IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

FILED 

January 2013 Term May 17, 2013 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

Nos. 12-0994 and 12-1014 SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

IN RE: DARRIEN B. AND ANDREW B.
 

Appeal from the Circuit Court of Raleigh County
 

Honorable John A. Hutchison
 

Civil Action Nos. 10-JA-125-H and 10-JA-126-H
 

VACATED AND REMANDED WITH DIRECTIONS
 

Submitted: April 10, 2013
 

Filed: May 17, 2013
 

Michael P. Cooke, Esq. Patrick Morrissey, Esq. 

Bluefield, West Virginia Attorney General 

Attorney for Petitioner George B. Angela Alexander Walters, Esq. 

Assistant Attorney General 

Stephen P. New, Esq. Charleston, West Virginia 

Beckley, West Virginia Attorneyfor Respondent Department 

Attorney for Petitioner Hannah W. of Health and Human Resources 

Colleen M. Brown-Bailey, Esq. 

Beckley, West Virginia 

Guardian Ad Litem for Darrien B. 

and Andrew B. 

The opinion of the Court was delivered PER CURIAM. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “‘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). 

2. “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.” Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 

(1996). 

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3. “‘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 appropriate dispositional 

order.’ Syl. Pt. 5, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001).” Syl. Pt. 5, In 

re T.W., __ W.Va. __, 737 S.E.2d 69 (2012). 

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Per Curiam: 

This case is before this Court on the consolidated appeals of the petitioners, 

Hannah W. and George B.,1 from the Circuit Court of Raleigh County’s July 31, 2012, order 

terminating their parental rights2 to their twin boys, Darrien B. and Andrew B. Based upon 

the record, the parties’ briefs, and the arguments presented, the order of the circuit court is 

vacated and this case is remanded to the circuit court for further proceedings consistent with 

this opinion. 

I. Factual and Procedural Background 

On November 2, 2010, Hannah W. (“the mother”) took her twenty-threemonth-old son Darrien B.3 to the emergency room at Raleigh General Hospital where she 

reported that Darrien had been running in the living room of her home when he tripped and 

fell over a pair of shoes. The mother further reported that the child cried inconsolably after 

he fell and would not put any weight on his right leg. Darrien was diagnosed with a spiral 

fracture of his right femur. Because spiral fractures in children are suspicious for abuse, the 

hospital contacted Child Protective Services (“CPS”) of the respondent, the West Virginia 

1

We follow our traditional practice in child abuse and neglect matters, as well as other 

cases involving sensitive facts, by abbreviating the last names of the parties. See, e.g., In re 

Jessica G., 226 W.Va. 17, 697 S.E.2d 53 (2010). 

2

Each petitioner has filed a separate appeal from the same underlying order of 

termination, and this Court has consolidated the appeals for consideration and opinion. 

3

Darrien B. and Andrew B. were born on November 18, 2008. 

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Department of Health and Human Resources (“the Department”). Hospital records reflect 

that the emergency room physician informed CPS worker Donna Dickens that a spiral 

fracture “is very difficult to have with a simple fall from [a] standing position, but he could 

not make a statement being 100% sure that that is not how the injury occurred.” Darrien was 

transferred to the Charleston Area Medical Center (“CAMC”). The records from CAMC’s 

Emergency Department indicate that “[a]lthough this is very suspicious fracture, we cannot 

rule in or out the probability of abuse. At this point, we would leave this decision up to Child 

Protective Services to make and have them be involved with this case.” 

On the date of Darrien’s injury, CPS worker Dickens went to the parents’ home 

to secure custody of Darrien’s brother, Andrew B. Ms. Dickens observed that the home was 

“disheveled” with trash throughout the living room and kitchen. She noted that the kitchen 

counters were covered with dirty dishes, some with food still left on them, and that there was 

a “horrible stench” in the apartment. At this same time, George B. (“the father”) informed 

Ms. Dickens that he had voluntarily relinquished his parental rights to a biological daughter 

from a different relationship because the child wanted to live with her maternal grandparents. 

