Background
In September 2023, the West Virginia Department of Human Services filed an abuse and neglect petition against Petitioner Mother D.T. after she admitted to sexually assaulting a thirteen-year-old family friend, M.L., while her children D.B. and A.B. were present in the same room — one asleep in the same bed and another in a separate bed. The petitioner was charged with third-degree sexual assault. At a December 2023 adjudicatory hearing, the petitioner stipulated to the allegations, and the circuit court adjudicated her as an abusive and/or neglectful parent to D.B. and A.B.
The circuit court subsequently found that aggravated circumstances existed because the petitioner had temporary custody of M.L. when she sexually abused him with a child present, thereby relieving the DHS of its statutory duty to make reasonable efforts to preserve the family. Nonetheless, the court granted the petitioner a post-adjudicatory improvement period — not for reunification purposes, but solely to provide sex offender treatment to protect community children. After L.B. was born in 2024, the DHS amended its petition, but the circuit court never held an adjudicatory hearing for L.B.
Following a final dispositional hearing in January 2025, the circuit court terminated the petitioner’s parental, custodial, and guardianship rights to all three children. The petitioner appealed, challenging the aggravated circumstances finding, the limitations placed on her improvement period, and the termination of her rights to L.B. specifically.
The Court’s Holding
The Supreme Court of Appeals affirmed the circuit court’s finding of aggravated circumstances as to D.B. and A.B. Under West Virginia Code § 49-1-204, a “custodian” is defined as any person who has actual physical possession or care of a child, regardless of formal custody arrangements. Because M.L. was spending the night at the petitioner’s home and the petitioner was at times the sole adult present, she qualified as M.L.’s custodian. Her admitted sexual abuse of M.L. under those conditions, with the children present, satisfied the statutory aggravated circumstances standard. The court also upheld the circuit court’s discretionary decision to limit the improvement period to sex offender treatment rather than reunification services.
However, the court vacated the termination of parental rights as to L.B. and remanded for further proceedings. The circuit court had proceeded directly to disposition as to L.B. without ever holding an adjudicatory hearing or making the required findings that L.B. was abused or neglected. Both the DHS and the guardian ad litem conceded this error on appeal. The court emphasized that specific adjudicatory findings are a statutory prerequisite before any dispositional alternatives may be considered, and that the sole allegation in the amended petition concerning L.B. — that the petitioner’s rights to D.B. and A.B. had been involuntarily terminated — was factually incorrect at the time it was filed.
On remand, the circuit court is directed to ensure compliance with the rules governing abuse and neglect petitions and the adjudicatory process, and to permit the DHS to file a corrected amended petition as to L.B.
Key Takeaways
- A person who provides overnight care for a child qualifies as a “custodian” under West Virginia law — and thus can trigger the aggravated circumstances standard — even without any formal custody agreement, so long as the person has actual physical possession of the child.
- Circuit courts have discretion to grant an improvement period for purposes other than reunification (such as sex offender treatment for community protection) even where aggravated circumstances relieve the DHS of its duty to make reasonable efforts to preserve the family.
- An adjudicatory hearing is a mandatory statutory prerequisite to any dispositional order in a child abuse and neglect case; terminating parental rights without first adjudicating the child as abused or neglected is reversible error requiring vacatur and remand.
- A DHS petition premised on a prior “involuntary termination” of parental rights is factually defective if those rights had not yet been involuntarily terminated at the time of filing.
Why It Matters
This decision reinforces the breadth of West Virginia’s aggravated circumstances doctrine, making clear that informal custodial arrangements — such as overnight stays — are sufficient to trigger the heightened standard that eliminates the DHS’s duty to pursue family preservation services. Defense attorneys and family law practitioners should take note that courts will look to actual physical possession, not formal legal status, when assessing custodial responsibility for purposes of the aggravated circumstances analysis.
Equally significant is the court’s firm reaffirmation that the adjudicatory hearing requirement is not a procedural formality. Courts and agencies must proceed child-by-child through the statutory framework; skipping the adjudicatory phase for a subsequently born child — even where aggravated circumstances already exist in the same case — is a fundamental defect that voids any resulting dispositional order. Practitioners should scrutinize whether each child named in a petition has received an individualized adjudicatory determination before disposition is entered.