In re E.W., N.W., and R.W.: Jurisdictional Specificity and Rule 32(b) Safeguards in West Virginia Abuse and Neglect Cases

In re E.W., N.W., and R.W.: Jurisdictional Specificity and Rule 32(b) Safeguards in West Virginia Abuse and Neglect Cases

I. Introduction

In In re E.W., N.W., and R.W., No. 23-689 (W. Va. May 6, 2025), the Supreme Court of Appeals of West Virginia vacated both the adjudicatory and dispositional orders entered by the Circuit Court of Mason County in an abuse and neglect proceeding. The case centers on a father, C.W. (“petitioner father”), whose parental rights to three children—E.W., N.W., and R.W.—were terminated by the circuit court following an accelerated dispositional hearing immediately after a reopened adjudicatory hearing.

The decision is formally a memorandum decision issued under Rule 21(d) of the West Virginia Rules of Appellate Procedure, which limits such dispositions to cases not warranting a full written opinion and syllabus points. Even so, the Court’s reasoning provides significant guidance on three recurring issues in abuse and neglect litigation:

  • The strict requirements of Rule 32(b) for holding a dispositional hearing immediately after adjudication;
  • The jurisdictional requirement, articulated in In re B.V., that circuit courts make specific factual findings as to how each individual child is abused or neglected before exercising subject-matter jurisdiction;
  • The proper use of a prior involuntary termination of parental rights, particularly the meaning of “abandonment” under West Virginia Code § 49-1-201 and the need to accurately plead and rely on that prior history.

Justice Armstead dissented, not on the merits of the majority’s legal conclusions, but on the procedural choice to resolve the appeal through a memorandum decision rather than a full opinion following oral argument. He believed the issues merited a more formal precedential treatment.

II. Summary of the Memorandum Decision

The Court vacated the circuit court’s:

  • October 22, 2023, adjudicatory order adjudicating the father as an “abusing and neglecting parent” and all three children as “abused and neglected”; and
  • November 2, 2023, final dispositional order terminating the father’s parental rights and reiterating or expanding adjudicatory findings.

The key conclusions were:

  1. Rule 32(b) Violation – Accelerated Disposition: The circuit court improperly held a dispositional hearing immediately after the October 17, 2023, adjudicatory hearing without satisfying the mandatory prerequisites of Rule 32(b): agreement of all parties, proper notice of the dispositional hearing, and waiver or provision of that notice. The father did not agree to proceed to disposition, received no notice that disposition would be held that day, and did not waive notice. The Department of Human Services (“DHS”) conceded this error on appeal. As a result, the November 2, 2023, termination order had to be vacated.
  2. Jurisdictional Defect – Lack of Child-Specific Findings: Relying on In re B.V., the Court held that the October 22, 2023, adjudicatory order failed to include specific factual findings explaining how each child—individually—was abused or neglected. That deficiency is jurisdictional and cannot be cured by a general conclusory statement that all children are “abused and neglected.” This failure required vacatur of the adjudicatory order, even though the father did not directly challenge it on appeal, because subject-matter jurisdiction can be addressed sua sponte under In re Z.H.
  3. Special Concern for the Child in Legal Guardianship: The Court emphasized that one child, E.W., was in a legal guardianship with maternal grandparents when the petition was filed. Under In re B.V. and In re C.S. & B.S., a circuit court must make explicit factual findings that such a child is an “abused child” or “neglected child” to exercise jurisdiction. The circuit court made no such findings, despite the father’s stipulated adjudication.
  4. Mistaken Use of Prior Termination / Abandonment: The circuit court mischaracterized the basis of the father’s prior termination of parental rights in a different case as “abandonment and inability to care.” The record from that prior case reflected adjudication based only on abandonment. The Court stressed that the statutory definition of “abandonment” in West Virginia Code § 49-1-201—“conduct that demonstrates the settled purpose to forego the duties and parental responsibilities to the child”—does not include “inability to care” as such. Likewise, in the present case, there were no allegations or findings of abandonment as to the three subject children. If the circuit court or DHS wishes to rely on abandonment on remand, the petition must be amended to allege it.

