1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re R.G.

No. 20-0509 (Harrison County 19-JA-15-3)

MEMORANDUM DECISION

This child abuse and neglect proceeding involves R.G.,1 an eleven-year-old boy with 

special needs. The Department of Health and Human Resources (DHHR) and the child’s guardian 

ad litem (guardian) appeal the June 15, 2020 order of the Circuit Court of Harrison County

imposing what is commonly called a “section 5” disposition under West Virginia Code § 49-4-

604(c)(5)2 to Respondent I.W., the child’s father. The DHHR and the guardian argue that the 

circuit court should have terminated the parental rights of the father when he refused to participate 

in services to correct the conditions of abuse and neglect, and where termination of his parental 

rights was necessary for the child’s welfare. The father contends that the circuit court acted within 

its discretion by imposing a section 5 disposition because the child’s mother was previously 

granted the same disposition years earlier.

This Court has considered the parties’ briefs, oral argument, and the record on appeal.3

Because this case presents no substantial question of law, it satisfies the “limited circumstances” 

requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure and is appropriate 

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

2 West Virginia Code § 49-4-604(c)(5) provides, in part: 

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.

When the petition was filed in this matter, the dispositional alternatives currently contained in

West Virginia Code § 49-4-604(c) were codified at § 49-4-604(b). All references here are to the 

current version of the statute, the text of which was not altered from the 2016 version. 

3 The father is represented by Julie N. Garvin, Esq. The DHHR is represented by Caleb A. 

Seckman, Esq., Assistant Solicitor General. The child’s guardian is Allison S. McClure, Esq. 

FILED

June 9, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

for a memorandum decision. As explained below, we agree with the DHHR and the guardian’s 

contention that the circuit court abused its discretion when it failed to terminate the father’s 

parental rights. So, we reverse the decision of the circuit court and remand this case for entry of 

an order consistent with this decision.

I. Factual and Procedural History

This appeal concerns the parental rights of the child’s father. But we begin by discussing 

the proceedings against the child’s mother and her disposition as that was the focus of the circuit 

court’s ruling and the father’s argument in this case. 

Although the record is not before us, the parties state that in 2014 the DHHR filed a child 

abuse and neglect petition against the child’s mother, T.G. After the circuit court adjudicated her 

as an abusing/neglectful parent in 2015, it imposed a section 5 disposition and placed the child 

with his father.

4

 The child then lived with his father and the paternal grandmother. The paternal 

grandmother passed away about three years later, and the child remained in the care of his father. 

In February of 2019, the DHHR filed the child abuse and neglect petition that is the subject 

of this appeal against the father after obtaining emergency custody of the child. The DHHR alleged 

that the father failed to provide the child with a safe and stable home, subjected the child to 

unsanitary and unsafe conditions, and neglected the child’s educational and medical needs.5

 The 

circuit court held a preliminary hearing and granted the father a preadjudicatory improvement 

period. As part of the improvement period, the child was returned to the father’s physical care. 

4 See § 49-4-604(c)(5) at note 2, supra. While the parties label the child’s placement with 

his father at the conclusion of the mother’s proceeding as a section 5 disposition, the child was not 

placed in a guardianship—a natural fit parent is not a guardian appointed by the court. Because 

the child was placed in the “permanent sole custody of the nonabusing parent,” it appears that the 

circuit court conducted the mother’s disposition under § 49-4-604(c)(6) but did not terminate her 

parental rights. West Virginia Code § 49-4-604(c)(6) provides, in part, that: 

Upon a finding that there is no reasonable likelihood that the conditions of neglect 

or abuse can be substantially corrected in the near future and, when necessary for 

the welfare of the child, terminate the parental, custodial and guardianship rights 

and responsibilities of the abusing parent and commit the child to the permanent 

sole custody of the nonabusing parent, if there be one, or, if not, to either the 

permanent guardianship of the department or a licensed child welfare agency. 

