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No. 20-0997 – In re: A. F.

WOOTON, J., concurring, in part, and dissenting, in part:

I concur with the majority’s conclusion that the circuit court erred by failing 

to apply the Cecil T. factors regarding incarceration. See Syl. Pt. 3, In re Cecil T., 228 W. 

Va. 89, 717 S.E.2d 873 (2011). However, the proper remedy for that error is vacation of 

the order and remand for adequate fact-finding and analysis by the circuit court. It is not 

the place of this Court to step into the adjudicatory role of the circuit court and preemptively 

resolve the case after finding error—particularly where additional, critical facts have been 

developed pending appeal. This Court has long held that “[w]hen the requisite procedure 

is not followed in an abuse and neglect case[] . . . the order resulting from such deviation 

will be vacated and the case will be remanded for entry of an order that satisfies the 

procedural requirements[.]” In re Emily G., 224 W. Va. 390, 396, 686 S.E.2d 41, 47 

(2009). Accordingly, I respectfully dissent to the majority’s affirmation of the circuit 

court’s termination of petitioner’s parental rights.

It is critical to recognize that the Rules of Procedure for Child Abuse and 

Neglect Proceedings as well as our extensive body of caselaw do not exist merely as a 

vehicle to reach a predetermined outcome. Rather, they serve an important due process 

function for parents whose fundamental rights are at stake: “The Rules of Procedure for 

Child Abuse and Neglect Proceedings and the related statutes . . . vest carefully described 

and circumscribed discretion in our courts, intended to protect the due process rights of the 

FILED

November 19, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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parents as well as the rights of the innocent children.” In re Edward B., 210 W. Va. 621, 

632, 558 S.E.2d 620, 631 (2001). These procedures and our precedent “also provide the 

necessary framework for appellate review of a circuit court’s action.” Id.

The majority has determined that, despite the circuit court’s failure to 

properly consider and apply the balancing test set forth in Cecil T., the late-developed 

record is adequate to post-hoc affirm the petitioner’s termination. Importantly, it was only 

after the lower court terminated petitioner’s parental rights and while this case was pending 

appeal—and after briefing had been completed—that any semblance of clarity about 

petitioner’s criminal charges and duration of his incarceration developed. These are vitally 

relevant inquiries under the Cecil T. holding—petitioner is entitled to respond to these 

inquiries and stake out a position as to what that newly-acquired information means in 

terms of his parental rights. 

More specifically, given the now relatively certain duration of petitioner’s 

incarceration, he should be permitted to argue on remand which of the dispositional 

alternatives contained in West Virginia Code § 49-4-604 (2020) best corresponds with A. 

F.’s welfare and need for permanency. Cecil T. instructs that incarceration must be 

considered “in light of the abused or neglected child’s best interests and paramount need 

for permanency, security, stability and continuity.” 228 W. Va. at 91, 717 S.E.2d at 875, 

Syl. Pt. 3. Termination of parental rights contains a similar statutory prerequisite that 

termination must be “necessary for the welfare of the child.” See In re A. P., 245 W. Va.
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248, ___, 858 S.E.2d 873, 880 (2021) (underscoring the “distinct requirement[]” that 

termination be “necessary for the welfare of the child” in terms of the child’s “physical and 

emotional well-being.”). Petitioner may well wish to argue that a disposition under West 

Virginia Code § 49-4-604(c)(5) is the least restrictive disposition which properly venerates 

the best interests of A. F. and provides adequate permanency—particularly where his only 

current parenting deficit is his incarceration. West Virginia Code § 49-4-604(c)(5) 

provides: 

Upon a finding that the abusing parent or battered parent or 

parents are presently unwilling or unable to provide adequately 

for the child’s needs, commit the child temporarily to the care, 

custody, and control of the department, a licensed private child 

welfare agency, or a suitable person who may be appointed 

guardian by the court.

(emphasis added). Just this term, this Court unanimously endorsed just such an 

arrangement. See In re S. C., No. 20-0816, slip op. at 25-26 (W. Va. October 29, 2021)

(slip op.) (holding that parent who has “remedied the conditions that led to his 

adjudication” should be granted “less restrictive disposition 5” in lieu of termination and 

rejecting “presum[ption]” that termination is necessary for child’s welfare “[s]imply 

because the record is clear the child should remain” in placement outside of the home).

