In re K.B.: Noncustodial Parent’s Prolonged Non‑Contact and Non‑Support as Neglect under West Virginia Law

In re K.B.: Noncustodial Parent’s Prolonged Non‑Contact and Non‑Support as Neglect under West Virginia Law

I. Introduction

In In re K.B., No. 24-627 (Nov. 4, 2025), the Supreme Court of Appeals of West Virginia affirmed a circuit court’s adjudication of a mother as a neglectful parent, despite the fact that:

  • She did not have a formal custody order giving her primary care of the child;
  • The child, a teenager, reportedly preferred to live with the father and avoided contact with the mother; and
  • The mother claimed that her lack of involvement stemmed from the child’s choice rather than her own.

The Court held that the mother’s extended failure to maintain contact, provide financial support, and supply basic necessities—combined with her own statements indicating she believed the father was abusive— constituted neglect under West Virginia Code § 49-1-201. The decision also reiterates that a parent’s own admissions, standing alone, can meet the “clear and convincing” standard at adjudication, and that abuse and neglect proceedings are not constrained by evidentiary formality as to the “mode” of proof.

The case arises out of a broader abuse and neglect proceeding involving allegations that the father sexually abused K.B., then sixteen. The Department of Human Services (“DHS”) alleged not only that the father committed abuse, but also that the mother failed to protect the child and effectively disappeared from parenting. While the father’s parental rights were ultimately terminated, this appeal concerns the adjudication of the mother as a neglectful parent.

Notably, the decision is issued as a memorandum decision under Rule 21 of the West Virginia Rules of Appellate Procedure, rather than a full published opinion. Justice Bunn dissented from that procedural choice, indicating that, in her view, the legal issues merited oral argument and a formal written opinion.

II. Factual and Procedural Background

A. Parties and Initial Petition

The case concerns:

  • K.B., a child who was sixteen when the petition was filed;
  • Petitioner Mother A.S., the noncustodial mother appealing the neglect adjudication;
  • Respondent Father, whose parental rights were ultimately terminated; and
  • West Virginia Department of Human Services (DHS), the petitioner in the abuse and neglect proceeding.

In February 2024, DHS filed an abuse and neglect petition in Berkeley County. The petition alleged:

  • That K.B. disclosed the father had touched her sexually on two occasions;
  • That the mother failed to meet K.B.’s basic needs and did not meaningfully engage with her as a parent;
  • That the mother did not live with the child and had abandoned K.B.; and
  • That the mother had “demonstrated the settled purpose to forego the duties and parental responsibilities to the child.”

Thus, from the outset, DHS framed the case against the mother in terms of abandonment and neglect—two related but distinct concepts under West Virginia law.

B. Preliminary Hearing (March 2024)

At the preliminary hearing, a DHS investigator testified regarding her investigative report. That report documented a telephone conversation with the mother, during which the mother reportedly stated that:

  • K.B. “should have been taken away from [the father’s] custody a long time ago”;
  • The father was mentally, physically, and emotionally abusive; and
  • She knew the father was abusing K.B.

The report also noted K.B.’s mental health challenges, including anxiety, depression, self-harm, and prior suicidal ideation.

Though this was a preliminary hearing, the circuit court later indicated—over the mother’s objection—that it would consider this preliminary hearing testimony, along with the father’s testimony at that time, as part of the evidence supporting adjudication.

C. Adjudicatory Hearings (May and September 2024)

The adjudicatory phase occurred in May and September 2024. Critical testimony included:

1. Father’s testimony

The father testified that:

  • No custody order had been in place since K.B. was two years old;
  • K.B. lived with him most of the time, though she had lived for short periods with the mother and with the paternal grandmother.

