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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re H.B. 

No. 22-0345 (Wood County 20-JA-65) 

MEMORANDUM DECISION

When the Circuit Court of Wood County held the disposition hearing in this child abuse 

and neglect civil proceeding, counsel for Petitioner Father R.B.1 stated that Petitioner consented 

to the recommendations of the Department of Health and Human Resources and the guardian ad 

litem for the child that his parental rights to his daughter H.B. be terminated. The court accepted 

Petitioner’s consent to the termination and entered its disposition order on April 4, 2022. Petitioner 

now appeals that order and argues that the court erred by failing to follow the mandatory 

procedures set forth in the West Virginia Rules of Procedure for Child Abuse and Neglect 

Proceedings governing uncontested dispositions. We agree that the proceedings before the circuit 

court were inadequate because the court never questioned Petitioner directly about his 

understanding of the consequences of termination. So, we vacate the order and remand this case 

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

of the Rules of Appellate Procedure for disposition in a memorandum decision.

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I. Factual and Procedural History 

Because this appeal turns on the adequacy of the disposition hearing, we summarize the 

facts leading up to that day. In April 2020, the DHHR filed a petition alleging that Petitioner 

engaged in domestic violence in the presence of his nine-year-old child and exposed her to drug 

abuse. Petitioner stipulated to the allegations against him. The court accepted the stipulation, 

adjudicated Petitioner as abusive and neglectful, and granted him a post-adjudicatory improvement 

period. 

At first, Petitioner did not do well in his improvement period. He tested positive for 

marijuana on several drug screens in the fall of 2020. And because Petitioner was on probation 

1 We use initials where necessary to protect the identities of those involved in this case. 

See W. Va. R. App. P. 40(e). 

2 Petitioner appears by counsel Eric K. Powell. The DHHR appears by counsel Attorney 

General Patrick Morrisey and Assistant Attorney General Lee Niezgoda. Debra L. Steed appears 

as the child’s guardian ad litem. 

FILED

June 8, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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related to a drug offense, his probation was revoked, and he was incarcerated in October 2020. 

After learning about the incarceration, the court terminated his post-adjudicatory improvement 

period in December 2020. 

Petitioner was released from jail in January 2021. He started participating with services 

offered by the DHHR and was in regular contact with his case workers. In March 2021, Petitioner

moved to reinstate his post-adjudicatory improvement period based on his enrollment in an 

intensive outpatient substance abuse treatment program. The court denied that motion but granted 

him a post-dispositional improvement period. 

The parties agree that Petitioner substantially complied with the terms of his postdispositional improvement period. He regularly passed drug screens, obtained employment, and 

participated with parenting education and domestic violence prevention services. Even so, 

Petitioner never visited the child during these proceedings. She was afraid of Petitioner and did 

not want to see him. At a hearing in May 2021, the court noted that Petitioner seemed to be doing 

well, but denied his motion for visitation with the child, pending the results of his parental fitness 

evaluation.3 

In July 2021, the DHHR filed a report noting that Petitioner was complying with his 

improvement period but stated that Petitioner’s “intention may not necessarily be reunification but 

to have visits/contacts” with the child. And during other review hearings, the DHHR represented 

that Petitioner was doing everything that was asked of him, but the child still did not want to visit 

with him. The DHHR noted that the child was angry and disappointed that Petitioner claimed not 

to recall an incident where he supposedly chased her with a baseball bat through their house. 

At the disposition hearing in March 2022, the DHHR and the child’s guardian ad litem 

recommended that the circuit court terminate Petitioner’s parental rights and leave posttermination visitation at the discretion of the child and her guardian. By this time, the child was 

ten years old and had not visited with Petitioner for two years. Petitioner’s counsel stated that 

Petitioner consented to this disposition, but the court did not address Petitioner directly. 

Specifically, Petitioner’s counsel said: 

I agree with [counsel for the DHHR], this is a sad case. [Petitioner’s] done 

all he can to try to reunite himself with his daughter and she’s rebuffing his efforts 

to be reunified. [Petitioner] still loves [the child]. I think there is a bond there, it’s

just unilateral, it’s not bilateral. There’s a strong unilateral bond. Maybe that will 

grow into a bilateral bond and that would blossom into a visitation or two. 

[Petitioner’s] come to grips with the termination of the case and his parental 

rights. At least he’ll – we’d welcome a visit or some form of contact with [the 

child] at this juncture, but that may be determined on down the road. 

