West Virginia Supreme Court Rulings
Parent and Child
State of West Virginia ex rel. West Virginia Department of Health and Human Resources, Child Support Division, on Behalf of Laura F. M. and Joseph Charles C. v. Honorable Danny O. Cline, Judge of the Circuit Court of Braxton County, and Mark Edward C., No. 23411 (W. Va. July 8, 1996) (Workman, J.):
Prohibiting DNA testing where the father had signed an affidavit of paternity at the time of the child's birth, the Court held that (1) a written acknowledgment of paternity, pursuant to W. Va. Code § 48A-6-6(b), shall include (i) filing instructions, (ii) the social security numbers and addresses of the parents, and (iii) a statement regarding the rights and obligations of the man acknowledging paternity, including, but not limited to, the duty to support the child; (2) failure to include all of the information statutorily required in an acknowledgment of paternity will not affect its validity in the absence of evidence of fraud and/or duress; and (3) an written, notarized acknowledgment of paternity by both the man and the mother, in the absence of fraud or duress, that the man is the biological father of the child establishes, legally and irrevocably, the man as the father of the child for all purposes, including child support.
West Virginia Department of Health and Human Resources ex rel. Brenda Wright, Social Service Worker v. Doris S. and Rosalee S. and West Virginia Department of Health and Human Resources ex rel. Brenda Wright, Social Service Worker v. Melissa C., Brian "S." C., Larry "M." C., Joseph E., David E., and any known and unknown putative father or fathers of the infant children, Brian "S."C. and Larry "M."C., David E., No. 23156 and West Virginia Department of Health and Human Resources ex rel. Brenda Wright, Social Service Worker v. Doris S. and Rosalee S. and West Virginia Department of Health and Human Resources ex rel. Brenda Wright, Social Service Worker v. Melissa C., Brian "S." C., Larry "M." C., Joseph E., David E., and any known and unknown putative father or fathers of the infant children, Brian "S."C. and Larry "M."C., Melissa C. and Doris S., No. 23157 (W. Va. July 8, 1996) (Workman, J.):
Affirming the termination of parental rights where no one present in a home at the time of another infant's death could explain the possible cause of such death, the Court held that (1) an abused child includes one whose parent fails to cooperate with authorities in identifying the perpetrator of physical abuse of the child or another child in the abused child's household; (2) a parent's silence in the face of competent evidence of abuse and/or neglect may create an inference of of such parent's guilt; (3) child abuse and/or neglect includes permitting another adult in the parent's household to abuse and/or neglect other children in the household, regardless of the familial relationships among the parties; (4) the term "knowingly" in W. Va. Code § 49-1-3(a)(1) includes not only actual knowledge, but where the parent should have known that abuse has occurred; and (5) parental rights can be terminated where (i) there is clear and convincing evidence that a parent "knowingly" allowed another adult to inflict serious physical injury on another child living in the household, regardless of the familial relationships among the parties, and (ii) where there is no reasonable likelihood that the conditions of abuse can be substantially corrected because the perpetrator has not been identified and the parent has not cooperated with authorities in their attempts to identify the perpetrator.
State of West Virginia ex rel. Roy Allen S. v. Honorable Robert B. Stone, Judge of the Circuit Court of Monongalia County, Thomas S., and Tina Marie P.S., No. 23355 (W. Va. June 14, 1996)
(Cleckley, J.): Establishing the right of a putative biological father to institute paternity proceedings although the child was born during the mother's marriage to another man, the Court held (1) when an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child warrants substantial protection under the due process provisions of the federal and state constitutions; (2) in the absence of special circumstances, a petition by a putative biological father seeking to establish his paternity of a child born during the mother's marriage to another man, if such petition is contested, may not proceed unless it is demonstrated by clear and convincing evidence that (i) he has established a substantial paternal relationship with the child and (ii) the child will not be harmed by allowing the paternity action to proceed; (3) when a putative biological father institutes a paternity action, the child must be joined as a party and a guardian ad litem appointed; (4) when a paternity action is filed under these circumstances, the circuit court should conduct a preliminary hearing to determine whether the preconditions to such action are present; (5) in determining whether to order blood testing under these circumstances, the most important factor is the child's best interests; (6) circuit court decisions regarding the propriety of these types of paternity actions and the need for blood testing will be subject to abuse of discretion appellate review; and (7) because these proceedings are equitable in nature, equitable defenses, such as the doctrine of laches, are available, and attorney fees may be imposed for vexatious or groundless actions.
