Guardianship Is No Shield: West Virginia Affirms Abuse/Neglect Jurisdiction Over Noncustodial Parents and Upholds Voluntary Relinquishments Absent Duress or Fraud

Introduction

This commentary examines the Supreme Court of Appeals of West Virginia’s memorandum decision in In re A.F. and K.F., No. 24-248 (Sept. 30, 2025), affirming the Circuit Court of Pocahontas County’s order terminating the petitioner mother’s custodial rights following her voluntary relinquishment. The case presents two central themes:

Subject matter jurisdiction in abuse and neglect proceedings is not defeated by the child’s placement in a temporary family-court guardianship or by a parent’s lack of physical custody; and
A parent’s voluntary relinquishment of custodial rights, executed by a duly acknowledged writing and free from duress or fraud, is valid and not undone by claims that the agency failed to file a modified family case plan.

The decision synthesizes recent authority, particularly In re B.V. (2023) and In re Guardianship of K.W. (2018), and clarifies how those doctrines operate when children have been placed with relatives and a noncustodial parent’s ongoing substance abuse impairs both safe contact and the parent’s ability to assume care when the primary custodian falters. It also reiterates the Court’s refusal to recognize ineffective assistance of counsel claims in abuse and neglect appeals, underscores preservation rules, and flags a procedural requirement for filing notices of appeal in the circuit court under Rule 5(b) of the West Virginia Rules of Appellate Procedure.

Case Background

The parties are the petitioner mother (J.K.), her children (A.F. and K.F.), the West Virginia Department of Human Services (DHS), the children’s father, and the paternal grandparents who sought guardianship. In February 2023, in prior family-court proceedings, the father was named primary custodian and the mother was given supervised visitation at the father’s discretion, driven in part by the mother’s chronic substance abuse. After an incident involving the father’s wife (stepmother) violating a domestic violence protective order and allegedly striking a child, the paternal grandparents took the children into their home. They petitioned in family court for legal guardianship, and the matter was removed to circuit court because the allegations implicated abuse and neglect. The circuit court granted temporary guardianship to the grandparents in March 2023.

DHS filed an abuse and neglect petition in April 2023 alleging, among other things, the mother’s admitted use of methamphetamine, a recent positive drug screen, and impaired visits at the grandparents’ home. The mother did not attend the July 2023 adjudication but was represented by counsel; the court denied a continuance, rejected a jurisdictional motion premised on the existing guardianship, and adjudicated the mother as having neglected the children. The court later granted a post-adjudicatory improvement period and extended it. On the eve of disposition (March 2024), the mother filed—but then withdrew—a renewed jurisdictional motion and executed a written voluntary relinquishment of custodial rights. The circuit court accepted the relinquishment, terminated her custodial rights (and the father’s), and set legal guardianship with the grandparents as the permanency plan.

Summary of the Opinion

On appeal, the mother argued that (1) the circuit court lacked subject matter jurisdiction because the children were already in a legal guardianship, and (2) her voluntary relinquishment should be set aside because DHS did not file a modified family case plan. The Supreme Court:

Affirmed subject matter jurisdiction, emphasizing that an existing legal guardianship does not bar abuse/neglect adjudication where the child meets the statutory definition of an abused or neglected child and the circuit court makes specific findings that the child’s health and welfare were harmed or threatened by the respondent’s conduct (relying on In re B.V. and In re K.W.).
Found the evidence sufficient to support adjudication, noting the mother’s methamphetamine use, positive drug screen, and visits while impaired, as well as her inability to assume custody when the father lacked appropriate housing.
Upheld the validity of the mother’s voluntary relinquishment because it was a duly acknowledged writing entered free from duress or fraud (per In re Cesar L.), rejecting her challenge premised on DHS’s failure to file an updated case plan.
Declined to recognize ineffective assistance of counsel claims in abuse and neglect proceedings and found other unpreserved evidentiary claims waived.
Noted the mother failed to file a Rule 5(b) notice of appeal in the circuit court, but the Court found it unnecessary to address her challenge to the finalization of guardianships because it affirmed the underlying disposition on the merits.

