Mandatory Dispositional Hearings in All Abuse-and-Neglect Dispositions and the Child’s Non‑Waivable Right to Counsel: Commentary on In re C.E. (W. Va. 2025)

Mandatory Dispositional Hearings in All Abuse-and-Neglect Dispositions and the Child’s Non‑Waivable Right to Counsel: Commentary on In re C.E. (W. Va. 2025)

Introduction

This commentary examines the Supreme Court of Appeals of West Virginia’s decision in In re C.E., No. 23-634 (Mar. 25, 2025), vacating a dispositional order in an abuse and neglect proceeding and remanding with directions. The case arose from proceedings in the Circuit Court of Hancock County involving a four-month-old child, C.E.-1, and his parents, L.F. (mother) and C.E.-2 (father). The petitioner was the child’s guardian ad litem (GAL). The Department of Human Services (DHS) was a party-respondent and, like the GAL, sought termination of parental rights at disposition.

The case presents three pivotal issues:

  • Whether a circuit court must conduct an evidentiary dispositional hearing before entering any dispositional order in an abuse and neglect case;
  • Whether a child’s statutory right to representation applies at every stage—including disposition—and whether that right can be waived or bypassed by excluding the GAL from key proceedings; and
  • Whether a dispositional order must contain adequate findings of fact and conclusions of law—framed by the best interests of the child—to support the chosen disposition.

At bottom, the Court articulates two powerful clarifications of West Virginia abuse-and-neglect procedure: (1) dispositional hearings are mandatory in every case, regardless of the type of disposition ultimately selected; and (2) a child’s right to counsel at every stage is non-waivable by a GAL or any other party, and certainly not by means of an ex parte meeting in lieu of the required hearing.

Summary of the Opinion

The Supreme Court vacated the circuit court’s October 11, 2023 dispositional order and remanded with directions to promptly conduct a proper dispositional hearing and then enter an order containing adequate findings and conclusions.

Key holdings and determinations include:

  • A circuit court is required to conduct a dispositional hearing prior to entering a dispositional order in an abuse and neglect case, regardless of the ultimate manner of disposition (new explicit rule).
  • The circuit court erred by substituting an in-chambers ex parte meeting—one that excluded the child’s GAL—for the required dispositional hearing, thereby denying the child his statutory right to representation at that stage.
  • The dispositional order lacked the necessary findings of fact and conclusions of law, including an analysis of how the disposition served the child’s best interests and the statutory findings required for the selected disposition.
  • The Court cautioned the circuit court regarding statutory time limits on improvement periods and admonished the judge’s statements that threatened to oppose GAL compensation if an appeal was pursued.
  • Because the statutory and rule-based process for disposition had been “substantially disregarded or frustrated,” vacatur and remand were required.

Case Background

In March 2022, DHS filed a petition after L.F. was found unconscious with heroin and paraphernalia nearby, while four-month-old C.E.-1 was strapped in a car seat in the same room. The father, C.E.-2, knew of the mother’s substance abuse and had himself recently overdosed twice. Both parents were adjudicated by stipulation in April 2022 and granted post-adjudicatory improvement periods.

Despite noncompliance (including fentanyl positives and missed screenings) and motions by the GAL and DHS to move to disposition, the circuit court entered contradictory orders that effectively prolonged the improvement periods well beyond statutory limits. The court first “terminated” the periods in November 2022 while effectively ordering continued compliance, then “reinstated” them in March 2023 for an unspecified time, despite objections that statutory limits had expired. After a petition for prohibition was filed, the court terminated the improvement periods in July 2023 and set the matter for disposition.

Before the August 2023 dispositional hearing, DHS and the GAL each filed materials recommending termination of parental rights. When the hearing convened, the court called counsel for DHS, the parents, and the paternal grandparents into chambers but excluded the GAL. After that ex parte meeting, DHS reported that the parents agreed to a “Disposition Five,” and DHS would not object to that disposition. The GAL objected. The court did not hold an evidentiary hearing, approved the Disposition Five, placed the child in DHS custody, and announced a permanency plan of guardianship with the maternal grandmother (after a home study). The court’s written order contained no detailed best-interests findings, no statutory findings for the disposition, and included a statement discouraging appeal and threatening to oppose payment of any additional GAL fees if an appeal were taken. The GAL appealed.

