IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA FILED September 2025 Term _____________ November 12, 2025 released at 3:00 p.m. C. CASEY FORBES, CLERK No. 24-357 SUPREME COURT OF APPEALS _____________ OF WEST VIRGINIA
IN RE R.M., B.M., and H.M. ________________________________________________
Appeal from the Circuit Court of Kanawha County The Honorable Jennifer F. Bailey, Judge Civil Action Nos. 23-JA-40, 23-JA-41, and 23-JA-42
AFFIRMED ________________________________________________
Submitted: October 7, 2025 Filed: November 12, 2025
Sandra K. Bullman, Esq. John B. McCuskey, Esq. Bullman and Bullman Attorney General Charleston, West Virginia Michael R. Williams, Esq. Attorney for the Petitioner Mother Solicitor General Charleston, West Virginia Attorney for the Respondent Department of Human Services
Bryan B. Escue, Esq. Hunter Escue Law Practice Hurricane, West Virginia Guardian ad litem for Minor Children
JUSTICE BUNN delivered the Opinion of the Court.
JUSTICE EWING and SENIOR STATUS JUSTICE HUTCHISON concur and reserve the right to file separate opinions. 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.” Syllabus Point 1, In re Tiffany Marie S., 196 W. Va. 223,
470 S.E.2d 177 (1996).
2. “Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415
(1995).
i 3. “In a child abuse and neglect hearing, before a court can begin to make
any of the dispositional alternatives under W. Va. Code [§ 49-4-604], it must hold a hearing
under W. Va. Code [§ 49-4-601], and determine ‘whether such child is abused or
neglected.’ Such a finding is a prerequisite to further continuation of the case.” Syllabus
Point 1, State v. T.C., 172 W. Va. 47, 303 S.E.2d 685 (1983).
4. Specific findings of fact explaining how each child’s health and
welfare is being harmed or threatened by the abusive or neglectful conduct of the parties
named in the petition are a statutory prerequisite for the circuit court to proceed to the
dispositional phase, not a requirement for establishing or maintaining subject matter
jurisdiction. To the extent that Syllabus Point 3 of In re B.V., 248 W. Va. 29, 886 S.E.2d
364 (2023), holds otherwise, we expressly overrule that portion of Syllabus Point 3.
5. “[C]ourts 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 threatened[.]” Syllabus Point 1, in part, In re R.J.M., 164
ii BUNN, Justice:
The petitioner, C.N. (“Mother”), appeals the May 17, 2024 order of the
Circuit Court of Kanawha County terminating her parental rights to her three children,
R.M., B.M., and H.M.1 On appeal, Mother contends that the circuit court erred by
terminating her parental rights without granting her a post-adjudicatory improvement
period. In aid of addressing the issues presented in this appeal, this Court also requested
supplemental briefing regarding whether “specific factual findings regarding the abuse
and/or neglect at the conclusion of the adjudicatory hearing are a jurisdictional requirement
without which a circuit court may not proceed to disposition under any circumstances.”
Observing the distinction between subject matter jurisdiction and statutory
authority to proceed to disposition, we conclude that specific factual findings are not a
requirement for a court to establish or maintain subject matter jurisdiction to proceed to
disposition, but rather are procedural requirements emanating from our abuse and neglect
statutes and rules. We further conclude that the circuit court did not err, under the specific
facts of this case, and, accordingly, affirm the circuit court’s order terminating Mother’s
parental rights to her three children.
1 We use initials where necessary to protect the identities of those involved in this case. See W. Va. R. App. P. 40(e).
1 I.
FACTUAL AND PROCEDURAL HISTORY
In February 2023, the West Virginia Department of Human Services
(“DHS”)2 filed a petition alleging that Mother and the father abused and neglected their
three children by abusing substances to the extent that their ability to parent and obtain
employment was impaired. The petition also asserted that Mother and the father, exposed
the children to unsanitary and unsafe housing conditions and failed to provide the children
with “necessary food, clothing, supervision, and housing.” The DHS contended that H.M.,
the eldest child, did not live in the parents’ home, but instead resided with her grandmother
two miles away and that H.M. attended school unbathed and wore dirty clothes.3 The
DHS’s petition further detailed that the two younger children, R.M. and B.M., were
frequently in heavily soiled diapers and that Mother refused to participate in Birth to Three
services,4 which were recommended for R.M. and B.M. The DHS asserted that several
2 Pursuant to West Virginia Code § 5F-2-1a, the agency formerly known as the West Virginia Department of Health and Human Resources was terminated. It is now three separate agencies—the Department of Health Facilities, the Department of Health, and the Department of Human Services. See W. Va. Code § 5F-1-2. For purposes of abuse and neglect appeals, the agency is now the DHS. 3 The grandmother was not a party to the abuse and neglect petition. The testimony surrounding H.M. varied slightly, but suggests that generally, she lived with her grandmother but spent weekends and other times at her parents’ home. As a result, despite living with her grandmother, the evidence demonstrated that H.M. was nonetheless exposed to the alleged conditions of abuse and neglect in the parents’ home. 4 “West Virginia Birth to Three is an early intervention program that partners with families and caregivers to build upon their strengths by offering coordination, supports
2 individuals called law enforcement after witnessing Mother “nodding off” when dropping
off H.M. at school and the witnesses also reported seeing Mother sitting on the sidewalk
with her feet in the road, holding her side, and crying after she left the school. Following
the reports, law enforcement visited the parents’ home where officers observed clutter and
animal feces throughout the residence. One of the officers noticed that none of the
bedrooms in the home “were able to be used for sleeping because there was junk and
clothes everywhere.” That same officer reported that “the home was unsuitable
for . . . children to live in, and directed that [Child Protective Services (‘CPS’)] be called.”