However, it is the prerogative of the circuit court, upon receiving these 

arguments under a better understanding of the applicable standard, to make findings of fact 

and conclusions of law in the first instance regarding the proper disposition. See Edward 

B., 210 W. Va. at 632, 558 S.E.2d at 631 (quoting Nicpon v. Nicpon, 157 N.W.2d 464, 467 
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(Mich. Ct. App. 1968)) (“‘Clear and complete findings by the trial judge are essential to 

enable us properly to exercise and not exceed our powers of review.’”). This Court has 

repeatedly made clear that this is the role of the circuit court where error permeates the 

order on review and/or important information was not considered:

[T]he circuit court’s order, as well as the appendix record, 

show that the circuit court was lacking important evidence 

necessary for determining the petitioner’s parental fitness to 

parent C. N. Similar to our decision to reverse and remand in 

In re Timber M., we are left “with the firm conviction” that no 

one adequately considered the petitioner’s parental fitness to 

have custody of C. N. 

In re A. N., 241 W. Va. 275, 289, 823 S.E.2d 713, 727 (2019) (citations omitted); see also 

In re Emily, 208 W. Va. 325, 339, 540 S.E.2d 542, 556 (2000) (“[W]e are left with the firm 

conviction that the final disposition of this abuse and neglect case is more appropriately 

decided, in the first instance, by the circuit court. . . . [I]n the context of abuse and neglect 

proceedings, the circuit court is the entity charged with weighing the credibility of 

witnesses and rendering findings of fact.”).

Not only has petitioner been deprived of the ability to argue what the newly 

adduced information necessitates under our statutory scheme, but the majority’s 

affirmation of termination improperly suggests that his now-certain incarceration alone

demands it. In absence of any other properly adjudicated parenting deficits, the majority 

finds that petitioner’s six-year federal sentence is sufficient basis upon which to terminate, 

implicitly creating a bright line rule as to the length of incarceration which presumptively 

satisfies Cecil T. However, Cecil T. portends no such bright line and counsels to the 
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contrary: “[T]he mere fact that someone is incarcerated will not result in automatic 

termination of parental rights[.]” 228 W. Va. at 97, 717 S.E.2d at 881.1

 In fact, this Court 

long ago made clear that “[a] natural parent of an infant child does not forfeit his or her 

parental right to the custody of the child merely by reason of having been convicted of one 

or more charges of criminal offenses.” Syl. Pt. 2, State ex rel. Acton v. Flowers, 154 W.Va. 

209, 174 S.E.2d 742 (1970).

Instead, the Court has explained that “while an individual’s incarceration 

may be a criterion in determining whether his/her parental rights should be terminated, 

other factors and circumstances impacting his/her ability to remedy the conditions of abuse 

and neglect should also be considered when making such a disposition.” In re Emily, 208 

W. Va. at 342, 540 S.E.2d at 559 (footnote omitted) (some emphasis added). Consideration 

of petitioner’s “ability to remedy the conditions of abuse and neglect” necessarily 

1 In contrast to the absence of any other adjudicated allegations other than failure to 

protect lodged against petitioner, in Cecil T. the incarcerated respondent was arrested 

almost immediately following an improvement period, which prompted him to leave Cecil 

with an inappropriate caregiver. See id., 228 W. Va. at 93, 717 S.E.2d at 877. Cecil was 

present during the crime for which respondent was arrested and respondent left him with 

his mother, who had previously been found an inappropriate caregiver. Id. As such, his 

incarceration alone was not the sole issue underlying his adjudication as abusive and/or 

neglectful.
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commands revisiting the specific allegations of abuse and neglect lodged against petitioner

and upon which he was properly adjudicated in the first instance.

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The petition filed against petitioner in this matter exclusively alleges that he 

failed to protect A. F. from her mother’s substance abuse—an issue which is no longer 

relevant as the mother’s rights have been terminated. It is logically inescapable that the

condition of abuse or neglect of which petitioner was adjudicated was by its very nature 

corrected if A. F.’s mother resolved her drug abuse or was otherwise removed as a threat 

to A. F.’s welfare. That has now occurred by virtue of the termination of her parental 

rights; A. F. remains in the custody of her grandparents, where petitioner’s mere 

incarceration poses no apparent, immediate threat to her safety or welfare. 