Analysis

Precedents and Authorities Cited

  • In re B.P., 249 W. Va. 274, 895 S.E.2d 129 (2023) and In Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996): Establish the familiar standard of review—legal conclusions are reviewed de novo; factual findings are reviewed for clear error; plausible factual accounts must be affirmed.
  • In re K.S., 246 W. Va. 517, 874 S.E.2d 319 (2022); State ex rel. W. Va. Dep’t of Health & Human Res. ex rel. Chastity D. v. Hill, 207 W. Va. 358, 532 S.E.2d 358 (2000); In re Beth Ann B., 204 W. Va. 424, 513 S.E.2d 472 (1998): Emphasize that a dispositional hearing is a “necessary and vital” component of abuse-and-neglect proceedings and remains required even where parties propose stipulations. In In re C.E., the Court extends and clarifies this doctrine, making the hearing mandatory for every manner of disposition.
  • West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings:
    • Rule 35: When termination is sought and resisted, the court shall hold an evidentiary hearing and make findings as the evidence justifies. The Court underscores that “shall” is mandatory.
    • Rule 36: At the conclusion of disposition, the court shall make written or on-the-record findings of fact and conclusions of law regarding the appropriate disposition, in accordance with W. Va. Code § 49-4-604.
    • Rule 33: Stipulated dispositions require voluntary consent by all parties; a stipulated disposition involving temporary out-of-home placement cannot extend beyond the statutory time allowable for an improvement period.
  • Statutes:
    • W. Va. Code § 49-4-604(c)(5) (2020): “Disposition Five” (temporary commitment) and its mandatory findings (subsections (A)–(E)); the Court notes the order here lacked those findings.
    • W. Va. Code § 49-4-601(f): A child’s right to be represented by counsel in every stage of abuse-and-neglect proceedings.
    • W. Va. Code § 49-4-610(2) (2015): Statutory limitations on improvement periods—typically “not to exceed six months.”
  • In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); In re Christina W., 219 W. Va. 678, 639 S.E.2d 770 (2006); In re Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991): Confirm the child’s right to effective representation at every stage and the GAL’s duty to exercise appellate rights when necessary.
  • James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991): The GAL’s role persists until the child achieves permanency.
  • Best-interests cases: In re H.T., 250 W. Va. 11, 902 S.E.2d 143 (2024); In re B.H., 233 W. Va. 57, 754 S.E.2d 743 (2014); In re S.C., 248 W. Va. 628, 889 S.E.2d 710 (2023); In re L.M., 235 W. Va. 436, 774 S.E.2d 517 (2015): The best interests of the child is the controlling standard in dispositional decisions.
  • In re J.G., 240 W. Va. 194, 809 S.E.2d 453 (2018); State ex rel. P.G.1 v. Wilson, 247 W. Va. 235, 878 S.E.2d 730 (2021): Statutory and rule-based time limits and standards are mandatory; courts are not at liberty to ignore them.
  • In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001): Where the statutory/rule process for disposition has been substantially disregarded or frustrated, the dispositional order must be vacated and the case remanded for compliance.

Legal Reasoning

  • Mandatory dispositional hearing in every case:

    The Court makes explicit what prior decisions strongly implied: a dispositional hearing is required before any dispositional order issues, regardless of the end result. Dispositions under W. Va. Code § 49-4-604 are not administrative formalities; they are judicial determinations that must be informed by evidence, argument, and the child’s best interests. This point is fortified by Rule 35: when termination is sought and resisted, an evidentiary hearing “shall” be held, followed by findings supported by the evidence. Here, both DHS and the GAL sought termination in pre-dispositional filings, making the disposition “contested,” which squarely triggered Rule 35. The circuit court erred by approving a Disposition Five without ever taking evidence at a hearing.

  • Child’s non-waivable right to representation; ex parte meeting was improper:

    The Court affirms the child’s statutory right to representation at “every stage” of abuse-and-neglect proceedings. That right is not subject to waiver by the GAL, nor can it be honored in the breach by excluding the child’s counsel from a meeting at which pivotal dispositional terms are negotiated or decided. The circuit court conducted an ex parte meeting in chambers with counsel for every party except the child. Because that meeting was held “in lieu of” a dispositional hearing, it effectively displaced the forum in which the child’s interests must be voiced and protected on the record. The Court therefore concluded that the child’s right to counsel was denied.

  • Required findings of fact and conclusions of law; best-interests analysis:

    Rule 36 requires that dispositional orders contain findings and conclusions, in writing or on the record, that support the chosen disposition in accordance with § 49‑4‑604. Independently, West Virginia’s best-interests jurisprudence demands that dispositional choices be explained through that lens. The order here lacked both: it failed to articulate a best-interests analysis and omitted the statute-specific findings required for a Disposition Five (see § 49‑4‑604(c)(5)(A)–(E)). Because no evidentiary hearing occurred, there was no evidentiary basis upon which the court could have made the mandated findings, compounding the error.

  • Problems with “stipulations” and temporary placements:

    Although not necessary to the holding, the Court’s discussion signals two further constraints: (1) a stipulated disposition requires the voluntary consent of all parties (Rule 33); here the GAL objected, so no true “stipulation” existed; and (2) a stipulated temporary out-of-home placement cannot run beyond the time allowable for an improvement period (Rule 33), which was exceeded here. The Court also noted the order’s own acknowledgment that, on a contested hearing record, termination would likely have been warranted—accentuating how the failure to hold a hearing distorted the outcome.

  • Statutory time limits on improvement periods are binding:

    The circuit court’s remarks treating statutory time limits as “arbitrary” and non-binding drew a pointed reminder: the timelines and standards in § 49‑4‑601 et seq., the Rules, and the caselaw are mandatory, not aspirational. Courts may not “casually disregard” or enlarge them without clear, statutory authorization and detailed findings.

