Background
In January 2025, an attorney who had served as J.M.’s guardian ad litem in prior proceedings filed an abuse and neglect petition alleging that the child’s parents had abandoned J.M. and failed to provide necessities, supervision, medical care, and education. The petition described Child Protective Services referrals dating to 2017 involving parental substance abuse, poor housing conditions, inadequate care, and truancy. J.M.’s aunt received guardianship in 2019 but relinquished it in 2022, after which J.M. lived in several foster homes.
The circuit court appointed the petitioning attorney as J.M.’s guardian ad litem in the new proceeding. The mother did not appear at the April 2025 adjudicatory hearing but was represented by counsel. After hearing testimony from the aunt and a CPS worker, the court adjudicated both parents as abusing or neglecting parents based on abandonment and failure to provide for J.M. At disposition, the Department of Human Services presented testimony concerning the parents’ lack of care, contact, participation, and bond with the child. The court found no reasonable likelihood that the conditions could be substantially corrected in the near future and terminated both parents’ parental rights.
The Court’s Holding
The Supreme Court of Appeals of West Virginia affirmed. It rejected the mother’s sole appellate argument that the attorney became a separate party in interest—or effectively the prosecuting party—by filing the petition and therefore could not also serve as J.M.’s guardian ad litem.
West Virginia Code § 49-4-601(a) permits the Department of Human Services or a “reputable person” to file an abuse and neglect petition, and the mother conceded that the guardian ad litem qualified as a reputable person. Relying on In re B.C. and In re D.H., the court explained that filing a petition does not give the filer a personal stake or make that person the prosecuting party in interest. An abuse and neglect action is prosecuted by the State in its parens patriae role. Because the guardian ad litem did not become a separate party by filing the petition and the Department fulfilled its prosecutorial role, the circuit court did not err by appointing the attorney to represent J.M.
Key Takeaways
- A guardian ad litem who qualifies as a “reputable person” may file an abuse and neglect petition under West Virginia Code § 49-4-601(a).
- Filing the petition does not make the guardian ad litem a separate party in interest or the prosecuting party; the State prosecutes the proceeding as parens patriae.
- The court affirmed the termination order because the challenged appointment did not violate the statutory prohibition against one attorney representing both the child and another party.
Why It Matters
The decision clarifies that a child’s attorney does not become disqualified from serving as guardian ad litem merely by initiating an abuse and neglect proceeding as a reputable person. The relevant conflict inquiry turns on whether the attorney represents the child and another party, not simply whether the attorney filed the petition.
The ruling also reinforces the Department’s and the State’s prosecutorial role in abuse and neglect cases, even when someone other than the Department initiates the action.