FILED May 29, 2026 released at 3:00 p.m. C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2026 Term _____________
No. 24-704 _____________
IN RE F.B.
________________________________________________
Appeal from the Circuit Court of Wood County The Honorable J.D. Beane, Judge No. CC-54-2020-JA-96, No. CC-54-2023-JA-95, No. CC-54-2023-JA-125
VACATED AND REMANDED WITH INSTRUCTIONS ________________________________________________
Submitted: February 10, 2026 Filed: May 29, 2026
Keith White, Esq. John B. McCuskey, Esq. St. Marys, West Virginia Attorney General Guardian ad litem for the minor child Kristen E. Ross, Esq. F.B. Assistant Attorney General Petitioner Office of the Attorney General Charleston, West Virginia Attorneys for the Respondent Department of Human Services
Travis Sayre, Esq. Sayre Law Services, PLLC Parkersburg, West Virginia Attorney for Respondent Stepfather
Nancy L. McGhee, Esq. 4th Judicial Circuit Public Defender Corporation Parkersburg, West Virginia Attorney for Respondent Mother
CHIEF JUSTICE BUNN delivered the Opinion of the Court. SYLLABUS BY THE COURT
1. “This Court reviews the circuit court’s orders in abuse and neglect
proceedings using the three following standards: (1) substantive rulings, such as whether
the evidence supports a conclusion that a child has been abused or neglected or whether
termination of parental rights is appropriate, are reviewed for abuse of discretion; (2)
factual findings supporting substantive rulings are reviewed for clear error; and (3) to the
extent review of the order implicates an issue of law or requires statutory interpretation,
our review is de novo.” Syllabus Point 1, In re K.S., No. 24-740, __ W. Va. __, __ S.E.2d
__ (2026).
2. “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.” Syllabus Point 5, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620
(2001).
i BUNN, Chief Justice:
This appeal concerns a circuit court’s conclusion that clear and convincing
evidence did not prove that a child, F.B., was abused and neglected.1 In a Sixth Amended
Petition, the West Virginia Department of Human Services (“DHS”) asserted that two
children, S.H. and F.B., were abused and neglected by Mother T.M. and Stepfather M.M.
(“the parents”). During two adjudicatory hearings, multiple witnesses testified and the court
admitted into evidence two cell phone videos of an altercation between Mother and S.H.
and three subsequent forensic interviews of the children—two with S.H. and one with F.B.
The circuit court then entered an order summarily concluding that clear and convincing
evidence did not show that the children were abused and neglected and dismissing the Sixth
Amended Petition. A supplemental order, entered following the dismissal, noted that there
was “significant evidence for and against the respondent parents” but found the DHS failed
to meet its burden of proof. The guardian ad litem (“GAL”) appeals only on behalf of F.B.,
the younger child, arguing that the circuit court erred by failing to adjudicate the parents as
abusive or neglectful and failing to adjudicate F.B. as an abused or neglected child.2
Alternatively, the GAL argues that the adjudicatory order and supplemental order were
insufficient and should be vacated. Because the circuit court failed to comply with West
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 Because the GAL appealed only regarding the circuit court’s determination that F.B. was not an abused or neglected child, the determination regarding S.H. is not at issue in this appeal.
1 Virginia Code § 49‑4‑601(i) and Rule 27 of the West Virginia Rules of Procedure for Child
Abuse and Neglect Proceedings, both of which require that the court make findings of fact
regarding whether the child is abused or neglected, we vacate and remand the case for
further proceedings pursuant to this opinion.
I.
FACTUAL AND PROCEDURAL HISTORY
The DHS filed the Sixth Amended Petition (“the Petition”) alleging abuse
and neglect following an altercation between S.H. and respondent Mother that occurred in
the parents’ home on May 10, 2023, alleging that the parents abused and neglected the
children. The record before this Court is incomplete regarding the abuse and neglect
proceedings that occurred in the case before the filing of the Petition at issue. However, at
the time DHS filed the Petition, the record indicates that both parents had successfully
completed an improvement period relating to a previous petition.3 Furthermore, S.H.’s
father and stepmother were participating in an improvement period when the altercation
between S.H. and Mother occurred that led to the filing of the Petition.