In March 2023, the circuit court held a preliminary hearing. Two law
enforcement officers testified as to the home’s condition. One officer testified that after
receiving multiple calls reporting Mother’s behavior described above, she visited the home
for a welfare check. Mother refused to let the officer in the home, but the officer could
smell animal urine and feces.5 While at the home, the officer called her supervising officer
to assist. The supervising officer also testified and stated that Mother allowed him to enter
the home. It “was very apparent” that everyone in the household lived in the living room
[sic], and resources to enhance children’s learning and development.” In re N.H., No. 17- 0358, 2017 WL 3868015, at *1 n.3 (W. Va. Sept. 5, 2017) (memorandum decision). 5 The officer further testified that she later obtained what appeared to be text messages that Mother sent to Mother’s brother indicating that Mother’s boyfriend, who is also the children’s father, was going to physically beat her. Mother denied sending those text messages.
3 and that the parents had not used the kitchen for food preparation in “quite some time.”
The supervising officer further observed that, due to extreme clutter, the kitchen was
inaccessible and full of dirty dishes, and that one of the bedrooms was also inaccessible
because of piled up boxes and furniture. While one of the bedrooms was accessible, there
was no bed in the room. The supervising officer also testified that he observed multiple
animals and animal feces in the home. At the conclusion of the visit, the supervising officer
advised the other officer to contact CPS to conduct a welfare check on the children.
Mother and the father also testified at the preliminary hearing. Mother stated
that she had one dog and three cats, and that although she admitted there was dog feces on
the floor when the officers entered the home, she stated it was limited to waste on a piece
of cardboard because the dog had been put away for visitors. She agreed the kitchen was
“very cluttered” and that CPS gave her seven days to remediate the conditions of the home.
She denied using drugs except for “pot.” The father testified that he cooked for the family
every day in the kitchen and that the home was cluttered due to the children’s toys but was
in a livable condition. He denied that there was drug or alcohol use in the home other than
his occasional marijuana use. He further clarified that H.M. lived in the home, but
frequently spent nights at her grandmother’s home. See supra n.3.
In a subsequent order, the court ratified the removal of the children from the
home, finding that there was imminent danger to their well-being at the time of removal
4 and that there were no reasonable alternatives to removal. The court ordered that the parents
receive adult life skills and parenting education, bus passes, drug testing, and supervised
visits after negative drug screens.
Thereafter, the circuit court held multiple adjudicatory hearings on April 27,
2023, June 7, 2023, October 3, 2023, November 15, 2023, January 12, 2024, and February
14, 2024. The court continued the first hearing upon requests from counsel to gather
additional evidence, including the DHS’s request to further investigate allegations of
medical neglect. During the second hearing, in June 2023, the DHS moved the court to take
judicial notice of the evidence and testimony adduced at the preliminary hearing and to
further continue the matter until a later date. The court granted both motions.
At the October 3, 2023 adjudicatory hearing, the DHS presented three expert
witnesses who also treated the children. These witnesses discussed the children’s medical
problems, including malnutrition and other feeding issues, speech issues, and
developmental delays. Julie Blake, a Speech-Language Pathologist and Orofacial
Myofunctional Therapist, evaluated all three children and opined that “a lack of exposure
5 or lack of opportunity” caused B.M.’s feeding6 and speech issues.7 In other words, Ms.
Blake testified that the child’s “environment” caused the developmental delays, rather than
a structural or medical condition. Ms. Blake next described her examination of H.M.,8 who
had previously been diagnosed with a chronic pediatric feeding disorder and anorexia.
H.M. had significant dental issues as well as feeding issues. She took hours to eat simple
foods, and she needed a great deal of encouragement and reward to continue to eat. Ms.
Blake opined that H.M. would have benefited from other interventions, including Birth to
Three, a feeding specialist, and certain dental care. Finally, Ms. Blake described her
examination of R.M.9 When she initially met with R.M., he had just been placed on an
internal feeding tube and “would not allow a spoon to be brought to his mouth, but he
would play with his spoon with his hands.” She stated that R.M. “has a really high palate”
developed from long-term bottle use, which can cause certain eating issues:
He struggles with closing his lips, and he struggles with nose- breathing because he is an open-mouth breather, lips open. He has a tongue forward posture . . . that makes eating difficult, and he is very sensory defensive. So[,] bringing the food to his lips has taken a lot of work over the course of therapy. He has been very hesitant.
6 Generally, these issues included food aggression, lack of ability to use age- appropriate eating utensils, and lack of ability to eat age-appropriate foods. 7 At the time of the evaluation, B.M. was three years and two months old, but her score indicated that she was at the levels of a seventeen-month-old for her understanding of language and a twenty-month-old for expressing language. 8 H.M. was nine years old at the time of her examination. 9 When Ms. Blake first examined R.M., he was almost two years old.