Ms. Dickens’s subsequent investigation revealed that the father relinquished his parental 

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rights to his daughter only after CPS instituted an abuse and neglect proceeding arising out 

of substantiated allegations that the father had sexually abused the child.4 

On November 4, 2010, the Department filed a verified Petition to Institute 

Child Abuse and Neglect Proceedings against both parents in the Circuit Court of Raleigh 

County. The Department alleged that both Darrien and Andrew were abused and/or 

neglected as defined in West Virginia Code § 49-1-3 et seq. (2009 & Supp. 2012) and § 49­

6-1 et seq. (2009 & Supp. 2012); that “the circumstances in the home where the children live 

places them in imminent danger[;]” and that “there are no reasonable and effective 

alternatives to removing the children from the home.” The Department also alleged that the 

father had voluntarily relinquished his parental rights to his daughter, as discussed above.5 

The circuit court entered an order that same day ordering that the petition be filed, 

transferring custody of the children to the Department, appointing legal counsel for each 

4

The record does not indicate whether criminal charges were ever filed against the 

father in this regard. The record does reflect that this child was adopted and the case was 

closed by CPS. 

5

Although the Department mentioned the father’s prior voluntary relinquishment in 

its petition, it did not seek a termination of the father’s parental rights to Darrien and Andrew 

on that basis. 

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parent, and appointing a guardian ad litem6 to represent the children. The parents waived 

their preliminary hearing and the case proceeded to adjudication.7 

An adjudicatory hearing8 was held before the circuit court during which the 

emergency room physicians from both hospitals testified to their suspicions of abuse in 

relation to the spiral fracture suffered by Darrien. However, neither physician could testify 

to precisely how this particular injury occurred. The parents’ medical expert testified and 

expressed his opinion that there was a “very, very low chance that there was a child abuse 

type of injury to the right femur fracture.” The parents, CPS worker Dickens, an emergency 

room nurse from Raleigh General Hospital, and a social services specialist from CAMC also 

testified at this hearing. 

6

Stacey Fragile, Esq., was appointed as the guardian ad litem and appeared for all of 

the hearings until the last hearing held before the circuit court on June 28, 2012, during 

which Colleen Brown-Bailey, Esq., appeared as the children’s guardian ad litem. 

7

In an order entered December 21, 2010, the circuit court directed that both parents 

undergo a psychological evaluation. The evaluating psychologist issued his reports in which 

he recommended individual and family counseling; parenting, life skills, and anger 

management classes; substance abuse counseling and monitoring, including random drug 

screens; and a monitoring period. The psychologist did not recommend the independent 

return of the children to the parents or unsupervised visitation with them at that time. 

8

The adjudicatory hearing began on February 2, 2011. It resumed and concluded on 

February 22, 2011. 

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On March 16, 2011, the circuit court entered an order based on the evidence 

presented at the adjudicatory hearing and found, in part, as follows: 

2. The . . . parents in their testimony have failed to provide a 

consistent and reasonable explanation of how the injury 

occurred. There is clear evidence that . . . the parents have given 

divergent and contradictory descriptions of the events leading to 

the injury of their child. 

3. There is clear and convincing evidence that the home where 

the children have resided is maintained in an unsatisfactory and 

unhealthy manner. 

4. The [Department] has proven by clear and convincing 

evidence that the injury to the child in this case arose from 

conditions existing in the home that were directly responsible 

for the abuse and neglect. 

5. There is no evidence that the injury to the child was the result 

of intentional conduct of the . . . parents, but the injury was the 

result of abuse and neglect as defined by West Virginia Code § 

49-1-3 et. seq., and § 49-6-1 et. seq. 

6. The infant child, Darrien [B.], is abused and neglected 

pursuant to West Virginia Code § 49-1-3 et. seq., and § 49-6-1 

et. seq., and therefore the infant child Andrew [B.] is also in 

danger. 

7. The infant children, Darrien [B.] and Andrew [B.], were 

abused and neglected based on the condition of the home 

pursuant to West Virginia Code § 49-1-3 et. seq., and § 49-6-1 

et. seq. 

On June 14, 2011, the circuit court entered an order granting both parents a sixmonth post-adjudicatory improvement period. Thereafter, the circuit court held review 

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hearings to assess how the parents were doing in their improvement period. In the circuit 

court’s order entered on November 23, 2011, following one of those review hearings, the 

court stated that the parents were “having problems keeping their home in a safe and sanitary 

condition for the children and the home now has roaches due to the unsanitary condition . . 