2. Mother’s testimony

At the May 2024 adjudicatory hearing, the mother testified that:

  • K.B. lived with her briefly in 2020;
  • She had not seen or visited K.B. since 2021—nearly four years by the time of adjudication;
  • She did not maintain contact because K.B. chose to live with her father and declined further interaction with her;
  • The only messages she produced as proof of attempted contact were from 2021;
  • She provided no financial support for K.B. in 2022 or 2023; and
  • She offered no food, shelter, or clothing from at least July 2023 through February 2024.

She also acknowledged having told the DHS investigator that K.B. should have been removed from the father’s custody long ago because he was abusive. She attempted to soften this admission by clarifying that she had never personally witnessed abuse, but the statement itself remained in the record as an admission of her belief or knowledge.

Importantly, she attempted to shift responsibility for the lack of contact onto the child, asserting that K.B.’s preference to live with the father and to avoid communication prevented her from fulfilling parental responsibilities.

D. Circuit Court’s Adjudicatory Ruling

At the conclusion of adjudication, the circuit court found that the mother had neglected K.B. based on:

  • “Minimal contact, mental health support, [and] communication”; and
  • The court’s finding that the mother’s absence from K.B.’s life contributed to the child’s mental health issues and trauma.

The court expressly stated that its adjudication was based on neglect, not abandonment, and adjudicated the mother as a neglectful parent.

The father’s parental rights were later terminated, and K.B. reached the age of majority during the pendency of the appeal. The mother, however, appealed the adjudicatory order that found her to be a neglectful parent.

III. Summary of the Supreme Court’s Decision

The Supreme Court of Appeals of West Virginia affirmed the circuit court’s adjudication of neglect. The Court:

  • Reiterated the standard of review in abuse and neglect appeals:
    • Findings of fact are reviewed for clear error; and
    • Conclusions of law are reviewed de novo (In re Cecil T.).
  • Emphasized that adjudicatory findings must concern conditions existing at the time of the filing of the petition and must be proven by clear and convincing evidence, as required by West Virginia Code § 49-4-601(i).
  • Held that K.B. was a “neglected child” under West Virginia Code § 49-1-201, in light of:
    • The mother’s extended failure to provide food, clothing, shelter, or financial support; and
    • The mother’s own statements acknowledging that she believed the father was abusive.
  • Concluded that the mother’s failures resulted in both threatened and actual harm to K.B.’s physical and mental health.
  • Rejected the mother’s argument that DHS failed to present sufficient evidence because her own admissions alone could have satisfied DHS’s burden, and DHS in fact presented corroborating testimony as well.
  • Dismissed as irrelevant the mother’s reliance on West Virginia Code § 48-9-209 (custody preferences of children over age fourteen), because no custody order was at issue in this abuse and neglect proceeding.

Justice Bunn dissented solely on the ground that the case should have received full briefing, oral argument, and a formal opinion. She did not expressly address the merits.

IV. Detailed Analysis

A. Statutory and Doctrinal Framework

1. Adjudication and burden of proof: West Virginia Code § 49-4-601(i)

The Court framed its analysis around West Virginia Code § 49-4-601(i), which governs the adjudicatory phase of abuse and neglect proceedings:

“[T]he court [must] make a determination ... as to whether the child is abused or neglected and whether the [parent] is abusing [or] neglecting,” with the further requirement that “[t]he findings must be made upon conditions existing at the time of the filing of the petition and proven by clear and convincing evidence.”

Two key elements are emphasized:

  • Temporal focus: Conditions must be evaluated as they existed at the time the petition was filed; and
  • Standard of proof: DHS must establish abuse or neglect by clear and convincing evidence, a standard higher than “preponderance of the evidence” but lower than “beyond a reasonable doubt.”

2. Definition of a “neglected child”: West Virginia Code § 49-1-201

The Court relied on the statutory definition of a “neglected child,” which includes a child:

“[w]hose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care, or education.”

Several aspects of this definition are relevant to In re K.B.:

  • The harm may be physical or mental;
  • The statute covers both actual harm and threatened harm; and
  • The failure can be a “refusal, failure, or inability” to provide necessities—including supervision, which is closely tied to emotional and mental health.