6 Ms. Blake further explained that R.M.’s “motor skills were directly impacting his feeding
skills, and a team of therapists like [a] physical therapist, occupational therapist, speech
therapist, [and] feeding therapist should have all worked together to help [R.M.] achieve
developmental milestones and then his feeding would not have been impacted if other
milestones had been achieved.” She stated that R.M. was “globally delayed”: “He is
delayed in speech, feeding, fine motor, [and] gross motor skills. So a global impairment.
So that would make him considered a special needs child.”10 Ms. Blake opined that a
“[l]ack of exposure, lack of opportunity, [and] lack of resources to develop skills he
needed” caused R.M.’s developmental delays.
Jenna Runyan, a speech-language pathologist, and Rachel Malone, a physical
therapist, also testified.11 These witnesses testified consistently with Ms. Blake’s
testimony, including their agreement that proper interventional services, such as Birth to
Three, could have remedied or significantly improved the children’s feeding and speech
issues. Furthermore, the witnesses testified that many of these deficiencies were caused by
the children’s environment.12
10 R.M. was also diagnosed with mitochondrial mutation, a genetic disorder. 11 Ms. Runyan provided services to only R.M. and H.M., and Ms. Malone provided services to only R.M. 12 Acknowledging that she was not an expert in R.M.’s genetic disorder, Ms. Runyan testified that she had researched the condition and stated that she “d[id] not think that that [the genetic disorder was] the underlying cause of all of his issues,” however, “it could be
7 The court continued the adjudicatory hearing to November 15, 2023, where
Mother testified on her own behalf. Mother discussed the living conditions when the
children lived with her and the father, describing the home as “cluttered but . . . clean.”
Mother stated there was a “playpen and a toddler bed in the living room and then [H.M.]
had her own room with a queen-sized bed.” Regarding the children’s healthcare, Mother
claimed that she regularly took the children to the doctor’s office and that the children
participated in Birth to Three services prior to their removal, but that those services
abruptly ended, and she attempted to contact those providers to no avail.13 Mother admitted
that she used illegal substances in the past, including methamphetamine, shortly before the
DHS filed the petition in this matter. She indicated that she and the father used “meth”
together but sometimes they would alternate when they used it. In general, Mother testified
that she used methamphetamine about three times a week, but asserted that she had not
used drugs in the six months prior to the adjudicatory hearing.14 Although Mother admitted
a contributing factor.” Nonetheless, despite his genetic disorder, R.M. had made significant progress since working with her on his feeding issues. Ms. Malone also stated that R.M. had made progress working with her on his physical issues. 13 This testimony is contrary to Ms. Malone’s previous testimony that the Birth to Three records demonstrated that those services ended because they lost communication with Mother. 14 Mother tested positive for marijuana in October 2023, but claimed the test was incorrect.
8 to using drugs, she also testified that “[a]ll I did was miss one [doctor’s] appointment and
that’s being held against me.”
Mother presented two additional witnesses. First, a former coworker and
friend of Mother testified that the house was clean but cluttered; however, she confirmed
that she and Mother used methamphetamine and marijuana together on their breaks while
working. Next, the maternal grandmother stated that, at one point, H.M. started missing
numerous days of school because the parents were oversleeping, prompting the
grandmother to bring H.M. to her home. The grandmother further testified that the parents’
home was cluttered and that there were dirty dishes in the sink and on the counter.
Finally, the children’s foster parent testified to the children’s fragile
conditions when placed in the foster home, including R.M.’s inability to crawl or hold up
his head. The foster mother further stated that when she initially took R.M. home, she could
feel his ribs and that it was “[l]ike he hadn’t been fed in months[.]” Mother presented
rebuttal testimony disputing the claim that R.M. was unable to crawl. At the conclusion of
the hearing, Mother’s counsel requested to submit additional medical records, and the court
continued the hearing to allow the parties to review those records.
On January 12, 2024, the circuit court held a fifth adjudicatory hearing. At
this hearing, Mother moved to supplement the record with certain medical records. The
9 court advised that it needed time to review the medical records and continued the hearing.
One month later, on February 14, 2024, the circuit court held a sixth and final adjudicatory
hearing and adjudicated the children as abused and neglected by stating the following on
the record:
The Court: . . . I find that based upon the evidence in this case these children have been abused and neglected under the meaning of the law.
There is substantial evidence to that effect, and so that is my ruling.
None of the records have convinced me any differently, and so that is my ruling, and I am going to schedule these matters for disposition.
....
I did make a finding that the [DHS] has sustained its burden to establish that the children are abused and neglected within the meaning of the law, and I am scheduling these matters for disposition.
The court did not enter a written adjudicatory order at that time, and none of the parties
raised an objection to the lack of a written order or specific factual findings.
The circuit court held a dispositional hearing on March 27, 2024, at which it
first heard Mother’s request for a post-adjudicatory improvement period.15 The court found
15 On the day of the dispositional hearing, Mother served the parties a one-sentence written motion for a post-adjudicatory improvement period.
10 that this case was “one of the most severe cases . . . as far as the extreme neglect and abuse
of these children and the conditions that were found at the time of the filing of the petition.”
In support, the court stated that “[o]ne of the children was suffering so much that
[it] . . . had to order that she be transported out of state to attempt to save her life. There
were no facilities in West Virginia who can even address the severity of the malnutrition
that she was suffering.” The court further found that Mother continued to use drugs, failed
to acknowledge her parenting problems, and did not understand, appreciate, or
acknowledge the severity of the children’s conditions. As such, the court denied Mother’s
motion for an improvement period and proceeded to disposition.
