1 

STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS

 

In re D.H. and H.H. 

No. 18-0829 (Raleigh County 16-JA-156-B and 16-JA-157-B)

MEMORANDUM DECISION 

Petitioner Grandfather E.H., by counsel Thad A. Bowyer, appeals the Circuit Court of 

Raleigh County’s August 30, 2018, order terminating his custodial rights to D.H. and H.H.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 (“guardian”), 

Shannon L. Baldwin, filed a response on behalf of the children also in support of the circuit 

court’s order. The mother, K.C., by counsel Mary Beth Chapman, filed a response in support of 

the circuit court’s order. Finally, the father, J.H., by counsel, Reginald D. Henry, filed a response 

taking no position. On appeal, petitioner argues that the circuit court erred in proceeding to 

disposition without proper notice, denying him an improvement period, and terminating his 

custodial 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 below erred in failing to provide petitioner notice 

of a dispositional hearing. Accordingly, 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. 

 This matter previously came before this Court when the guardian appealed the circuit 

court’s December 13, 2017, order declining to adjudicate petitioner as an abusing guardian. See 

In re D.H.-1 and H.H., No. 18-0032, 2018 WL 2945426, at *1 (W.Va. Jun. 11, 2018) 

(memorandum decision). Upon our review, we found sufficient evidence existed to adjudicate 

petitioner and we remanded the matter with instructions to 

enter an order adjudicating D.H.[] and H.H. as abused children and the respondent 

grandparents as abusing guardians, to forthwith hold a dispositional hearing in 

compliance with Chapter 49 of the West Virginia Code and the West Virginia 

 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 

February 15, 2019 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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Rules of Procedure for Child Abuse and Neglect Proceedings, and for further 

proceedings consistent with this memorandum decision. 

Id. at *6. 

 Subsequently, the circuit court noticed a hearing to be held on August 28, 2018, wherein 

it would “take up the issues set forth in the Memorandum Order of the Supreme Court of 

Appeals . . . in Docket No. 18-0032.” At the hearing, the circuit court adjudicated petitioner as 

having abused and/or neglected the children. The circuit court then denied petitioner’s motion for 

an improvement period and immediately proceeded to terminate his custodial rights. It is from 

the August 30, 2018, dispositional order that petitioner appeals. 

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 proceeding to disposition 

without properly providing him notice of the same. We agree.2

When this Court previously remanded this matter, we instructed the circuit court to enter 

an order adjudicating petitioner as an abusing guardian and to “hold a dispositional hearing in 

compliance with Chapter 49 of the West Virginia Code and the West Virginia Rules of Procedure 

for Child Abuse and Neglect Proceedings, and for further proceedings consistent with this 

memorandum decision.” (Emphasis added). Rule 31 of the West Virginia Rules of Procedure for 

Child Abuse and Neglect Proceedings sets forth that “[n]otice of the date, time, and place of the 

disposition hearing shall be given to all parties, their counsel, and persons entitled to notice and 

 2

Petitioner also argues that the circuit court erred in terminating his custodial rights. 

Because we find that the circuit court erred in proceeding to an accelerated disposition and are 

vacating the order terminating petitioner’s custodial rights for that reason, we decline to address 

this assignment of error. 
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the right to be heard.” Here, the circuit court noticed the hearing as a hearing wherein it would 

“take up the issues” set forth in the Memorandum Decision. Our instructions primarily regarded 

entering an order adjudicating petitioner as an abusing guardian and then proceeding with 

disposition in compliance with the laws of this State. As such, we find that the language of the 

notice provided by the circuit court was insufficient to alert petitioner that disposition of his 

custodial rights would occur at that hearing. 

Further, although the West Virginia Rules of Procedure for Child Abuse and Neglect 

Proceedings do provide that a circuit court may proceed to disposition immediately following 

adjudication, there are certain requirements that must be met. Rule 32(b) of the West Virginia 

Rules of Procedure for Child Abuse and Neglect Proceedings sets forth as follows: 

The disposition hearing immediately may follow the adjudication hearing if: 

(1) All the parties agree; 

(2) A child’s case plan meeting the requirements of W. Va. Code §§ 49-4-408 and 

49-4-604 was completed and provided to the court or the party or the parties have 

waived the requirement that the child’s case plan be submitted prior to 

disposition; and 

(3) Notice of the disposition hearing was provided to or waived by all parties as 

required by these Rules. 

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). Here, the record demonstrates 

that the circuit court proceeded to disposition and failed to determine whether the parties were in 

agreement in proceeding to do so or whether notice was waived. By proceeding immediately to 

disposition in the case, the circuit court ignored Rules 31 and 32, as set forth above. We have 

previously held that notice of the dispositional hearing is mandatory and that an accelerated 

dispositional hearing may be held only when the conditions of Rule 32 are met. See In re Travis 

W., 206 W.Va. 478, 483, 525 S.E.2d 669, 674 (1999) (holding that a circuit court’s failure to 

comply with Rules 31 and 32 of the West Virginia Rules of Procedure for Child Abuse and 

Neglect Proceedings was a substantial disregard of process and required remand.) Accordingly, 

we find that because the circuit court substantially disregarded the process established by the 

rules, the resulting dispositional order must be vacated, and the case must be remanded for 

compliance with that process. 
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 Petitioner also argues that the circuit court erred in denying his motion for an 

improvement period. Due to our decision to vacate the circuit court’s final order, we decline to 

address this assignment of error at this time. However, we alert the circuit court that it provides 

no findings of fact or conclusions of law in its order to aid this Court in reviewing the denial of 

petitioner’s request for an improvement period. Accordingly, upon remand, should the circuit 

court again deny petitioner’s motion for an improvement period, we order the circuit court to 

make appropriate findings of fact regarding the denial. 

For the foregoing reasons, we vacate the disposition portion of the circuit court’s August 

30, 2018, order and remand this matter to the circuit court for the holding of a properly noticed 

dispositional hearing, 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. 

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

Vacated and remanded. 

ISSUED: February 15, 2019 

CONCURRED IN BY: 

Chief Justice Elizabeth D. Walker 

Justice Margaret L. Workman 

Justice Tim Armstead 

Justice Evan H. Jenkins 

Justice John A. Hutchison