Application to K.B. centered on the mother’s failure to provide any support or necessities (including emotional and supervisory support) during the period immediately preceding the petition, despite her own stated belief that the child’s father was abusive.

B. Standard of Review and Precedents Cited

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

In Syllabus Point 1 of In re Cecil T., the Court set forth the standard of review in abuse and neglect cases:

  • Factual findings are reviewed for clear error; and
  • Legal conclusions are reviewed de novo.

This standard reflects strong deference to the circuit court’s role as fact-finder. The Court reaffirmed that it would not reweigh evidence or make independent credibility judgments. Instead, it asks whether the circuit court’s factual determinations are supported by the record and are not clearly erroneous.

2. In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996)

The Court quoted Syllabus Point 1 of In re Tiffany Marie S. for the classic statement of the “clearly erroneous” standard:

“[T]he circuit court’s findings ‘shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’”

By invoking Tiffany Marie S., the Court signaled that the threshold for overturning a neglect adjudication is high: as long as the circuit court’s findings are plausible in light of the record, the Supreme Court will not disturb them.

3. In Interest of S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981) and In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176 (1997)

The mother argued that DHS had failed to present adequate evidence at adjudication, asserting that essentially only her own testimony had been offered. The Court responded by citing Syllabus Point 1 of In re Joseph A., which in turn quotes In Interest of S.C.:

“[West Virginia Code § 49-4-601(i)] requires the [DHS], in a child abuse or neglect case, to prove ‘conditions existing at the time of the filing of the petition ... by clear and convincing [evidence].’ The statute, however, does not specify any particular manner or mode of testimony or evidence by which the [DHS] is obligated to meet this burden.”

The legal significance of this citation is twofold:

  • It rejects any argument that DHS must present specific types of evidence (e.g., expert testimony, forensic reports, or eyewitness accounts) to meet its burden.
  • It implicitly approves reliance on:
    • Admissions by the parent;
    • Testimony from prior hearings; and
    • Other non-traditional or non-expert evidence, provided it is sufficiently reliable and persuasive.

Applying this principle, the Court held that: even if the only evidence at adjudication had been the mother’s own testimony, her admissions regarding her lack of support and knowledge of alleged abuse could have sufficed, standing alone, to support a neglect adjudication by clear and convincing evidence.

C. Evidence of Neglect: Non-Contact, Non-Support, and Failure to Protect

1. Mother’s admissions concerning lack of support and contact

The Court’s core holding rests on the mother’s own admissions:

  • She had not seen or visited K.B. since 2021;
  • She had minimal contact, with only a few messages from 2021 in the record;
  • She provided no financial support in 2022 or 2023; and
  • She provided no food, shelter, or clothing for at least six months prior to the February 2024 petition.

From these admissions, the Court concluded that:

“These admissions support the circuit court’s finding that the petitioner neglected the child, as her failure to provide the child with necessities resulted in threatened harm and actual harm to her physical and mental health.”

Two important aspects of this reasoning:

  • Duration and completeness of non-support: This was not a short temporary lapse or a partial failure. The mother effectively provided no support and no contact over a substantial period.
  • Consequential harm: The Court tied this failure to actual or threatened harm to the child’s physical and mental health, noting K.B.’s mental health diagnoses and self-harm history.

2. Knowledge (or belief) of abuse and failure to act

The Court also highlighted the mother’s statements to the DHS investigator that K.B. should have been removed from the father’s custody long ago, and that the father was mentally, physically, and emotionally abusive.

Although the mother later attempted to dilute this statement by saying she had not personally witnessed the abuse, the Court treated her earlier assertion as an admission that she believed or knew the father was abusive. In light of this:

  • The mother knew or believed that the custodial parent was abusive; and
  • Despite that belief, she chose not to provide support, contact, or protection.