The assigned CPS worker testified at the dispositional hearing that the DHS
recommended termination of Mother’s parental rights due to the severity of the abuse and
neglect inflicted upon the children. The worker stated that Mother tested positive for
marijuana and methamphetamine throughout the proceedings and refused to participate in
any kind of drug treatment program, as she claimed she was no longer using drugs.
Specifically, the worker testified that Mother tested positive for marijuana nine times in
January 2024 and four times in February 2024, in addition to testing positive for
methamphetamine and amphetamine on March 20, 2024—only seven days before the
dispositional hearing. Despite this positive drug test, Mother testified that she had not used
methamphetamine since July 3, 2023. Mother admitted to using marijuana in the preceding
two months but claimed it was because she was having a “hard time.” Mother asserted that
11 H.M. was diagnosed with anorexia after being removed from the home and that she could
not “expect [her] children to be fat” given that she was skinny.
The circuit court terminated Mother’s parental rights in a written
dispositional order reiterating “that this [wa]s one of the most severe cases.” It further
found that Mother continued to use drugs and deny responsibility for the children’s
conditions, and “failed to grasp the facts and . . . to acknowledge [the] severity of the
children’s condition[s].” Based upon the evidence presented, the court found that the
parents subjected the children to extreme malnourishment and malnutrition, and that the
children lacked basic skills and suffered in the parents’ home. The court again
acknowledged that Mother demonstrated “an unwillingness and inability to acknowledge
[her] culpability in [the] matter,” rendering “an improvement period an exercise in futility
at the children’s expense.” Ultimately, the court terminated Mother’s parental rights to the
three children, finding that there was no reasonable likelihood that the conditions of abuse
and neglect could be substantially corrected in the near future; the children’s best interests
required termination of the petitioner’s parental rights; and there were no reasonable,
available, less drastic alternatives.16
16 During this hearing, the circuit court also terminated the father’s parental rights. He did not file an appeal.
12 Petitioner then appealed the final dispositional order.17 On September 26,
2025, this Court ordered the parties to submit concurrent supplemental briefing to “address
whether specific factual findings regarding the abuse and/or neglect at the conclusion of
the adjudicatory hearing are a jurisdictional requirement without which a circuit court may
not proceed to disposition under any circumstances.”
II.
STANDARD OF REVIEW
We review a circuit court’s factual determinations and legal conclusions in
an abuse and neglect case pursuant to the following well-established standard:
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
17 After Mother filed her notice of appeal, the circuit court entered an adjudicatory order nunc pro tunc. Therein, the court found by clear and convincing evidence that, based upon conditions at the time of the petition’s filing, Mother was an abusing and neglectful parent and the children were abused and neglected. The court further found that “the record establishes substantial evidence of neglect, and the medical records submitted by [Mother] do not convince the Court otherwise.”
13 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 re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). Furthermore,
“[w]here the issue on an appeal from the circuit court is clearly a question of law or
involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1,
Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
III.
DISCUSSION
On appeal, Mother raises one assignment of error: that the circuit court erred
by terminating her parental rights without the opportunity for a post-adjudicatory
improvement period. However, before we reach the merits of Mother’s assignment of error,
as an initial question, this Court must decide whether a lack of specific findings regarding
adjudication deprived the circuit court of subject matter jurisdiction to proceed to the
dispositional phase. We determine that it did not. Furthermore, we conclude that the circuit
court did not err in denying Mother a post-adjudicatory improvement period.
A. Jurisdiction
Mother did not challenge her adjudication on appeal. However, the DHS, in
its response brief, conceded that the circuit court “failed to make specific factual
findings . . . explaining how each child’s health and welfare is being harmed or threatened
14 by the abusive or neglectful conduct” by Mother in this matter. While the DHS asserts that
based upon this Court’s current jurisprudence, this absence of specific findings deprived
the circuit court of jurisdiction to proceed to disposition, it further noted that “if the Court
were inclined to reconsider its view that specific factual findings are a jurisdictional
requirement that cannot be waived, then the [DHS] would request supplemental briefing
on that issue[.]” The DHS contends that Mother “has never objected to the sufficiency of
the adjudicatory order” and that this type of case demonstrates the risk of disruption and
waste from a jurisdictional label. We ordered supplemental briefing on the issue, and in its
supplemental briefing, the DHS argues that this Court should hold that the absence of
specific findings of fact regarding adjudication does not deprive the circuit court of subject
matter jurisdiction. We agree with the DHS and take this opportunity to clarify our recent
case law surrounding subject matter jurisdiction in abuse and neglect matters.
Two years ago, in a case involving several children in legal guardianships,
this Court addressed the absence of specific adjudicatory factual findings as affecting the
court’s authority to proceed to disposition. We held, in part, that to exercise subject matter
jurisdiction in an abuse and neglect matter following adjudication, the circuit court must
have first made specific factual findings regarding the abuse and/or neglect:
The mere fact that a child is in a legal guardianship at the time an abuse and neglect petition is filed does not preclude a circuit court from exercising subject matter jurisdiction in adjudicating whatever rights a respondent to that petition may still have to that child, provided that the child meets the
15 definition of an “abused child” or “neglected child” as defined in West Virginia Code § 49-1-201 (2018) so as to confer that jurisdiction. To exercise subject matter jurisdiction, the court must make specific factual findings explaining how each child’s health and welfare are being harmed or threatened by the allegedly abusive or neglectful conduct of the parties named in the petition. Due to the jurisdictional nature of this question, generalized findings applicable to all children named in the petition will not suffice; the circuit court must make specific findings with regard to each child so named.