5 Specifically, the DHHR stated that on February 6, 2019, the father went to a DHHR office 

and requested that it take custody of his child. The father reported that he had been kicked out of 

two homes due to the child’s behavioral issues and had to sleep in a vehicle and a tent; the father 

claimed that the child was so “bad” that no one would babysit him, preventing the father from 

maintaining employment; the father stated he could not remember the last time the child had been 

in school; and the father stated that he could not provide basic needs for the child. The next day, 

the father returned to the DHHR office and a Child Protective Services (“CPS”) worker obtained 

emergency custody of the child. 
3

The DHHR filed an amended petition in April of 2019, and alleged that five days after 

regaining physical placement of the child, the father contacted a CPS worker and stated that he 

could not care for the child because the owner of the home where they were staying, G.C., wanted 

the child to leave. The father and his girlfriend had the child and his belongings waiting for the 

CPS worker at a public location. The CPS worker retrieved the child6 and contacted G.C. to verify 

the father’s statement; G.C. reported that he did not tell the father the child was no longer welcome 

in the home. The DHHR also alleged that the father was discharged from parenting and adult life 

skills classes for noncompliance, failure to attend his psychological evaluation, and leaving a 

Multidisciplinary Team (MDT) meeting early due to his frustration with the proceeding. It further 

alleged that the father submitted to only one drug screen, testing positive for marijuana use, and 

had missed six screens. 

In a second amended petition filed in May of 2019, the DHHR alleged that school officials 

reported that the child came to school angry, aggressive, and unprepared when residing with the 

father. The DHHR also alleged that the child’s uncle reported that he allowed the father, his 

girlfriend, and the child to reside with him for a period of time in 2018 after he learned they were 

living in a tent. The uncle informed the DHHR that the father did not contribute to household 

expenses, had angry outbursts, caused damage to the property, and did not take the child to the 

doctor for medication management of the child’s Attention Deficit Hyperactive Disorder (ADHD). 

The circuit court held an adjudicatory hearing in May of 2019. A CPS worker testified that 

the child lacked a stable living situation when he was in his father’s care. A DHHR worker also 

testified to the circumstances leading to the petition’s filing, including how the father attempted to 

surrender the child and blamed the child for the father’s lack of housing and employment. 

The father testified and admitted to missing a drug screen due to a lack of transportation. 

Then, because he was “marked positive for everything in the book” for missing a screen, the father 

stated that he “didn’t want to go to any more of those drug screens because that was not even my 

fault for the reason I missed.” The father acknowledged that changing residences so often was not 

good for the child but blamed his housing issues on his mother’s passing and his brothers for 

kicking him out of their homes. The father denied neglecting the child and claimed that he had 

done nothing wrong.

The child’s pediatrician testified that the child had struggled with ADHD and behavioral 

issues from a young age. And given the child’s attention and behavioral issues, it was important 

that he maintain a stable, consistent environment. 

The circuit court reconvened the adjudicatory hearing in August of 2019. A worker at the 

local Day Report Center testified that the father tested positive for marijuana on two occasions and 

failed to submit to any drug screens thereafter. 

6 The child was placed with his paternal uncle, D.H. 
4

The principal at the child’s school testified about the child’s behavior. She stated that the 

child had a history of extreme behavioral issues and that, prior to the proceedings, he had to be 

removed from a traditional classroom and was provided a behavior intervention plan. Due to the 

father’s inconsistent living situation, the child had been removed from the school for some time, 

but was re-enrolled by his uncle. The principal testified that the child’s behavior improved while 

he was residing with his uncle. 

One of the father’s brothers, J.H., testified regarding the father’s homelessness and volatile 

behavior in front of the child. According to J.H., the father and child lived with him for a period 

of time, and he observed that the father failed to adequately provide for the child’s medical needs. 

On one occasion, the father quit his job and bought an expensive video gaming system. And on 

other occasions, the father would scream about harming or killing himself in front of the child. 

J.H. testified that he asked the father to move out of his home because he did not feel that the father 

was going to improve himself; this request had nothing to do with the child’s behavior. D.H., the 

father’s other brother who had placement of the child, also testified as to the father’s poor behavior 

and how he threatened to commit suicide in front of the child. While the child’s uncles testified 

about the father’s extreme emotional outbursts, no one indicated that the father had a diagnosed 

mental health disorder or disability. 