3 Two earlier petitions in the record also allege abuse and neglect by the parents, including a 2021 petition alleging that the parents abused alcohol and controlled substances, engaged in domestic violence, and that Mother emotionally abused S.H. by “screaming” at her, “using foul language[,] and belittling her.” A 2023 petition also alleged that the parents abused alcohol and controlled substances and detailed a situation where Mother was arrested for disorderly conduct after the parents admitted “to consuming alcohol then leaving the children alone while they were sleeping to walk to Sheetz.” The DHS represents that other petitions in the matter did not concern Mother and Stepfather.
2 The Petition, filed on May 17, 2023, included information regarding a DHS
referral alleging that S.H. claimed Mother hit her during the altercation, that there was a
recording showing Mother yelling and “drawing back her fist” during the altercation, and
that someone called 911 to report the incident. The DHS referral also stated that Mother
was drinking frequently “to the point of intoxication.” Describing a Child Protective
Services (“CPS”) worker’s separate interviews of S.H., F.B., and the parents following the
reported altercation, the petition alleged that S.H. asserted that Mother kicked and
“attacked” her, “pulled her across the floor by her hair[,]” and “got in her face,” while the
parents admitted that “they would be positive for alcohol and marijuana.” The Petition
concluded with allegations that the parents “abused alcohol and controlled substances to
the extent that proper parenting skills have been impaired[,]” that Mother physically abused
S.H., and that Stepfather failed to protect the children from Mother’s physical abuse. The
Petition incorporated by reference prior petitions’ allegations. The circuit court removed
the children from the home.
More than a year later, an initial adjudicatory hearing occurred in July 2024
after several continuances.4 Mother testified and admitted to drinking from 10 a.m. until
noon on the morning of the altercation with S.H. She described an argument with S.H. that
4 Although we recite limited testimony from the hearings and filings in the record, we make no findings of fact or conclusions of law regarding the evidence admitted in the underlying abuse and neglect proceedings.
3 occurred around 5 p.m., with S.H. as the aggressor, but denied hitting or dragging S.H.
When shown videos of the incident at the hearing, Mother acknowledged the videos’
authenticity but asserted that they did not contain the whole incident. She admitted that one
video showed F.B. coming into the room during the altercation. She denied pulling S.H.
across the floor.
On cross-examination, Mother testified that before 2020, she only saw S.H.
every other weekend, because S.H. had resided elsewhere since the age of three. During
Mother’s previous improvement period, S.H. visited twice.5 After a petition was filed
against S.H.’s father and stepmother, S.H. was placed in Mother’s home.6 Mother claimed
that while S.H. was in her custody, they frequently argued, and described three separate
“attacks” against her by S.H., with the last one being depicted on the admitted videos.
The court also heard testimony from S.H.’s stepmother, who was on a video
call with S.H. during part of the altercation. S.H. had lived with the stepmother and S.H.’s
father since she was three, but eventually moved in with her mother. When the stepmother
answered S.H.’s call, the stepmother described S.H. as “screaming and crying” and
5 The appendix record does not indicate the length of this improvement period or any relevant terms and conditions. 6 Mother explained that S.H. “wanted to go home” and “that’s why she started all that stuff.” However, at the time, S.H.’s father and stepmother were participating in improvement periods.
4 reported that Mother was hitting S.H. The stepmother testified that she could see blows
landing on the child’s face, so she instructed S.H. to record the altercation when she was
off the phone and she told the child she would call law enforcement. She explained that
later, S.H. told the stepmother that “things [were] cooling down.”