Syl. Pt. 3, In re B.V., 248 W. Va. 29, 886 S.E.2d 364 (2023). The DHS takes issue with the
subject matter jurisdiction language of this Syllabus Point.
We now take this opportunity to revisit and clarify our holding in Syllabus
Point 3 of In re B.V. First, we must examine the precise language and intent of the Syllabus
Point. As this Court has previously noted, a “‘statement contained in a syllabus is to be
read in the light of the opinion.’ Jones v. Jones, 133 W. Va. 306, 310, 58 S.E.2d 857, 859
(1949).” State v. Wallace, 205 W. Va. 155, 159 n.4, 517 S.E.2d 20, 24 n.4 (1999). See also
State ex rel. State Farm Mut. Auto. Ins. Co. v. Canady, 197 W. Va. 107, 110, 475 S.E.2d
107, 110 (1996) (stating “syllabus language cannot be viewed in a vacuum; it must be
considered in the context of the entire opinion”). Syllabus Point 3 of In re B.V. explicitly
references children in a “legal guardianship.” Accordingly, the language of the Syllabus
Point demonstrates that the Court was concerned with children living in guardianships
away from the respondent parents and ensuring that the circuit court properly consider
whether those children satisfy the statutory definition of an abused or neglected child prior
16 to moving to the dispositional phase. See also In re K.M., No. 24-679, 2025 WL 2916259,
at *2 (W. Va. Oct. 14, 2025) (memorandum decision) (stating that in In re B.V. “we
clarified that the fact that at least one named child was not in the respondent parent’s
custody when the petition was filed meant that ‘generalized findings applicable to all
children named in the petition will not suffice.’” (citation omitted)).
Furthermore, this Court has subsequently applied this Syllabus Point in
numerous matters, and, like In re B.V., many of those cases involved situations where some
children at issue were in a legal guardianship or resided with a non-abusing parent. See,
e.g., In re B.H., No. 23-599, 2024 WL 4382118, at *2 (W. Va. Sept. 24, 2024)
(memorandum decision) (“Here, the court made a generalized finding at adjudication that
all of the children were abused and neglected, without specifically explaining how their
health and welfare were harmed or threatened. Upon our review of the record, it is unclear
whether J.C and E.C. were subject to the abusive and neglectful behavior alleged by the
DHS’s petition and subsequently proven at adjudication, as they may have been in the care
of their nonabusing father.”); In re K.R., No. 23-8, 2024 WL 578667, at *3 (W. Va. Feb.
13, 2024) (memorandum decision) (“Here, although only S.F.-1 was in petitioner’s care at
the time the abuse and neglect petition was filed, the court found all four children to be
abused and neglected, making generalized findings applicable to all children named in the
petition. . . . Due to the jurisdictional nature of this issue, we must remand the matter for
entry of an adjudicatory order complete with the requisite findings under the statute.”).
17 However, the Court has, on occasion, applied this Syllabus Point more broadly as well.
See, e.g., In re A.B., No. 23-301, 2024 WL 3986898, at *2 (W. Va. Aug. 27, 2024)
(memorandum decision) (“The circuit court failed to provide factual findings to support its
conclusion that the children were neglected or abused as defined in West Virginia Code
§ 49-1-201 and thus, lacked jurisdiction to proceed to disposition.”).
Next, an examination of the statutory language regarding the adjudicatory
phase and our case law applying that statutory language is necessary. West Virginia Code
§ 49-4-601 (eff. 2019), in relevant part, provides that the circuit court must hold an
adjudicatory hearing and at the hearing’s conclusion, 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, all of which shall be incorporated into the order of the court.18
(Footnote added). Based upon this statutory language, this Court required that the circuit
court decide whether the evidence supports a finding of abuse or neglect to justify the
continuation of the matter:
In a child abuse and neglect hearing, before a court can begin to make any of the dispositional alternatives under W. Va. Code [§ 49-4-604], it must hold a hearing under W. Va. Code [§ 49-4-601], and determine “whether such child is
18 We note that West Virginia Code § 49-4-601 was amended in 2025; however, the amendments have no impact on this case or the statutory language at issue in this matter.
18 abused or neglected.” Such a finding is a prerequisite to further continuation of the case.19
Syl. Pt. 1, State v. T.C., 172 W. Va. 47, 303 S.E.2d 685 (1983) (emphasis added) (footnote
added). In reaching this conclusion, the Court based its decision, in part,20 on In Re
Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973), “which established the constitutional
protections afforded to parents in permanent child removal cases.” T.C., 172 W. Va. at 51,
303 S.E.2d at 689; see also Syl. Pt. 8, in part, In re Willis, 157 W. Va. 225, 207 S.E.2d 129
(“Once a court exercising proper jurisdiction has made a determination upon sufficient
proof that a child has been neglected and his natural parents were so derelict in their duties
as to be unfit, the welfare of the infant is the polar star by which the discretion of the court
is to be guided in making its award of legal custody.”). The Court acknowledged that “the
[S]tate . . . [has] a right to intervene where parents are shown to be unfit to protect the
interests of the children[.]” T.C., 172 W. Va. at 51, 303 S.E.2d at 689. However, to
intervene, the State must first make an “initial showing that there has been child abuse or
neglect, which constitutes unfitness on the part of the parents to continue, either
temporarily or permanently, in their custodial role.” Id. The T.C. Court emphasized that
the initial determination’s primary purpose “is to protect the interest of all parties and to
19 T.C. applied a previous version of the statute. That language is, however, substantially similar to the current statutory language. 20 In reaching this determination, the Court also examined jurisprudence from other courts who had “spoken to this issue under statutes which are analogous to ours[.]” T.C., 172 W. Va. at 50, 303 S.E.2d at 688 (collecting cases).