The DHHR’s final witness was another CPS worker who testified that the father failed to 

participate in his preadjudicatory improvement period. The father failed to regularly submit to 

drug screens, failed to participate in parenting or adult life skills classes, did not seek to visit the 

child, and failed to maintain contact with the DHHR. 7 

The father testified again and denied the allegations against him. The father disputed his 

brothers’ claims that he yelled or threatened to kill himself in front of the child. He blamed the 

DHHR and a lack of transportation for his failure to participate in services but conceded he never 

asked for transportation assistance. The father denied any wrongdoing and when asked whether 

he had any issues he needed to address responded, “No.” The father tested positive for marijuana 

use immediately following the hearing.

The circuit court adjudicated the father as an abusing parent by order entered on September 

18, 2019. It found that the father failed to provide a safe and stable home for the child when he 

moved the child from place to place and, on at least two occasions, resided in a tent or a car. The 

circuit court found that the father’s outbursts and threats of self-harm in the child’s presence were 

detrimental and emotionally damaging to the child. The circuit court further found that the father 

used his funds for drugs rather than providing for his child. It also noted that the father failed to 

complete the terms and conditions of his preadjudicatory improvement period.

The guardian submitted a report in September of 2019 recommending termination of 

parental rights. She highlighted the fact that the father returned the child to the DHHR after only 

one week of the child being returned to his care as part of the preadjudicatory improvement period. 

She also noted that the father was hostile to service providers and did not participate in visits with 

7 The father requested to visit with the child on one occasion, but he failed to respond to 

the CPS worker who attempted to set up the visit.
5

the child. The guardian stated that there is no possibility for improvement due to the father’s 

refusal to participate in services. 

At a dispositional hearing held in September of 2019, a CPS worker testified that the father 

failed to participate in any services following the adjudicatory hearing. She further testified that

the father ignored her attempts to contact him and failed to maintain any contact with the DHHR.

The worker reported that the child requested phone calls with the father on some occasions and 

that he appeared to enjoy the calls. But sometimes, the child went into “a rage,” lasting for hours

after talking with his father. The CPS worker also described how the father was argumentative 

during MDT meetings and threatened self-harm. The CPS worker recommended termination of 

the father’s parental rights considering the child’s special needs and the father’s unwillingness or 

inability to provide necessary stability. 

Following arguments, the circuit court considered the available dispositions under West 

Virginia Code § 49-4-604(c). When speaking about a section 5 disposition, the circuit court 

questioned the DHHR as to whether any accommodations had been made in accordance with the

Americans with Disabilities Act (ADA).

8 Both the DHHR and the guardian responded that the 

father never requested any accommodations, nor had there been any evidence that he suffered from 

a disability that would fall under the ADA. The circuit court also expressed concern that the 

DHHR and the guardian had taken contradictory positions by recommending termination of the 

father’s parental rights but not opposing post-termination contact with the child. 

Ultimately, the circuit court imposed a section 5 disposition even though it found that the 

father failed to satisfy the terms of his preadjudicatory improvement period and denied any 

responsibility for the issues that led to the filing of the petition. It further found that the father did 

not visit with the child during the proceedings and failed to respond to the CPS worker’s attempt 

to contact him after August of 2019. The circuit court held that the father was presently unwilling 

or unable to provide for the child’s needs but that termination was not necessary for the child’s 

welfare because the child’s mother was in a section 5 disposition. It also allowed the child to have 

post-disposition contact with the father at the discretion of the legal custodian. The DHHR and 

the guardian appeal the June 15, 2020, disposition order.

9

 

8 West Virginia Code § 49-4-604(c)(5) provides that the “court order shall state: . . . (C) 

Whether the department has made reasonable accommodations in accordance with the Americans 

with Disabilities Act of 1990, 42 U. S. C. § 12101 et seq., to parents with disabilities in order to 

allow them meaningful access to reunification and family preservation services[.]”