 And for those reasons, your Honor, I think that [Petitioner] wishes to adopt 

3 The DHHR raised concerns about Petitioner’s intellectual ability and its impact on 

whether he could gain insight and practice what he learned through services. 
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the recommendation of the Department and move on and let [the child] become [the 

child] at her own pace. 

The circuit court thanked Petitioner for putting the best interests of the child above his own 

wishes. It noted that Petitioner did everything asked of him to improve, but concluded that despite 

extensive services, reunification was not in the child’s best interest. 

In its disposition order terminating Petitioner’s parental rights, the circuit court stated that 

Petitioner “consents to the termination of his parental rights to the minor child, with posttermination visitation left open in the discretion of the minor child and her guardian, and believes 

it is in the minor child’s best interest.” It found that the DHHR made reasonable efforts to reunify 

the family by providing services to Petitioner but despite his compliance with his improvement 

period, the bond between Petitioner and the “child could not be repaired.” 4 

II. Standard of Review

On appeal from a final order in a child abuse and neglect civil proceeding, this Court 

reviews the circuit court’s findings of fact for clear error and its conclusions of law de novo.5 

III. Analysis

In his sole assignment of error, Petitioner argues that the circuit court erred by not 

complying with the mandatory procedures governing uncontested dispositions. The DHHR and 

the child’s guardian ad litem acknowledge that the court failed to follow those procedures. Even 

so, they ask that we affirm the disposition order; they contend that Petitioner received extensive 

services while the child has been in foster care for two years and still there is no evidence that it 

would be in the child’s best interest to reunify with Petitioner.6 

A judicial proceeding terminating parental rights implicates a parent’s fundamental 

constitutional rights.7 The State and the parent share an interest in ensuring that the decision to 

4 The child’s mother’s parental rights were also terminated. The permanency plan for the 

child is adoption in the current placement. 

5

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

6 The DHHR argues that the circuit court made sufficient findings to support involuntary 

termination of Petitioner’s rights. But we decline to affirm for that reason because the record, 

taken as a whole, reflects that the circuit court treated this case as an uncontested disposition. 

7 See Syl. Pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) (“In the law concerning 

custody of minor children, no rule is more firmly established than that the right of a natural parent

to the custody of 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 West Virginia and 

(Continued . . .) 
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terminate parental status is accurate and just.8 In view of these concerns, the Rules of Procedure 

for Child Abuse and Neglect Proceedings set forth procedures that a circuit court must follow 

during a disposition hearing when a parent does not contest termination of his parental rights. The 

court must conduct a full inquiry and ask the parent several questions including whether he fully 

understands the consequences of that disposition. Rule 35 states, in relevant part: 

(a) Uncontested termination of parental rights. — If a parent voluntarily 

relinquishes parental rights or fails to contest termination of parental rights, the 

court shall make the following inquiry at the disposition hearing: 

(1) If the parent is present at the hearing but fails to contest termination of 

parental rights, the court shall determine whether the parent fully understands the 

consequences of a termination of parental rights, is aware of possible less drastic 

alternatives than termination, and was informed of the right to a hearing and to 

representation by counsel. 

We recognize that “[f]ew decisions can be more momentous than the choice to give up 

one’s parental rights.”9 So, compliance with Rule 35 is essential at a disposition hearing, and it is 

incumbent on judges to ensure that a parent is fully aware of the ramifications of his actions and

is aware of less drastic alternatives than termination. 

In this case, the circuit court did not comply with the requirements set forth in Rule 35

because it did not ask Petitioner any questions. And this failure constitutes reversible error because 

we are unable to ascertain whether Petitioner fully understood the consequences of his consent to 

the termination of his parental rights. 

This Court has held that when the Rules of Procedure for Child Abuse and Neglect 

Proceedings have been substantially disregarded, the case should be remanded for compliance with 

those procedures: 

Where 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 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 

United States Constitutions.”); see also Santosky v. Kramer, 455 U.S. 745, 753-54 (1982) (the 

parent-child relationship is a fundamental liberty interest in which the state cannot interfere 

without providing the parent fundamentally fair procedures). 

8 In re S.C., 245 W. Va. 677, 688, 865 S.E.2d 79, 90 (2021). 

9 In re Ibanez, 834 N.W.2d 306, 315 (S.D. 2013). 
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appropriate dispositional order.[10] 

For this reason, we vacate the circuit court’s order and remand this case for a disposition hearing. 

IV. Conclusion 

The April 4, 2022, order is vacated, and this case is remanded to the circuit court to hold a 

disposition hearing. 

 

Vacated and remanded 

with directions. 