19 justify the continued jurisdiction under [our applicable abuse and neglect statutes].” Id. at
50, 303 S.E.2d at 688 (emphasis added).21
Following the Court’s decision in T.C., we have reiterated that “our statutes,
cases, and rules instruct that a circuit court may not terminate parental rights at a § 49-4-604
disposition hearing without first finding that the parent abused or neglected the child in
question at a § 49-4-601 adjudicatory hearing.” In re A.P.-1, 241 W. Va. 688, 693, 827
S.E.2d 830, 835 (2019) (emphasis added).22 In other words, a court must determine that a
child is abused and/or neglected based upon the statutory definitions for the continuation
of the abuse and neglect matter as to that child, i.e., proceeding to the dispositional phase.
21 Aside from the primary purpose of justifying continuation of the matter to disposition, it is also “apparent that [adjudication] is an essential part of an abuse and neglect proceeding because before the conditions of abuse and/or neglect can be corrected, they first must be identified and documented—which is precisely the role played by an adjudication.” In re I.M.K., 240 W. Va. 679, 689, 815 S.E.2d 490, 500 (2018). 22 See also In re K.H., No. 18-0282, 2018 WL 6016722, at *5 (W. Va. Nov. 16, 2018) (memorandum decision) (“[W]e have long held that adjudication is a prerequisite for continuing to the disposition stage.”); In re M.P., No. 15-0118, 2015 WL 7628824, at *4 (W. Va. Nov. 23, 2015) (memorandum decision) (“[O]ur law is clear that a finding of abuse or neglect is a prerequisite to a final change in custody or other such disposition in abuse and neglect proceedings.”); In re T.W., 230 W. Va. 172, 179, 737 S.E.2d 69, 76 (2012) (stating that pursuant to the “mandates of the statutory scheme for the management of abuse and neglect cases,” a finding of whether a child is abused or neglected is a “‘prerequisite to further continuation of the case.’” (citation omitted)).
20 Our overstatement in In re B.V. notwithstanding, we clarify that this
“continued jurisdiction” is not tantamount to subject matter jurisdiction in the traditional
sense but rather reflects the court’s statutory authority to proceed to the next steps in the
statutory scheme. See W. Va. Code § 49-4-601. This approach is consistent with the
Court’s decisions regarding defective adjudications prior to In re B.V.23 For example, in In
re G.M., No. 15-1015, 2016 WL 2979850, at *3 (W. Va. May 23, 2016) (memorandum
decision), the Court found that the circuit court’s failure to properly adjudicate the
petitioner as an abusing parent and the children as abused and neglected by the petitioner
“constitute[d] a substantial disregard of the applicable rules and statutes such that vacation
of the resulting dispositional order [wa]s warranted.” In that case, the Court did not
conclude that the lack of a proper adjudication deprived the circuit court of subject matter
23 We acknowledge that in In re A.P.-1, 241 W. Va. 688, 694, 827 S.E.2d 830, 836 (2019), the Court found that the “circuit court lacked the continued jurisdiction to then terminate Petitioner’s parental rights” by failing to find that the petitioner had abandoned his child as alleged in the abuse and neglect petition. See also In re K.H., No. 18-0282, 2018 WL 6016722, at *5 (W. Va. Nov. 16, 2018) (memorandum decision) (“In this case, the circuit court held an adjudicatory hearing where the DHHR alleged abandonment. After considering the evidence presented during that hearing, the court found that the petitioner had not abandoned his child and therefore was not an abusive or neglectful parent. In light of this ruling, it is clear that the circuit court lacked ‘the continued jurisdiction’ to subsequently terminate the petitioner’s parental rights.” (citation omitted)). While the Court used the term “jurisdiction” it did not discuss traditional subject matter jurisdiction, but rather noted that without a determination of abuse or neglect, the circuit court did not have the statutory authority to proceed to the dispositional phase: “DHHR’s position—that a finding of abuse and neglect at an adjudicatory hearing is not a prerequisite to disposition—is untenable under the plain language of West Virginia Code §§ 49-4-601 and 49-4-604, as well as Syllabus Point 1 of our decision in State v. T.C., decided more than thirty-five years ago.” A.P.-1, 241 W. Va. at 694, 827 S.E.2d at 836.
21 jurisdiction, but rather that the statutory prerequisites were not met. Id. See In re E.T., No.