Further, with respect to the extraneous issues upon which the circuit court 

based its termination (and to which the majority alludes), none of those issues cure the 

circuit court’s error or justify termination, as presented. Irrespective of the majority’s 

2 The majority insinuates that incarceration is tantamount to abandonment and 

therefore deserving of termination, citing a concurring opinion by Justice Workman. See 

In re A. P.-1, 241 W. Va. 688, 827 S.E.2d 830 (2019) (Workman, J., concurring) (stating 

that by reading the statutory provisions in pari materia, “an incarcerated parent can be 

adjudicated as having abandoned his or her child[ren] through evidence of the parent’s 

inability to meet even the most minimal parental duties and responsibilities to the 

child[ren].”). Critically, however, petitioner was not alleged to have abandoned A. F. in 

the subject petition, whereas in A. P.-1, abandonment was specifically alleged against the 

respondent parent. See id. at 698, 827 S.E.2d at 840 (“[T]he petition here alleged both 

abandonment and abuse/neglect.”). The DHHR did not seek amendment of the petition 

herein to allege abandonment at any time. See discussion infra.
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highlighting of petitioner’s criminal history, it is undisputed that 1) his convictions 

occurred prior to A. F.’s birth; and 2) his criminal history was not made part of the petition 

upon which he was adjudicated. Similarly, the circuit court’s focus on petitioner’s rights 

as pertained to other children not named in the petition had no adequate basis in the record; 

the evidence on this is, at best, vague and primarily consists of illusory statements by the 

prosecutor and petitioner’s attorneys. More importantly, the prosecutor explicitly 

recognized that if the Department of Health and Human Resources (“DHHR”) intended to 

rely on prior involuntary termination as a basis to terminate in the instant case, amendment 

of the petition was necessary. During the dispositional hearing below, the prosecutor twice 

referenced amending the complaint to include allegations of prior termination, but never 

sought to do so due to the circuit court’s erroneous termination. See W. Va. Code § 49-4-

604(c)(7)(C) (stating that prior involuntary termination may constitute “aggravated 

circumstances,” obviating the need for efforts at reunification).

This Court has definitively rejected attempts to base disposition on 

allegations that are invoked during disposition, but which were not alleged in the petition

or any amendment and which did not form the basis of adjudication. See In re Lilith H., 

231 W. Va. 170, 181, 744 S.E.2d 280, 291 (2013) (“The circuit court then terminated their 

parental rights on the basis of their continued acrimony, which was never even alleged to 

constitute abuse and/or neglect in the petition or at any time during the proceedings. This 

action served to “‘back door’” adjudication.”). Neither our Rules of Procedure, our 
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precedent, nor due process permit termination of parental rights on a basis against which a 

respondent parent was not given an opportunity to defend. 3

Accordingly, while I concur in the majority’s determination that the circuit 

court erred in failing to consider the Cecil T. factors, I respectfully dissent to its affirmation

of termination of petitioner’s parental rights on the basis of evidence which was not of 

record below, thereby preventing petitioner from arguing the impact of such evidence to 

the circuit court. There is simply nothing in the record before this Court which adequately 

salvages the circuit court’s otherwise erroneous dispositional order terminating petitioner’s 

parental rights. I do not suggest, however, that upon consideration of the fully developed 

record and the Cecil T. factors that the circuit court may not properly determine that 

termination of petitioner’s rights is in A. F.’s best interests. Quite to the contrary, my 

position is that this determination remains within the exclusive province of the circuit court 

3 Further demonstrating the prematurity of termination at this juncture, petitioner 

was implicitly denied an improvement period despite his undisputed willingness to 

participate because the circuit court had improperly concluded that termination was proper. 

Having found the circuit court’s analysis which gave rise to termination to be erroneous, it 

is necessary to remand to permit the circuit court to give full and proper consideration to 

whether an improvement period is in order.

DHHR and the guardian ad litem take the position petitioner did not qualify for an 

improvement period because he failed in his burden to demonstrate the availability of 

remote or online services. However, the statutory language upon which they rely makes it 

petitioner’s burden to demonstrate he “is likely to fully participate in the improvement 

period[.]” W. Va. Code § 49-4-610 (2015) (emphasis added). Nothing in the statutory 

language makes it incumbent upon a petitioner to establish the availability of particular 

services or means of providing such services. DHHR’s willful ignorance about the 

availability of services is wholly insufficient to establish that petitioner is not likely to fully 

participate in an improvement period.
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in the first instance upon assessment of the facts and arguments of the parties, properly 

guided by applicable law, rather than a majority of this Court.