Due Process Hearing Rights and Statutory Findings Required in Parenting Plan Modifications Under W. Va. Code § 48-9-401

Introduction

In In re H.L. (No. 25-345, W. Va. Sup. Ct. App. May 6, 2026), Petitioner Mother A.F. appealed the Circuit Court of Kanawha County’s denial of her February 2025 motion to modify a parenting plan governing custody and visitation of H.L. The family’s litigation history originated in a 2016 abuse and neglect case that was dismissed in 2017, after which the circuit court returned the child to the parents under a prior plan. Mother later obtained expanded time in 2020.

The 2025 modification motion alleged (among other things) an unanticipated substantial change in circumstances, that the plan was not functioning as intended, and that the plan was “manifestly harmful to the child” under West Virginia Code § 48-9-401(a) and (b). The circuit court requested that the West Virginia Department of Human Services (“DHS”) investigate. DHS did not substantiate abuse/neglect allegations and declined to file a petition.

The key appellate issues were procedural and decisional: (1) whether Mother was denied due process when the court resolved the motion without allowing her to testify, present evidence, or cross-examine; and (2) whether the circuit court’s one-page order contained legally sufficient findings and applied the correct statutory standard for modification under § 48-9-401.

Summary of the Opinion

The Supreme Court of Appeals of West Virginia vacated the April 28, 2025 order and remanded with instructions to hold a new hearing and enter a new order containing appropriate findings of fact and conclusions of law. The Court held that the circuit court:

  • violated Mother’s due process rights by denying the motion immediately after hearing only Father’s testimony, without allowing Mother to testify, present evidence, or cross-examine witnesses; and
  • committed legal error by basing denial solely on DHS’s lack of substantiation (an abuse/neglect screening outcome) rather than applying the parenting plan modification standards in West Virginia Code § 48-9-401(a) and (b), and by failing to make sufficient factual findings to permit meaningful appellate review.

Analysis

Precedents Cited

  • McCormick v. Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996) and Syl. Pt. 1, In re S.W., 236 W. Va. 309, 779 S.E.2d 577 (2015)
    These authorities frame the appellate standard of review for factual findings (clearly erroneous) and ultimate disposition (abuse of discretion). By foregrounding this standard, the Court signaled that—even under deferential review—procedural due process violations and failures to apply controlling legal standards are reversible.
  • Syl. Pt. 1, Chrystal R. M. v. Charlie A. L., 194 W. Va. 138, 459 S.E.2d 415 (1995)
    This case supplies the de novo standard for questions of law and statutory interpretation. It underpins the Court’s conclusion that the circuit court’s reliance on DHS’s non-substantiation (rather than the § 48-9-401 criteria) was legal error reviewed without deference.
  • Syl. Pt. 2, Simpson v. Stanton, 119 W. Va. 235, 193 S.E. 64 (1937)
    Quoted for the foundational due process rule that procedure requires “both notice and the right to be heard.” The Court used this to emphasize that a custody/parenting plan modification proceeding must include a meaningful opportunity to present one’s case—not merely the formal scheduling of a hearing.
  • Crone v. Crone, 180 W. Va. 184, 375 S.E.2d 816 (1988) and Tucker v. Tucker, 176 W. Va. 80, 341 S.E.2d 700 (1986)
    These cases confirm that due process protections apply in custody modification contexts. Their citation directly supports the Court’s holding that Mother, as the movant seeking modification, was entitled to testify, present evidence, and cross-examine.
  • Syl. Pt. 3, In re Emily G., 224 W. Va. 390, 686 S.E.2d 41 (2009) (quoting, in part, Syl. Pt. 5, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001))
    These authorities supply the remedial principle: where the governing process is “substantially disregarded or frustrated,” vacation and remand are required. The Court relied on this framework to justify vacating the order rather than attempting to salvage it through limited review.
  • Province v. Province, 196 W. Va. 473, 473 S.E.2d 894 (1996)
    This case is central to the “adequate findings” requirement. The Court quoted it for the proposition that an order must reveal the factual and legal basis for the ultimate conclusion to allow meaningful review; conclusory findings require vacatur and remand for further development.