Accordingly, the Supreme Court vacated both the adjudicatory and dispositional orders and remanded the case with explicit directions to:

  • Hold a properly noticed adjudicatory hearing; and
  • Comply with all statutes and the Rules of Procedure for Child Abuse and Neglect Proceedings for any subsequent hearings.

III. Detailed Analysis

A. Factual and Procedural Background

DHS initiated abuse and neglect proceedings in May 2023 involving multiple children; only three—E.W., N.W., and R.W.—are at issue on appeal. The petition:

  • Was based in part on the father’s prior involuntary termination of parental rights to another child, but did not describe the conduct that led to that termination;
  • Alleged that the father:
    • Failed to support N.W. and R.W. and was behind on his child support obligations for those children;
    • Was incarcerated and therefore unable to care for all three children;
  • Noted that E.W. was in the mother’s custody, then clarified that E.W. was in a legal guardianship with maternal grandparents.

At adjudicatory hearings in July 2023:

  • The father, through counsel, indicated he would stipulate that:
    • He was behind on child support; and
    • He was incarcerated and could not care for the children at that time.
  • The circuit court questioned him about these allegations, and he admitted them.
  • On the record, the court then declared the father an “abusive and neglectful parent” and the three children “abused and neglected children,” without articulating child-specific factual findings.

The court entered a written adjudicatory order on October 22, 2023, memorializing this determination, in similarly conclusory language.

At a September 2023 dispositional hearing:

  • The court took judicial notice that the father’s rights to another child had been involuntarily terminated, although the specific basis for that termination was not known;
  • A DHS worker testified that termination in this case was necessary, in part, because of the prior termination, while admitting he did not know the basis of that prior termination;
  • The guardian ad litem moved to reopen adjudication to adjudicate the father as an abusing parent based upon the prior termination.

The circuit court granted the guardian’s motion and stated:

“[The] [h]earing on October 17 is now for adjudication. Scratch the Court’s prior order that it was for ruling on the motion to terminate.”

At the October 17, 2023, hearing:

  • DHS introduced orders from the prior case involving the terminated rights to another child, but there was no on-the-record discussion of the underlying facts or the specific grounds for that prior termination.
  • The court simply announced that it adjudicated the father as an abusive and neglectful parent based on:
    • The prior termination; and
    • His current inability to care for the children.
  • Immediately thereafter, without taking additional evidence and despite its prior announcement that the hearing would be for adjudication only, the court:
    • Heard brief argument on a motion to terminate parental rights; and
    • Terminated the father’s parental rights, later memorialized in its November 2, 2023, dispositional order.

On appeal, the father asserted errors based on:

  • The reopening of adjudication;
  • The accelerated dispositional hearing contrary to Rule 32(b); and
  • The termination of his parental rights.

The Supreme Court focused primarily on the Rule 32(b) violation and the jurisdictional inadequacy of the adjudicatory order, vacating both orders and remanding. Because of this disposition, it did not reach the father’s more granular arguments concerning the court’s ultimate decision to terminate.

B. Precedents and Authorities Cited

1. In re Cecil T. – Standard of Review

The Court began by reiterating the standard of review applicable to abuse and neglect appeals, citing syllabus point 1 of In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011):

  • Findings of fact made by the circuit court are reviewed under a clearly erroneous standard; and
  • Conclusions of law are reviewed de novo.

This standard structures how the Supreme Court scrutinizes the circuit court’s findings (or lack thereof) and its interpretation of the applicable rules and statutes.

2. In re Emily G. and In re Edward B. – Vacating Orders for Procedural Noncompliance

The Court cited syllabus point 3 (in part) of In re Emily G., 224 W. Va. 390, 686 S.E.2d 41 (2009), which in turn quotes syllabus point 5 (in part) of In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001):

Final orders in abuse and neglect proceedings will be vacated and the matter remanded when circuit courts “substantially disregard[] or frustrate[]” the process set forth by the Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes.

This principle is the doctrinal vehicle the Court uses to justify vacatur when the circuit court:

  • Holds an accelerated disposition without complying with Rule 32(b); and
  • Fails to make the jurisdictionally required factual findings under In re B.V.

