented motion for the 

appointment of a new judge. The circuit court referred the motion to this Court and held the 

proceedings in abeyance pending a ruling from the Court.

The circuit court held a hearing on the child’s guardian’s motion to modify disposition in 

January of 2022, after this Court denied petitioner’s motion for a new judge. The DHHR filed an 

updated case plan, and the circuit court heard the arguments of the parties. No sworn testimony 

was taken, nor was any evidence introduced. The circuit court found that “the situation with 

[petitioner] has continued to deteriorate . . . although we haven’t taken formal evidence here today, 

I think the [c]ourt can pretty well take judicial notice of where we are and how we got here.” 

Ultimately, the circuit court terminated petitioner’s parental rights upon findings that there was no 

reasonable likelihood that she could correct the conditions of abuse and neglect in the near future 

2

Although the parties do not cite to the DHHR’s release of this information, the guardian’s

dispositional report filed in support of her motion to modify disposition notes numerous times that 

petitioner was making false CPS reports.
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and that termination was necessary for the child’s welfare. Petitioner appeals the January 31, 2022,

dispositional order terminating her parental rights to the child.

3

 

The Court has previously established the following standard of review in cases such as this:

“Although conclusions of law reached by a circuit court are subject to de 

novo review, when an action, such as an abuse and neglect case, is tried upon the 

facts without a jury, the circuit court shall make a determination based upon the 

evidence and shall make findings of fact and conclusions of law as to whether such 

child is abused or neglected. These findings shall not be set aside by a reviewing 

court unless clearly erroneous. A finding is clearly erroneous when, although there 

is evidence to support the finding, the reviewing court on the entire evidence is left 

with the definite and firm conviction that a mistake has been committed. However, 

a reviewing court may not overturn a finding simply because it would have decided 

the case differently, and it must affirm a finding if the circuit court’s account of the 

evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1, In 

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

Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). 

On appeal, petitioner argues that the circuit court erred in terminating her parental rights 

upon insufficient evidence. Petitioner notes that the circuit court acknowledged that no formal 

evidence was taken on the child’s guardian’s motion to modify disposition but, nevertheless, 

terminated her parental rights based upon judicial notice of “where we are and how we got here.” 

Petitioner asserts that such a ruling is improper as there was not sufficient evidence presented at 

any hearing following the dispositional hearing that would support a modification to her 

disposition. In the absence of any evidence, neither the guardian nor the DHHR met its burden of 

showing a material change of circumstances such that modification was necessary.

Pursuant to West Virginia Code § 49-4-601(h), “[i]n any proceeding pursuant to this article, 

the party or parties having custodial or other parental rights or responsibilities to the child shall be 

afforded a meaningful opportunity to be heard, including the opportunity to testify and to present 

and cross-examine witnesses.” Indeed, as this Court has held,

“West Virginia Code, Chapter 49, Article [4], Section [601 (2015)], as 

amended, and the Due Process Clauses of the West Virginia and United States 

Constitutions prohibit a court or other arm of the State from terminating the parental 

rights of a natural parent having legal custody of his child, without notice and the 

opportunity for a meaningful hearing.” Syl. Pt. 2, In re Willis, 157 W. Va. 225, 207 

S.E.2d 129 (1973).

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The father was deemed a nonabusing parent. The permanency plan for the child is to 

remain in the care of his nonabusing parent.
4

Syl. Pt. 3, In re T.S., 241 W. Va. 559, 827 S.E.2d 29 (2019).4 Here, the circuit court violated 

petitioner’s right to be heard. At a minimum, by failing to require the guardian or the DHHR to 

present a single witness in support of its position at disposition, petitioner was not permitted to 

exercise her right to cross-examination. 

This Court has previously held that “‘[t]he standard of proof required to support a court 

order limiting or terminating parental rights to the custody of minor children is clear, cogent and 

convincing proof.’ Syllabus Point 6, In re: Willis, 157 W.Va. 225, 207 S.E.2d 129 (1974).” Syl. 

Pt. 2, In re Samanatha M., 205 W. Va. 383, 518 S.E.2d 387 (1999). Further,

[w]hile the West Virginia Code ‘does not specify any particular manner or mode of 

testimony or evidence by which the [DHHR] is obligated to meet this burden,’ it 

must take the form of affirmative evidence presented or adopted by the party with 

the burden of proof—DHHR—upon which the circuit court may base its 

disposition.