9 The guardian filed a status update in April of 2021, under Rule 11(j) of the West Virginia 

Rules of Appellate Procedure, stating that the child remains in the care of his paternal uncle. While 

the child’s mother, T.G., remains in a section 5 disposition, the DHHR and guardian filed a “Joint 

Motion to Modify Disposition of Respondent, T.G., based on T.G.’s continued substance abuse

issues, repeated incarcerations, and recent involuntary termination of parental rights to R.G.’s 

younger sister.” The current permanency plan for the child is legal guardianship with his paternal 

uncle. But the guardian states that if this appeal is successful and the motion to modify disposition 

of the child’s mother is granted, the permanency plan for the child will change to adoption by the 

paternal uncle. 
6

II. Standard of Review

Our review of dispositions in abuse and neglect cases is well-settled:

“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.”10 

With this standard in mind, we turn to the parties’ arguments.

III. Analysis

The DHHR and the guardian argue that the circuit court erred in imposing disposition under 

West Virginia Code § 49-4-604(c)(5) rather than terminating the father’s parental rights when he 

failed to participate in services to correct the conditions of abuse and neglect, made no efforts to 

improve, and showed no interest in visiting with his child during this case. The DHHR states that 

“[t]here is no basis in the record for the imposition of an alternative disposition.” Similarly, the 

guardian contends that “[e]very bit of evidence before the [c]ourt supported a finding that the 

termination of parental rights was necessary” under § 49-4-604(c)(6).11 The father responds that 

the circuit court acted within its discretion by imposing the alternative disposition considering that 

the child’s mother was previously granted the same disposition. 

We have previously held that 

“[t]ermination of parental rights, the most drastic remedy under the 

statutory provision covering the disposition of neglected children, [West Virginia 

Code § 49-4-604] may be employed without the use of intervening less restrictive 

alternatives when it is found that there is no reasonable likelihood under [West 

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

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

11 For purposes of brevity, we consolidate the assignments of error raised by the DHHR 

and the guardian. 
7

Virginia Code § 49-4-604(d)] that conditions of neglect or abuse can be 

substantially corrected.”12

West Virginia Code § 49-4-604(d) provides a non-exclusive list of circumstances that define the 

phrase, “No reasonable likelihood that conditions of neglect or abuse can be substantially 

corrected” including when 

(2) The abusing parent or parents have willfully refused or are presently unwilling 

to cooperate in the development of a reasonable family case plan designed to lead 

to the child’s return to their care, custody and control;

(3) The abusing parent or parents have not responded to or followed through with 

a reasonable family case plan or other rehabilitative efforts of social, medical, 

mental health, or other rehabilitative agencies designed to reduce or prevent the 

abuse or neglect of the child, as evidenced by the continuation or insubstantial 

diminution of conditions which threatened the health, welfare, or life of the child.13

The father’s conduct throughout these proceedings falls squarely within the parameters 

listed above. He refused to cooperate with the DHHR, did not participate in rehabilitative services, 

failed to submit to a psychological evaluation, failed to engage in the drug-testing process except 

for a few occasions where he tested positive, and failed to respond to or maintain contact with the 

service providers. This Court has held that in order to correct a condition of abuse and/or neglect, 

a parent must first be able to acknowledge the problem.14 But the father made it clear that he did 

not believe he had done anything wrong and that he should not have to comply with an 

improvement period to be reunited with his child.