Stepfather testified that he witnessed the May 10 “fight” between Mother and
S.H., also describing S.H. as the aggressor. According to Stepfather, F.B. witnessed “a little
bit” of the incident and was upset, but he claimed that “[they] got [F.B] out after the . . . first
part of it.” Stepfather also stated that he no longer drank alcohol and was not drinking at
the time of the incident, although he said that he had a medical cannabis card. 7
At the final adjudicatory hearing in August 2024, the court heard testimony
from the individual who conducted two forensic interviews of S.H. and one of F.B., and
7 At the end of the July hearing, the DHS requested that visitation between Mother and F.B. stop because “visitation hasn’t been going well” and because F.B. “has been upset by the visitation[.]” The circuit court indicated that it needed a report and to hear from the GAL regarding the request. In August 2024, the DHS filed a motion to suspend Mother’s visitation with F.B. because of the parents’ inappropriate interactions with F.B. during numerous visits, concluding that the DHS “believe[d] that the unhealthy pattern taking place during the child [F.B.]’s visitations with [Mother] has escalated to the point there is physical danger.” The court ordered that Mother’s visits be suspended until it held a hearing on the DHS’s motion. The record indicates that the court never held a hearing on the motion before entering its adjudicatory order.
In September 2024, the GAL filed a letter with the court, which he had recently received from a therapist, regarding “concerning statements” F.B. made during a May 2024 intake assessment and which described F.B.’s desires and concerns.
5 those interviews were admitted into evidence. A CPS worker testified regarding her
discussions with the children at their respective schools the day after the altercation,
explaining that she investigated “a report that a child was at school and had multiple bruises
on her body.” The CPS worker testified that she “immediately noticed” bruises when she
met S.H. at her middle school and took photos and measurements of them. She reported
bruising on S.H.’s arms and legs and explained that S.H. provided her with videos “of what
occurred when she got the injuries.” The CPS worker also described meeting with F.B.,
who confirmed her sister’s account. The CPS worker then described her interview with the
parents. Mother told her that “the kid wasn’t telling the truth,” and the parents admitted
that “they’d probably be positive for alcohol and THC or marijuana but no other drug use
in the home.” When the worker asked whether she could take items for the children, Mother
told the worker that she could “take everything of [S.H.]’s and she didn’t want her back.”
The police officer who responded to the call for service also testified. The
officer testified that he first checked on S.H., who “appeared fine” and indicated it was a
“verbal argument[.]” Mother also told the officer it was a “verbal argument” and that she
yelled at S.H. because the child interrupted her multiple times but that “nothing physical
had occurred.” The officer told the circuit court that he did not smell alcohol or notice any
injuries but also noted that a victim may minimize or lie about domestic violence because
the victim fears “getting in trouble or . . . getting the other party in trouble.” At the end of
the hearing, Stepfather testified that Mother had a positive relationship with F.B.
6 After hearing arguments from the parties, the circuit court made no findings
on the record at the conclusion of the second adjudicatory hearing. In the subsequent
adjudicatory order, entered on October 15, 2024, the court found that the evidence and
testimony did not establish, by clear and convincing evidence, that S.H. and F.B. were
abused or neglected, and made one finding concerning the video evidence of the altercation
giving rise to the Petition:
The Court FINDS that the evidence and testimony presented in this matter, including the above Exhibits as well as the video of the altercation that was introduced as Exhibit 1 during the hearing of July 16, 2024, does not establish, by Clear and Convincing [sic] evidence, that the children named herein were abused or neglected. The video, while concerning, does not clearly and convincingly establish the allegations of abuse and neglect in the Sixth Amended Petition.
The court then dismissed the Sixth Amended Petition.
