Background
The West Virginia Department of Human Services filed an abuse and neglect petition against M.D. in August 2023 after she failed to follow a safety plan implemented when she recorded a video threatening self-harm in A.C.’s presence. M.D. stipulated that mental-health and substance-abuse issues impaired her parenting and judgment and was adjudicated an abusing parent. She received a post-adjudicatory improvement period. In February 2024, she submitted a document titled “Disposition 5 Agreement,” stating that she was presently unable to provide adequately for A.C.’s needs. Although she was the document’s only signatory, the circuit court found that she knowingly, voluntarily, and intelligently waived a contested dispositional hearing.
The court left M.D.’s parental rights intact but ordered that A.C.’s full legal, physical, and residential custody remain with her nonabusing father. It also directed the parties to return in one year to address modification and scheduled a hearing on an anticipated motion. DHS moved on February 13, 2025, to modify the disposition and terminate M.D.’s parental rights. Following a continuance, the court heard evidence on April 25, 2025. M.D. and the guardian ad litem sought continuation of the existing arrangement, and the father was amenable to another year, subject to treatment and testing. DHS proceeded with termination.
The father testified that he found a straw he perceived to be drug paraphernalia in M.D.’s purse during summer 2024. M.D. said she had taken it from a Narcotics Anonymous attendee whom she suspected would use drugs. The father ended overnight visits but later allowed non-overnight visits and said he had never suspected M.D. was under the influence during visits. M.D. denied using substances during the year and testified that she had been clean for almost three years. The child protective services worker confirmed that DHS filed the modification motion to comply with the court’s one-year policy and testified that “nothing ha[d] changed” and that M.D. had “continued to stay the same.” Nevertheless, the circuit court found a material change of circumstances and terminated M.D.’s parental rights on May 8, 2025. A.C. remained with her father, whose rights remained intact.
The Court’s Holding
The Supreme Court of Appeals reversed and remanded with directions. It first held that the original disposition had been mischaracterized. Section 49-4-604(c)(5) does not encompass placement with a nonoffending parent; it applies to temporary placement with a guardian, DHS, or a licensed private child-welfare agency. Because A.C. was placed in her father’s sole custody, the intended disposition was a termination of M.D.’s custodial rights governed by § 49-4-604(c)(6).
The court accepted DHS’s confession of error only after independently examining the record. DHS acknowledged that its motion did not expressly allege a material change of circumstances and that the evidence did not support that finding or establish that termination served A.C.’s best interests. The court agreed, emphasizing the CPS worker’s testimony that nothing had changed and the absence of supporting testimony for the circuit court’s findings concerning methamphetamine possession and deteriorating circumstances. Under § 49-4-606(a), modification requires clear and convincing evidence of both a material change of circumstances and that modification is in the child’s best interests. DHS did not meet that burden.
The court also found no statutory or rule-based support for automatically requiring a modification proceeding one year after a so-called Disposition 5 or a § 49-4-604(c)(6) termination of custodial rights. Section 49-4-606 imposes no such deadline, and Rule 46 generally permits a motion to modify or supplement a dispositional order “at any time.” The policy effectively created an unsupervised improvement period, shifted the burden to parents, and presupposed a modification motion even when the statutory prerequisites were absent. Applying In re Edward B., the court held that the policy substantially disregarded and frustrated the governing rules and statutes.
Key Takeaways
- Placement with a nonoffending parent is not a § 49-4-604(c)(5) disposition; sole custody with that parent may instead constitute termination of the other parent’s custodial rights under subsection (c)(6).
- Dispositional modification requires clear and convincing evidence of a material change of circumstances and the child’s best interests.
- A blanket one-year modification policy cannot replace the statutory prerequisites or shift DHS’s burden to the parent.
- On remand, the amended order must properly delineate post-termination visitation; visitation is the child’s right and cannot simply be left to the father’s sole discretion.
Why It Matters
The decision distinguishes substantive review for abuse of discretion and factual review for clear error from de novo review of legal and statutory questions. It also makes a confession of error non-dispositive: the appellate court independently verified that the evidence could not support modification.
The remand is for an amended dispositional order consistent with the parties’ intended termination of custodial rights under § 49-4-604(c)(6), not for automatic restoration of custody. The ruling supplies the sole disposition: reversal of the May 8, 2025 termination order and remand with directions, including proper treatment of visitation.