. .” In this same order, the circuit court granted the parents an extension of their 

improvement periods with the added requirement that both parents submit to random drug 

and alcohol screens. 

The circuit court was updated on the status of the parents in a Revised Court 

Summary dated January 27, 2012, filed in the circuit court. In this Summary, CPS worker 

Traci Hairston reported that the random drug screens for both parents had been negative and 

that the Department had made frequent and random visits to the home finding it to be 

“somewhat clean” at times and “filthy and filled with clutter” at other times.9 Ms. Hairston 

further reported in her Summary that although the parents had made progress, they had 

shown that “they are not capable of providing a stable home environment for their 

children[;]” that the Department had “made every effort to provide [them] with all possible 

assistance[;]” and that the parents have been “granted two extensions to their Improvement 

9

This Revised Court Summary also reflects that in-home services provider Kim Jesse 

informed Ms. Hairston that the parents were about to be evicted from their apartment because 

their gas had been shut off, which was a breach of their lease, and that the parents could be 

evicted for their rental delinquency, as well. 

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Period and have continually failed to change all the safety issues in the home.”10 Ms. 

Hairston concluded by stating that the Department recommends that “the court move to 

Disposition and the termination” of the parental rights of both parents. 

On February 2, 2012, a review hearing was held before the circuit court during 

which it was reported that while the parents had made some progress, they had not 

successfully completed their case plans. At that time, both parents moved for a dispositional 

improvement period. Soon thereafter, CPS worker Hairston filed a Court Summary in the 

circuit court dated February 7, 2012. In this Summary, Ms. Hairston reported that the parents 

had continued to test negative on their drug screens, that the visits between the parents and 

the children were going well, and that the home had been kept “relatively clean.” She further 

reported, however, that the Department had received a letter from the apartment manager 

who advised that the parents are constantly behind in their rent; that they have a roach 

infestation in their apartment; and that they have been noncompliant with their lease. Ms. 

Hairston concluded that although “the Department was prepared to reunify Andrew and 

Darrien with their parents it has now become difficult due to the housing issues . . . .” 

10Ms. Hairston also reported in this Summary that when she visited the home in early 

December 2011, the mother advised that she did not know how she and the father would 

support themselves when the children came home because they could not afford to take care 

of themselves; that the father spent an entire paycheck on a trip to Tennessee; and that they 

recently purchased a gaming system. This Summary also reflects that Ms. Hairston told the 

mother that she and the father would not be reunified with the children if they did not keep 

the home clean and “start making better decisions.” 

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Thereafter, the case moved forward and, on March 9, 2012, the disposition 

hearing was held before the circuit court. During this hearing, the in-home services provider, 

Kelli Cook, testified11 to her belief that the parents had successfully completed their 

improvement period. She also testified that the gas service had been restored to the 

apartment; that the home had been clean since January 2012; that both parents had been 

employed for the last four or five months; and that the roach infestation had been resolved. 

Ms. Cook further testified that the prior month, the Department had begun weekly overnight 

in-home visits between the children and the parents and that those visits were going well. 

Ms. Cook testified that while she would not recommend returning the children to the home 

immediately, she would say that a transition period of three months for reunification of the 

children with the parents “if everything stayed clean and all the utilities caught up . . . .” 

Following the disposition hearing, the circuit court entered an order on March 

23, 2012, directing the Department to continue to provide services and to continue with the 

visitation between the parents and the children until the court issued its decision on 

disposition. The circuit court also scheduled “[a]n Improvement Period Review or Motion 

to Terminate and Court’s Decision” hearing for June 28, 2012. On June 27, 2012, the day 

prior to this hearing, CPS worker Hairston filed a Court Summary in which she reported that 

11It appears from the record that Kelli Cook replaced Kim Jesse as the in-home 

services provider around September 2011. 

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[t]he Department has grave concerns that the behaviors 

in the home have not significantly changed as throughout the 

lifetime of this case George and Hannah have minimally 

complied in the aspect of they have not missed parenting or 

adult life skill sessions, but they have not learned how to 

maintain appropriate housing or safety for the children. 