In re C.S., No. 21-0694, ––– W. Va. ––––, ––––, ––– S.E.2d ––––, ––––, 2022 WL 2155209 (W. 

Va. June 15, 2022) (citations omitted). Moreover, pursuant to West Virginia Code § 49-4-606(a), 

[u]pon motion of a child, a child’s parent or custodian or the department alleging a 

change of circumstances requiring a different disposition, the court shall conduct a 

hearing pursuant to section six hundred four of this article and may modify a 

dispositional order if the court finds by clear and convincing evidence a material 

change of circumstances and that the modification is in the child’s best interests.

Here, the dispositional hearing lasted eighteen minutes and consisted of unsworn statements by 

the child’s guardian and the DHHR. No evidence was presented. While the circuit court attempted 

to take judicial notice of the proceedings, a review of the orders from each of the status hearings 

reveals that no sworn testimony or evidence was presented at any time following the dispositional 

hearing. Given that no evidence was presented at the modification hearing, it cannot be said that 

the guardian or the DHHR met the burden of clear and convincing proof. Therefore, the 

termination of petitioner’s parental rights was erroneous.5

As we have explained, 

[w]here it appears from the record that the process established by the Rules 

of Procedure for Child Abuse and Neglect Proceedings and related statutes for the 

4

While this holding specifically references a prior version of West Virginia Code § 49-4-

601, the current version, enacted in May of 2019, retains language requiring that parents be 

provided a “meaningful opportunity to be heard, including the opportunity to testify.” 

5

While petitioner argues that the guardian’s assertions in her motion are insufficient to 

support a finding of a material change in circumstances pursuant to West Virginia Code § 49-4-

606(a), we need not address this argument as we are remanding the matter for the holding of a 

proper hearing with evidence.
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disposition of cases involving children adjudicated to be abused or neglected has 

been substantially disregarded or frustrated, the resulting order of disposition will 

be vacated and the case remanded for compliance with that process and entry of an 

appropriate dispositional order.

Syl. Pt. 5, In re Edward B., 210 W. Va. 621, 624, 558 S.E.2d 620, 623 (2001). We find that the 

process established by our rules has been substantially disregarded or frustrated such that the 

dispositional order must be vacated, in part, and the matter remanded for the holding of a new 

hearing on the guardian’s motion to modify disposition where the guardian and/or the DHHR shall 

present evidence in support of its recommendation. Additionally, petitioner must be provided the 

opportunity to cross-examine any witnesses presented or otherwise present any evidence she 

believes supports her position.

For the foregoing reasons, the January 31, 2022, order terminating petitioner’s parental 

rights is vacated, and this case is remanded with direction to the circuit court to hold a hearing in 

keeping with this memorandum decision. This Court is not suggesting any outcome in vacating 

and remanding this matter. Rather, the desired result is that another hearing be held so that 

evidence may be presented and that the case be fully developed and properly resolved. Taking into 

consideration the length of time that this case has been pending, the circuit court is ordered to hold 

the new hearing without delay.

The Clerk is directed to issue the mandate in this case forthwith.

Vacated and Remanded with Directions.

ISSUED: August 30, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice C. Haley Bunn
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Hutchison, Chief Justice, concurring:

I agree that vacating and remanding this case for an evidentiary hearing is the proper course 

of action, so I join the memorandum decision. I simply take a few lines to address a limited concern 

I have with the memorandum decision’s legal reasoning. 

The memorandum decision states, 

Here, the circuit court violated petitioner’s right to be heard. At a minimum, 

by failing to require the guardian or the DHHR to present a single witness in support 

of its position at disposition, petitioner was not permitted to exercise her right of 

cross-examination. 

This language may be read to imply that the right of cross-examination gives one party the 

power to compel an opposing party to call witnesses. Such a reading would be incorrect. The right 

of cross-examination permits, subject to reasonable limitation, one side to question the other side’s 

witnesses after they testify. The right of cross-examination does not empower one side to force the 

other side to call witnesses. Of course, as demonstrated in this case, a party with a burden of proof 

who fails to call any witnesses or produce any competent evidence necessarily fails to carry their 

burden and cannot prevail. This is not a function of an inability to cross-examine, but a case of 

insufficient evidence.

 

With these caveats, I join the memorandum decision.