STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
April 20, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
In re B.K. Jr., OF WEST VIRGINIA
No. 20-0774 (Grant County 19-JA-43)
MEMORANDUM DECISION
Petitioner Father B.K., by counsel J. Brent Easton, appeals the Circuit Court of Grant
County’s July 15, 2020, order terminating his parental rights to B.K. Jr. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a
response in support of the circuit court’s order. The guardian ad litem, Marla Zelene Harman,
filed a response on behalf of the child in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in denying his motion for an improvement period
and terminating his parental rights because it denied him the right to testify at disposition.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the governing law, the briefs, and the record presented,
the Court finds that the circuit court erred in denying petitioner the right to testify at the
dispositional hearing. This case satisfies the “limited circumstances” requirement of Rule 21(d)
of the West Virginia Rules of Appellate Procedure, and a memorandum decision is appropriate
to vacate, in part, and remand the matter for further proceedings consistent with this decision.
Given that the resolution of this matter turns on purely legal issues, it is unnecessary to
set forth a detailed factual and procedural history of the matter below. It is sufficient to note that
the DHHR filed an abuse and neglect petition in November of 2019 alleging that petitioner and
his wife abused drugs; failed to provide the children 2 with a safe home, given its general
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.
Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419
(2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles
L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
2
The proceedings below concerned additional children who are not at issue on appeal.
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condition; and failed to provide the children with proper supervision. 3 After several continued
hearings, the circuit court held an adjudicatory hearing in June of 2020 and adjudicated petitioner
as abusive and neglectful upon findings that he failed to provide a safe and hygienic home for the
children, physically abused the children, and perpetrated domestic violence in the children’s
presence, among other findings.
In July of 2020, the court held a dispositional hearing. At the outset of the hearing, the
court asked counsel for the parties for their recommendations for disposition. A Child Protective
Services worker informed the court that the DHHR sought termination of petitioner’s parental
rights. Counsel for petitioner and the mother then each advocated for improvement periods.
During the guardian’s proffer, counsel for petitioner asked, “Shouldn’t we put testimony on
now?” The court responded, “No, we’re not required to.” Shortly thereafter, without having
taken any evidence, the court concluded by saying, “I agree with the guardian ad litem. Rights
are terminated. . . . This hearing is closed.” At that point, the mother’s counsel advised the court
as follows: “Judge, my client does want to address the [c]ourt.” The court succinctly ruled that
the request was denied. The circuit court’s termination of petitioner’s parental rights to B.K. Jr.
was memorialized in its July 15, 2020, dispositional order, from which petitioner now appeals. 4
On appeal, petitioner argues that he was denied his right to be heard at the dispositional
hearing when the circuit court refused him the opportunity to testify. We agree. As this Court has
held,
“West Virginia Code, Chapter 49, Article [4], Section [601 (2015)], as
amended, and the Due Process Clauses of the West Virginia and United States
Constitutions prohibit a court or other arm of the State from terminating the
parental rights of a natural parent having legal custody of his child, without notice
and the opportunity for a meaningful hearing.” Syl. Pt. 2, In re Willis, 157 W. Va.
225, 207 S.E.2d 129 (1973).
Syl. Pt. 3, In re T.S., 241 W. Va. 559, 827 S.E.2d 29 (2019). 5 In short, we find that the circuit
court’s statement that it was not required to allow testimony at disposition and its refusal to
permit another parent respondent to testify or address the court were in direct contradiction of the
requirements of West Virginia Code § 49-4-601 and this Court’s interpretations thereof. Indeed,
as this Court has explained, “[b]oth our statutory and case law unequivocally require that parents
. . . be afforded a meaningful opportunity to be heard. This necessarily includes the right to
3
Later, the DHHR filed an amended petition including allegations of domestic violence
and excessive corporal punishment, among other allegations.
4
The child’s mother is deceased.
5
While this holding specifically references a prior version of West Virginia Code § 49-4-
601, the current version, enacted in May of 2019, retains language requiring that parents be
provided a “meaningful opportunity to be heard, including the opportunity to testify.”
2
testify and to present witnesses, as well as to cross-examine witnesses in any abuse and neglect
proceeding.” T.S., 241 W. Va. at 564, 827 S.E.2d at 34. Further, we have previously held that
“[w]here 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 [alleged] 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 and entry of an
appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
558 S.E.2d 620 (2001).
Syl. Pt. 3, In re Emily G., 224 W. Va. 390, 686 S.E.2d 41 (2009). As such, the circuit court’s
order must be vacated, in part, and the matter remanded for the holding of a new dispositional
hearing, during which petitioner must be afforded the right to be heard. This includes the right to
testify and present witnesses, in addition to the right to cross-examine any other witnesses
presented. W. Va. Code § 49-4-601(h).
For the foregoing reasons, we vacate, in part, 6 the circuit court’s July 15, 2020, order
terminating petitioner’s parental rights and remand this matter for further proceedings consistent
with the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings and
Chapter 49 of the West Virginia Code. Further, the circuit court is hereby ordered to hold a new
dispositional hearing and issue a final order in this case within sixty days of issuance of this
decision. The Clerk is hereby directed to issue the mandate contemporaneously herewith.
Vacated, in part, and remanded with direction.
ISSUED: April 20, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
6
The order on appeal also contained rulings regarding petitioner’s wife and the
termination of her parental rights to several children not at issue in this appeal. We previously
vacated this same order, in part, in regard to petitioner’s wife and remanded the matter with
direction in her related appeal. In re H.T., J.T.-1, J.T.-2, E.T., and D.T., No. 20-0598, 2020 WL
7260696 (W. Va. Dec. 10, 2020)(memorandum decision).
3