At this time the Department has reservations about the 

children being reunified with their parents do [sic] to the 

consistency of unchanged behaviors throughout this case.12 

Ms. Hairston concluded her Summary with the Department’s final recommendation that the 

children remain in the legal and physical custody of the Department. Significantly, the 

Department did not recommend the termination of parental rights in this Summary. 

On the following day, June 28, 2012, the previously scheduled hearing was 

held before the circuit court during which the Department’s counsel represented that the 

Department was seeking the termination of the parental rights of both parents. The guardian 

ad litem expressed her agreement with the Department’s position. At the conclusion of this 

hearing, the circuit court stated: 

This is one of the cases that . . . keeps me up at night. It’s 

very, very clear that the law of the State of West Virginia is . . 

. that a parent has the constitutional right to raise their own 

children. Having said that, this Court . . . has found that the 

children have been abused. 

12Ms. Hairston also reported that following the March 9, 2012, disposition hearing, 

the parents had a bed bug infestation in the home, which had since been resolved. 

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Now . . . with the Department directly providing services 

or contracting and having those services provided otherwise, the 

question is . . . have the parents assimilated the training that they 

received and have they, in fact, gotten rid of or resolved the 

issues which created the conditions of abuse and/or neglect as 

they existed at the time of the filing of the petition. And I have 

great concerns regarding whether or not these parents have, in 

fact, fully assimilated . . . the training and recognized the issues 

that they have . . . in terms of raising these two children. 

The acts and the conduct that created the problem here 

relate to the injury of Darrien . . . The nature of the broken bone 

raised all kinds of red flags with the Department and with the 

doctors at the hospital. 

And, further . . . George [B.] has had prior involvement 

with Child Protective Services. . . . He relinquished his rights to 

[another] child . . . after allegations of sexual abuse were 

substantiated in a preliminary investigation . . . . 

The Court finds that, based upon its involvement in this 

case, that . . . the parents have failed to adequately improve the 

conditions that resulted in the abuse and neglect, that they have 

been unable to or unwilling to adequately change the conditions 

which resulted in the abuse and neglect despite the fact that the 

Court has, with the assistance of the Department, attempted to 

provide additional training, treatment and programs which 

would have eliminated that. 

The Court finds that the history in this case has been that 

the . . . parents have done the minimum to . . . try to keep the 

case going and that there’s no real evidence that . . . they have ­

either of them - assimilated the training and accepted the 

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training and made . . . the changes necessary to alleviate the 

conditions. 

Therefore, it’s the judgement [sic] of the Court that the 

parental rights of both George [B.] and Hannah [W.] are 

terminated as to Darrien [B.] and Andrew [B.]. 

At that point during the hearing, the mother’s counsel advised the circuit court, as follows: 

In discussions prior to this hearing . . . with Ms. Hairston, 

it was not her intention to recommend termination of parental 

rights to this Court. That isn’t what her court summary says.13 

The Court didn’t follow the recommendation of the Department. 

Moreover, we have the home services worker [Kelli 

Cook] here today, Your Honor. If - - and perhaps I didn’t 

understand where the Court was in the posture, but if I need to 

call Kell[i], who is here today, or Ms. Hairston, I want to put 

their recommendations to this Court on the record. I believe that 

my client has a right to that. 

(Footnote added). The circuit court refused to permit either Ms. Hairston or Ms. Cook to 

testify stating, “[T]his is a review hearing and a ruling hearing. It was not set up for an 

evidentiary hearing, so we don’t have time.” 

On July 31, 2012, the circuit court entered an order memorializing its ruling 

made during the June 28, 2012, hearing and terminating the parents’ parental rights to 

Darrien B. and Andrew B. on the basis that the parents had “failed to change the conditions 

13Counsel is referring to Ms. Hairston’s Court Summary filed with the circuit court 

the previous day. 

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which gave rise to this case and failed to assimilate the therapy and training offered by the 

Department to successfully complete their improvement periods . . . [.]” The circuit court 

ordered that the visitation between the children and the parents be maintained and that 

services by the Department continue pending the parents’ appeal to this Court. 

II. Standard of Review 

We are asked to review a circuit court’s order entered upon a petition for 

termination of parental rights. Our standard of review in this regard is well established: 

“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). 

