Justia Family Law Opinion Summaries

When a child is born alive, the presence of illegal drugs in the child’s system at birth constitutes sufficient evidence that the child is an abused and/or neglected child, as those terms are defined by W. Va. Code 49-1-201, to support the filing of an abuse and neglect petition pursuant to W. Va. Code 49-4-601The West Virginia Department of Health and Human Resources filed an abuse and neglect petition against Father alleging that Child was an abused and/or neglected child. The allegations of Father’s misconduct included his failure to protect Child from Mother’s drug use - both prenatal and ongoing after Child’s birth - and his continuing association with Mother. Father filed a motion to dismiss the petition claiming that because an abuse and neglect proceeding could not be brought to protect a child who has not yet been born, a parent could not be charged with injuries in utero. The circuit court agreed to certify a question to the Supreme Court insofar as it was deemed to be determinative of Father’s motion to dismiss. The Supreme Court answered the question as reformulated. View "In re A.L.C.M." on Justia Law

Seven entities under contract to provide residential services to youth in the state (collectively, Petitioners) filed a petition for writ of mandamus requiring the West Virginia Department of Health and Human Services (DHHR), its Cabinet Secretary, the West Virginia Bureau for Medical Services (BMS), its Acting Commissioner, the Bureau for Children and Families (BCF), and its Commissioner (collectively, Respondents) to promulgate new or amended legislative rules prior to implementing changes to existing residential child care services policies. The Supreme Court granted a writ as moulded, finding it most appropriate to order this matter to be docketed in this circuit court as if it were an original proceeding in mandamus in that court. Remanded for further proceedings. View "State ex rel. Pressley Ridge v. W. Va. Department of Health & Human Resources" on Justia Law

Husband and Wife were granted a divorce by order of the family court in 2014. The circuit court affirmed the family court’s orders. Both parties appealed. The Supreme Court affirmed, holding that the trial court did not err in (1) classifying certain property as marital property; (2) calculating Husband’s gambling losses; (3) denying Husband credit for payments Husband made during the parties’ separation; (4) ordering Husband to pay one-half of the attorney’s fees incurred by Wife; (5) calculating amounts due to Wife on one of the marital assets; and (6) failing to award Wife a cash sum to equalize the distribution of marital assets. View "P.A. v. T.A." on Justia Law

Mother and Father were the biological parents of D.M. D.M. was removed from Mother and Father and placed in the custody of the West Virginia Department of Health and Human Resources (the DHHR). After a dispositional hearing, the circuit court entered a final order finding D.M. to be an abused and neglected child and terminating the parental rights of both Mother and Father. The court denied Mother’s and Father’s motions for a post-adjudicatory improvement period and ordered that custody of D.M. will remain with the DHHR. The Supreme Court affirmed, holding that the circuit court (1) did not err in determining that D.M. was an abused and neglected child and that there was no reasonable likelihood that the conditions of neglect or abuse could be substantially corrected in the near future; and (2) properly determined that neither Mother nor Father established a likelihood of full participation in a post-adjudicatory improvement period. View "In re D.M." on Justia Law

S.H. was adjudicated to have been neglected by her maternal grandmother and guardian, M.C. M.C. was granted an improvement period, but the improvement period was abruptly terminated by the court’s order, and M.C.’s guardianship of S.H. was subsequently terminated. The court affirmed the determination that S.H. was a neglected child, finding no error as to that conclusion. However, the court concluded that termination of M.C.’s improvement period was erroneous because M.C. was in full compliance with the terms and conditions of her improvement period. Accordingly, the court reversed and remanded with directions. View "In Re: S.H." on Justia Law

The parties were divorced in 2012. The original order provided that, for tax exemption purposes, the father would claim Child B. and the mother would claim Child C. In 2014, mother sought modification of child support and medical support and requested an order providing that when one of the children reaches the age of majority, the remaining exemption should be rotated between the parents annually. Father requested the court to amend the order to include details of a joint parenting plan and to allocate the tax exemptions according to West Virginia Code 48-13-801.3, which requires that tax exemptions be proportioned between the parents according to income. After a remand from the circuit court, the family court clarified that the parties had agreed to “equal custodial allocation” and that the father had requested re-allocation of the tax exemptions only if no agreement was reached and observed: “It did not appear that the [mother’s] income and child support would be greater if the payor was awarded the exemption.” The Supreme Court of Appeals of West Virginia reversed, stating that the oral agreement regarding custodial allocation and other tangential issues did not eliminate the need to allocate the exemptions according to the statutory requirements, and remanded for financial analysis under the statute. View "Eric M. v. Laura M." on Justia Law

The West Virginia Department of Health and Human Resources (DHHR) filed a petition alleging abuse and neglect against Father. After an adjudicatory hearing, the circuit court dismissed the abuse and neglect petition, concluding that DHHR failed to meet its burden of proving by clear and convincing evidence that Father was abusive. The Supreme Court reversed, holding that the circuit court’s dismissal of the abuse and neglect petition was clear error because the DHHR presented clear and convincing evidence that Father showed a sexually explicit video to two of his children and engaged in some sort of sexual conduct with one child. View "In re C.M." on Justia Law

In 2010, an abuse and neglect petition was filed alleging that Child’s mother (Mother) was under the influence of drugs while caring for Child. The Department of Health and Human Resources (DHHR) subsequently placed Child in the care of his paternal grandparents (Grandparents). In 2013, the circuit court held a permanency hearing and granted legal guardianship to Grandparents. Thereafter, Mother filed a petition to overturn legal guardianship, asserting that her recovery and continued sobriety constituted a material change in circumstances justifying a modification of the custody of Child. After a hearing held in 2015, the circuit court terminated Grandparents’ legal guardianship and ordered the transfer of Child to Mother. Grandparents appealed. The Supreme Court reversed, holding that there was insufficient evidence in the record indicating that alteration of custody would serve Child’s best interests at this time. View "In re S.W." on Justia Law

The Department of Health and Human Resources (DHHR) filed an abuse and neglect petition against Parents. After an adjudicatory hearing on the DHHR’s petition, the circuit court granted the DHHR custody of Parents’ minor children, and the children were placed in foster care. Parents subsequently filed motions for improvement periods. After two evidentiary hearings, the circuit court entered a dispositional order denying Parents an improvement period and terminating Parents’ parental and custodial rights. The Supreme Court affirmed, holding that the circuit court (1) did not err in denying Parents’ motions for improvement periods; and (2) did not err in terminating Parents’ parental and custodial rights. View "In re M.M." on Justia Law