This is essentially a failure-to-protect rationale: if a parent knows that another caregiver is harming or threatening a child, the parent has a duty to intervene, report, or otherwise protect the child. Here, rather than acting to protect K.B., the mother disengaged from parenting altogether.

3. Causation and the child’s mental health

The circuit court found—and the Supreme Court accepted—that the mother’s absence contributed to K.B.’s mental health issues and trauma. While the opinion does not elaborate on how the court linked causation, the record included evidence that:

  • K.B. suffered from anxiety and depression;
  • K.B. engaged in self-harm; and
  • K.B. had previously experienced suicidal ideation.

Under § 49-1-201, any threatened harm to mental health caused by a parent’s refusal or failure to provide necessities and supervision can suffice to establish neglect. The Court accepted the circuit court’s finding that the mother’s disengagement meaningfully contributed to this harm or threatened harm.

D. Use of the Mother’s Admissions and Preliminary Hearing Testimony

1. Mother’s claim: DHS presented only her testimony

The mother argued on appeal that DHS failed to present sufficient evidence at adjudication because “her testimony was the only evidence presented.” If true, that argument attempts to suggest that a parent’s uncorroborated admissions alone cannot meet the clear and convincing standard.

2. The Court’s response

The Court rejected the factual premise and the legal implication:

  • Factually, the record showed that the circuit court also considered:
    • Testimony from the father at the preliminary hearing; and
    • Testimony from the DHS investigator at the preliminary hearing.
    The circuit court expressly stated, over objection, that it was relying on those earlier testimonies at adjudication.
  • Legally, even if the mother’s testimony had been the only adjudicatory evidence, her admissions alone could suffice as “clear and convincing” proof of neglect, under In re Joseph A. and In Interest of S.C.

The Court emphasized that § 49-4-601(i) “does not specify any particular manner or mode of testimony or evidence” required to meet the clear and convincing standard. This reflects an evidentiary flexibility in abuse and neglect proceedings, driven by the underlying remedial and protective purpose of the child welfare statutes.

3. Use of preliminary hearing testimony at adjudication

While the Supreme Court did not explicitly analyze the procedural propriety of the circuit court incorporating preliminary hearing testimony into the adjudicatory record, it implicitly approved that practice by:

  • Accepting that the circuit court considered that testimony; and
  • Relying on it as part of the “record” supporting the adjudication.

In practice, this underscores that:

  • Evidence introduced at preliminary stages (if properly preserved and if parties had an opportunity to confront it) may be considered at adjudication; and
  • Appellate courts will treat such evidence as part of the overall evidentiary picture when reviewing for clear error.

E. Rejection of the Child’s Preference / Custody Statute Argument

1. The statute invoked: West Virginia Code § 48-9-209

The mother attempted to rely on West Virginia Code § 48-9-209, which governs custody determinations in family law proceedings and requires courts to consider the preference of children over fourteen when entering custody orders. She apparently argued that:

  • K.B.’s preference to live with the father;
  • Coupled with the absence of a custody order in the abuse and neglect case;
  • Somehow excused or justified her lack of contact and support.

2. The Court’s reasoning

The Court dispatched this argument succinctly:

“[T]he petitioner cites to no custody order to which West Virginia Code § 48-9-209(f)(5)(E) would be applicable in the instant matter. Because this statute has no bearing on the proceedings below, the petitioner is entitled to no relief in this regard.”

In other words:

  • § 48-9-209 applies in the context of custody allocation under Chapter 48 (domestic relations), not in Chapter 49 abuse and neglect proceedings where the State intervenes to protect a child.
  • Even if a child prefers to live with one parent, that preference does not relieve the other parent of their statutory duty to provide necessities and supervision, nor does it immunize them from a neglect finding when they wholly disengage.

This is an important clarification: a teenager’s stated preference is not a defense to an allegation that a noncustodial parent has neglected to provide basic support and contact, especially where that parent believes the custodial parent is abusive.