State of West Virginia ex rel. Amy M., Shane B., II, Jesse B., Matthew B., and Travis B. v. Hon. Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, Betty Jo B., and Shane B., No. 23212 (W. Va. April 8, 1996) (Workman, J.): ___ W. Va. ___, 470 S.E.2d 205:
Issuing a writ of prohibition against a post-adjudicatory improvement period, the Court held a writ of prohibition may be used to restrain courts from granting improvement periods of greater duration than permitted under W. Va. Code §§ 49-6-2(b) and 49-6-5(c).
In the Interest of: Tiffany Marie S., Taylor Brooks S., Children Under the Age of Eighteen Years, No. 23198 (W. Va. March 20, 1996) (Cleckley, J.): ___ W. Va. ___, 470 S.E.2d 177:
Affirming the termination of parental rights, the Court held that findings of fact in an abuse and neglect cause will not be set aside unless clearly erroneous, i.e., when, though there is evidence to support the findings, the reviewing court is convinced that a mistake has been committed.
State of West Virginia Dept. of Health and Human Resources, et al. v. Robert Morris N., No. 22916 (W. Va. December 15, 1995) (Workman, J.): 195 W.Va. 759, 466 S.E.2d 827:
Reversing an order limiting the retroactivity of a child support award in a paternity action to the date
of commencement of the paternity proceedings, the Court held that reimbursement child support
should be made retroactive to the child's date of birth, absent proof of laches or another affirmative
defense.
In the Matter of Lindsey C., No. 23065 (W. Va. December 14, 1995) (Albright, J.):
Reversing an order terminating parental rights for a mother who was hospitalized for mental illness in another state during the pendency of the proceedings and for whom no guardian ad litem was appointed, the Court held that (1) the appointment of a guardian ad litem is required for parents in abuse and neglect proceedings who are involuntarily hospitalized for mental illness and (2) service of process on a guardian ad litem for a parent involuntarily hospitalized for mental illness, but whose legal capacity has not been terminated by law, cannot serve as a substitute for service on the parent for purposes of an abuse and neglect proceeding.
In the Matter of Brian D., No. 22558 (W. Va. July 19, 1995) (Workman, J.): 194 W.Va. 623, 461
S.E.2d 129: Reversing a termination of parental rights where no meaningful improvement period was provided, the Court reiterated the importance of the requirement, as well as its recent holding in In re: Christina L., Nos. 22803 and 22804 (W. Va. July 11, 1995), that even where parental rights are ultimately terminated, continued contact between a parent and child may be appropriate where it is in
the best interest of the child. James Garland Casdorph, Jr. v. Shela Gail Casdorph, No. 22687 (W. Va. July 13, 1995) (Workman, J.): 194 W.Va. 490, 460 S.E.2d 736:
Where adult became disabled at age nineteen, the Court affirmed resurrection of a support obligation on the noncustodial parent, holding that a disabled adult's entitlement to financial support by a noncustodial parent is not determined solely by whether the disability occurred before or after the age of majority, but if it can be concluded that the disabled person was never "emancipated" from his parent[s], a court may impose a duty of continued financial support.
In re: Christina L. and Kenneth J.L., Nos. 22803 and 22804. (W. Va. July 11, 1995) (Cleckley, J.):
194 W.Va. 446, 460 S.E.2d 692:
Reversing and remanding for further proceedings relating to termination of parental rights where the
mother did not dispute termination as to one child who was sexually abused by her boyfriend, but
did as to another child who was not sexually abused, the Court held (1) where one child has suffered
physical and/or sexual abuse, another child residing in the home when the abuse took place, but who
was not the direct victim of physical and/or sexual abuse, was nevertheless at risk of being abused
and, accordingly, is an abused child under W. Va. Code § 49-1-3(a); (2) where parental rights are
terminated, a court may nevertheless order continued visitation or contact if (i) it is in the best interest
of the child, (ii) there is a close emotional bond, (iii) the child has expressed a mature wish for
continued contact, and (iv) it will not be detrimental to the child's well-being; and (3) where parental
rights termination is sought on the ground of abandonment, it should be specifically alleged in the
petition and every effort should be made to comply with the notice provisions of W. Va. Code §
49-6-1.
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