Temporary Guardianship Does Not Defeat Abuse-and-Neglect Jurisdiction; Voluntary Relinquishment Bars Case-Plan Attacks — Commentary on In re A.F. and K.F. (W. Va. Sept. 30, 2025)

Introduction

This memorandum decision from the Supreme Court of Appeals of West Virginia affirms the termination of a mother’s custodial rights to her two children, A.F. and K.F. The case sits at the intersection of family-court guardianship proceedings and circuit-court child abuse and neglect jurisdiction. It addresses two recurring issues in West Virginia child welfare litigation:

• Whether the existence of a family-court guardianship or another parent’s legal custody deprives the circuit court of subject matter jurisdiction to adjudicate abuse or neglect as to a noncustodial parent.
• Whether a parent who voluntarily relinquishes custodial rights can later undo that disposition based on alleged defects in the agency’s family case plan.

The petitioner mother (J.K.) contended that the circuit court lacked subject matter jurisdiction because, at the time of filing, the children were in a legal guardianship with the paternal grandparents and the father had legal custody. She also argued that the West Virginia Department of Human Services (DHS) failed to file a modified family case plan and that various evidentiary and counsel-related defects tainted the proceedings. The Supreme Court rejected each challenge, concluding that the adjudication and disposition were proper and that the mother’s voluntary relinquishment foreclosed post hoc case-plan objections absent fraud or duress.

Summary of the Opinion

The Court affirmed the circuit court’s April 5, 2024 order terminating the mother’s custodial rights. The Court held:

• Subject matter jurisdiction existed notwithstanding a temporary family-court guardianship and the father’s legal custody. A child’s placement in guardianship does not insulate the case from abuse-and-neglect jurisdiction where the child meets statutory definitions and the circuit court makes specific findings tying the respondent’s conduct to harm or threat of harm. The circuit court did so here, relying on the mother’s admitted methamphetamine use, positive screens, and visits while impaired.
• There was sufficient clear and convincing evidence that the mother neglected the children at the time the petition was filed, even though she lacked physical custody. The Court emphasized both her exposure of the children to her impairment during visits and her inability to assume care when the father lacked suitable housing.
• The mother’s voluntary relinquishment of custodial rights was valid under W. Va. Code § 49-4-607 and could not be collaterally attacked based on alleged failures to update the family case plan absent duress or fraud, which she did not allege.
• Additional complaints—ineffective assistance of counsel, evidentiary challenges not preserved below, and an objection to the finalization of guardianship while the appeal was pending—were waived or otherwise provided no basis for relief.

Factual and Procedural Background

• Family court placed the children primarily with the father and gave the mother supervised visitation at father’s discretion (Feb. 2023), in part due to her chronic substance abuse.
• Paternal grandparents sought legal guardianship in March 2023 based on drug use, inadequate housing, and abandonment. The matter was removed to circuit court due to abuse-and-neglect allegations, and the grandparents received temporary guardianship.
• DHS filed an abuse-and-neglect petition in April 2023, noting the mother’s methamphetamine use, failed drug screen, and visits to the grandparents’ home while impaired. The mother had also called DHS, seemingly to facilitate contact with the children.
• At adjudication (July 20, 2023), the mother did not appear but was represented by counsel. The court denied a motion to dismiss for lack of subject matter jurisdiction. A CPS worker and the grandmother testified to the mother’s drug use and impairment, including a visit where the mother smelled strongly of marijuana and was asked to leave. The court adjudicated the mother for neglect.
• DHS filed case plans (Aug. 23, 2023). The court granted and then extended a post-adjudicatory improvement period. The court later appointed new counsel for the mother at her request.
• At disposition (Mar. 22, 2024), the mother withdrew her motion to dismiss and voluntarily relinquished her custodial rights. The court accepted a duly acknowledged writing after confirming voluntariness and understanding of consequences, and it terminated custodial rights. The permanency plan was legal guardianship with the grandparents.

Detailed Analysis

Precedents Cited and Their Influence

• In re B.V., 248 W. Va. 29, 886 S.E.2d 364 (2023) (Syllabus Pt. 3, in part)
  • Rule: The existence of a legal guardianship does not preclude circuit-court subject matter jurisdiction in abuse-and-neglect proceedings, provided the child meets the statutory definition of “abused child” or “neglected child” (W. Va. Code § 49-1-201), and the court makes specific findings explaining how each child’s health and welfare are harmed or threatened by the respondent’s conduct.
  • Application: The Court emphasized that the circuit court made specific factual findings linking the mother’s drug use and impairment to threats to the children’s welfare, thereby satisfying B.V.’s jurisdictional predicate.
• In re Guardianship of K.W., 240 W. Va. 501, 813 S.E.2d 154 (2018) (Syllabus Pt. 4)
  • Rule: A temporary guardianship over a parent’s objection based on substantiated abuse/neglect allegations is not a permanent custody solution and does not obviate the need for an abuse-and-neglect petition.
  • Application: The Court analogized the temporary guardianship to DHS emergency removals under W. Va. Code § 49-4-303 and temporary placements under § 49-4-602, underscoring that guardianship is a stopgap; the abuse-and-neglect process remains necessary to protect children and determine permanency.
• In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (Syllabus Pt. 1)
  • Standard of review: Findings of fact are reviewed for clear error; legal conclusions de novo. The Court applied this bifurcated standard to uphold the adjudication and disposition.
• In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176 (1997), and In Interest of S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981)
  • Rule: DHS must prove by clear and convincing evidence that the conditions alleged existed at the time of filing; the law does not prescribe a particular mode of proof.
  • Application: Testimony from the CPS worker and grandmother, coupled with the mother’s positive drug screen and admissions, sufficed to meet the clear-and-convincing standard.
• In re Cesar L., 221 W. Va. 249, 654 S.E.2d 373 (2007) (Syllabus Pt. 3, in part)
  • Rule: A voluntary relinquishment is valid under W. Va. Code § 49-4-607 if it is a duly acknowledged writing entered free from duress and fraud.
  • Application: The mother’s duly acknowledged, voluntary relinquishment barred her post-disposition attack predicated on an alleged failure to file an updated case plan.
• Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 679 S.E.2d 650 (2009), quoting Shaffer v. Acme Limestone Co., 206 W. Va. 333, 524 S.E.2d 688 (1999)
  • Rule: Nonjurisdictional issues raised for the first time on appeal will not be considered.
  • Application: The Court rejected unpreserved evidentiary complaints and other nonjurisdictional claims.
• In re C.R., 22-0189, 2022 WL 3961921; In re M.Z.-1, No. 15-0818, 2016 WL 1456024; In re J.F., No. 12-0097, 2012 WL 4069520
  • These memorandum decisions reflect that the Court has not recognized ineffective-assistance claims in abuse-and-neglect proceedings. The Court adhered to that position here and declined to recognize such a claim.

Legal Reasoning

• Subject Matter Jurisdiction
  • Core principle: Circuit courts have abuse-and-neglect jurisdiction when the child meets the statutory definition of “abused” or “neglected” under § 49-1-201 and the court makes concrete findings connecting the respondent’s conduct to harm or threatened harm.
  • The mother argued that the children’s placement in legal guardianship and the father’s legal custody stripped the court of jurisdiction. The Court rejected this, relying on B.V. and K.W. A temporary guardianship is akin to emergency protection, not a final disposition; it cannot shield the case from the circuit court’s duty to adjudicate risks to the children.
  • Factual findings supporting jurisdiction: The mother admitted methamphetamine use, had a positive screen, and visited the children while impaired at the grandparents’ home. The court found her unable to care for the children and that her conduct threatened their health and welfare at the time of filing. These findings satisfy the required link between respondent conduct and risk to child welfare.
• Adjudicatory Sufficiency and the Noncustodial Parent
  • The Court emphasized that lack of physical custody does not insulate a parent from neglect adjudication. Neglect can arise where a parent:
    • Exposes the child to impairment during visitation or contact, and
    • Is unable to assume care when circumstances require it (e.g., when the custodial parent lacks safe housing).
  • Here, both prongs were present: the mother appeared impaired during visits and, during periods when the father lacked housing, she could not safely assume the children’s care due to substance abuse. That evidence met the clear-and-convincing standard of § 49-4-601(i).
• Voluntary Relinquishment and Case Plan Objections
  • The mother sought to set aside her voluntary relinquishment by pointing to DHS’s alleged failure to file an updated family case plan. Under Cesar L. and § 49-4-607, a relinquishment stands if it is a duly acknowledged writing, free of duress and fraud. The mother did not allege duress or fraud; the record reflected a careful colloquy on voluntariness and consequences.
  • Given a valid relinquishment, alleged case-plan defects could not retroactively invalidate the disposition. The Court also noted that no motion for post-termination visitation was filed; thus there was no ruling to challenge on that front.
• Preservation and Appellate Procedure
  • Unpreserved evidentiary objections were waived. The Court reiterated its general rule against considering nonjurisdictional issues raised for the first time on appeal.
  • The complaint regarding finalization of guardianship during the appeal was mooted by affirmance and independently undermined by the mother’s failure to file a notice of appeal with the circuit court as required by Rule 5(b) of the Rules of Appellate Procedure. The circuit court lacked notice within the appeal period.