F. Neglect versus Abandonment

While DHS’s petition alleged abandonment and a “settled purpose to forego parental responsibilities,” the circuit court adjudicated the mother only for neglect, not abandonment.

Under West Virginia law:

  • Neglect focuses on a present failure or refusal to provide necessary care, support, and supervision, resulting in actual or threatened harm.
  • Abandonment (also defined by statute) generally involves a more extreme and deliberate severing of the parent-child relationship, often over a prolonged period, with an intent to permanently relinquish parental roles.

The circuit court’s choice to adjudicate on neglect rather than abandonment suggests:

  • The conduct clearly satisfied the elements of neglect—failure to provide necessities and supervision resulting in harm;
  • The court may have seen abandonment as unnecessary or potentially harder to prove (e.g., with respect to parental intent), given that a neglect finding already sufficed to move forward in the case.

For practitioners, this distinction matters because:

  • A neglect adjudication alone can have serious consequences, including being a basis for termination of rights in this or future cases; and
  • The evidence needed to prove neglect is often less onerous than that required to establish abandonment.

G. The Dissent and the Use of a Memorandum Decision

Justice C. Haley Bunn issued a brief but pointed dissent:

“I dissent to the majority’s resolution of this case. I would have set this case for oral argument to thoroughly address the errors 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.”

While Justice Bunn did not take a position on the substantive merits, her dissent raises procedural and institutional concerns:

  • She believes the issues—including the sufficiency of evidence, treatment of a noncustodial parent, and role of a teen’s preferences—are significant enough to warrant oral argument.
  • She also implies that these issues deserved the fuller doctrinal elaboration that typically accompanies a signed opinion rather than a brief memorandum disposition.

Memorandum decisions under Rule 21 are generally used when the Court believes that the case does not present novel issues or warrant extensive written analysis. Justice Bunn’s view suggests that, in her judgment, In re K.B. touches on important and potentially recurring questions in West Virginia child welfare law and would benefit from a more fully reasoned precedential opinion.

V. Clarification of Key Legal Concepts

A. “Neglected Child”

A “neglected child” is, in relevant part, one:

“[w]hose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care, or education.”

In plain terms:

  • A parent does not have to physically hurt a child to “neglect” them;
  • Failing to provide basic needs (including emotional support and supervision) can be enough; and
  • The law protects against both actual harm and situations where harm is strongly threatened.

B. “Clear and Convincing Evidence”

“Clear and convincing evidence” is a middle-level standard of proof. It requires:

  • Evidence that is highly and substantially more likely to be true than not; and
  • A firm belief or conviction, in the factfinder’s mind, of the truth of the allegations.

It is more demanding than the “more likely than not” standard used in most civil cases but does not require proof “beyond a reasonable doubt,” as in criminal cases.

C. “Clearly Erroneous” Standard on Appeal

Under the “clearly erroneous” standard:

  • The appellate court gives deference to the circuit court’s factual findings;
  • The appellate court will not overturn a finding just because it might have decided differently;
  • A finding is clearly erroneous only when the reviewing court is left with a “definite and firm conviction that a mistake has been committed,” even though some evidence supports the finding.

This is a highly deferential standard, particularly important in abuse and neglect cases where trial courts observe witnesses directly.

D. Preliminary Hearing vs. Adjudicatory Hearing

In abuse and neglect proceedings:

  • A preliminary hearing occurs soon after the petition is filed. It often focuses on immediate safety, probable cause, and whether the child should remain in or be removed from a home pending further proceedings.
  • An adjudicatory hearing is more akin to a trial on the merits. The court determines whether the child is abused or neglected and whether the respondent is an abusing or neglecting parent.

While evidence from the preliminary hearing is primarily used at that stage, In re K.B. shows that trial courts may incorporate such testimony into the adjudicatory record, especially where parties had an opportunity to confront and cross-examine the witnesses.

