Imminent Danger Is Not a Filing Prerequisite: Abuse-and-Neglect Petitions Cannot Be Dismissed at Preliminary Hearing Solely Because Children Were Temporarily Out of the Home

1. Introduction

Case: In re A.D. and P.D.-1 (W. Va. Sup. Ct. App. May 6, 2026) (memorandum decision).
Parties: Petitioner Guardian ad Litem Jennifer Dempsey Meeteer (for A.D. and P.D.-1) appealed; the West Virginia Department of Human Services (“DHS”) filed the underlying abuse and neglect petition; Respondent Mother (S.D.) and Respondent Father (P.D.-2) opposed; the children are A.D. (16) and P.D.-1 (14).
Core factual backdrop: DHS alleged extreme unsanitary and dangerous home conditions—dozens of dogs, pervasive feces/urine, ammonia odors, roaches, broken windows, exposed wires, and unsafe sleeping conditions. Before filing, the children were staying with third parties (a maternal aunt and a friend’s parent) under informal arrangements prompted by CPS involvement and a short “safety plan.”

Key issues:

  1. Whether a circuit court may dismiss an abuse and neglect petition at the preliminary hearing on the ground that the children were not physically in the parents’ home at the time of filing and therefore were not in “imminent danger.”
  2. Whether “imminent danger” is a required element for filing an abuse and neglect petition under West Virginia Code § 49-4-601.

2. Summary of the Opinion

The Supreme Court of Appeals of West Virginia reversed the circuit court’s dismissal of the petition and remanded for further proceedings. The Court held:

  • The record established reasonable cause to believe the children were in imminent danger because the parents retained the ability to reclaim physical custody at any time and return the children to an admitted unsafe home.
  • Even if imminent danger were not shown, the circuit court still erred because West Virginia Code § 49-4-601 does not require imminent danger as a prerequisite to filing; non-emergency abuse/neglect situations can and should be addressed through the statutory process.

The Court directed the circuit court, at minimum, to transfer legal and physical custody to DHS, conduct an adjudicatory hearing under West Virginia Code § 49-4-601 and Rule 25, and proceed consistent with applicable law.

3. Analysis

3.1. Precedents Cited

In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011)

The Court relied on In re Cecil T. for the standard of appellate review in abuse and neglect appeals: factual findings are reviewed for clear error, and legal conclusions are reviewed de novo. This framing mattered because the circuit court’s dismissal turned on legal misunderstandings about what “imminent danger” does (and does not) control at the preliminary stage and at filing.

In re S.B., No. 19-0583, 2020 WL 598884 (W. Va. Feb. 1, 2020)

The Court used In re S.B. to make the central corrective point: § 49-4-601 “does not include a requirement that a child be in imminent danger.” In other words, imminent danger is relevant to emergency removal and temporary custody decisions, but it is not a statutory gatekeeping element for whether DHS may file, or whether the court may proceed to adjudication.

State ex rel. Virginia M. v. Virgil Eugene S. II, 197 W. Va. 456, 475 S.E.2d 548 (1996)

State ex rel. Virginia M. supplied the doctrinal bridge between emergency and non-emergency practice: § 49-4-601 provides the “appropriate procedure for resolving non-emergency abuse or neglect situations,” and when a child is not in imminent danger, the circuit court may still “consider whether the child is abused or neglected prior to a transfer of custody.” The precedent directly undercut the circuit court’s implicit premise that absence of imminent danger justified dismissal.

In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001)

Although the Supreme Court did not reach the petitioner’s separate challenge to the sufficiency of findings, it reiterated In re Edward B.: “Clear and complete findings” are essential for meaningful appellate review. This reminder signals that, on remand, the circuit court must make explicit findings on statutory/rule elements at each stage (preliminary determinations, custody determinations, adjudication).

3.2. Legal Reasoning

(a) The preliminary hearing inquiry is about “reasonable cause” and safety, not a final merits disposition

Under Rule 3(g) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, the preliminary hearing evaluates (among other things) whether there is reasonable cause to believe the child is in imminent danger and whether continuation in the home is contrary to the child’s welfare. The Supreme Court emphasized that the evidence supported those determinations here, given:

  • Parents’ admissions that the home was not suitable for children;
  • CPS testimony describing extreme, ongoing unsanitary conditions and minimal improvement;
  • Evidence that the children had lived there immediately prior to CPS involvement;
  • The “custody” arrangements were informal—no guardianship proceedings were initiated—so parents retained practical power to compel the children’s return;
  • Statements suggesting a willingness to bring the children back into the hazardous environment (e.g., children “should help” clean; mother insisted it should be her choice when they return).