Impact and Practical Significance

• Guardianship is not a jurisdictional shield
  • This decision reinforces that family-court guardianships—especially temporary ones—do not preempt circuit-court abuse-and-neglect jurisdiction. DHS and courts should not hesitate to file and adjudicate abuse-and-neglect petitions to protect children and achieve permanency even when a guardianship order exists.
• Noncustodial parental neglect clarified
  • The holding underscores that a noncustodial parent can be adjudicated neglectful when substance abuse impairs visits or prevents assuming care during the other parent’s incapacity. Physical custody is not a prerequisite for neglect under West Virginia law.
• Relinquishment finality and case-plan litigation
  • Once a parent knowingly and voluntarily relinquishes custodial rights, procedural challenges to case-plan updates are unlikely to undo the disposition absent duress or fraud. Practitioners should raise case-plan issues before or at disposition rather than attempting post hoc collateral attacks.
• Trial court guidance: findings that confer jurisdiction
  • Trial courts must articulate specific findings explaining how the respondent’s conduct harms or threatens each child’s health or welfare at the time of the petition. Doing so satisfies B.V. and insulates jurisdictional rulings on appeal.
• Preservation and appellate housekeeping
  • Parties must preserve evidentiary objections and file notices of appeal with the circuit clerk within deadlines. Failure to do so can forfeit arguments or render them moot.

Complex Concepts Simplified

• Subject matter jurisdiction in abuse and neglect
  • In West Virginia, circuit courts adjudicate abuse-and-neglect cases. To exercise that power in a given case, the child must meet statutory definitions of “abused” or “neglected,” and the court must make specific findings connecting the respondent’s conduct to risk or harm. The mere existence of a guardianship does not strip that jurisdiction.
• Temporary guardianship versus abuse-and-neglect proceedings
  • A temporary guardianship is an interim protective measure, not a permanent resolution. It resembles DHS emergency removal or temporary placement. Abuse-and-neglect proceedings remain necessary to address parental deficiencies and determine permanency.
• Neglect without physical custody
  • A parent can “neglect” a child by exposing the child to impairment during visits or by being unable to safely assume care when needed, even if the parent does not have day-to-day custody. Risk to the child, not formal custody status, drives the analysis.
• Clear and convincing evidence
  • This is an intermediate standard of proof—more than “preponderance,” less than “beyond a reasonable doubt.” DHS must show it is highly probable the alleged conditions existed at the time of filing; there is no mandated form of proof.
• Improvement period
  • A court-supervised period during which a parent receives services to remedy the issues leading to adjudication. It can be extended if progress warrants, but failure to successfully complete may lead to disposition, including termination of custodial or parental rights.
• Voluntary relinquishment (W. Va. Code § 49-4-607)
  • A parent may voluntarily relinquish custodial or parental rights by a duly acknowledged writing, free of duress and fraud. Once accepted, such a relinquishment is difficult to undo, and collateral complaints (like case-plan defects) typically do not invalidate it.
• Custodial rights versus parental rights
  • Termination of custodial rights removes the right to physical care and control, often to support a legal guardianship permanency plan, while residual parental rights may remain. Termination of parental rights is more comprehensive and typically precedes adoption. This case involved termination of custodial rights with guardianship as the permanency plan.
• Preservation and notice of appeal
  • To challenge issues on appeal, parties must object or seek relief in the trial court when the issue arises. Additionally, appellate rules require filing a notice of appeal with the circuit court within the prescribed time; failure to do so can nullify appellate challenges.

Practice Pointers

• For DHS and Guardians ad Litem:
  • Do not delay abuse-and-neglect petitions merely because a guardianship exists; build a record with specific findings linking parental conduct to child risk as of filing.
  • Continue case planning and document service delivery and parental engagement; though relinquishment may moot some challenges, thorough documentation remains best practice and protects the record.
• For Parent’s Counsel:
  • Advise clients that lack of physical custody does not preclude neglect adjudication if they expose children to impairment or cannot assume care when needed.
  • If considering voluntary relinquishment, ensure a full understanding of its finality and that any desired requests (e.g., post-termination visitation) are formally moved for and litigated before disposition.
  • Preserve evidentiary objections at adjudication; do not rely on appellate courts to consider unpreserved issues.
• For the Bench:
  • Make explicit findings on how each child’s health and welfare are harmed or threatened by the respondent’s conduct. Tie those findings to the conditions at the time of filing to satisfy B.V. and § 49-4-601(i).
  • During relinquishment colloquies, carefully canvass voluntariness and consequences, and ensure a duly acknowledged writing is obtained and filed.

Conclusion

In re A.F. and K.F. reinforces two key principles in West Virginia child welfare law. First, a temporary guardianship or the other parent’s legal custody does not defeat circuit-court jurisdiction over abuse and neglect when the court makes specific findings that the respondent parent’s conduct harms or threatens the child’s welfare. Second, a knowing and voluntary relinquishment—properly acknowledged and free of duress or fraud—cannot be undone by alleging case-plan irregularities after the fact. The Court’s decision offers clear guidance on adjudicating noncustodial parents whose substance abuse compromises child safety during visitation or renders them unable to assume care when needed, and it underscores the importance of preservation and procedural compliance on appeal. While issued as a memorandum decision, the ruling harmonizes and applies B.V., K.W., Cesar L., and other authorities in a way that will inform future practice across the state’s abuse-and-neglect docket.