After applying the applicable statutory language to the facts found by the circuit court, we 

agree with the DHHR and the guardian that a section 5 disposition was not appropriate. The clear 

and convincing evidence presented by the DHHR showed “no reasonable likelihood that 

conditions of neglect or abuse can be substantially corrected” on the part of the father despite 

having been offered numerous services throughout his improvement period. We have previously 

held that “courts are not required to exhaust every speculative possibility of parental improvement 

before terminating parental rights where it appears that the welfare of the child will be seriously 

12 Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (quoting Syl. Pt. 2, In 

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

13 W. Va. Code §§ 49-4-604(d)(2)-(3).

14 See In re N.R., 242 W. Va. 581, 598, 836 S.E.2d 799, 816 (2019) (holding circuit court 

abused its discretion when imposing a section 5 disposition instead of terminating parental rights 

when there had not been a full acknowledgement of the violence, danger and harm to the children 

by either parent; “in order to remedy the abuse and/or neglect problem, the problem must first be 

acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth of the basic 

allegation pertaining to the alleged abuse and neglect or the perpetrator of said abuse and neglect,

results in making the problem untreatable[.]”) (quoting W. Va. Dep’t of Health & Human Res. ex 

rel. Wright v. Doris S., 197 W. Va. 489, 498, 475 S.E.2d 865, 874 (1996)).
8

threatened.”15 “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.”16

Under similar facts, this Court reversed the circuit court’s order granting the mother a

section 5 disposition in the case of In Kristin Y., and remanded with directions to enter an order 

terminating her parental rights. We stated that, 

a parent’s participation in an improvement period is a clear indicator of the parent’s 

future potential for success and willingness to make the necessary changes to 

become a fit and suitable parent. [The mother’s] sporadic cooperation with service 

providers, her inability to complete a course of parent education over a 15-month 

period and her failure to fully cooperate with the Department, provide sufficient 

grounds for the finding that the conditions of neglect or abuse cannot substantially 

be corrected.17 

The facts in this case are more egregious than the facts in Kristin Y. because the mother in that 

case at least had some compliance with the terms of her improvement period. But here, the father 

was entirely uncooperative with the service providers, made no efforts to improve the conditions 

of abuse or neglect, failed to take responsibility for his actions, and showed no interest in visiting 

with his child. 

Based on this record, the father does not advance the argument that there is a reasonable 

likelihood that he can correct the conditions of abuse or neglect in the near future. Instead, he 

focuses on the second prong of § 49-4-604(c)(6) and reasons that termination of his parental rights 

is not “necessary for the welfare of the child” because the only permanency plan available to the 

child at disposition was legal guardianship with the paternal uncle and not adoption. He notes that 

the DHHR had not attempted to modify the mother’s disposition during the pendency of this case, 

although the guardian advises this Court that she and the DHHR recently made a joint motion to 

do so.

18 In any event, the father’s argument is contrary to this Court’s prior holding that the West 

Virginia Code permits the termination of one parent’s parental rights while leaving the rights of 

the other parent intact.19 The key to determining whether a parent should maintain his or her 

parental rights is not the status of the other parent, but whether the offending parent has rectified 

the conditions of abuse or neglect.20

15 Syl. Pt. 1, in part, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980). 

16 Syl. Pt. 3, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996).

17 227 W. Va. at 571, 712 S.E.2d at 68. 

18 See note 9, supra. 

19 In re Emily, 208 W. Va. 325, 344, 540 S.E.2d 542, 561 (2000). 

20 Id. 
9

The father also fails to acknowledge that disposition under West Virginia Code § 49-4-

604(c)(5) is expressly meant to be a temporary situation: 

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 state department, a licensed 

private child welfare agency, or a suitable person who may be appointed guardian 

by the court.21

The DHHR and the guardian contend that evidence proves that termination of the father’s 

parental rights is in the child’s best interest and a step toward permanency and possible adoption. 

We agree. It is undisputed that the child has special needs and substantial evidence was presented 

that in order to meet those needs, the child requires a high level of stability in his life that the father 

has neither the ability nor the desire to provide. “In a contest involving the custody of an infant 

the welfare of the child is the polar star by which the discretion of the court will be guided.”22 So, 

termination of the father’s parental rights is the proper option under § 49-4-604(c)(6), and when 

“it is necessary to remove the abused/and or neglected child from his or her family, an adoptive 

home is the preferred permanent out-of-home placement of the child.”23

The DHHR and the guardian next argue that the circuit court erred by finding that their 

recommendation of termination of the father’s parental rights was inconsistent with a lack of an 

objection to the father’s request for post-termination visitation.

