STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS
 

FILED 

In re T.C., D.C., and E.C. June 15, 2018 

EDYTHE NASH GAISER, CLERK 

No. 18-0195 SUPREME COURT OF APPEALS (Cabell County 16-JA-4, 5, and 7) OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother D.T., by counsel Eric B. Anderson, appeals the Circuit Court of Cabell 

County’s February 1, 2018, order terminating her parental rights to T.C., D.C., and E.C.1 The 

West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, 

filed a response in support of the circuit court’s order. The guardian ad litem for T.C. (“guardian 

for T.C.”), Michael S. Bailey, filed a response on behalf of that child in support of the circuit 

court’s order. The guardian ad litem for D.C. and E.C. (“guardian”), Cathy L. Greiner, filed a 

response on behalf of those children in support of the circuit court’s order. Petitioner filed a reply 

brief. On appeal, petitioner argues that the circuit court erred in denying her an improvement 

period and terminating her parental rights without a petition that contained specific factual 

allegations against her. 

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 vacates the circuit court’s February 1, 2018, dispositional order and the 

circuit court’s January 30, 2018, adjudicatory order, as they relate to petitioner, and remands the 

case to the circuit court for the filing of an amended petition naming petitioner as a respondent.2 

This case satisfies the “limited circumstances” requirement of Rule 21(d) of the West Virginia 

Rules of Appellate Procedure, and a memorandum decision is appropriate to resolve the issues 

presented. 

In January of 2016, the DHHR filed a petition against the father and step-mother of T.C., 

D.C., and E.C. alleging that D.C. was sexually abused by her paternal grandfather and that both 

D.C. and E.C. were sexually abused by T.C. Additionally, the DHHR alleged that the step1

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). 

2

As we find that the circuit court erred in terminating petitioner’s parental rights without 

a petition that contained specific factual allegations against her, we find it unnecessary to address 

petitioner’s other assignments of error on appeal. 

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mother locked the children in their rooms to keep them from “stealing food” in the middle of the 

night. The DHHR alleged that the father indicated that petitioner’s parental rights to the children 

were previously terminated and that he exercised sole custody over the children. However, the 

father’s statement proved to be untrue; petitioner retained her parental rights and the right to 

visitation with the children. The father and step-mother waived their preliminary hearings.3 

In March of 2016, petitioner appeared at the adjudicatory hearing in the father and stepmother’s case and was appointed counsel. The circuit court ordered petitioner to participate in 

certain services. Further, the parties noted that an amended petition naming petitioner as a 

respondent and alleging abuse and/or neglect by her would be required. However, the DHHR 

admits on appeal that no such amended petition was filed. 

The circuit court held an adjudicatory hearing in April of 2017 and found that petitioner 

was an abusing parent on the basis of her admitted lack of support and lack of meaningful 

contact and visits with the children. In November of 2017, the circuit court held a dispositional 

hearing, wherein it denied petitioner’s motion for an improvement period and concluded that it 

was in the best interest of the children to terminate her parental rights. The circuit court’s 

decision was memorialized by its February 1, 2018, order. Petitioner now appeals that order.4 

The Court has previously established the following standard of review: 

“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). 

3

When the children were removed from the father’s custody, T.C. was already placed at 

River Park Hospital as required by a concurrent juvenile delinquency petition. That petition 

alleged that T.C. inappropriately touched a female classmate while at school. 

4

The father relinquished his parental rights to the children during these proceedings. 

According to the parties, E.C. and D.C. are in separate foster homes with a permanency plan of 

adoption in their respective homes. T.C is currently in a long-term treatment facility and 

transitioning to a lower-security facility. According to his guardian, T.C. will require further 

treatment before a permanent placement can be identified. 

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

without a petition containing specific factual allegations of abuse and neglect against her. 

Petitioner argues that the initial petition named only the father and step-mother of the children 

and did not contain any allegations that she abused or neglected the children. Although the 

parties agreed below that an amended petition including petitioner as a respondent was required, 

no such petition was ever filed. Upon our review of the record, we agree with petitioner and find 

that the circuit court erred. 

West Virginia Code § 49-4-601(b) provides “[t]he petition shall allege specific conduct 

including time and place, [and] how the conduct comes within the statutory definition of neglect 

or abuse with references thereto. . . .” See also State v. Scritchfield, 167 W.Va. 683 691-92, 280 

S.E.2d 315, 321 (1981)(holding that a “petition must set forth specific allegations of fact 

sufficient to inform the parent of the nature of the condition or conduct which constitutes or is 

likely to result in neglect”). Further, this Court has held that petitions that fail to allege specific 

conduct and do not meet the statutory guidelines are deficient and must be amended. Id. 167 

W.Va. at 691-92, 280 S.E.2d at 320-21. 

It is clear from the record and the briefs on appeal that an amended petition naming 

petitioner as a respondent and alleging specific conduct that constitutes abuse and/or neglect of 

the children was never filed.5 This lack of formal allegations deprived petitioner of due process 

and the opportunity to properly tailor her defense. Further, we have previously held that 

“[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 disposition of cases involving children [alleged] to be abused or neglected 

has been substantially disregarded or frustrated, the resulting order . . . will be 

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

appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621, 

558 S.E.2d 620 (2001). 

Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). The circuit court’s failure to 

require a petition that contains specific factual allegations against petitioner is a substantial 

disregard of the Rules of Procedure for Child Abuse and Neglect Proceedings and related 

statutes, requiring vacation of the circuit court’s orders as to petitioner. 

For the foregoing reasons, we vacate the circuit court’s February 1, 2018, dispositional 

order and the January 30, 2018, adjudicatory order, as they relate to petitioner, and remand this 

matter to the circuit court for the filing of a petition naming petitioner as respondent in 16-JA-4, 

5, and 7, and for further proceedings consistent with the West Virginia Rules of Procedure for 

Child Abuse and Neglect Proceedings and Chapter 49 of the West Virginia Code.6

 The circuit 

5

Although it is unclear whether petitioner properly objected to the lack of an amended 

petition below, West Virginia Code § 49-4-601(e)(6) provides that “[f]ailure to object to defects 

in the petition and notice may not be construed as a waiver.” 

6

Based on respondents’ representations and the record on appeal, the Court finds that the 

children’s current temporary placement is appropriate and in their best interest at this time. 

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court is hereby ordered to hold the appropriate hearings and issue a final order in this case within 

sixty days. The Clerk is hereby directed to issue the mandate contemporaneously herewith. 

Vacated and remanded. 

ISSUED: June 15, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

Justice Allen H. Loughry II, suspended and therefore not participating 

Accordingly, we instruct the circuit court to maintain this temporary placement until such time as 

the circuit court is tasked with determining an appropriate permanent placement for the children 

pursuant to West Virginia Code § 49-4-604(b) and the applicable Rules of Procedure for Child 

Abuse and Neglect Proceedings. 

4