3. Rule 32(b) – Accelerated Dispositional Hearings

Rule 32(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings governs when a dispositional hearing may be held immediately after the adjudicatory hearing. The memorandum decision emphasizes two of its three requirements:

  1. All parties must agree to immediately proceed to disposition; and
  2. Notice of the dispositional hearing must have been provided to, or waived by, all parties as required by the rules.

While Rule 32(b) contains a third requirement, the Court declined to address it because the failure to meet the first two was dispositive. Importantly, Rule 32(b) is framed in the conjunctive: all listed requirements must be met to lawfully accelerate the dispositional phase.

4. In re Z.H. – Jurisdiction Raised Sua Sponte

The Court relied on syllabus point 4 of In re Z.H., 245 W. Va. 456, 859 S.E.2d 399 (2021), which permits it to raise the issue of subject-matter jurisdiction on its own motion in abuse and neglect appeals. Jurisdiction is non-waivable, and parties’ failure to assign it as error does not prevent the Court from addressing it.

Here, the father did not specifically challenge his initial adjudication in his assignments of error. Nonetheless, the Court reviewed whether the circuit court lawfully exercised jurisdiction given the insufficiency of the adjudicatory findings under In re B.V..

5. In re B.V. and In re C.S. & B.S. – Child-Specific Findings and Guardianships

The decision’s most significant doctrinal foundation is In re B.V., 248 W. Va. 29, 886 S.E.2d 364 (2023). There, the Supreme Court held:

In order to exercise subject matter jurisdiction in abuse and neglect cases, the court must make specific factual findings explaining how each child's health and welfare are being harmed or threatened by the allegedly abusive or neglectful conduct of the parties. Due to the jurisdictional nature of this question, generalized findings applicable to all children named in the petition will not suffice; the circuit court must make specific findings with regard to each child so named.

This requirement applies regardless of whether:

  • There is a contested adjudication; or
  • The parent stipulates to adjudication.

The Court also referenced its earlier decision in In re C.S. and B.S., 247 W. Va. 212, 875 S.E.2d 350 (2022), as interpreted in B.V., for the proposition that:

With respect to a child in a legal guardianship at the time an abuse and neglect petition is filed, In re C.S. stands for the proposition that a circuit court must make factual findings that said child is an “abused child” or “neglected child” in order to exercise jurisdiction over the child.

This is crucial in this case because E.W. was under a legal guardianship, and the circuit court nonetheless adjudicated him an abused and neglected child without articulating how the father’s conduct harmed or threatened him.

6. West Virginia Code § 49-1-201 – Definition of “Abandonment”

The Court quoted the statutory definition of “abandonment”:

“‘Abandonment’ means any conduct that demonstrates the settled purpose to forego the duties and parental responsibilities to the child[.]” W. Va. Code § 49-1-201.

The Court emphasized that this definition does not include a mere “inability to care” for a child. That is a distinct concept. Thus, the trial court erred in treating “abandonment and inability to care” as joint bases for the prior termination of parental rights and then importing that misunderstanding into the present dispositional analysis.

C. The Court’s Legal Reasoning

1. Rule 32(b) and the Improper Accelerated Disposition

The Court first addressed the procedural defect in the October 17, 2023, hearing. The circuit court had:

  • Expressly told the parties at a prior hearing that October 17 would be an adjudicatory hearing and instructed them to disregard earlier notice suggesting that it might also be a termination hearing; and
  • Then, at the October 17 hearing, proceeded to disposition and termination immediately after resolving adjudication, without taking additional evidence or giving notice that disposition would occur that day.

Under Rule 32(b), an accelerated dispositional hearing is allowed only if:

  • All parties consent to proceed; and
  • All parties had prior notice of disposition or validly waived it.

The Supreme Court found:

  • No evidence that the father agreed to the accelerated disposition;
  • No record of waiver of notice by the father.

DHS conceded on appeal that the circuit court failed to comply with Rule 32(b). Because these are mandatory conditions, the dispositional hearing was procedurally defective. Under Emily G. and Edward B., this level of noncompliance with the rules required vacatur of the November 2, 2023, termination order.

Importantly, the Court chose not to reach the father’s substantive challenges to the decision to terminate his parental rights (for example, whether less-restrictive alternatives should have been considered). The Rule 32(b) error was sufficient to undo the dispositional order, leaving any substantive dispositional issues for potential reconsideration on remand.

2. Jurisdictional Defect in Adjudication: Lack of Specific Findings for Each Child

The Court then turned to the adjudicatory order itself. Although the father did not expressly challenge the October 22, 2023, adjudicatory order in his assignments of error, the Court invoked In re Z.H. to review whether the circuit court had subject-matter jurisdiction—a threshold question that the Court may raise on its own.

Under In re B.V., to exercise jurisdiction, a circuit court must make specific factual findings showing:

  • How each child’s health and welfare are harmed or threatened by the parent’s alleged abuse or neglect; and
  • What specific conduct constitutes that abuse or neglect.

The October 22, 2023, adjudicatory order in this case contained only a conclusory statement:

“[Petitioner] is adjudged an abusing and neglectful parent under West Virginia law. The infant children, [R.W., N.W., and E.W.] are abused and neglected children.”

The order did not:

  • Identify which allegations were admitted or proven;
  • Describe how the father’s conduct harmed or threatened each child; or
  • Differentiate among the three children, despite their differing placements and circumstances (particularly E.W.’s legal guardianship).

The Court highlighted that the DHS petition itself:

  • Did not allege any acts of “abuse” by the father; it alleged:
    • His incarceration; and
    • His failure to pay child support for N.W. and R.W.;
  • Did not explain how E.W. was harmed or threatened while in a legal guardianship with grandparents.

Since the petition contained no abuse allegations, and the evidence at adjudication related only to incarceration and arrearage, there was no evidentiary basis to adjudicate the father as an “abusing” parent. The Court observed that if the circuit court had complied with the B.V. requirement of detailed findings, it likely would have recognized this disconnect between the petition, the evidence, and the legal conclusion of “abuse.”

Because the specific findings requirement is jurisdictional, the failure to comply means that the circuit court never properly invoked jurisdiction, even if the father stipulated to certain facts. A stipulation cannot substitute for the court’s independent duty to:

  • Relate those facts to the statutory definitions of “abused child” and “neglected child”; and
  • Make individualized findings as to each child.

Consequently, the Court vacated the October 22, 2023, adjudicatory order in its entirety.

3. The Special Case of E.W. in Legal Guardianship

The Court’s concern was especially acute as to E.W. because, at the time of filing, he was in a legal guardianship with the maternal grandparents. Under B.V. and C.S. & B.S., when a child is in an existing legal guardianship:

  • The circuit court must explicitly find that the child is abused or neglected within the statutory definitions to exercise jurisdiction;
  • The mere fact of a prior termination or current incarceration does not automatically render that child an “abused” or “neglected” child.

Here, the circuit court did not perform any analysis of how the father’s incarceration or arrearage affected E.W. while in the grandparents’ care. Yet E.W. was summarily included in the blanket declaration that all three children were “abused and neglected.”

This omission illustrates the core concern in B.V.: generalized findings obscure materially different circumstances and may lead to an improper exercise of jurisdiction, particularly over children not in the parent’s custody at the time of the petition.

4. Mischaracterization of the Prior Termination and the Meaning of “Abandonment”

In its November 2, 2023, final order, the circuit court made additional findings about the father’s prior termination of parental rights in another case. It stated:

“[T]he basis for the involuntary termination [in the prior case] was abandonment and inability to care for the Infant Respondent[.]”

However, the dispositional order from that prior case—part of the appellate appendix—listed abandonment as the sole basis of adjudication. The Supreme Court therefore held that:

  • The circuit court’s finding that “inability to care” was also a basis was contradicted by the record and erroneous; and
  • Its subsequent factual findings in this case (that the father failed to remedy the conditions from the prior case) were predicated on this mistaken premise.

The Supreme Court underscored that the statutory definition of “abandonment” in § 49-1-201 is focused on:

  • Conduct showing a settled purpose to forego parental duties and responsibilities—essentially, a willful forsaking of the parent-child relationship.

That is distinct from:

  • A parent’s inability to care for a child due to factors like incarceration, mental illness, or other incapacities.