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III. Discussion 

In the present appeal, the mother asserts that the circuit court erred during the 

June 28, 2012, hearing by refusing to allow her counsel to call CPS worker Traci Hairston 

and in-home services provider Kelli Cook to the witness stand. The mother asserts that both 

Hairston and Cook were present and were prepared to testify that the children should be 

reunified with their parents. 

We begin our analysis of this issue with our basic tenet that “[a]lthough 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.” Syl. Pt. 

3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996). The record reflects that even with 

the extensions to the post-adjudicatory improvement period granted to each parent, as well 

as the services provided by the Department, the parents could not consistently maintain their 

apartment in a clean and sanitary manner for the children, keep current on their rent and 

utilities, and maintain steady employment. 

Notwithstanding the parents’ inability to fulfill the terms of their improvement 

period, the termination of parental rights remains the most “drastic remedy” that can be 

imposed in a case of abuse and neglect. See Syl. Pt. 5, in part, In re Nelson B., 225 W.Va. 

680, 695 S.E.2d 910 (2010) (“‘Termination of parental rights, the most drastic remedy under 

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the statutory provision covering the disposition of neglected children . . . [.]’ Syl. pt. 2, In 

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

“[w]here it appears from the record that the process established 

by the rules of Procedure of 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 appropriate 

dispositional order.” Syl. Pt. 5, In re Edward B., 210 W.Va. 

621, 558 S.E.2d 620 (2001). 

Syl. Pt. 5, In re T.W., __ W.Va. __, 737 S.E.2d 69 (2012) (Emphasis added). 

Rule 36(a) of the Rules of Procedure for Child Abuse and Neglect provides, 

as follows: 

Findings of fact and conclusions of law; time frame. — At the 

conclusion of the disposition hearing, the court shall make 

findings of fact and conclusions of law, in writing or on the 

record, as to the appropriate disposition in accordance with the 

provision of W.Va. Code § 49-6-5. The court shall enter a 

disposition order, including findings of fact and conclusions of 

law, within ten (10) days of the conclusion of the hearing. 

(Emphasis added). Here, the disposition hearing was held on March 9, 2012. On March 23, 

2012, the circuit court entered an Order Following Disposition Hearing on Both Parents that 

simply continued the case on status quo. The circuit court did not set forth findings of fact 

and conclusions of law in this order. See Id. Instead, the circuit court scheduled a hearing 

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for June 28, 2012, for “Improvement Period Review or Motion to Terminate and Court’s 

Decision.” 

During the June 28 hearing, the mother’s counsel advised the circuit court that 

he had spoken with CPS worker Hairston, who allegedly advised him that the Department 

would not be seeking a termination of parental rights that day. Counsel’s representation was 

arguably consistent with Ms. Hairston’s Court Summary filed with the circuit court the prior 

day in which the Department did not seek a termination of parental rights. Accordingly, the 

circuit court should have permitted the mother’s counsel to call Ms. Hairston to the witness 

stand for the limited purpose of exploring the Department’s position with regard to 

termination. Indeed, given the length of time that had passed since the disposition hearing 

(almost four months), it was particularly important to have taken the testimony of the inhome services provider who had presumably continued to provide services to the parents per 

the circuit court’s March 23, 2012, order. 

Under the facts and circumstances herein, this Court concludes that the 

disposition in this case was frustrated when the circuit court refused to allow counsel to call 

Ms. Hairston and Ms. Cook to the witness stand during the June 28, 2012, hearing. 

Accordingly, we remand this case for the purpose of holding an evidentiary hearing to allow 

the parents’ counsel to call Ms. Hairston and Ms. Cook as witnesses to explore the 

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Department’s position with respect to the termination of the parental rights to Darrien and 

Andrew.14 

Another matter to be addressed on remand is the father’s prior voluntary 

relinquishment of parental rights to his biological daughter, as discussed above. “The 

revocation of a parent’s parental rights, whether by voluntary relinquishment or by 

involuntary termination, is a very serious matter.” In re Cesar L., 221 W.Va. 249, 257, 654 

S.E.2d 373, 381 (2007) (emphasis added); see also In re James G., 211 W.Va. 339, 346, 566 

S.E.2d 226, 233 (2002) (“Nothing prevents the Department from conducting an investigation 

if it believes that a parent who has voluntarily terminated parental rights with respect to one 

child might be mistreating another child . . . .” (Emphasis added).). Further, West Virginia 

§ 49-6-5(a)(7) provides, in relevant part, that “[f]or purposes of the court’s consideration of 

the disposition custody of a child . . . the department is not required to make reasonable 

efforts to preserve the family if the court determines: (A) The parent has subjected . . . 