Two days later, the GAL filed a motion to stay the proceedings and to
reinterview F.B. According to the GAL, the child underwent a psychological evaluation on
October 9, 2024. Although the report was not yet available, the GAL asserted that the child
made additional disclosures regarding Mother’s failure to maintain sobriety, which caused
the child “to suffer mental and emotional abuse.” The GAL requested an investigation into
the potential psychological harm F.B. might suffer once reunified with Mother and also
asked for a reunification plan. Finally, the GAL requested a stay of the court’s adjudicatory
order pending appeal to this Court. The DHS filed a motion to stay and a motion for
7 reconsideration of the adjudicatory order, while the parents each filed a motion to compel
F.B.’s immediate return to their custody based on the court’s dismissal of the Petition.8
The circuit court held a motions hearing on October 21, 2024. In its
subsequent order, entered on October 28, 2024, the court noted the “difficulties and
complications of this case, chief among them being the approximate balance of evidence.”
The court found that the video evidence, “while not depicting a physical altercation,” was
“concerning and troubling.” The court further noted concern over “allegations of substance
abuse, and particularly those raised by the [GAL] at the October 21 hearing.” Still, the
court stated that it “finds credible the testimony” of the police officer who investigated the
dispute, recounting that the officer testified “that he did not smell alcohol on either
respondent, he did not witness any injuries to [S.H.], nor did she report injuries to him
when asked, and that all parties reported that the dispute was verbal only.” The order noted
the complexity of the case:
In short, there is significant evidence for and against the respondent parents, and [the DHS] must prove the allegations in the petition by clear and convincing evidence. It was this balance of evidence upon which the [c]ourt based its ruling. In addition to the above, this matter has seen six amended petitions and has been pending for over two years, further complicating the determinations that must be made.
8 The parents’ motions did not seek to compel the return of S.H.
8 The court further stated that reunification “is the goal in abuse and neglect proceedings,
when reunification is in the best interests of the child[,]” and that it sought “to protect the
best interests of the child while also recognizing the ‘substantial rights’ of the parents.”
(Emphasis in original).
The circuit court also recognized that F.B. had “been in foster care for over
500 days” and “immediately thrusting the child back” with the parents without “a
transitional period of any kind is not in the best interests of child, particularly considering
the objections raised by the [GAL] and [the DHS].” The court ordered that a reunification
plan be developed and put in place so the family could be reunified with assistance,
including therapy services.9 The GAL appealed from this supplemental order.
II.
STANDARD OF REVIEW
When reviewing a circuit court’s determination of whether a child is abused
and neglected, we recently established the following standard of review:
This Court reviews the circuit court’s orders in abuse and neglect proceedings using the three following standards: (1) substantive rulings, such as whether the evidence supports a conclusion that a child has been abused or neglected or whether termination of parental rights is appropriate, are reviewed for abuse of discretion; (2) factual findings
9 Updates to this Court pursuant to Rule 11(j) of the West Virginia Rules of Appellate Procedure indicate that F.B. currently resides at a residential treatment program.
9 supporting substantive rulings are reviewed for clear error; and (3) to the extent review of the order implicates an issue of law or requires statutory interpretation, our review is de novo.
Syl. Pt. 1, In re K.S., No. 24-740, __ W. Va. __, __ S.E.2d __ (2026).
III.
DISCUSSION
The issue on appeal is whether the circuit court erred when—in the face of
conflicting evidence and testimony—it summarily concluded that F.B. was not abused or
neglected. The GAL asserts that clear and convincing evidence proved that F.B. was
abused and neglected and that the circuit court erred when it did not adjudicate the parents
as abusive and/or neglectful,10 or, in the alternative, that the circuit court’s adjudicatory
order and supplemental order are insufficient for appellate review and should be vacated.
The DHS likewise argues that the adjudicatory order should be vacated due to its lack of
findings, or, in the alternative, should be reversed and remanded because clear and
convincing evidence shows that F.B. was abused and neglected by the parents. Conversely,
the parents each urge the Court to affirm the circuit court. We conclude that the lack of
factual findings as to whether F.B. was abused or neglected, particularly in light of the
circuit court’s admission that “there is significant evidence for and against the respondent
10 The GAL’s first assignment of error states that the circuit court erred by failing to adjudicate Mother as abusive and neglectful, but the GAL’s brief incorporates arguments that Stepfather also abused and neglected F.B.