24 Again, we agree. Posttermination visitation is neither inconsistent with, nor a barrier to, termination of parental rights. 

In syllabus point five of In re Christina L.,

25 this Court held that post-termination visitation may 

be appropriate in cases when the child has a bond with the parent:

When parental rights are terminated due to neglect or abuse, the circuit court 

may nevertheless in appropriate cases consider whether continued visitation or 

other contact with the abusing parent is in the best interest of the child. Among 

21 Id. (emphasis added); see In re I.A., 19-0152, 2019 WL 2451150, at *3 (W. Va. Jun. 12, 

2019) (memorandum decision) (“What petitioner fails to recognize is that this dispositional 

alternative [under West Virginia Code § 49-4-604(c)(5)] provides only for a temporary placement 

for the child[.]”). 

22 Syl. Pt. 7, In re J.G., 240 W. Va. 194, 809 S.E.2d 453 (2018) (quoting Syl. Pt. 2, State 

ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d 221 (1948)).

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

24 The DHHR worker stated that she did not oppose post-termination contact because she

did not want to further upset the child by eliminating his routine of occasional, supervised 

telephone calls with his father. 

25 194 W. Va. 446, 460 S.E.2d 692 (1995).
10

other things, the circuit court should consider whether a close emotional bond has 

been established between parent and child and the child’s wishes, if he or she is of 

appropriate maturity to make such request. The evidence must indicate that such 

visitation or continued contact would not be detrimental to the child’s well being 

and would be in the child’s best interest.26

In this case, the circuit court stated that the child “may be permitted post-dispositional 

contact” with the father if “the child requests the contact” and “the contact is deemed to be in the 

child’s best interests by his legal custodian, with input from the child’s counselor/therapist, if any,” 

as well as other specifications. The circuit court erred when it left the issue of visitation to the 

discretion of the child’s legal custodian without taking evidence, hearing arguments, and making 

specific findings of fact on that issue.

27 On remand the circuit court is directed to conduct further 

proceedings on this issue to consider the factors established in In re Christina L. 

The DHHR and the guardian finally contend that the circuit court erred by finding that the 

DHHR failed to make reasonable efforts to provide the father services under the ADA when there 

was no indication that he needed an accommodation; and any need for this accommodation could 

not be determined because the father refused to participate in the proceedings.28 Again, we agree. 

There is no evidence that the father has a disability that would qualify for accommodations under 

the ADA. In addition, he made no request for accommodation or services and refused the services 

that were offered by the DHHR. 

IV. Conclusion

For the reasons set forth above, we reverse the June 15, 2020 order of the Circuit Court of 

Harrison County and remand this matter with directions to enter an order terminating Respondent 

I.W.’s parental rights and hold proceedings to consider whether post-termination visitation is 

appropriate. The Clerk is directed to issue the mandate contemporaneously herewith.

26 This continued contact is a right of the child, not a right of the parent. Id. at 455 n.9, 460 

S.E.2d at 701 n.9.

27 See Syl. Pt. 5, In re Marley M., 231 W. Va. 534, 745 S.E.2d 572 (2013) (“A parent whose 

rights have been terminated pursuant to an abuse and neglect petition may request post-termination 

visitation. Such request should be brought by written motion, properly noticed for hearing, 

whereupon the court should hear evidence and arguments of counsel in order to consider the factors 

established in Syllabus Point 5, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995), except 

in the event that the court concludes the nature of the underlying circumstances renders further 

evidence on the issue manifestly unnecessary.”). Rule 15 of the Rules of Procedure for Child 

Abuse and Neglect Proceedings provides, in part: “The effect of entry of an order of termination 

of parental rights shall be, inter alia, to prohibit all contact and visitation between the child who is 

the subject of the petition and the parent who is the subject of the order and the respective 

grandparents, unless the Court finds the child consents and it is in the best interest of the child to 

retain a right of visitation.” (Emphasis added).

28 The father does not respond to this assignment of error in his summary response. 
11

Reversed and remanded.

ISSUED: June 9, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins 

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton