Background
In November 2024, the West Virginia Department of Human Services filed an abuse and neglect petition against D.M. (Petitioner Father) regarding his young child, M.M. The petition alleged that D.M. had engaged in domestic violence with the child’s mother in the child’s presence. The child’s mother had previously relinquished her parental rights in a separate prior proceeding, and D.M. had taken custody of M.M. at the conclusion of those proceedings. Despite this arrangement, D.M. admitted to a DHS investigator that he and the child were still living with the mother — a prohibited arrangement given her relinquishment. D.M. further admitted to punching and shattering a glass window out of frustration and subsequently engaging in a physical altercation with the mother that led to his arrest, leaving M.M. in the mother’s care. DHS also reported no food in the home and an inability to confirm that the child was being fed or receiving appropriate medical care.
At the December 2024 adjudicatory hearing, D.M. moved for a continuance and court-ordered paternity testing, both of which the court granted. Although listed as the father on M.M.’s birth certificate and having previously taken custody without contesting paternity, D.M. never submitted to the ordered test. He failed to appear at the January 2025 reconvened adjudicatory hearing despite his counsel’s repeated attempts to contact him, and he was absent again at the February 2025 final adjudicatory hearing and the March 2025 dispositional hearing. He participated in none of the eight required drug screens and was entirely unresponsive to his own counsel after December 2024.
At adjudication, a CPS worker testified without objection that D.M. was M.M.’s father and described the evidence of domestic violence, including broken glass, the father’s bloodied and injured appearance, and his own admissions. The circuit court found that D.M. had allowed the mother to live with and care for M.M. knowing she was prohibited from doing so, and that domestic violence had occurred in the child’s presence. At disposition, based on D.M.’s total absence from proceedings and failure to engage in any services, the Wood County Circuit Court found no reasonable likelihood that conditions of abuse and neglect could be substantially corrected in the near future and terminated his parental rights on May 15, 2025.
The Court’s Holding
The Supreme Court of Appeals of West Virginia unanimously affirmed the circuit court’s termination order. On the paternity issue, the court held that the DHS had met its burden through uncontested CPS worker testimony that D.M. was M.M.’s father, along with the father’s listing on the birth certificate and his prior unchallenged assumption of custody. The court further noted that D.M. had himself sought and obtained a court-ordered paternity test but then failed to submit to it, squandering his own opportunity to present rebuttal evidence. With no contrary evidence before the circuit court, its reliance on the evidence of paternity was not clearly erroneous.
On the dispositional hearing challenge, the court rejected D.M.’s argument that the absence of live witness testimony rendered the hearing procedurally defective under Rule 35 of the Rules of Procedure for Child Abuse and Neglect Proceedings. The court held that admission of the DHS and CASA reports into evidence — to which D.M.’s counsel raised no objection — satisfied the requirement of a dispositional hearing. The court also rejected the cross-examination argument, observing that D.M. was not precluded from calling witnesses, including the report authors, and that he was afforded a meaningful opportunity to be heard under W. Va. Code § 49-4-601(h) but chose not to exercise those rights.
The court further noted that D.M. did not challenge the underlying dispositional findings — that there was no reasonable likelihood conditions of abuse and neglect could be substantially corrected in the near future and that the child’s need for continuity of care necessitated termination — which independently supported the circuit court’s order under W. Va. Code § 49-4-604(c)(6) and the court’s prior precedent in In re Kristin Y., 227 W. Va. 558 (2011).
Key Takeaways
- A parent who obtains a court-ordered paternity test but fails to submit to it cannot later successfully challenge paternity findings on appeal; uncontested testimony and birth certificate listing are sufficient to establish parentage.
- A dispositional hearing in a West Virginia abuse and neglect proceeding does not require live witness testimony where reports are admitted into evidence without objection and the parent was afforded — but declined to exercise — the right to call and cross-examine witnesses.
- A parent’s complete abandonment of proceedings — missing multiple hearings, failing all drug screens, and refusing contact with counsel — supports a finding of no reasonable likelihood of correction and warrants termination of parental rights without resort to less restrictive alternatives.
- Appellate challenges to dispositional findings that were never contested below will not provide grounds for reversal under the clear-error standard of review.
Why It Matters
This decision reinforces that West Virginia courts will not reward strategic or negligent absence from child abuse and neglect proceedings. A parent who seeks procedural protections — such as a paternity test — but then abandons the proceedings before exercising those rights will not obtain appellate relief on the basis that the lower court lacked sufficient evidence. The ruling draws a clear line: the opportunity to be heard, not the exercise of that opportunity, is what due process requires.
For practitioners, the case is a useful illustration of how West Virginia courts treat unobjected-to documentary evidence at disposition and confirms that admission of DHS and CASA reports, standing alone, can satisfy the dispositional hearing requirement under the Rules of Procedure for Child Abuse and Neglect Proceedings. It also underscores that unchallenged dispositional findings — particularly the “no reasonable likelihood of correction” finding — are effectively insulated from appellate review, making it critical for counsel to preserve all challenges at the circuit court level.