By conflating abandonment with inability to care, the circuit court:

  • Misread the prior record; and
  • Blurred the legal distinction between a parent’s willful desertion of responsibilities and a parent’s temporary or structural incapacity.

The Court also pointed out:

  • The current DHS petition did not allege abandonment of E.W., N.W., or R.W.; and
  • The record contained no adjudicatory findings that these children were abandoned.

Accordingly, the Court stated that if, on remand, the circuit court or DHS believes that the father abandoned these children, “the appropriate action would be to amend the petition to include this allegation before proceeding to adjudication.”

This reinforces a critical procedural safeguard: parents are entitled to notice of the specific allegations against them. A court may not import a theory of abandonment into the case:

  • Without that allegation having been pled; and
  • Without factual development and findings supporting it.

5. Scope of Vacatur and Directions on Remand

Because the November 2, 2023, order both:

  • Terminated parental rights; and
  • Contained additional adjudicatory-type findings that were inconsistent with the record,

the Supreme Court held that vacatur of that dispositional order necessarily extended to those adjudicatory findings as well.

The Court’s mandate on remand is clear:

  • The circuit court must:
    • Hold a properly noticed adjudicatory hearing; and
    • Thereafter comply with all applicable statutes and procedural rules for any further hearings (e.g., disposition).
  • If DHS or the court wishes to rely on:
    • Abandonment; or
    • Other grounds not initially pled,
    the petition must be amended so those allegations are squarely before the court and the parent has an opportunity to respond.

D. Impact and Implications

1. For Circuit Courts

This decision reinforces that:

  • Accelerated disposition is the exception, not the norm. Circuit courts cannot move straight from adjudication to termination, even in apparently straightforward cases, unless Rule 32(b)’s requirements are rigorously met and documented on the record.
  • Detailed written findings are mandatory at adjudication. Courts must:
    • Identify which allegations are proven or admitted;
    • Explain how those facts satisfy the statutory definitions of “abused child” or “neglected child”; and
    • Do this separately for each child, particularly when children are in different placements or under legal guardianships.
  • Prior terminations must be accurately characterized and used carefully. A prior adjudication for abandonment:
    • Does not automatically bring “inability to care” into the case; and
    • Cannot be used to expand the current grounds for termination without pleading and proof.

Practically, circuit courts may need to:

  • Use more detailed adjudicatory order templates that prompt child-specific findings;
  • Be cautious when converting previously scheduled dispositional hearings into adjudicatory-only hearings, and vice versa, ensuring notice and consent requirements are respected;
  • Scrutinize DHS petitions that rely on prior terminations but fail to describe the underlying grounds.

2. For DHS and Guardians ad Litem

DHS and guardians ad litem must anticipate that:

  • Petitions relying on a prior termination must include at least a concise description of the underlying basis (e.g., abandonment, chronic abuse, substance abuse), so the trial court can assess how that history bears on current risk;
  • They bear a role in ensuring the record contains:
    • Evidence specifically linking the parent’s conduct to each child’s risk or harm; and
    • Evidence that supports any requested acceleration of disposition.
  • They should be alert to ensure that notice requirements are not effectively waived by inattention; silence cannot substitute for the express agreement and notice demanded by Rule 32(b).

Guardians, while aligned with the children’s best interests, must also be mindful that:

  • Procedural shortcuts, even when seemingly expediting permanency, expose orders to reversal and further delay;
  • Promoting legally sound, detailed findings at adjudication and disposition ultimately serves children’s long-term stability.

3. For Parents and Children

From a due process standpoint, this decision underscores that:

  • Parents have a right to:
    • Advance notice of the nature of each hearing;
    • Time to prepare for the dispositional phase, including presenting evidence of improvement or alternatives to termination; and
    • Notice of the specific grounds alleged against them (e.g., abandonment vs. neglect due to nonsupport).
  • Children benefit from:
    • Orders that are well-founded and legally robust, reducing the risk of future reversals and re-litigation; and
    • Clarity about the reasons for court decisions affecting their family relationships.

In the short term, reversals such as this can prolong uncertainty for children and caregivers. But in the long term, enforcing procedural and jurisdictional safeguards aims to ensure that when parental rights are finally terminated or preserved, those decisions are durable and defensible.

