Financially Based Withdrawal of Appointed Counsel Requires Judicial Findings and Substitute Counsel or a Knowing Waiver

Case: In re T.L.-1, T.L.-2, H.L., and A.L., No. 25-451
Court: Supreme Court of Appeals of West Virginia
Decision: October 28, 2026
Disposition: Adjudicatory and parental-rights termination orders vacated; case remanded.

1. Introduction

This memorandum decision addresses the safeguards required before a court may discontinue appointed representation in child-abuse-and-neglect proceedings. The Supreme Court of Appeals held that the circuit court improperly allowed a father’s appointed lawyer to withdraw without an adequate judicial determination of his financial eligibility and without either substitute counsel or a knowing and intelligent waiver of counsel. His subsequent adjudication without representation could not be cured merely by appointing counsel afterward and allowing him to present limited additional evidence.

The petitioner, Father M.L., challenged orders adjudicating him as an abusive and neglectful parent and terminating his parental rights to four children. The West Virginia Department of Human Services (“DHS”) defended the result as harmless despite acknowledging error. Both guardians ad litem ultimately supported vacating the orders.

The decision principally reaffirms and applies established constitutional, statutory, and precedential protections; it does not announce an entirely new right to counsel. Its central contribution is its insistence that those protections remain operative when appointed counsel seeks withdrawal based on a parent’s supposed ability to pay.

2. Background and Procedural History

The allegations and initial appointment

The proceedings arose from an alleged domestic-violence incident involving the father and the children’s mother during a custody exchange. DHS alleged that the father slapped the mother while she was holding the youngest child, A.L., causing the mother to fall and drop the child. DHS also alleged injuries to the mother, bruising to A.L.’s elbow, and statements from some children that they witnessed the father strike the mother. The father denied striking her.

On August 26, 2024, DHS’s predecessor agency filed an abuse-and-neglect petition against the father and his then-girlfriend, R.T. The circuit court placed the children temporarily with their mother and appointed an assistant public defender to represent the father. R.T. was later dismissed from the proceedings.

Withdrawal of counsel and unrepresented proceedings

On October 4, 2024, appointed counsel moved to withdraw, asserting that the father’s union employment near Dulles Airport and top-secret government clearance indicated sufficient income to retain private counsel. Counsel also referenced statutory financial-eligibility factors. The next day, the circuit court granted withdrawal for “good cause” and directed the father to retain private counsel “if he so chooses.”

At the October 10 hearing, the father indicated that he had only just received the withdrawal order. The court continued the hearing so he could obtain counsel. He explained that he had qualified for appointed counsel in a related criminal matter using the same financial information; the court responded that a different scale applied.

At the November 14 preliminary hearing, the father expressly stated that he could not afford an attorney and needed appointed counsel. The circuit court read financial guidelines identifying a $15,950 annual-income threshold for a one-person household, but proceeded without making the required individualized determination. The father represented himself, and the court continued the children’s temporary placement with their mother.

Adjudication, later appointment, and termination

The father did not attend the January 23, 2025, adjudicatory hearing, either in person or remotely. He had sought a continuance based on a workplace injury, but the circuit court questioned his medical documentation and directed him to provide further support, file a proper motion, or participate remotely. The hearing proceeded without him or counsel appearing on his behalf.

After receiving testimony and taking judicial notice of related criminal cases, the circuit court found the petition’s salient allegations established by clear and convincing evidence. Its adjudicatory order was entered on February 10, 2025.

The court appointed new counsel the following day. Counsel moved to vacate the adjudication and obtain a new contested hearing. At a March 17 hearing, the court instead offered approximately forty-five minutes to present additional adjudicatory evidence. The father testified, but his lawyer was not permitted to cross-examine the witnesses DHS had presented in January. The court denied the motion to vacate.

Following a May dispositional hearing, the court terminated the father’s parental rights under West Virginia Code § 49-4-604(c)(6). The June 3, 2025, order rested on findings that he was unlikely to comply with an improvement period and that no less restrictive alternative to termination existed.

3. Summary of the Opinion

The Supreme Court of Appeals identified three related errors:

  1. Premature withdrawal: Appointed counsel was released before replacement counsel appeared or the father knowingly and intelligently waived representation.
  2. No adequate financial determination: The circuit court relied on “good cause” rather than making its own required findings concerning retained counsel and financial ability to hire counsel.
  3. Failure to consider renewed appointment: When the father later requested counsel because he could not afford representation, the court did not consider whether appointment was necessary to satisfy fundamental fairness.

The Court rejected DHS’s argument that the March evidentiary opportunity rendered these errors harmless. The statutory and procedural framework had been substantially disregarded, and the limited later hearing did not provide the equivalent of a properly represented adjudication.

The Court therefore vacated both the February 10 adjudicatory order and the June 3 dispositional order, remanded for further proceedings, and directed immediate issuance of the mandate. All five participating justices concurred.

4. Analysis

A. Precedents Cited and Their Influence

In re K.S.