Legal Reasoning

  1. Due process required a real opportunity to litigate the motion.
    The Court treated the twelve-minute “hearing” as constitutionally deficient. Mother was not permitted to cross-examine Father, call witnesses (including the CPS worker who was present), or offer her own testimony and evidence. The circuit court’s immediate ruling after Father’s testimony, combined with its reliance on the DHS outcome without allowing probing of that investigation through testimony, amounted to denial of the right to be heard guaranteed by the Fourteenth Amendment and Article III, § 10 of the West Virginia Constitution.
  2. Parenting plan modification must be decided under § 48-9-401—not under an “abuse/neglect substantiation” proxy.
    The Court stressed the statutory pathways:
    • § 48-9-401(a): modification is permitted upon “a substantial change” in circumstances and if modification is necessary to serve the child’s best interests.
    • § 48-9-401(b): modification is permitted without a substantial change if the plan “is not working as contemplated” and is “manifestly harmful to the child” in a specific way.
    The circuit court’s singular focus on DHS’s decision not to substantiate and not to file an abuse/neglect petition failed to engage these statutory questions. DHS’s screening decision is not coextensive with whether a parenting plan is functioning, whether circumstances substantially changed, whether conduct undermines the child’s welfare, or what the child’s best interests require.
  3. Findings and conclusions were required—and missing.
    The order contained essentially one factual statement: DHS did not substantiate abuse/neglect. It did not resolve disputed facts relevant to the statutory criteria (e.g., interference with contact, instability in the child’s residence, parental cooperation, or claimed harmful conduct), nor did it articulate a best-interests analysis under the controlling statute. Under Province v. Province, such an order is insufficient for meaningful appellate review, requiring vacatur and remand.
  4. Remedy: vacatur and a new hearing with a new order.
    Because process was “substantially disregarded or frustrated,” the Court required a do-over: a new hearing consistent with due process and a new order reflecting adequate findings and conclusions tied to § 48-9-401.

Impact

  • Reinforces minimum procedural safeguards in family-court modifications. Even when a case originates in abuse and neglect proceedings (and the circuit court retains jurisdiction under Rule 6 of the West Virginia Rules of Procedure for Child Abuse and Neglect), modification litigation cannot be resolved through truncated, one-sided proceedings. Parties must be allowed to present evidence and test opposing evidence through cross-examination.
  • Clarifies that DHS non-substantiation is not dispositive of parenting plan modification. Courts must decide custody/visitation modifications under § 48-9-401’s standards; administrative or investigative outcomes may be relevant evidence but cannot substitute for statutory findings.
  • Elevates the importance of reasoned orders. The decision signals that conclusory custody-modification orders are vulnerable on appeal. Trial courts should expect to make specific factual findings on disputed issues and connect those findings to the statutory criteria and best-interests analysis.

Complex Concepts Simplified

Due process (“notice and the right to be heard”)
A party must have a meaningful chance to tell their side of the story and challenge the other side’s evidence. In practice, this usually includes the ability to testify, present documents and witnesses, and cross-examine opposing witnesses.
“Substantial change in circumstances” (§ 48-9-401(a))
A significant shift in the child’s or parent’s situation occurring after the prior order—important enough that the existing plan may no longer serve the child’s best interests.
“Not working as contemplated” and “manifestly harmful” (§ 48-9-401(b))
Even without a major change, a plan can be modified if, in a specific way, it is failing in operation and that failure is plainly harming the child.
“Non-substantiation” by DHS/CPS
An investigative conclusion that abuse/neglect was not proven to the agency’s standard (or that the agency will not file a petition). It is not the same thing as a judicial determination that no facts justify changing custody or visitation under the family-law statute.
Vacated and remanded
“Vacated” means the prior order is set aside as though it has no effect; “remanded” means the case is sent back to the circuit court to redo the process correctly (here, with a new hearing and a proper order).

Conclusion

In re H.L. stands for a straightforward but consequential rule in parenting plan modification litigation: a court cannot deny modification based on a truncated hearing that deprives a parent of the opportunity to present evidence and cross-examine, nor can it rely solely on DHS’s non-substantiation decision instead of applying West Virginia Code § 48-9-401. The decision further reinforces that custody-related orders must contain sufficiently specific findings of fact and conclusions of law to permit meaningful appellate review. The practical message to lower courts is clear: custody and visitation disputes must be decided through fair process and reasoned, statute-grounded orders—not through conclusory reliance on agency outcomes.