(b) “Imminent danger” can exist even if the child is temporarily elsewhere, when the threat is ongoing and return is readily achievable

The opinion’s most operational holding is its treatment of risk posture: the circuit court treated “not currently in the home” as eliminating imminent danger. The Supreme Court reframed imminent danger (as defined by West Virginia Code § 49-1-201) as including conditions that threaten a child’s health, life, or safety “in the home,” and held the danger remained “imminent” because the unsafe home was still the parents’ home, the conditions remained, and the parents could reinstate the children’s presence quickly due to the lack of legal barriers.

(c) Dismissal was legally erroneous because imminent danger is not a filing requirement under § 49-4-601

Even assuming arguendo that imminent danger was not established, the Court held dismissal still failed as a matter of law. The abuse and neglect statutory scheme explicitly contemplates non-emergency petitions and adjudication without an emergency removal posture. Thus, the preliminary hearing should not be converted into a dispositive merits screen based on a mistaken belief that only emergency cases may proceed.

3.3. Impact

  • Preliminary hearing practice: Circuit courts are put on notice that dismissal at the preliminary hearing cannot rest solely on the child’s temporary absence from the home at filing; courts must assess ongoing risk and the practical/legal ability of parents to return the child to hazardous conditions.
  • Clarification of “non-emergency” path: The decision reinforces that § 49-4-601 supports petitions even where imminent danger is disputed, preserving adjudication as the mechanism to decide abuse/neglect and impose services, improvement periods, and orders needed to protect children.
  • Informal placements do not moot state intervention: Safety plans or handwritten “temporary custody” notes—absent formal guardianship—will not necessarily prevent DHS involvement where conditions remain dangerous and parental control can reassert the threat.
  • Record-building and findings: The Court’s In re Edward B. reminder signals heightened attention to detailed findings, which can influence how circuit courts draft orders on removal, continued custody, and adjudication.

4. Complex Concepts Simplified

Abuse and neglect petition (W. Va. Code § 49-4-601)
The formal pleading that starts the court case alleging a child is abused or neglected. It can be filed in emergencies or non-emergencies; it is not limited to cases where imminent danger is already proven.
Preliminary hearing (Rule 3(g))
An early-stage hearing to determine whether there is reasonable cause to believe the child faces imminent danger and whether remaining in the home is contrary to welfare—often tied to temporary custody decisions. It is not the final determination of whether abuse/neglect occurred.
Imminent danger (W. Va. Code § 49-1-201)
An emergency threat to a child’s welfare or life, including hazardous conditions in the home. This case clarifies that danger may remain “imminent” if the unsafe home persists and the child could be returned quickly due to lack of legal protections.
Safety plan
A short-term, typically voluntary arrangement used by child protection to reduce immediate risk (e.g., “child cannot return home for seven days”). It does not necessarily create the legal protections of a guardianship order.
Legal custody vs. physical custody
Physical custody concerns where the child lives day-to-day; legal custody concerns decision-making authority. The Supreme Court directed transfer of both to DHS at minimum on remand.
Adjudicatory hearing (Rule 25)
The hearing where the court determines whether the child is abused or neglected based on evidence—distinct from the preliminary hearing’s temporary-risk focus.

5. Conclusion

In re A.D. and P.D.-1 establishes a practical and protective rule for West Virginia abuse and neglect proceedings: children’s temporary absence from the parents’ home does not justify dismissal at the preliminary hearing where the underlying home conditions remain dangerous and parents retain the ability to bring the children back. More broadly, the Court reaffirmed that imminent danger is not a prerequisite to filing under West Virginia Code § 49-4-601, preserving the statutory process for both emergency and non-emergency child protection cases. The decision strengthens continuity of oversight where informal placements and safety plans might otherwise be used to defeat judicial review while hazardous conditions persist.