In re A.T., B.T., and N.T.: The Supreme Court of West Virginia Clarifies that Erroneously Excluding Parents (Whose Rights Are Intact) from Abuse-and-Neglect Permanency Hearings May Constitute Harmless Error

1. Introduction

The Supreme Court of Appeals of West Virginia’s memorandum decision in In re A.T., B.T., and N.T. (No. 24-241, June 27 2025) addresses a narrow yet recurring procedural question in child abuse and neglect litigation: what happens when a circuit court prematurely excludes parents—whose parental rights have not been terminated—from further participation in post-dispositional permanency proceedings?

The case grew out of a 2017 abuse-and-neglect petition filed by the Department of Human Services (“DHS”) against J.T-1 (Mother) and J.T-2 (Father). A 2018 final dispositional order placed the three subject children in a fully-subsidized legal guardianship with their maternal grandmother. After the grandmother’s death in 2023, a guardian ad litem (“GAL”) asked the circuit court to reopen the matter to choose a successor placement. At the ensuing hearing, the GAL moved to dismiss the parents on the theory that their custodial rights had previously been transferred to DHS under W. Va. Code § 49-4-604(c)(5). The circuit court agreed and dismissed the parents for lack of standing.

On appeal, the parents argued they remained “parties” under the abuse-and-neglect statute and were entitled to notice and a meaningful opportunity to be heard. The high court concurred that dismissal was error—but held the error harmless because the parents (i) conceded they did not seek custody, and (ii) admitted they had no additional evidence that the circuit court lacked. The majority therefore affirmed. Justice Trump dissented, deeming the deprivation a structural violation of fundamental parental rights.

2. Summary of the Judgment

• The Supreme Court held the parents were statutorily entitled to participate in post-disposition hearings because their parental rights had never been terminated (citing W. Va. Code § 49-4-601(h) and Rule 39(c) of the Rules of Procedure for Child Abuse and Neglect Proceedings).
• Accordingly, the circuit court committed legal error by dismissing them.
• Nevertheless, applying harmless-error analysis, the Court concluded the dismissal did not affect a substantial right or prejudice the outcome, because:
  • The parents had already participated extensively up to the point of dismissal;
  • They explicitly disclaimed any desire for custody; and
  • They possessed no additional material evidence beyond what the court would receive through mandatory home studies.
• The Court therefore affirmed the circuit court’s April 9 2024 order.
• Dissent: Justice Trump argued the error was not harmless, invoking fundamental liberty interests in the care, custody, and control of one’s children.

3. Analysis

3.1 Precedents Cited

• In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) – Standard of review: clear-error for facts, de novo for legal conclusions.
• In re H.M., 251 W. Va. 333, 912 S.E.2d 885 (2025) – Clarified that only parents whose rights have been terminated are excluded from permanency-review hearings.
• State v. Tammy R., 204 W. Va. 575, 514 S.E.2d 631 (1999) – Recognized that denying a parent’s participation may be harmless where the court already had all material evidence the parent sought to supply.
• Lindsie D.L. v. Richard W.S., 214 W. Va. 750, 591 S.E.2d 308 (2003) and Troxel v. Granville, 530 U.S. 57 (2000) – Cited in dissent for the proposition that parental decision-making is a fundamental liberty interest.

3.2 Legal Reasoning

The Court’s reasoning unfolded in two steps:

1. Error Determination. Under the plain text of § 49-4-601(h) and Rule 39(c), any parent whose rights have not been terminated retains “the right to be heard” in post-dispositional hearings until permanency is achieved. Because the 2018 order transferred custody (via guardianship) but did not terminate parental rights, the parents remained parties. The circuit court’s contrary conclusion was therefore wrong as a matter of law.
2. Harmless-Error Analysis. Relying on the harmless-error doctrine (see In re S.P-W. and the Waldron decision), the majority evaluated whether the improper dismissal affected a substantial right. The dispositive facts were:
   • The parents did not seek reunification.
   • They provided no unique evidence or argument; their interest was limited to reviewing home studies that the court would examine regardless.
   • Thus, their absence could not have altered the outcome.
   Finding no prejudice, the Court deemed the error harmless and affirmed.

3.3 Impact of the Decision

The memorandum decision, though unpublished, carries persuasive weight in West Virginia jurisprudence and offers practical guidance to circuit courts and practitioners:

• Clarity on Party Status. Courts can no longer assume that transferring custody or guardianship under § 49-4-604(c)(5) strips parents of party status; a formal termination order is required.
• Scope of Harmless Error. The case illustrates a fact-specific approach: exclusion of parents may be treated as harmless when (a) they disclaim any custodial claim, and (b) the court already possesses all material evidence. This invites litigants to develop a record showing prejudice when challenging similar dismissals.
• Procedural Efficiency. While parents retain participation rights, circuit courts remain empowered to limit redundant testimony or argument; ultimate reversals will hinge on whether substantive rights were impaired.
• Tension with Fundamental Rights. The pointed dissent signals potential future litigation—particularly if parents assert reunification or have evidence bearing directly on best interests. Where those factors exist the error is unlikely to be harmless.

4. Complex Concepts Simplified

• Abuse-and-Neglect Disposition: After adjudication, a circuit court chooses a “disposition” ranging from return home to termination of rights. Here, the disposition was guardianship, not termination.
• Legal Guardianship vs. Custody: Guardianship transfers day-to-day decision-making to a third party but does not extinguish parental rights unless the court also issues a termination order.
• Standing/Party Status: Only “parties” receive formal notice and the right to be heard. Parents normally remain parties until rights are terminated.
• Harmless Error Doctrine: Even if a court commits error, an appellate court may affirm if it is convinced the mistake did not affect the outcome or substantial rights.
• Home Study: A statutory investigation of a prospective custodian’s home, assessing safety, stability, and fitness, before placement is approved.

5. Conclusion

In re A.T., B.T., and N.T. underscores two intertwined principles in West Virginia child-protection jurisprudence. First, parents whose rights remain intact are indispensable parties entitled to participate in permanency proceedings. Second, procedural missteps in enforcing that entitlement will not automatically warrant reversal; courts will weigh whether exclusion prejudiced the outcome under the harmless-error doctrine. By drawing a careful distinction between error and reversible error, the Supreme Court has signaled that future appellants must demonstrate concrete prejudice, while circuit courts should exercise caution before curtailing parental participation. Practitioners should therefore ensure that any parental contributions—evidence, argument, or requested relief—are made clear on the record to avoid a finding of harmlessness on appeal.