Analysis

Precedents Cited and Their Influence

In re B.V., 248 W. Va. 29, 886 S.E.2d 364 (2023), Syl. Pt. 3 (in part): The Court reiterates that a child’s placement in a legal guardianship at the time of filing does not preclude circuit court subject matter jurisdiction to adjudicate a respondent’s rights, provided the child meets the statutory definitions of “abused child” or “neglected child” and the court makes specific factual findings showing how the child’s health and welfare are harmed or threatened by the respondent’s conduct. This case supplied the controlling jurisdictional framework and required the trial court’s record-supported, child-specific findings.
In re Guardianship of K.W., 240 W. Va. 501, 813 S.E.2d 154 (2018), Syl. Pt. 4: A temporary guardianship entered over the natural parents’ objection based on substantiated allegations of abuse or neglect does not obviate the need for an abuse and neglect petition. The decision characterizes temporary guardianships as akin to protective, emergency measures, not permanent dispositional solutions. The Court leans on K.W. to explain why proceeding with an abuse/neglect petition was necessary despite the grandparents’ temporary guardianship.
In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011), Syl. Pt. 1: Establishes the dual standard of review: factual findings for clear error and legal conclusions de novo. The Court applies this framework in reviewing adjudication sufficiency and jurisdiction.
W. Va. Code § 49-1-201: Statutory definitions of “abused child” and “neglected child.” The Court anchors jurisdiction and adjudication to these definitions, focusing on threats to or harm of the child’s health and welfare.
W. Va. Code § 49-4-601(b), (i): Pleading specificity and burden of proof at adjudication, requiring clear and convincing evidence that conditions existed at the time of filing. The Court emphasizes that the mother’s lack of physical custody does not insulate her from an adjudication where her conduct threatened the children during contact and impaired her ability to parent when the other custodian could not.
In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176 (1997) and In Interest of S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981): Clarify that clear-and-convincing burden does not specify any particular form of testimony or proof. These precedents undercut the argument that DHS failed to meet its burden for lack of a particular evidentiary mode.
In re Cesar L., 221 W. Va. 249, 654 S.E.2d 373 (2007), Syl. Pt. 3 (in part): A voluntary relinquishment is valid if made by a duly acknowledged writing entered into free from duress or fraud. The Court uses Cesar L. to reject the mother’s attack on her relinquishment based on an alleged absence of an updated family case plan.
In re C.R. (2022), In re M.Z.-1 (2016), and In re J.F. (2012) (memorandum decisions): The Court again declines to recognize ineffective assistance of counsel claims in abuse/neglect appeals, maintaining a consistent posture against importing criminal-ineffective-assistance doctrine into these civil protective proceedings.
Noble v. West Virginia Department of Motor Vehicles, 223 W. Va. 818, 679 S.E.2d 650 (2009), and Shaffer v. Acme Limestone Co., Inc., 206 W. Va. 333, 524 S.E.2d 688 (1999): Reinforce preservation and waiver principles: nonjurisdictional issues raised for the first time on appeal will not be considered.

Legal Reasoning

The Court’s reasoning proceeds in three steps.

Subject Matter Jurisdiction and Adjudication Despite Guardianship and Noncustodial Status: Applying In re B.V. and In re K.W., the Court holds that the temporary guardianship was a protective measure, not a jurisdictional bar. The circuit court made specific findings that the mother’s methamphetamine use and impairment during contact threatened the children’s health and welfare. The mother’s inability to assume custody when the father lacked appropriate housing further demonstrated neglect. The Court emphasizes that noncustodial status does not insulate a parent from adjudication when the parent’s conduct either exposes the children to harm during contact or renders the parent unable to provide necessary care when needed.
Sufficiency of the Evidence: The Court concludes DHS met its clear-and-convincing burden based on the mother’s admissions of methamphetamine use, a positive drug screen, and credible testimony that she appeared impaired during visits with the children at the grandparents’ home. The Court also notes the ongoing instability in the father’s placement and the mother’s inability to step in safely, anchoring the “neglect” finding to conditions that existed when the petition was filed. The decision rejects the notion that the lack of physical custody defeats the statutory analysis under § 49-1-201 and § 49-4-601.
Validity of the Voluntary Relinquishment; Case Plan Objection: The mother’s argument that DHS failed to file an updated family case plan does not invalidate a relinquishment. Under In re Cesar L., a relinquishment is valid if acknowledged in writing and free from duress and fraud. The mother alleged neither fraud nor duress. Accordingly, the relinquishment stands. The Court also notes that the mother did not move for post-termination visitation, so no error exists with respect to future contact; courts decide such visitation upon motion, based on the child’s best interests and the fitness of the parent at that stage.

Impact and Practical Implications

This decision reinforces and operationalizes core abuse-and-neglect doctrines in several concrete ways.