Under Syllabus Point 1 of In re K.S., 253 W. Va. 154, 930 S.E.2d 400 (2026), substantive rulings in abuse-and-neglect proceedings are reviewed for abuse of discretion, factual findings for clear error, and legal questions de novo. That framework mattered because the decisive issue was compliance with legal requirements governing counsel, rather than a reassessment of witness credibility or the underlying abuse allegations. The circuit court’s discretion could not displace mandatory representation safeguards.

State ex rel. Lemaster v. Oakley

Syllabus Point 1 of State ex rel. Lemaster v. Oakley, 157 W. Va. 590, 203 S.E.2d 140 (1974), establishes the constitutional foundation: indigent parents facing child-neglect proceedings that may terminate parental rights are entitled to counsel under the Due Process Clauses of the West Virginia and United States Constitutions.

This authority explains why representation is not simply an administrative accommodation. The threatened loss of the parent-child relationship requires meaningful procedural protection. The present decision applies that protection within West Virginia’s established framework rather than conducting a new constitutional balancing analysis.

Matter of Lindsey C.

Matter of Lindsey C., 196 W. Va. 395, 473 S.E.2d 110 (1995), supplied the controlling operational rule. Its approach begins with a presumption that parents and custodians required to be named in abuse-and-neglect petitions cannot afford counsel. Courts should appoint representation when the petition is filed and promptly receive evidence concerning financial ability.

Crucially, rebutting the financial presumption does not authorize an immediate gap in representation. Under Syllabus Point 8, appointed representation should terminate only upon substitution of other counsel or a knowing and intelligent waiver. The circuit court violated this sequencing requirement by allowing withdrawal first and leaving the father to obtain counsel afterward.

In Int. of Tiffany Marie S.

The Opinion cites In Int. of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996), for circuit courts’ broad statutory and case-law authority to appoint counsel in abuse-and-neglect proceedings. Later, using the title In Interest of Tiffany Marie S., it invokes the same decision’s statement that courts must ensure adequate representation “from the beginning to the end of the proceedings.”

These propositions reinforce two aspects of the result: trial courts possess substantial authority to prevent an unrepresented parent from proceeding unfairly, and representation must be assessed across the whole case, not merely at disposition.

In re S.M.

Syllabus Point 5 of In re S.M., 250 W. Va. 745, 908 S.E.2d 482 (2024), recognizes an indigent parent’s right to appointed counsel at every stage while permitting self-representation following a knowing and intelligent waiver.

The distinction is between choosing self-representation and being left unrepresented. The father’s inability to hire counsel, despite a continuance, did not establish an informed choice to surrender the right. His express requests for appointed counsel made that distinction especially important.

State v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign Wars

Syllabus Point 5 of State v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959), requires courts to apply clear statutory language rather than reinterpret it.

The Court used this rule to enforce the mandatory language of West Virginia Code § 49-4-601(f)(3). The statute assigns the financial determination to the court. A generalized finding of “good cause” for counsel’s withdrawal did not satisfy that express obligation.

In re Edward B.

Syllabus Point 5 of In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001), provides the remedial principle: when the prescribed process for abuse-and-neglect proceedings has been substantially disregarded or frustrated, the resulting order must be vacated and the case remanded for compliance.

This precedent frames procedural protections as essential components of a valid result. It supported vacatur without requiring the appellate court to decide whether the underlying allegations would ultimately be proven at a properly conducted hearing.

In re H.B.

Syllabus Point 8 of In re H.B., 252 W. Va. 350, 922 S.E.2d 350 (2025), restated the In re Edward B. rule. That case involved an improper attribution of one child’s medical neglect to other children and resulted in vacatur of adjudicatory and dispositional orders.

Although its substantive facts differed, its remedial structure was directly relevant. A serious defect in adjudication can undermine the later disposition, requiring both orders to be set aside.

In re A.L.

In re A.L., No. 17-0573, 2018 WL 1251740, at *3 (W. Va. March 12, 2018) (memorandum decision), supplied a close factual analogy. There, the Court vacated a dispositional order after appointed counsel withdrew without a meaningful opportunity to obtain replacement representation and without a waiver or agreement to proceed without counsel.

Its relevance lies in continuity: permitting withdrawal cannot be separated from ensuring that the parent’s right to representation remains protected at the next substantive hearing.

B. Statutory Framework and Legal Reasoning

The applicable statutory version

The Court applied the 2019 version of West Virginia Code § 49-4-601(f), which governed the challenged rulings. It expressly noted substantial amendments effective July 6, 2025. The decision therefore should not be read as a comprehensive construction of the amended statute.

Under the applicable version:

  • The initial order must appoint counsel for an otherwise unrepresented parent or other qualifying adult respondent.
  • At the initial hearing, the court must determine whether the adult has retained counsel and can financially afford representation.
  • An adult who has not retained counsel and cannot afford counsel must receive appointed representation at every stage.
  • At any stage, the court must appoint counsel when necessary to satisfy fundamental fairness, either on its own initiative or upon motion.

Employment does not substitute for an individualized financial inquiry

The withdrawal motion relied heavily on the father’s employment and security clearance. Those circumstances might inform eligibility, but they did not themselves establish that he could retain counsel without undue financial hardship.