E. Memorandum Decision

A memorandum decision is a shorter appellate disposition that:

  • Applies existing law to the specific facts of the case;
  • Typically lacks the formal “syllabus points” and extended analysis of a full opinion; and
  • Is used when the Court concludes the case does not warrant a comprehensive written opinion under its rules.

Although memorandum decisions are usually less elaborate and may carry less precedential weight than full opinions, they still reflect the Court’s application of law and are often treated as persuasive authority in subsequent cases.

VI. Likely Impact and Practical Implications

A. For Noncustodial Parents

In re K.B. sends a clear message: noncustodial status does not diminish parental duties under child welfare law. Even if:

  • There is no formal custody order;
  • The child prefers to live with the other parent; or
  • The child resists contact with the noncustodial parent;

A parent remains obligated to:

  • Maintain reasonable contact and involvement;
  • Provide financial support and basic necessities, within their capacity; and
  • Act to protect the child if they believe the custodial parent is abusive.

Extended non-contact and non-support, especially in the face of suspected abuse by the other parent, can be adjudicated as neglect.

B. For DHS and Child Advocates

The decision reinforces several points valuable to child protection agencies and guardians ad litem:

  • Admissions are powerful evidence. A parent’s own statements can satisfy the clear and convincing standard, especially when those statements acknowledge prolonged non-support and awareness of risk to the child.
  • Holistic harm includes mental health. Evidence of anxiety, depression, self-harm, and suicidal ideation can demonstrate that a child’s mental health has been harmed or threatened by a parent’s neglect.
  • Older child preferences do not excuse neglect. Where a child’s preferences conflict with safety and parental duties, the statutory obligations remain with the parent and the Court, not with the child.

C. For Courts and Practitioners

Several practical lessons emerge:

  • Record development at preliminary hearings matters. Testimony at preliminary stages may later support adjudication and withstand appellate review.
  • Preservation of objections. The mother did object to the circuit court’s reliance on preliminary hearing testimony at adjudication, preserving that issue. However, the Supreme Court’s implicit acceptance suggests that such practice is permissible where due process is observed.
  • Custody statutes must be correctly contextualized. Counsel should be cautious about importing Chapter 48 custody provisions into Chapter 49 abuse and neglect proceedings. The statutory schemes address different questions and are applied in different procedural contexts.
  • Collateral consequences. Although K.B. reached the age of majority and the father’s rights were terminated, the mother’s neglect adjudication may carry forward as a factor in any future child welfare proceedings involving her (for example, as an “aggravated circumstance” or prior involuntary termination-type factor). Thus, such appeals remain important even after a specific child turns eighteen.

VII. Conclusion

In re K.B. clarifies and reinforces several key principles in West Virginia child welfare law:

  • A parent’s extended failure to provide contact, support, and basic necessities—particularly in the face of suspected abuse by the remaining caregiver—can constitute neglect under West Virginia Code § 49-1-201.
  • DHS can establish neglect by clear and convincing evidence through a parent’s own admissions, even without a particular “mode” of evidence, so long as the overall record supports the circuit court’s findings.
  • A teenager’s preference to live with one parent, or to limit contact with the other, does not absolve the noncustodial parent of their statutory duties and cannot be invoked to defeat a neglect petition.
  • Abuse and neglect proceedings are distinct from domestic relations custody disputes; custody preference statutes such as § 48-9-209 do not override child protection statutes in Chapter 49.

While issued as a memorandum decision, and thus more concise than a full opinion, the Court’s ruling in In re K.B. will likely be a significant reference point in future West Virginia cases addressing:

  • The duties of noncustodial parents;
  • The interplay between mental health and neglect; and
  • The evidentiary sufficiency of parental admissions in abuse and neglect adjudications.

Justice Bunn’s dissent underscores that the issues in this case are substantial and likely to recur. The decision thus stands as a meaningful, if succinct, reaffirmation that parental inaction—in the form of prolonged non-contact and non-support—can be as legally consequential as overt mistreatment, particularly where a child is already experiencing significant psychological distress.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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