4. Use of Prior Terminations in Subsequent Cases

West Virginia law permits—and in some contexts requires—DHS to file petitions when parental rights to another child have been involuntarily terminated, and prior terminations can significantly affect both adjudication and disposition in subsequent cases. In re E.W., N.W., and R.W. signals that:

  • Prior terminations are powerful but must be used precisely:
    • Court orders from the prior case must be correctly interpreted;
    • The specific statutory grounds (e.g., abandonment) matter; and
    • Courts cannot casually expand those grounds after the fact (e.g., by tacking on “inability to care”).
  • If the current petition intends to rely on:
    • The same type of conduct (e.g., abandonment) toward new children; or
    • A failure to remedy past conditions,
    then:
    • Those theories must be pled; and
    • Evidence must be developed and findings made along those lines.

This will likely lead practitioners to more carefully draft petitions and dispositional recommendations when prior terminations are part of the factual background.

IV. Simplifying Key Legal Concepts

1. Abuse and Neglect Proceedings: Basic Structure

West Virginia abuse and neglect proceedings generally have two main phases:

  1. Adjudication:
    • The court determines whether the child is an “abused child” or “neglected child” as defined by statute;
    • Evidence is presented, and the court must make specific factual findings as to how each child is harmed or at risk;
    • A parent may contest the allegations or “stipulate” (admit) to certain facts, but the court must still enter detailed findings linking those facts to the statutory definitions.
  2. Disposition:
    • If a child is adjudicated abused or neglected, the court decides what should happen:
      • Return the child with conditions;
      • Order an improvement period for the parent;
      • Place the child in foster or kinship care; or
      • Terminate parental rights, if no less-restrictive alternative adequately protects the child.
    • Disposition often involves additional evidence about parents’ improvement, services, and alternative caregivers.

2. Accelerated Disposition (Rule 32(b))

Sometimes, the court may hold adjudication and disposition back-to-back in a single hearing. Rule 32(b) allows this only if:

  • All parties explicitly agree to proceed immediately to disposition;
  • The parties were already properly notified that disposition could occur on that date or validly waived that notice; and
  • (Under the full text of the rule) The court is satisfied that disposition can be fairly conducted on the existing or presented evidence.

In this case, the Court found these safeguards were ignored: the father was told the hearing would only be for adjudication, and he never agreed or waived his right to notice of a later dispositional hearing.

3. Subject-Matter Jurisdiction and Specific Findings

“Subject-matter jurisdiction” is the court’s legal power to hear a particular type of case. In West Virginia abuse and neglect law:

  • The Supreme Court has held that a circuit court gains jurisdiction over a child in such a case only if it makes specific factual findings that the child is an abused or neglected child under the statute;
  • General statements like “the children are abused and neglected” are not enough;
  • The findings must show:
    • What the parent did or failed to do; and
    • How that conduct harmed or threatened the specific child’s health or welfare.

This requirement is jurisdictional: if the findings are missing or overly general, any subsequent orders—such as termination of parental rights—are vulnerable to being vacated on appeal.

4. Stipulated Adjudication

A parent may choose to stipulate (admit) to certain allegations to avoid a contested adjudicatory hearing. However:

  • The court cannot accept a bare stipulation and simply label the parent “abusive and neglectful” and the children “abused and neglected” without further explanation;
  • Even with a stipulation, the court must:
    • Identify the specific facts being admitted; and
    • Articulate why those facts meet the statutory definitions of abuse or neglect for each child.

This is what failed to happen in In re E.W., N.W., and R.W., particularly for E.W., the child in a legal guardianship.

5. Legal Guardianship

A “legal guardianship” places legal responsibility for the child in someone other than the biological parent (e.g., grandparents). When a child is already in a legal guardianship, the court must:

  • Still make findings that the child is an abused or neglected child if it is to exercise jurisdiction in an abuse and neglect case involving that child; and
  • Explain how the parent’s conduct—despite the guardianship—creates harm or risk to that child’s health and welfare.

Guardianship does not bar the court from taking jurisdiction, but it does require more thoughtful analysis, which was lacking here.