West Virginia Code § 29-21-16 identifies a broader financial assessment, including income prospects, available assets, debts and taxes, employment-related expenses, family members’ age or infirmity, efforts to obtain private counsel, the cost of representation, relevant bail expenditures, and the consequences of denying assistance.

Reading a gross-income threshold into the record did not replace the required judicial determination. The Court did not invalidate the guidelines or finally decide that the father qualified financially. Its holding was that the circuit court failed to conduct the legally required process.

Financial eligibility and continuity of representation are separate safeguards

The reasoning requires two distinct inquiries. First, has evidence rebutted the presumption that the parent cannot afford counsel? Second, before appointed representation ends, has replacement counsel appeared or has the parent validly waived counsel?

Even an adequate financial finding would not, under Matter of Lindsey C., justify withdrawing counsel and immediately conducting substantive proceedings against an unrepresented parent. The substitution-or-waiver requirement prevents precisely that gap.

Likewise, notice of a withdrawal motion under Trial Court Rule 4.03 does not establish financial eligibility or an informed waiver. The Opinion did not separately adjudicate compliance with that rule; it held that the necessary substantive protections were missing.

The renewed request required consideration of fundamental fairness

At the November hearing, the father expressly requested appointed counsel because he could not afford a lawyer. That request required consideration of § 49-4-601(f)(8), independently of the earlier withdrawal decision. The circuit court’s failure to assess fundamental fairness was an additional legal error, not merely a continuation of its initial mistake.

Later representation did not adequately repair the adjudication

DHS argued that the father’s represented testimony in March cured the earlier problem. The Court disagreed because the process as a whole substantially disregarded the governing safeguards.

The distinction is important: presenting additional evidence after findings have been made is not necessarily equivalent to participating through counsel in the hearing that produced those findings. The father’s attorney could not cross-examine DHS’s January witnesses. The limited opportunity to supplement the record therefore did not provide a properly represented contested adjudication.

The decision does not expressly classify every denial of counsel as structural error or announce that every representation defect is automatically reversible. Its narrower conclusion is that these substantial departures from the required process were not harmless.

The Court did not resolve the underlying abuse allegations

The circuit court’s concerns about the father’s medical explanation, truthfulness, and compliance with orders did not answer whether his right to counsel had been protected. The Supreme Court resolved the appeal on that procedural ground, without separately deciding the propriety of denying his requested continuance or determining whether the alleged abuse occurred.

C. Potential Impact

  • Withdrawal practice: Courts and appointed attorneys must address financial eligibility and continuity of representation before allowing financially based withdrawal.
  • Eligibility records: General assumptions about employment or a single income figure cannot replace an adequate, court-made determination.
  • Waiver findings: Failure to hire counsel is not equivalent to knowingly and intelligently choosing self-representation.
  • Renewed requests: A later request for counsel requires attention to the statutory fundamental-fairness safeguard.
  • Corrective proceedings: A limited opportunity to add evidence may not cure an adjudication conducted without required representation, particularly where counsel cannot test the earlier witnesses’ testimony.
  • Derivative dispositions: A fundamentally defective adjudication can require vacating a subsequent termination order despite representation at disposition.

The practical lesson extends beyond protecting parents: compliance at the outset reduces the risk that children’s cases will require repeated proceedings after appeal. The Court also cautioned judges and counsel to identify every affected child and case number correctly in orders. Although the challenged orders’ captions named only one child, the record showed that the rulings concerned all four.

The remedy remained procedural. Vacatur did not establish the father’s fitness, direct immediate reunification, or itself award him custody. Those substantive matters remained for lawful proceedings on remand.

5. Complex Concepts Simplified

Adjudication
The stage at which the court decides whether the petition’s abuse-or-neglect allegations have been proven.
Disposition
The later stage at which the court decides what legal response is appropriate, potentially including termination of parental rights.
Presumption of inability to pay
The starting assumption supporting immediate appointment of counsel. Evidence may rebut it, but a parent’s employment alone does not complete the required inquiry.
Knowing and intelligent waiver
An informed decision to give up counsel. Being unable to find or afford a lawyer is not the same thing.
Fundamental fairness
The requirement that proceedings provide a meaningful opportunity to participate and defend one’s interests. Under the applicable statute, it could require appointment of counsel at any stage.
Harmless error
A mistake that does not justify disturbing the outcome. Here, the substantial denial of required procedural safeguards was not cured by the later limited hearing.
Vacated and remanded
The challenged orders are set aside, and the case returns to the circuit court for further proceedings consistent with the appellate decision—not an automatic judgment for either side.

6. Conclusion

In re T.L.-1, T.L.-2, H.L., and A.L. reinforces that meaningful representation must continue throughout abuse-and-neglect proceedings unless lawfully replaced or knowingly waived. A court cannot allow financially based withdrawal on generalized assumptions, leave a parent unrepresented, and reliably cure the resulting adjudication through a restricted later evidentiary opportunity.

The decision’s broader significance is its insistence that the validity of parental-rights termination depends not only on the evidence presented, but also on faithful observance of the process required to evaluate that evidence.