17-1085, 2018 WL 1773180, at *3 (W. Va. Apr. 13, 2018) (memorandum decision)
(concluding that the circuit court’s failure to hold an adjudicatory hearing “constitute[d] a
substantial disregard for the applicable rules and statutes such that vacation of the resulting
dispositional order [wa]s warranted”); In re George Glen B., Jr., 205 W. Va. 435, 444, 518
S.E.2d 863, 872 (1999) (reversing and remanding abuse and neglect matter because the
circuit court’s failure to hold certain hearings, including an adjudicatory hearing, “was not
in compliance with pertinent statutes, rules, and case law”).
Recently, the Montana Supreme Court reached a similar conclusion and
found that the court’s “recent jurisprudence . . . has clarified and emphasized the difference
between legislative requirements and jurisdictional limits.” In re Z.N.-M., 538 P.3d 21, 32
(Mont. 2023). Specifically, it found that “[a] district court’s failure to comply with statutory
requirements for adjudication as youth in need of care has no effect on the court’s
jurisdiction to hear and determine a petition for termination of parental rights” and
overruled past cases to the extent they held otherwise. Id. While we recognize the Montana
statutory scheme is different than ours, it is nonetheless persuasive under these
circumstances.
For the same reasons, the factual findings regarding the determination at
adjudication are mandatory under the applicable statutes and rules, but the findings are not
22 required for a court to maintain or establish subject matter jurisdiction to consider the case.
See W. Va. Code § 49-4-601; W. Va. R. P. Child Abuse & Neglect Proc. 27. As we have
previously stated, “our precedents, whether set forth in an opinion or a memorandum
decision, are not sacrosanct and will be reversed where warranted by the law[.]” In re T.O.,
238 W. Va. 455, 465, 796 S.E.2d 564, 574 (2017). Therefore, we now hold that specific
findings of fact explaining how each child’s health and welfare is being harmed or
threatened by the abusive or neglectful conduct of the parties named in the petition are a
statutory prerequisite for the circuit court to proceed to the dispositional phase, not a
requirement for establishing or maintaining subject matter jurisdiction. To the extent that
Syllabus Point 3 of In re B.V., 248 W. Va. 29, 886 S.E.2d 364 (2023), holds otherwise, we
expressly overrule that portion of Syllabus Point 3.24
24 Prior to the Court’s decision in In re B.V., we held that,
For a circuit court to have jurisdiction over a child in an abuse and neglect case, the child must be an “abused child” or a “neglected child” as those terms are defined in West Virginia Code § 49-1-201 (2018). Pursuant to West Virginia Code § 49-4-601(i) (2019), a circuit court’s finding that a child is an “abused child” or a “neglected child” must be based upon the conditions existing at the time of the filing of the abuse and neglect petition.
Syl. Pt. 8, In re C.S., 247 W. Va. 212, 875 S.E.2d 350 (2022). However, In re C.S. is distinguishable from In re B.V. In In re C.S., this Court stated that “[a]n abuse and neglect petition may be filed ‘[i]f the department or a reputable person believes that a child is neglected or abused[.]’” Id. at 223, 875 S.E.2d at 361 (quoting W. Va. Code § 49-4-601(a)) (first alteration added, other alterations in original). We explained that under the facts of that case, one of the children “did not qualify as either an ‘abused child’ or a ‘neglected child’ as those terms are defined by statute” because the child had been living in a permanent legal guardianship for five years prior to the filing of the abuse and neglect petition and the abuse and neglect petition contained no allegations relating to the harm
23 Even in light of our holding regarding subject matter jurisdiction, to proceed
to disposition, a circuit court must still comply with all applicable statutory and rule
requirements. As stated above, West Virginia Code § 49-4-601, in relevant part, provides
that at the conclusion of the mandatory adjudicatory hearing, the court must determine
whether the child at issue is abused and/or neglected based upon the evidence presented
and “shall make findings of fact and conclusions of law” regarding that determination. In
addition, Rule 27 of the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings specifically requires the court to make findings of fact regarding whether the
child is abused and/or neglected at the adjudicatory stage and, thereafter, enter an order
setting forth those findings:
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.
or threat of harm to that child. Id. at 224, 875 S.E.2d at 362. Therefore, there was no jurisdiction as to the child in the legal guardianship because the petition alleged no circumstances where the child could satisfy the statutory definition of an abused or neglected child. Id. Nevertheless, to the extent that In re C.S. has been read as stating that a defective adjudication deprives the circuit court of subject matter jurisdiction, it is also overruled.
24 Therefore, the circuit court must make the required determination of abuse and/or neglect
and must make findings of fact to support that determination, including that the
determination satisfies the statutory definition of abuse and/or neglect and is predicated on
clear and convincing evidence presented to the court.
Here, Mother did not assert either below or in her initial briefing on appeal
that the circuit court erred by failing to provide specific findings of fact regarding the
adjudication. Because the circuit court’s failure to make specific findings of fact does not
deprive the circuit court of subject matter jurisdiction, it can be waived.25 Furthermore, as
we have stated, “‘[g]enerally the failure to object constitutes a waiver of the right to raise
the matter on appeal.’” In re S.S., No. 15-0254, 2015 WL 6181419, at *3 (W. Va. Oct. 20,
2015) (memorandum decision) (alteration in original) (quoting State v. Asbury, 187 W. Va.
87, 91, 415 S.E.2d 891, 895 (1992) (per curiam)). Accordingly, because Mother failed to
object to the lack of specific findings of fact at the adjudicatory stage of the proceedings,
she has waived this issue on appeal.