  • Improper discouragement of appellate rights:

    The circuit court’s statement threatening to oppose payment for GAL services if an appeal were brought was flagged as improper. The GAL has a duty to appeal where, in the GAL’s judgment, doing so is necessary for the child. The GAL’s representation extends until permanency is achieved. Threatening nonpayment risks chilling the child’s right to representation at the appellate stage.

  • Remedy—vacatur and remand:

    Given the accumulation of errors—no hearing, denial of the child’s right to counsel at disposition, and absence of required findings—the Court applied In re Edward B. to vacate the dispositional order and remand for a proper dispositional hearing and a compliant order thereafter. The mandate issued forthwith to expedite compliance.

Impact and Forward-Looking Considerations

  • Uniform requirement of dispositional hearings:

    The explicit rule that a dispositional hearing is required before every disposition will standardize practice statewide. Circuit courts may no longer rely on informal, off-the-record negotiations or in-chambers discussions to resolve disposition, even if the parties propose a stipulated outcome. The hearing is the forum for testing evidence, preserving a record, and assessing best interests.

  • Child’s counsel must be present and participating at disposition:

    The decision underscores that a child’s counsel is indispensable at disposition. Judges and practitioners must avoid any procedure—in camera or otherwise—that effectively sidelines or excludes the GAL from the decisional process. No party, including the GAL, may waive the child’s right to representation at that stage.

  • Heightened rigor for dispositional orders:

    Orders must contain specific, statute-aligned findings and conclusions, explicitly connecting the evidence to the best-interests determination. For Disposition Five and other statutory routes, courts should track § 49‑4‑604’s enumerated findings. Rule 36 compliance is not optional, and appellate review depends on a robust written or transcribed explanation.

  • Constraints on “stipulated” temporary dispositions:

    Rule 33’s dual limitations—universal consent and the improvement-period time cap—will constrain stipulated temporary placements. Where the GAL objects, courts should hold a full hearing and issue non-stipulated findings. Temporary out-of-home placements may not be used to prolong cases beyond statutory limits.

  • Reaffirmation of mandatory statutory timelines:

    Trial courts must adhere to improvement-period durations and other time-sensitive provisions. Attempts to “reinstat[e]” or indefinitely extend such periods absent statutory authority risk reversal and delay permanency for children.

  • Professional conduct and appellate rights:

    The Court’s censure of statements discouraging GAL appeals serves as a reminder: children are rights-holders, and the GAL’s appellate advocacy is part of the representation the law guarantees. Administrative or compensation-related threats cannot be used to deter lawful appellate action.

Complex Concepts Simplified

  • Disposition Five (W. Va. Code § 49-4-604(c)(5)):

    A temporary placement option where the court commits the child to DHS, a licensed agency, or a suitable person. It is intended as a short-term measure and carries specific statutory findings that must be made (subsections (A)–(E)). It is not a permanent solution and cannot be stretched beyond the timeframes tied to improvement periods when stipulated (Rule 33).

  • Improvement Period:

    A defined, time-limited opportunity for a parent to remedy conditions of abuse or neglect (e.g., treatment, screenings). Statutes cap its duration (commonly up to six months). Courts cannot casually extend or “reinstate” expired periods without clear statutory authority.

  • Dispositional Hearing:

    A formal court proceeding where evidence is presented about the child’s circumstances, the parents’ progress, and the appropriate outcome for the child’s safety and well-being. It is required in every abuse-and-neglect case before the court selects a disposition.

  • Ex Parte Meeting:

    A discussion with the judge and some—but not all—parties or their counsel, often off the record. In this context, conducting such a meeting in lieu of the required hearing and excluding the child’s attorney violates the child’s right to representation and undermines procedural fairness.

  • Findings of Fact and Conclusions of Law:

    The court’s written (or on-the-record) explanation of what facts it finds proved and what legal rules it applies. They are crucial for appellate review and ensure the decision reflects careful, lawful reasoning tailored to the child’s best interests.

  • Contested Disposition:

    A disposition is “contested” when, for example, termination is sought by a party (here, DHS and the GAL) and not consented to by others. In such cases, Rule 35 mandates an evidentiary hearing and corresponding findings supported by the evidence.

Conclusion

In re C.E. decisively strengthens procedural safeguards in West Virginia abuse-and-neglect cases. It establishes that:

  • A dispositional hearing is mandatory before any disposition is entered, not just when termination is in play.
  • A child’s right to counsel applies at every stage and is non-waivable; excluding the GAL from in-chambers discussions that functionally replace the hearing is impermissible.
  • Dispositional orders must contain case-specific findings of fact and conclusions of law, grounded in the child’s best interests and the statutory requirements for the selected disposition.

The Court’s additional cautions—on the mandatory nature of statutory time limits and against discouraging GAL appeals—align with a broader commitment to due process, accountability, and child-centered justice. Practitioners and trial courts should recalibrate their procedures accordingly: hold the hearing, make the record, include the child’s counsel, and write orders that demonstrate rigorous, best-interests analysis. Anything less risks reversal and further delay in securing timely, lawful permanency for children.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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