6. Abandonment vs. Inability to Care

Under West Virginia Code § 49-1-201:

  • Abandonment means conduct that shows a settled purpose to stop performing parental duties and responsibilities—such as long-term non-contact or disregard for the child.

This is different from:

  • Inability to care, which might stem from:
    • Incarceration;
    • Physical or mental illness; or
    • Other circumstances outside the parent’s immediate control.

A parent may be unable to care but still actively trying to maintain a relationship and responsibilities. That is not the same as abandonment. The circuit court blurred this line by describing the prior adjudication as grounded in both abandonment and inability to care, even though the prior order cited only abandonment.

7. Memorandum Decision vs. Full Opinion

Under Rule 21 of the Rules of Appellate Procedure:

  • A memorandum decision is used for cases that, in the Court’s view, do not require a full written opinion and syllabus points—often because they involve straightforward application of existing law or lack significant precedential value;
  • A formal opinion with syllabus points is typically reserved for cases that:
    • Announce new legal principles; or
    • Clarify or modify existing precedent.

Here, Justice Armstead dissented because he believed the issues raised warranted a full opinion and oral argument, suggesting he viewed the procedural and jurisdictional questions as substantial and worthy of more formal precedential articulation.

V. The Dissent

Justice Armstead’s dissent is succinct but pointed:

“I dissent to the majority's resolution of this case. I would have set this case for oral argument to thoroughly address the error alleged in this appeal. Having reviewed the parties' briefs and the issues raised therein, I believe a formal opinion of this Court was warranted, not a memorandum decision. Accordingly, I respectfully dissent.”

The dissent does not contest the majority’s legal analysis on its face; instead, it questions the Court’s decision to dispose of the matter through a Rule 21(d) memorandum decision. This suggests several implicit concerns:

  • The recurring nature of procedural errors in abuse and neglect cases—especially with respect to Rule 32(b) and inadequate adjudicatory findings—may call for clearer, more formally precedential guidance;
  • Issues involving prior terminations and the definition of “abandonment” carry substantial consequences in ongoing and future cases, arguably justifying a full opinion with syllabus points;
  • Oral argument could have assisted the Court in exploring these issues in greater depth and in shaping a more detailed doctrinal framework for trial courts and practitioners.

In practice, while memorandum decisions technically carry limited precedential weight compared to full opinions, they still strongly indicate how the Court expects existing law—such as B.V., Z.H., and Rule 32(b)—to be applied. Justice Armstead’s dissent highlights an ongoing tension between docket management (favoring streamlined dispositions) and the need for robust precedential guidance in a complex and sensitive area of law.

VI. Conclusion

In re E.W., N.W., and R.W. is formally a memorandum decision, but it substantially reinforces and operationalizes important principles in West Virginia abuse and neglect law:

  • Procedural safeguards at disposition are mandatory. Circuit courts cannot shortcut the dispositional phase by immediately terminating parental rights after adjudication unless Rule 32(b)’s requirements—agreement of all parties and proper notice—are strictly satisfied and reflected in the record.
  • Jurisdiction depends on detailed, child-specific findings at adjudication. Under In re B.V., courts must spell out:
    • What the parent did or failed to do;
    • How that conduct meets the statutory definitions of abuse or neglect; and
    • How each individual child is harmed or at risk, especially if that child is in a legal guardianship.
    General, boilerplate statements are not enough.
  • Prior terminations must be accurately characterized and procedurally integrated. Misstating the basis for a prior adjudication (e.g., adding “inability to care” to a purely abandonment-based termination) can taint current findings. And if DHS or the court wishes to rely on abandonment or any other specific condition in the new case, it must be alleged in the petition and supported by record evidence.

For trial courts, DHS, guardians ad litem, and parents, this decision serves as a reminder that the constitutional gravity of terminating parental rights demands scrupulous adherence to both procedural rules and jurisdictional prerequisites. While the decision arises in the context of one family and three children, its practical lessons are broad: robust notice, careful use of prior history, and meticulous, child-by-child findings at adjudication are not optional—they are foundational to the legitimacy and durability of abuse and neglect judgments in West Virginia.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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