10 parents,” impedes meaningful appellate review. Therefore, we vacate the adjudicatory
order as to F.B. and remand this case to the circuit court for further proceedings.
Both the relevant abuse and neglect statute, West Virginia Code
§ 49‑4‑601(i), and Rule 27 of the Rules of Procedure for Child Abuse and Neglect
Proceedings require a court to make findings of fact at the conclusion of the adjudicatory
proceedings when determining whether a child is abused or neglected. West Virginia Code
§ 49-4-601(i) provides that “[a]t the conclusion of the adjudicatory hearing, the court shall
make a determination based upon the evidence and shall make findings of fact and
conclusions of law as to whether the child is abused or neglected and whether the
respondent is abusing, neglecting, or, if applicable, a battered parent,” and requires that
these findings “be incorporated into the order of the court.” (Emphasis added). Those
“findings must be based upon conditions existing at the time of the filing of the petition
and proven by clear and convincing evidence.” W. Va. Code § 49-4-601(i). Likewise, Rule
27, entitled “Findings; adjudication order[,]” which corresponds with West Virginia Code
§ 49-4-601(i), also requires findings of fact and conclusions of law:
At the conclusion of the adjudicatory hearing, the court shall make findings of fact and conclusions of law, in writing or on the record, as to whether the child is abused and/or neglected in accordance with W. Va. Code § 49-4-601(i). The court shall enter an order of adjudication, including findings of fact and conclusions of law, within ten (10) days of the conclusion of the hearing, and the parties and all other persons entitled to notice and the right to be heard shall be given notice of the entry of this order.
11 As an appellate court for abuse and neglect cases, we do not disturb findings
of fact in a circuit court’s adjudicatory orders unless the court clearly errs. See Syl. Pt. 1,
In re K.S., No. 24-740, __ W. Va. __, __ S.E.2d __. While the DHS maintains the burden
of proof throughout abuse and neglect proceedings, we have declined to mandate what type
of evidence DHS must present to prove a child has been abused or neglected, and in turn
we do not dictate what courts must consider when determining whether clear and
convincing evidence of abuse or neglect exists. See Syl. Pt. 1, In re Joseph A., 199 W. Va.
438, 485 S.E.2d 176 (1997) (recognizing that the abuse and neglect statute “does not
specify any particular manner or mode of testimony or evidence” that the DHS must
introduce to satisfy its burden to produce clear and convincing evidence that a child has
been abused or neglected). Furthermore, the Court does not “second guess” credibility
determinations on appeal, as “[a] reviewing court cannot assess witness credibility through
a record[,]” as “[t]he trier of fact is uniquely situated to make such determinations[.]”
Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997).
Although we provide deference to the circuit court’s factual findings at
adjudication, the circuit court’s findings “must be sufficient to indicate the factual and legal
basis for the [court]’s ultimate conclusion so as to facilitate a meaningful review of the
issues presented.” Province v. Province, 196 W. Va. 473, 483, 473 S.E.2d 894, 904 (1996);
In re R.L., No. 21-0017, 2021 WL 2556610, at *4 (W. Va. June 22, 2021) (memorandum
decision) (quoting same and affirming a sparse adjudicatory order when “ample” findings
12 were made on the record). Furthermore, “[c]lear and complete findings by the trial judge
are essential to enable [the appellate court] properly to exercise and not exceed our powers
of review.” In re Edward B., 210 W. Va. 621, 632, 558 S.E.2d 620, 631 (2001) (quoting
Nicpon v. Nicpon, 157 N.W.2d 464, 467 (Mich. Ct. App. 1968)); In re K.E., No. 22-0054,
2022 WL 3960511, at *3 (W. Va. Aug. 31, 2022) (memorandum decision) (quoting same).
These factual findings are not optional, because West Virginia Code
§ 49‑4‑601(i) and Rule 27 require the circuit court to make findings of fact whether the
child is abused or neglected, and these findings in turn allow this Court to adequately
review as to whether the circuit court’s determination was clearly erroneous. Here, at
adjudication, the circuit court made no findings of fact—either on the record or in the
corresponding adjudicatory order—explaining why it could not conclude by clear and
convincing evidence that F.B. was abused and neglected. The court held two hearings,
where multiple witnesses testified, including eyewitnesses to the altercation between S.H.