However, even if an error is waived by a failure to object in an abuse and
neglect case, it may still be subject to scrutiny by this Court if the circuit court’s error
25 “It is well established that the issue of subject matter jurisdiction can be raised at any time, even sua sponte by this Court.” State ex rel. Universal Underwriters Ins. Co. v. Wilson, 239 W. Va. 338, 345, 801 S.E.2d 216, 223 (2017).
25 presented a substantial frustration or disregard for the applicable abuse and neglect statutes
and rules:
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 . . . will be vacated and the case remanded for compliance with that process[.]
Syl. Pt. 5, in part, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001); see also In re
E.T., 2018 WL 1773180, at *3 (finding that, despite the petitioner failing to raise the issue
on appeal, the adjudicatory defects were “obvious in the record” and that these “failure[s]
constitute[] a substantial disregard for the applicable rules and statutes such that vacation
of the resulting dispositional order [wa]s warranted”). In the case before us, at the
conclusion of the multiple, contested adjudicatory hearings wherein many witnesses
testified and documentary evidence was submitted into the record, the circuit court made
the requisite finding that the children were abused and neglected:26
26 The court’s nunc pro tunc adjudicatory order likewise states:
Thereupon the Court FOUND that based upon the testimony of witnesses and documentary evidence submitted, the respondent parents, . . . are abusing and neglectful parents, and the children [R.M.], [B.M.] and [H.M.] are abused and neglected children. The Court FOUND that this ruling is based upon the conditions existing at the time of the filing of the petition, and has been proven by clear and convincing evidence. The Court further FOUND the record establishes substantial evidence of neglect, and the medical records submitted by the respondent parents do not convince the Court otherwise. Accordingly, the Court CONCLUDED that the matter shall be set for disposition.
26 All right, well, so today then would be the ruling on adjudication, and I find that based upon the evidence in this case these children have been abused and neglected under the meaning of the law. There is substantial evidence to that effect, and so that is my ruling. None of the records have convinced me any differently, and so that is my ruling, and I am going to schedule these matters for disposition.
The court specifically declared that this case was “one of the most severe cases . . . as far
as the extreme neglect and abuse of these children and the conditions that were found at
the time of the filing of the petition.” Furthermore, the evidence presented below supports
the circuit court’s finding that each child was abused and neglected. The DHS presented
three expert witnesses that collectively discussed the feeding and speech issues and other
deficiencies that the three children have and that proper interventional services could have
remedied or significantly improved the children’s issues and that many of these
deficiencies were caused by the children’s environment. Consequently, despite the circuit
court’s failure to provide detailed factual findings regarding the determination of abuse and
neglect at the adjudicatory phase of the proceedings below, we find that the applicable
statutes and rules have not been substantially frustrated or disregarded.
To the extent that the circuit court may have erred by failing to find that Mother was an abusing parent prior to the dispositional hearing, reversal is not required under the facts of this case. Mother did not object to the absence of such a finding below and has not raised as an assignment of error on appeal. Furthermore, the record on appeal supports the circuit court’s finding that the children were abused and neglected by Mother and demonstrates that Mother knew exactly why the circuit court adjudicated the children as abused and neglected by her. The applicable rules and statutes have not been substantially frustrated here. See Syl. Pt. 5, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001).
27 B. Post-Adjudicatory Improvement Period
Having found that the circuit court had the authority to proceed to
disposition, we now address Mother’s sole assignment of error: that the circuit court erred
by terminating her parental rights without first granting her a post-adjudicatory
improvement period. There is no merit to this contention.
West Virginia Code § 49-4-610(2)(B) (eff. 2015) permits a circuit court to
grant an improvement period when a parent “demonstrates, by clear and convincing
evidence, that [she] is likely to fully participate[.]” Circuit courts have discretion to deny
an improvement period when improvement is unlikely. See In re Tonjia M., 212 W. Va.
443, 448, 573 S.E.2d 354, 359 (2002) (per curiam). Parents are not “unconditionally
entitled to an improvement period” and the “burden of proof falls upon the parent
requesting an improvement period.” In re Charity H., 215 W. Va. 208, 215, 216, 599
S.E.2d 631, 638-39 (2004) (per curiam). Moreover, “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 threatened[.]” Syl. Pt. 1, in
part, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980).
While there is some evidence that Mother participated in services throughout
the proceeding and had several clean drug tests, she ultimately failed to demonstrate that
she should have been granted an opportunity to remedy the circumstances that led to the
28 initial petition being filed. Mother, despite various clean drugs tests, continued to have at
the very least intermittent positive results for methamphetamine and THC during the
proceedings, failed to acknowledge the abuse and neglect she inflicted upon the children,
and consistently denied the poor conditions of the home. As this Court has repeatedly
stated, “Failure to acknowledge the existence of the problem . . . results in making the
problem untreatable and in making an improvement period an exercise in futility at the
child’s expense.” W. Va. Dep’t of Health & Hum. Res. ex rel. Wright v. Doris S., 197
W. Va. 489, 498, 475 S.E.2d 865, 874 (1996). Therefore, the circuit court correctly denied
Mother’s motion for an improvement period.
IV.
CONCLUSION
For the reasons set forth above, the May 17, 2024 order of the Circuit Court
of Kanawha County that terminated Mother’s parental rights is affirmed.
Affirmed.