14We note that the circuit court’s July 31, 2012, order terminating the parents’ parental 

rights does not cover the requisite statutory factors under West Virginia Code § 49-6-5(a)(6), 

although the findings it made during the June 28, 2012, were arguably sufficient. See In re 

Jamie Nicole H., 205 W.Va. 176, 517 S.E.2d 41 (1999) (upholding termination of parental 

rights where transcript of dispositional hearing, rather than order of termination, satisfied 

Court that lower court had made findings required by West Virginia Code § 49–6–5(a)(6)). 

Nonetheless, on remand, the order entered by the circuit court should comply with this 

statute. 

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another child of the parent . . . to aggravated circumstances which include . . . sexual 

abuse[.]” Id. (Emphasis added). Moreover, as this Court has stated on many occasions, 

[t]he guiding principle in any child abuse or neglect proceeding 

is to do what is best for the child: “First and foremost in a 

contest involving the custody of a child is the consideration of 

that child’s welfare. It has been held repeatedly by this Court 

that the welfare of the child is the polar star by which the 

discretion of the court will be guided.” 

In re: Kyiah P., 213 W.Va. 424, 429, 582 S.E.2d 871, 876 (2003) (internal citations 

omitted). 

Here, while the Department’s petition to institute these proceedings alleged, 

in part, that the father had voluntarily relinquished his parental rights to a biological daughter 

after allegations of sexual abuse were substantiated, and while the circuit court 

acknowledged this prior relinquishment on the record at the conclusion of the June 28, 2012, 

hearing,15 we conclude that these prior substantiated allegations of sexual abuse must be 

more fully explored and addressed on remand. This would include, but is not necessarily 

limited to, whether there was an adjudication in this earlier child abuse proceeding against 

the father and whether these substantiated allegations of sexual abuse constitute a separate 

15The circuit court stated that the father “has had prior involvement with Child 

Protective Services” and had “relinquished his rights to [another] child . . . after allegations 

of sexual abuse were substantiated in a preliminary investigation[.]” 

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and/or additional basis for the termination of the father’s parental rights to Darrien B. and 

Andrew B. 

Accordingly, this Court vacates the circuit court’s July 31, 2012, order and 

remands this case to the circuit court for a full evidentiary hearing to explore the 

Department’s position concerning the termination of the petitioners’ parental rights to 

Darrien B. and Andrew B. and to further address the substantiated allegations of sexual abuse 

involving the father and his biological daughter to whom he voluntarily relinquished his 

parental rights.16 

IV. Conclusion 

Based upon this Court’s thorough review of this matter and for the foregoing 

reasons, the order of the Circuit Court of Raleigh County terminating the parental rights of 

the parents with regard to Darrien B. and Andrew B. is hereby vacated and this case is 

remanded to the circuit court for an expedited evidentiary hearing consistent with this 

16We find that the other assignments of error asserted by the parents in the case sub 

judice, including, but not limited to, the father’s argument that the circuit court erred in 

denying him a dispositional improvement period and in failing to place adequate weight on 

the recommendations of the Department and the in-home services provider, need not be 

addressed as they have either been rendered moot by this Court’s opinion herein and/or will 

necessarily be considered anew by the circuit court on remand. See Cole v. Fairchild, 198 

W.Va.736, 752 n. 22, 482 S.E.2d 913, 929 n. 22 (1996) (“The parties raise a number of other 

alleged errors in their briefs . . . We carefully have reviewed each alleged error and find they 

. . . are rendered moot by our above decision . . . .”). 

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opinion. To facilitate the commencement of the proceedings on remand, the Clerk is directed 

to issue the mandate of the Court contemporaneously with the issuance of this opinion. 

Vacated and Remanded with Directions. 

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