and Mother, and the court admitted into evidence three interviews of the children and two
videos of the altercation. Still, in the adjudicatory order, the only factual finding by the
court was that “[t]he video, while concerning, does not clearly and convincingly establish
the allegations of abuse and neglect in the Sixth Amended Petition.” And while the circuit
court’s supplemental order emphasizes that there “is significant evidence for and against
the respondent parents,” the court never evaluated or detailed any conflicting evidence or
testimony. In the supplemental order, the court merely found the police officer’s testimony
13 to be credible, without making credibility determinations concerning conflicting witness
testimony, and recited that the officer did not smell alcohol on the parents or observe any
injuries to S.H. In sum, the court made no attempt to address the factual discrepancies
between the witnesses’ accounts, and that is not an undertaking that we may perform on
appeal. See State v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995) (“An
appellate court may not decide the credibility of witnesses or weigh evidence as that is the
exclusive function and task of the trier of fact.”).
In similar circumstances, when a dispositional order terminating parental
rights has lacked required factual findings, and the record fails to shed light on the circuit
court’s considerations when terminating those rights, the Court has vacated the
dispositional order and remanded the case for further proceedings. See, e.g., In re Edward
B., 210 W. Va. at 634, 558 S.E.2d at 633. In In re Edward B., the Court explained that the
Rules of Procedure for Child Abuse and Neglect Proceedings and the related statutes
specify “thorough procedures” for circuit courts to follow that are “not mere general
guidance[,]” but are instead “mandatory” and “intended to protect the due process rights of
the parents as well as the rights of the innocent children.” Id. at 632, 558 S.E.2d at 631.
The In re Edward B. Court vacated a dispositional order that contained inadequate findings,
among other issues, holding that
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
14 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, id. Likewise, we have also vacated improper adjudicatory orders where “the
circuit court substantially frustrated the process by disregarding the applicable statutes and
rules regarding its adjudication . . . .” In re H.B., ___ W. Va. ___, ___ 922 S.E.2d 350, 359
(2025) (vacating both the adjudicatory and dispositional orders). When a circuit court does
not make or “explain” its factual findings, “we do not get the benefit of [the court’s]
experience and reasoning.” Province, 196 W. Va. at 483, 473 S.E.2d at 904. Without that
reasoning, “any deference we might otherwise accord such a ruling will be nullified by the
absence of a meaningful explanation.” Id.
As we cannot discern the reasoning behind the court’s ruling, or what
evidence the court relied upon in making its finding, our function as an appellate court is
impaired, particularly when the court admits that “there is significant evidence for and
against the respondent parents.” The relevant statute and Rule pertaining to adjudication
command findings of fact, and our appellate review requires the circuit court to adequately
grapple with conflicting evidence and credibility determinations. Because the circuit court
failed to include factual findings required by the statute and the Rule, and because we
cannot adequately assess the circuit court’s conclusion that F.B. was not abused or
neglected based on the record before us, the “process established by the Rules of Procedure
15 for Child Abuse and Neglect Proceedings and related statutes” relating to adjudication has
been “substantially disregarded or frustrated,” and we vacate the relevant adjudicatory
order as to F.B. Syl. Pt. 5, in part, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620.
IV.
CONCLUSION
For these reasons, we vacate the October 15, 2024 adjudicatory order and the
October 28, 2024 supplemental order of the Circuit Court of Wood County as they relate
to F.B. The Court remands this matter to the Circuit Court of Wood County for the
expeditious entry of a new adjudicatory order containing findings of fact and conclusions
of law in accordance with this opinion. The Court directs the Clerk to issue the mandate
contemporaneously with this opinion.
Vacated and remanded.