Guardianships Do Not Block Abuse/Neglect Proceedings: Temporary family-court guardianships remain a stopgap that do not displace the circuit court’s duty to adjudicate abuse/neglect petitions where statutory definitions are met. DHS should proceed with petitions when safety concerns persist, even if relatives have temporary guardianship.
Noncustodial Parents Can Be Adjudicated: The Court makes explicit that a parent’s lack of physical custody does not prevent adjudication for neglect if the parent’s conduct threatens the child’s health and welfare during contact or if the parent’s impairment prevents assuming custody when the other custodian becomes unavailable or unsafe. Practitioners should assemble evidence of both direct exposure during visitation/contact and capacity deficits that impair the parent’s ability to step in.
Evidentiary Focus: Clear and convincing evidence can be met through admissions, drug screens, and credible witness testimony; no special form of proof is required. Counsel should ensure the record contains specific, child-focused findings that connect parental conduct to harms or threats to the children’s welfare at the time of filing.
Voluntary Relinquishments: Once a parent executes a duly acknowledged written relinquishment free from duress or fraud, the relinquishment is highly resilient against collateral attacks based on case planning defects. Even so, as a best practice, DHS should keep family case plans current to reflect the parent’s status, services, and the intended permanency pathway, but the absence of a modified plan will not, by itself, undo a valid relinquishment.
Post-Termination Visitation: Courts do not sua sponte award post-termination or post-relinquishment visitation. Parents or GALs must move for it, and the court will determine the matter under the best-interests standard. Failure to ask means the issue is typically not addressed or preserved.
Preservation and Appellate Procedure: The decision reaffirms strict preservation rules—unobjected evidentiary claims are waived. It also underscores the procedural requirement to file notices of appeal in the circuit court under Rule 5(b); failure to do so may allow trial-level permanency orders (such as guardianships) to be finalized without notice of the appeal.
Permanency Pathways Short of Termination: The disposition here terminated custodial rights and set legal guardianship as the permanency plan, reflecting that West Virginia law permits durable permanency through guardianship without necessarily terminating all parental rights when that outcome aligns with the child’s best interests and safety.

Complex Concepts Simplified

Subject Matter Jurisdiction: A court’s authority to hear a particular type of case. In abuse/neglect, jurisdiction attaches when a child qualifies as “abused” or “neglected” under the statute and the court makes specific findings showing how the parent’s conduct harms or threatens the child’s welfare. A temporary guardianship does not strip the circuit court of this authority.
Neglected Child (W. Va. Code § 49-1-201): A child whose physical or mental health or welfare is harmed or threatened by a parent’s failure, refusal, or inability to provide necessary care, including due to substance abuse. Threats, not just actual injury, suffice if proven by clear and convincing evidence.
Adjudication vs. Disposition: Adjudication determines whether the child is abused/neglected and whether the parent committed such conduct. Disposition follows adjudication and decides the remedy (e.g., improvement period, guardianship, termination, or other permanency).
Improvement Period: A court-ordered period during which the parent engages in services to correct the conditions of abuse/neglect. It is discretionary and may be extended if the parent shows substantial compliance and likelihood of improvement within a reasonable timeframe.
Clear and Convincing Evidence: A heightened civil standard requiring that the evidence produce a firm belief or conviction about the allegations. It is below “beyond a reasonable doubt” but above “preponderance of the evidence.”
Temporary Guardianship: A short-term custodial arrangement, often with relatives, used to ensure a child’s safety while definitive abuse/neglect proceedings are initiated. It is not a permanent disposition and does not preclude DHS from filing a petition or the circuit court from adjudicating.
Voluntary Relinquishment: A parent’s written, acknowledged decision to give up certain parental or custodial rights. It is binding if executed without duress or fraud. Collateral challenges typically fail absent evidence undermining the voluntariness of the relinquishment.
Preservation/Waiver: Parties must object at the trial level to preserve nonjurisdictional errors for appeal. Failure to object generally waives the issue.

Key Takeaways

Temporary guardianships and a parent’s noncustodial status do not defeat circuit court jurisdiction in abuse/neglect cases; the court may adjudicate based on specific findings that the parent’s conduct threatens the child’s health and welfare.
Evidence of substance abuse, admissions, positive tests, and credible observations of impairment during contact can sustain adjudication, especially where the parent cannot safely assume custody when the other custodian is unable to care for the children.
A voluntary relinquishment is highly durable if made in a duly acknowledged writing free from duress or fraud; agency case-plan imperfections do not invalidate such a relinquishment.
Ineffective assistance of counsel is not recognized in West Virginia abuse and neglect appeals; practitioners must preserve issues contemporaneously.
Procedurally, notices of appeal must be filed in the circuit court under Rule 5(b); failure to do so risks unintended finalization of permanency orders.
The decision confirms guardianship as a viable permanency pathway without necessarily terminating all parental rights, when consistent with the children’s safety and best interests.

Conclusion

In re A.F. and K.F. solidifies West Virginia’s consistent approach to the interplay between temporary guardianships and abuse/neglect jurisdiction: guardianship is a stopgap, not a shield. Circuit courts retain authority to adjudicate noncustodial parents where specific findings show the children’s health and welfare are harmed or threatened by the parent’s conduct, including the parent’s inability to assume care when the other custodian fails. The decision also reinforces the stability of voluntary relinquishments executed without duress or fraud and the importance of preservation rules and proper appellate procedure. For practitioners, the case is a practical roadmap: build records with child-specific findings; do not assume guardianship forecloses adjudication; advise parents carefully about relinquishments and post-termination visitation motions; and comply with Rule 5(b) to protect appellate rights. For the child-welfare system, the opinion promotes clarity and continuity of safety-driven adjudication and permanency planning, ensuring that temporary arrangements do not substitute for the statutory abuse and neglect process when the evidence warrants intervention.