1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re E.F.-1, C.F.-1, and E.F.-2

No. 20-0115 (Hardy County 18-JA-19, 18-JA-20, and 18-JA-21)

MEMORANDUM DECISION

Petitioner Mother T.C., by counsel Lauren M. Wilson, appeals the Circuit Court of Hardy

County’s December 3, 2019, order for custodial allocation following an abuse and neglect 

proceeding.

1 The West Virginia Department of Health and Human Resources (“DHHR”), by

counsel Michael L. Jackson, filed a response in support of the circuit court’s order and a 

supplemental appendix. The guardian ad litem, Marla Zelene Harman, filed a response on behalf

of the children in support of the circuit court’s order. Respondent Father C.F.-2, by counsel 

William H. Judy III, made no appearance before the Court. On appeal, petitioner argues that the 

circuit court erred in granting her primary custody of E.F.-1 only and granting primary custody of 

C.F.-1 and E.F.-2 to respondent father after she successfully completed her improvement period.

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 erred in failing to apply the statutory analysis found 

in West Virginia Code §§ 49-9-206, 207, and 209, in determining custodial allocation. 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 vacate and remand the matter

to the circuit court.

In July of 2018, the DHHR filed a child abuse and neglect petition alleging that petitioner 

exposed the children to controlled substances in her home. The DHHR alleged that petitioner was 

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). Additionally, as two of the children share the same initials, we 

refer to them as E.F.-1 and E.F.-2, respectively, throughout this memorandum decision. Similarly, 

because one of the children and respondent father share the same initials, we refer to them as C.F.-

1 and C.F.-2, respectively, throughout this memorandum decision.

FILED

November 4, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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arrested for possession of methamphetamine in June of 2018, and that she posted bond for that 

charge, only to be re-arrested for driving under the influence of a controlled substance and 

possession of methamphetamine a short time later. According to the DHHR, respondent father was 

a nonabusing parent of all three children and was awarded primary custody of eight-year-old E.F.-

2 in January of 2018. E.F.-2 remained in the father’s custody throughout the proceedings.

Following the filing of the petition, the DHHR placed sixteen-year-old E.F.-1 and twelve-year-old 

C.F.-1 in their maternal grandmother’s custody.

Petitioner stipulated to the conditions of abuse and neglect in September of 2018, and the 

circuit court adjudicated her as an abusing parent. Petitioner moved for a post-adjudicatory 

improvement period, which was granted. The parties agreed to a case plan wherein petitioner was 

required to complete an in-patient substance abuse program and remain drug-free throughout the 

proceedings.

Over the next several months, petitioner substantially complied with her improvement 

period, and it was extended. Respondent father raised concerns that the maternal grandmother was 

attempting to alienate E.F.-1 and C.F.-1 from him and moved for physical custody of those 

children. The circuit court denied the motion, but ordered the grandmother to encourage visitation 

between these children and respondent father. The circuit court also ordered the DHHR to provide 

family therapy for respondent father and the children. In June of 2019, the DHHR reported that 

family therapy between respondent father and E.F.-1 was progressing well, but family therapy with 

C.F.-1 and E.F.-2 had yet to begin. Respondent father again moved for custody of E.F.-1 and C.F.-

1, citing his continued concerns of alienation by the maternal grandmother and other relatives. The 

circuit court denied the motion, citing the need for additional therapy between respondent father 

and the children, but ordered extended visitation for all parties.

In September of 2019, the circuit court concluded that petitioner successfully completed 

her post-adjudicatory improvement period. Petitioner and the father both moved for custody of all 

three children. Based on testimony of the children’s therapist, the circuit court found that petitioner 

“encouraged the children to not have a meaningful relationship with their father and the children 

remain fearful of angering [petitioner.]” The circuit court found that C.F.-1 “in particular has 

suffered from this situation [and has been] diagnosed with Post-Traumatic Stress Disorder as a 

result of [petitioner’s] conduct.” Ultimately, the circuit court found that it was in C.F.-1 and E.F.-

2’s best interest to be placed with respondent father, “with ongoing custodial allocation” for 

petitioner. E.F.-1 was returned to petitioner’s care, with custodial allocation afforded to respondent 

father. The circuit court ordered the parties to convene a multidisciplinary team (“MDT”) meeting 

to determine a schedule for custodial allocation.

In October of 2019, upon learning that the parties failed to come to an agreement regarding 

custodial allocation, the circuit court heard the parties’ testimony and arguments, and provided a 

detailed schedule for custodial allocation and responsibilities. Thereafter, both parties filed 

motions for reconsideration of the circuit court’s custodial allocation order. The circuit court 
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denied these motions, as memorialized by its December 3, 2019, order. Petitioner now appeals that 

order.2

The Court has previously held:

“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 granting the father primary 

custody of C.F.-1 and E.F.-2 after she successfully completed her improvement period. She asserts, 

without any supporting citation to the record, that the children “had very little relationship” with 

respondent father prior to family counseling, which was initiated during these proceedings. 