ISSUED: June 8, 2023 

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice John A. Hutchison 

Justice William R. Wooton

Justice C. Haley Bunn 

DISSENTING:

Justice Tim Armstead

Armstead, Justice, dissenting: 

In this case, the circuit court terminated Petitioner’s parental rights after finding that there 

was no reasonable likelihood that the conditions of neglect and abuse could be substantially 

corrected in the near future. Because I believe that there was clear and convincing evidence to 

support the circuit court’s decision, and the circuit court’s order does not indicate that it relied on 

the Petitioner’s stipulation in reaching its conclusions, I respectfully dissent. 

H.B. lived in a home with parents who had substance abuse issues and who engaged in 

domestic violence in her presence. At an adjudicatory hearing held on September 2, 2020, 

Petitioner stipulated that he and H.B.’s mother engaged in domestic violence in the presence of 

H.B. Further, he stipulated that his substance abuse inhibited his ability to provide proper care for 

H.B. Petitioner was granted a six-month post-adjudicatory improvement period. However, as the 

majority notes, he did not do well in that improvement period, and it was eventually terminated 

after he was incarcerated. 

10 Syl. Pt. 5, In re T.W., 230 W. Va. 172, 737 S.E.2d 69 (2012) (citing Syl. Pt. 5, In re 

Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001)). 
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Thereafter, the circuit court granted Petitioner a post-dispositional improvement period, 

and it is undisputed that he complied with that improvement period. However, despite his 

compliance with his post-dispositional improvement period, H.B. remained unwilling to 

participate in visits with Petitioner and continually expressed her desire to continue living with her 

foster family and to “move on with her life.” Petitioner’s final dispositional hearing was held on 

March 25, 2022, and at that time, DHHR, the Guardian ad Litem, and CASA moved to terminate 

his parental rights to H.B. while leaving post-termination visitation open in the discretion of H.B. 

and her guardian. 

During the hearing, counsel for Petitioner stated, in part:

[Petitioner’s] done all he can to try to reunite himself with his daughter and she’s 

rebuffing his efforts to be reunified. [Petitioner] still loves [H.B.]. I think there is 

a bond there, it’s just unilateral, it’s not bilateral. There’s a strong unilateral bond. 

Maybe that will grow into a bilateral bond and that would blossom into a visitation 

or two. 

By order entered on April 4, 2022, the circuit court terminated Petitioner’s parental rights 

and left post-termination visitation between H.B. and Petitioner “at the discretion of the minor 

child, and her guardian, and after consultation of the child’s therapist [].” Now, Petitioner asks 

this Court to reverse the termination of his parental rights because he alleges that the circuit court 

failed to follow Rules 33 and 35 of the West Virginia Rules of Procedure for Child Abuse and 

Neglect Proceedings when it “accepted [his] uncontested termination of parental rights.” Because 

I do not believe that the circuit court’s order indicates that it terminated Petitioner’s parental rights 

based on the fact that Petitioner agreed to that disposition at the March 25, 2022 hearing, I believe 

that Petitioner’s reliance upon Rules 33 and 35 is misplaced.

It is a long-standing principle that a court speaks through its orders. Although the circuit 

court noted in the order being appealed that Petitioner “consent[ed] to the termination of his 

parental rights to the minor child,” it does not appear that the circuit court relied upon this consent 

in deciding to terminate Petitioner’s parental rights. The reference to Petitioner’s consent is found 

in a portion of the order in which the circuit court outlined the procedural history of the case and 

described the positions being taken by Petitioner, the DHHR, the GAL, and CASA. There is no 

mention of Petitioner’s consent to termination of his parental rights in the findings of fact or 

conclusions of law portion of the order. Instead, the circuit court found and concluded that: (1) 

continuation in the home of the Petitioner was contrary to the welfare of H.B.; (2) the DHHR made 

reasonable efforts to reunify the family; and (3) despite Petitioner’s compliance with the postdispositional improvement period, the bond between the Petitioner and the minor child could not 

be repaired. The court proceeded to state:

For the foregoing reasons, the Court further finds that there is no reasonable 

likelihood that the conditions of abuse and neglect can be substantially corrected in 

the near future. The child needs continuity in care and caretakers, and a significant 

amount of time is required to be integrated into a stable and permanent home 

environment. (emphasis added).
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These findings are sufficient to support the involuntary termination of Petitioner’s parental 

rights. Moreover, had the circuit court merely relied on the Petitioner’s consent to termination, 

the specific findings made by the court would have been unnecessary. For these reasons, I believe 

the circuit court properly terminated Petitioner’s parental rights. Accordingly, I respectfully 

dissent as to the majority’s decision to vacate and remand this case.