Petitioner argues that she completed the terms of her improvement period and demonstrated an 

ability to maintain a suitable home for the children. In her opinion, the children would have been 

better served by placement in her home. 

Upon our review of the order on appeal, we note a stark absence of the mandatory 

considerations and procedure for a custodial allocation found in Chapter 48 of the West Virginia 

Code. Recently, in In re T.M., this Court considered whether “allocation of custody [following the 

dismissal of a child abuse and neglect petition] is governed by the precepts established in our abuse 

and neglect caselaw or the statutory considerations mandated for the allocation of child custody 

and decision making responsibilities,” as found in West Virginia Code §§ 48-9-206, 207, and 209. 

242 W. Va. 268, 276, 835 S.E.2d 132, 140 (2019). We considered that the framework found in 

West Virginia Code § 48-9-206(a) “sets forth the essential criteria which, in the collective wisdom 

of the legislature, serve a child’s interests” and codified the “best interests” analysis that permeates 

our holdings related to abuse and neglect proceedings. Id, at 278, 835 S.E.2d at 142. Additionally, 

we noted that the provisions of West Virginia Code § 48-9-209 “bestow broad discretion on a court 

making a custodial allocation to ensure that a child is protected from any harm the abuse and 

neglect findings potentially forecast.” Id, at 279, 835 S.E.2d at 143. To that end, we emphasized 

that subsection (c) of that section imposes a “mandatory duty upon a court making custodial 

allocations to make special written findings demonstrating that any such allocation includes 

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The parents retain their parental rights, and the children have achieved permanency in 

their custody.
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limitations which will adequately protect the child from potential harm as a result of the abuse and 

neglect findings of which the court is aware.” Id. Based on these considerations, we crafted the 

following syllabus point:

A circuit court is obligated to apply the factors and considerations set forth 

in West Virginia Code §§ 48-9-206 (2018) and -207 (2001) in allocating custodial 

and decision-making responsibilities when reunifying children subject to abuse and 

neglect proceedings with parents, guardians, or custodians who are no longer 

cohabitating at the close of the proceedings. Where findings of abuse and/or neglect 

have been established, the circuit court must further employ the mandatory 

considerations and procedures set forth in West Virginia Code § 48-9-209 (2016), 

in order to protect the children from further abuse and/or neglect.

T.M., 242 W. Va. at 269, 835 S.E.2d at 132, syl. pt. 5.

Here, just as in T.M., we find no demonstrable evidence that the circuit court employed the 

analysis required by West Virginia Code § 48-9-206. As we held in T.M., we again conclude that 

“[g]iven the absence of discussion of the applicability of the factors or reference thereto, we cannot 

simply presume that the court considered these factors and affirm on that basis.” Id. at 280, 835 

S.E.2d at 144. Moreover, petitioner’s adjudication as an abusive and neglectful parent, regardless 

of her success in remedying those conditions of abuse and neglect, imposed an additional statutory 

consideration upon the circuit court pursuant to West Virginia Code § 48-9-209, which mandates 

special written findings in that regard. Accordingly, we must reverse the circuit court’s allocation 

of custodial responsibilities and remand for consideration of the factors set forth in West Virginia 

Code §§ 48-9-206 and 207, as well as the limitations and procedures mandated by West Virginia 

Code § 48-9-209.3

For the foregoing reasons, we reverse the circuit court’s December 3, 2019, and November 

7, 2019, orders as those orders relate to the circuit court’s allocation of custodial responsibility and 

remand for further proceedings consistent with this decision.4 The circuit court is directed to hold 

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To the extent petitioner’s assignment of error asserts that the circuit court simply erred in 

its custodial allocation of primary custody to respondent father over petitioner, we similarly find 

that our remand of this matter moots this argument. 

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We further instruct the circuit court that, on remand, any court-appointed attorneys and 

the guardian ad litem are to continue their involvement until permanent placement is achieved 

through the custodial and decision-making allocations required herein. See Syl. Pt. 5, James M. v. 

Maynard, 185 W. Va. 648, 649, 408 S.E.2d 400, 401 (1991) (“The guardian ad litem’s role in 

abuse and neglect proceedings does not actually cease until such time as the child is placed in a 

permanent home.”). Permanent placement of C.F.-1 and E.F.-2 is required to bring the abuse and 

neglect proceedings in the instant case to a conclusion and that has not yet occurred. Therefore, 

any such court appointments continue to be in effect. But cf. Z. D. and D. D., 239 W. Va. 890, 806 

S.E.2d 814 (disapproving use of court-appointed counsel and guardian ad litem where parent 

attempted to utilize abuse and neglect proceedings to modify shared parenting plan).
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the hearings it deems necessary, if any, and issue a final order for this case in the next sixty days. 

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

Reversed and remanded.

ISSUED: November 4, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison