          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                                                    FILED
                                    January 2013 Term
                                                                  May 17, 2013
                                                                  released at 3:00 p.m.
                                                                  RORY L. PERRY II, CLERK
                               Nos. 12-0994 and 12-1014         SUPREME COURT OF APPEALS
                                                                    OF WEST VIRGINIA




                       IN RE: DARRIEN B. AND ANDREW B.




                   Appeal from the Circuit Court of Raleigh County

                             Honorable John A. Hutchison

                   Civil Action Nos. 10-JA-125-H and 10-JA-126-H


                 VACATED AND REMANDED WITH DIRECTIONS



                               Submitted: April 10, 2013

                                 Filed: May 17, 2013



Michael P. Cooke, Esq.                                  Patrick Morrissey, Esq.
Bluefield, West Virginia                                Attorney General
Attorney for Petitioner George B.                       Angela Alexander Walters, Esq.
                                                        Assistant Attorney General
Stephen P. New, Esq.                                    Charleston, West Virginia
Beckley, West Virginia                                  Attorney for Respondent Department
Attorney for Petitioner Hannah W.                       of Health and Human Resources

                                                        Colleen M. Brown-Bailey, Esq.
                                                        Beckley, West Virginia
                                                        Guardian Ad Litem for Darrien B.
                                                        and Andrew B.

The opinion of the Court was delivered PER CURIAM.
                              SYLLABUS BY THE COURT


              1.      “‘Although conclusions of law reached by a circuit court are subject to

de novo review, when an action, such as an abuse and neglect case, is tried upon the facts

without a jury, the circuit court shall make a determination based upon the evidence and shall

make findings of fact and conclusions of law as to whether such child is abused or neglected.

These 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. However, a reviewing court may not overturn a finding simply because it

would have decided the case differently, and it must affirm a finding if the circuit court’s

account of the evidence is plausible in light of the record viewed in its entirety.’ Syl. Pt. 1,

In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).” Syl. Pt. 1, In re

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



              2.      “Although parents have substantial rights that must be protected, the

primary goal in cases involving abuse and neglect, as in all family law matters, must be the

health and welfare of the children.” Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589

(1996).




                                               i
              3.     “‘Where it appears from the record that the process established by the

Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes for the

disposition of cases involving children adjudicated to be abused or neglected has been

substantially disregarded or frustrated, the resulting order of disposition will be vacated and

the case remanded for compliance with that process and entry of an appropriate dispositional

order.’ Syl. Pt. 5, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001).” Syl. Pt. 5, In

re T.W., __ W.Va. __, 737 S.E.2d 69 (2012).




                                              ii
Per Curiam:

                This case is before this Court on the consolidated appeals of the petitioners,

Hannah W. and George B.,1 from the Circuit Court of Raleigh County’s July 31, 2012, order

terminating their parental rights2 to their twin boys, Darrien B. and Andrew B. Based upon

the record, the parties’ briefs, and the arguments presented, the order of the circuit court is

vacated and this case is remanded to the circuit court for further proceedings consistent with

this opinion.



                          I. Factual and Procedural Background

                On November 2, 2010, Hannah W. (“the mother”) took her twenty-three­

month-old son Darrien B.3 to the emergency room at Raleigh General Hospital where she

reported that Darrien had been running in the living room of her home when he tripped and

fell over a pair of shoes. The mother further reported that the child cried inconsolably after

he fell and would not put any weight on his right leg. Darrien was diagnosed with a spiral

fracture of his right femur. Because spiral fractures in children are suspicious for abuse, the

hospital contacted Child Protective Services (“CPS”) of the respondent, the West Virginia


       1
        We follow our traditional practice in child abuse and neglect matters, as well as other
cases involving sensitive facts, by abbreviating the last names of the parties. See, e.g., In re
Jessica G., 226 W.Va. 17, 697 S.E.2d 53 (2010).
       2
       Each petitioner has filed a separate appeal from the same underlying order of
termination, and this Court has consolidated the appeals for consideration and opinion.
       3
           Darrien B. and Andrew B. were born on November 18, 2008.

                                               1

Department of Health and Human Resources (“the Department”). Hospital records reflect

that the emergency room physician informed CPS worker Donna Dickens that a spiral

fracture “is very difficult to have with a simple fall from [a] standing position, but he could

not make a statement being 100% sure that that is not how the injury occurred.” Darrien was

transferred to the Charleston Area Medical Center (“CAMC”). The records from CAMC’s

Emergency Department indicate that “[a]lthough this is very suspicious fracture, we cannot

rule in or out the probability of abuse. At this point, we would leave this decision up to Child

Protective Services to make and have them be involved with this case.”



              On the date of Darrien’s injury, CPS worker Dickens went to the parents’ home

to secure custody of Darrien’s brother, Andrew B. Ms. Dickens observed that the home was

“disheveled” with trash throughout the living room and kitchen. She noted that the kitchen

counters were covered with dirty dishes, some with food still left on them, and that there was

a “horrible stench” in the apartment. At this same time, George B. (“the father”) informed

Ms. Dickens that he had voluntarily relinquished his parental rights to a biological daughter

from a different relationship because the child wanted to live with her maternal grandparents.

Ms. Dickens’s subsequent investigation revealed that the father relinquished his parental




                                               2

rights to his daughter only after CPS instituted an abuse and neglect proceeding arising out

of substantiated allegations that the father had sexually abused the child.4



              On November 4, 2010, the Department filed a verified Petition to Institute

Child Abuse and Neglect Proceedings against both parents in the Circuit Court of Raleigh

County. The Department alleged that both Darrien and Andrew were abused and/or

neglected as defined in West Virginia Code § 49-1-3 et seq. (2009 & Supp. 2012) and § 49­

6-1 et seq. (2009 & Supp. 2012); that “the circumstances in the home where the children live

places them in imminent danger[;]” and that “there are no reasonable and effective

alternatives to removing the children from the home.” The Department also alleged that the

father had voluntarily relinquished his parental rights to his daughter, as discussed above.5

The circuit court entered an order that same day ordering that the petition be filed,

transferring custody of the children to the Department, appointing legal counsel for each




       4
        The record does not indicate whether criminal charges were ever filed against the
father in this regard. The record does reflect that this child was adopted and the case was
closed by CPS.
       5
          Although the Department mentioned the father’s prior voluntary relinquishment in
its petition, it did not seek a termination of the father’s parental rights to Darrien and Andrew
on that basis.

                                               3

parent, and appointing a guardian ad litem6 to represent the children. The parents waived

their preliminary hearing and the case proceeded to adjudication.7



               An adjudicatory hearing8 was held before the circuit court during which the

emergency room physicians from both hospitals testified to their suspicions of abuse in

relation to the spiral fracture suffered by Darrien. However, neither physician could testify

to precisely how this particular injury occurred. The parents’ medical expert testified and

expressed his opinion that there was a “very, very low chance that there was a child abuse

type of injury to the right femur fracture.” The parents, CPS worker Dickens, an emergency

room nurse from Raleigh General Hospital, and a social services specialist from CAMC also

testified at this hearing.




       6
       Stacey Fragile, Esq., was appointed as the guardian ad litem and appeared for all of
the hearings until the last hearing held before the circuit court on June 28, 2012, during
which Colleen Brown-Bailey, Esq., appeared as the children’s guardian ad litem.
       7
        In an order entered December 21, 2010, the circuit court directed that both parents
undergo a psychological evaluation. The evaluating psychologist issued his reports in which
he recommended individual and family counseling; parenting, life skills, and anger
management classes; substance abuse counseling and monitoring, including random drug
screens; and a monitoring period. The psychologist did not recommend the independent
return of the children to the parents or unsupervised visitation with them at that time.
       8
       The adjudicatory hearing began on February 2, 2011. It resumed and concluded on
February 22, 2011.

                                             4

              On March 16, 2011, the circuit court entered an order based on the evidence

presented at the adjudicatory hearing and found, in part, as follows:

              2. The . . . parents in their testimony have failed to provide a
              consistent and reasonable explanation of how the injury
              occurred. There is clear evidence that . . . the parents have given
              divergent and contradictory descriptions of the events leading to
              the injury of their child.

              3. There is clear and convincing evidence that the home where
              the children have resided is maintained in an unsatisfactory and
              unhealthy manner.

              4. The [Department] has proven by clear and convincing
              evidence that the injury to the child in this case arose from
              conditions existing in the home that were directly responsible
              for the abuse and neglect.

              5. There is no evidence that the injury to the child was the result
              of intentional conduct of the . . . parents, but the injury was the
              result of abuse and neglect as defined by West Virginia Code §
              49-1-3 et. seq., and § 49-6-1 et. seq.

              6. The infant child, Darrien [B.], is abused and neglected
              pursuant to West Virginia Code § 49-1-3 et. seq., and § 49-6-1
              et. seq., and therefore the infant child Andrew [B.] is also in
              danger.

              7. The infant children, Darrien [B.] and Andrew [B.], were
              abused and neglected based on the condition of the home
              pursuant to West Virginia Code § 49-1-3 et. seq., and § 49-6-1
              et. seq.



              On June 14, 2011, the circuit court entered an order granting both parents a six-

month post-adjudicatory improvement period. Thereafter, the circuit court held review


                                              5

hearings to assess how the parents were doing in their improvement period. In the circuit

court’s order entered on November 23, 2011, following one of those review hearings, the

court stated that the parents were “having problems keeping their home in a safe and sanitary

condition for the children and the home now has roaches due to the unsanitary condition . .

. .”   In this same order, the circuit court granted the parents an extension of their

improvement periods with the added requirement that both parents submit to random drug

and alcohol screens.



              The circuit court was updated on the status of the parents in a Revised Court

Summary dated January 27, 2012, filed in the circuit court. In this Summary, CPS worker

Traci Hairston reported that the random drug screens for both parents had been negative and

that the Department had made frequent and random visits to the home finding it to be

“somewhat clean” at times and “filthy and filled with clutter” at other times.9 Ms. Hairston

further reported in her Summary that although the parents had made progress, they had

shown that “they are not capable of providing a stable home environment for their

children[;]” that the Department had “made every effort to provide [them] with all possible

assistance[;]” and that the parents have been “granted two extensions to their Improvement



       9
        This Revised Court Summary also reflects that in-home services provider Kim Jesse
informed Ms. Hairston that the parents were about to be evicted from their apartment because
their gas had been shut off, which was a breach of their lease, and that the parents could be
evicted for their rental delinquency, as well.

                                             6

Period and have continually failed to change all the safety issues in the home.”10 Ms.

Hairston concluded by stating that the Department recommends that “the court move to

Disposition and the termination” of the parental rights of both parents.



              On February 2, 2012, a review hearing was held before the circuit court during

which it was reported that while the parents had made some progress, they had not

successfully completed their case plans. At that time, both parents moved for a dispositional

improvement period. Soon thereafter, CPS worker Hairston filed a Court Summary in the

circuit court dated February 7, 2012. In this Summary, Ms. Hairston reported that the parents

had continued to test negative on their drug screens, that the visits between the parents and

the children were going well, and that the home had been kept “relatively clean.” She further

reported, however, that the Department had received a letter from the apartment manager

who advised that the parents are constantly behind in their rent; that they have a roach

infestation in their apartment; and that they have been noncompliant with their lease. Ms.

Hairston concluded that although “the Department was prepared to reunify Andrew and

Darrien with their parents it has now become difficult due to the housing issues . . . .”


       10
         Ms. Hairston also reported in this Summary that when she visited the home in early
December 2011, the mother advised that she did not know how she and the father would
support themselves when the children came home because they could not afford to take care
of themselves; that the father spent an entire paycheck on a trip to Tennessee; and that they
recently purchased a gaming system. This Summary also reflects that Ms. Hairston told the
mother that she and the father would not be reunified with the children if they did not keep
the home clean and “start making better decisions.”

                                              7

              Thereafter, the case moved forward and, on March 9, 2012, the disposition

hearing was held before the circuit court. During this hearing, the in-home services provider,

Kelli Cook, testified11 to her belief that the parents had successfully completed their

improvement period. She also testified that the gas service had been restored to the

apartment; that the home had been clean since January 2012; that both parents had been

employed for the last four or five months; and that the roach infestation had been resolved.

Ms. Cook further testified that the prior month, the Department had begun weekly overnight

in-home visits between the children and the parents and that those visits were going well.

Ms. Cook testified that while she would not recommend returning the children to the home

immediately, she would say that a transition period of three months for reunification of the

children with the parents “if everything stayed clean and all the utilities caught up . . . .”



              Following the disposition hearing, the circuit court entered an order on March

23, 2012, directing the Department to continue to provide services and to continue with the

visitation between the parents and the children until the court issued its decision on

disposition. The circuit court also scheduled “[a]n Improvement Period Review or Motion

to Terminate and Court’s Decision” hearing for June 28, 2012. On June 27, 2012, the day

prior to this hearing, CPS worker Hairston filed a Court Summary in which she reported that



       11
         It appears from the record that Kelli Cook replaced Kim Jesse as the in-home
services provider around September 2011.

                                               8

                     [t]he Department has grave concerns that the behaviors
              in the home have not significantly changed as throughout the
              lifetime of this case George and Hannah have minimally
              complied in the aspect of they have not missed parenting or
              adult life skill sessions, but they have not learned how to
              maintain appropriate housing or safety for the children.

                                              • • •

                     At this time the Department has reservations about the
              children being reunified with their parents do [sic] to the
              consistency of unchanged behaviors throughout this case.12

Ms. Hairston concluded her Summary with the Department’s final recommendation that the

children remain in the legal and physical custody of the Department. Significantly, the

Department did not recommend the termination of parental rights in this Summary.



              On the following day, June 28, 2012, the previously scheduled hearing was

held before the circuit court during which the Department’s counsel represented that the

Department was seeking the termination of the parental rights of both parents. The guardian

ad litem expressed her agreement with the Department’s position. At the conclusion of this

hearing, the circuit court stated:

                      This is one of the cases that . . . keeps me up at night. It’s
              very, very clear that the law of the State of West Virginia is . .
              . that a parent has the constitutional right to raise their own
              children. Having said that, this Court . . . has found that the
              children have been abused.


       12
        Ms. Hairston also reported that following the March 9, 2012, disposition hearing,
the parents had a bed bug infestation in the home, which had since been resolved.

                                                9

        Now . . . with the Department directly providing services
or contracting and having those services provided otherwise, the
question is . . . have the parents assimilated the training that they
received and have they, in fact, gotten rid of or resolved the
issues which created the conditions of abuse and/or neglect as
they existed at the time of the filing of the petition. And I have
great concerns regarding whether or not these parents have, in
fact, fully assimilated . . . the training and recognized the issues
that they have . . . in terms of raising these two children.

                               • • •

        The acts and the conduct that created the problem here
relate to the injury of Darrien . . . The nature of the broken bone
raised all kinds of red flags with the Department and with the
doctors at the hospital.

                               • • •

       And, further . . . George [B.] has had prior involvement
with Child Protective Services. . . . He relinquished his rights to
[another] child . . . after allegations of sexual abuse were
substantiated in a preliminary investigation . . . .

                               • • •

        The Court finds that, based upon its involvement in this
case, that . . . the parents have failed to adequately improve the
conditions that resulted in the abuse and neglect, that they have
been unable to or unwilling to adequately change the conditions
which resulted in the abuse and neglect despite the fact that the
Court has, with the assistance of the Department, attempted to
provide additional training, treatment and programs which
would have eliminated that.

         The Court finds that the history in this case has been that
the . . . parents have done the minimum to . . . try to keep the
case going and that there’s no real evidence that . . . they have ­
either of them - assimilated the training and accepted the


                                 10

              training and made . . . the changes necessary to alleviate the
              conditions.

                     Therefore, it’s the judgement [sic] of the Court that the
              parental rights of both George [B.] and Hannah [W.] are
              terminated as to Darrien [B.] and Andrew [B.].


At that point during the hearing, the mother’s counsel advised the circuit court, as follows:

                      In discussions prior to this hearing . . . with Ms. Hairston,
              it was not her intention to recommend termination of parental
              rights to this Court. That isn’t what her court summary says.13
              The Court didn’t follow the recommendation of the Department.

                      Moreover, we have the home services worker [Kelli
              Cook] here today, Your Honor. If - - and perhaps I didn’t
              understand where the Court was in the posture, but if I need to
              call Kell[i], who is here today, or Ms. Hairston, I want to put
              their recommendations to this Court on the record. I believe that
              my client has a right to that.

(Footnote added). The circuit court refused to permit either Ms. Hairston or Ms. Cook to

testify stating, “[T]his is a review hearing and a ruling hearing. It was not set up for an

evidentiary hearing, so we don’t have time.”



              On July 31, 2012, the circuit court entered an order memorializing its ruling

made during the June 28, 2012, hearing and terminating the parents’ parental rights to

Darrien B. and Andrew B. on the basis that the parents had “failed to change the conditions



       13
        Counsel is referring to Ms. Hairston’s Court Summary filed with the circuit court
the previous day.

                                               11

which gave rise to this case and failed to assimilate the therapy and training offered by the

Department to successfully complete their improvement periods . . . [.]” The circuit court

ordered that the visitation between the children and the parents be maintained and that

services by the Department continue pending the parents’ appeal to this Court.



                                 II. Standard of Review

              We are asked to review a circuit court’s order entered upon a petition for

termination of parental rights. Our standard of review in this regard is well established:

              “Although conclusions of law reached by a circuit court are
              subject to de novo review, when an action, such as an abuse and
              neglect case, is tried upon the facts without a jury, the circuit
              court shall make a determination based upon the evidence and
              shall make findings of fact and conclusions of law as to whether
              such child is abused or neglected. These 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. However, a reviewing court may not overturn a
              finding simply because it would have decided the case
              differently, and it must affirm a finding if the circuit court’s
              account of the evidence is plausible in light of the record viewed
              in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196
              W.Va. 223, 470 S.E.2d 177 (1996).

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




                                             12

                                       III. Discussion

              In the present appeal, the mother asserts that the circuit court erred during the

June 28, 2012, hearing by refusing to allow her counsel to call CPS worker Traci Hairston

and in-home services provider Kelli Cook to the witness stand. The mother asserts that both

Hairston and Cook were present and were prepared to testify that the children should be

reunified with their parents.



              We begin our analysis of this issue with our basic tenet that “[a]lthough parents

have substantial rights that must be protected, the primary goal in cases involving abuse and

neglect, as in all family law matters, must be the health and welfare of the children.” Syl. Pt.

3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996). The record reflects that even with

the extensions to the post-adjudicatory improvement period granted to each parent, as well

as the services provided by the Department, the parents could not consistently maintain their

apartment in a clean and sanitary manner for the children, keep current on their rent and

utilities, and maintain steady employment.



              Notwithstanding the parents’ inability to fulfill the terms of their improvement

period, the termination of parental rights remains the most “drastic remedy” that can be

imposed in a case of abuse and neglect. See Syl. Pt. 5, in part, In re Nelson B., 225 W.Va.

680, 695 S.E.2d 910 (2010) (“‘Termination of parental rights, the most drastic remedy under


                                              13

the statutory provision covering the disposition of neglected children . . . [.]’ Syl. pt. 2, In

re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).”). Consequently,

              “[w]here it appears from the record that the process established
              by the rules of Procedure of Child Abuse and Neglect
              Proceedings and related statutes for the disposition of cases
              involving children adjudicated to be abused or neglected has
              been substantially disregarded or frustrated, the resulting order
              of disposition will be vacated and the case remanded for
              compliance with that process and entry of an appropriate
              dispositional order.” Syl. Pt. 5, In re Edward B., 210 W.Va.
              621, 558 S.E.2d 620 (2001).

Syl. Pt. 5, In re T.W., __ W.Va. __, 737 S.E.2d 69 (2012) (Emphasis added).



              Rule 36(a) of the Rules of Procedure for Child Abuse and Neglect provides,

as follows:

              Findings of fact and conclusions of law; time frame. — At the
              conclusion of the disposition hearing, the court shall make
              findings of fact and conclusions of law, in writing or on the
              record, as to the appropriate disposition in accordance with the
              provision of W.Va. Code § 49-6-5. The court shall enter a
              disposition order, including findings of fact and conclusions of
              law, within ten (10) days of the conclusion of the hearing.

(Emphasis added). Here, the disposition hearing was held on March 9, 2012. On March 23,

2012, the circuit court entered an Order Following Disposition Hearing on Both Parents that

simply continued the case on status quo. The circuit court did not set forth findings of fact

and conclusions of law in this order. See Id. Instead, the circuit court scheduled a hearing




                                              14

for June 28, 2012, for “Improvement Period Review or Motion to Terminate and Court’s

Decision.”



              During the June 28 hearing, the mother’s counsel advised the circuit court that

he had spoken with CPS worker Hairston, who allegedly advised him that the Department

would not be seeking a termination of parental rights that day. Counsel’s representation was

arguably consistent with Ms. Hairston’s Court Summary filed with the circuit court the prior

day in which the Department did not seek a termination of parental rights. Accordingly, the

circuit court should have permitted the mother’s counsel to call Ms. Hairston to the witness

stand for the limited purpose of exploring the Department’s position with regard to

termination. Indeed, given the length of time that had passed since the disposition hearing

(almost four months), it was particularly important to have taken the testimony of the in-

home services provider who had presumably continued to provide services to the parents per

the circuit court’s March 23, 2012, order.



              Under the facts and circumstances herein, this Court concludes that the

disposition in this case was frustrated when the circuit court refused to allow counsel to call

Ms. Hairston and Ms. Cook to the witness stand during the June 28, 2012, hearing.

Accordingly, we remand this case for the purpose of holding an evidentiary hearing to allow

the parents’ counsel to call Ms. Hairston and Ms. Cook as witnesses to explore the


                                              15

Department’s position with respect to the termination of the parental rights to Darrien and

Andrew.14



              Another matter to be addressed on remand is the father’s prior voluntary

relinquishment of parental rights to his biological daughter, as discussed above. “The

revocation of a parent’s parental rights, whether by voluntary relinquishment or by

involuntary termination, is a very serious matter.” In re Cesar L., 221 W.Va. 249, 257, 654

S.E.2d 373, 381 (2007) (emphasis added); see also In re James G., 211 W.Va. 339, 346, 566

S.E.2d 226, 233 (2002) (“Nothing prevents the Department from conducting an investigation

if it believes that a parent who has voluntarily terminated parental rights with respect to one

child might be mistreating another child . . . .” (Emphasis added).). Further, West Virginia

§ 49-6-5(a)(7) provides, in relevant part, that “[f]or purposes of the court’s consideration of

the disposition custody of a child . . . the department is not required to make reasonable

efforts to preserve the family if the court determines: (A) The parent has subjected . . .




       14
         We note that the circuit court’s July 31, 2012, order terminating the parents’ parental
rights does not cover the requisite statutory factors under West Virginia Code § 49-6-5(a)(6),
although the findings it made during the June 28, 2012, were arguably sufficient. See In re
Jamie Nicole H., 205 W.Va. 176, 517 S.E.2d 41 (1999) (upholding termination of parental
rights where transcript of dispositional hearing, rather than order of termination, satisfied
Court that lower court had made findings required by West Virginia Code § 49–6–5(a)(6)).
Nonetheless, on remand, the order entered by the circuit court should comply with this
statute.

                                              16

another child of the parent . . . to aggravated circumstances which include . . . sexual

abuse[.]” Id. (Emphasis added). Moreover, as this Court has stated on many occasions,

               [t]he guiding principle in any child abuse or neglect proceeding
               is to do what is best for the child: “First and foremost in a
               contest involving the custody of a child is the consideration of
               that child’s welfare. It has been held repeatedly by this Court
               that the welfare of the child is the polar star by which the
               discretion of the court will be guided.”

In re: Kyiah P., 213 W.Va. 424, 429, 582 S.E.2d 871, 876 (2003) (internal citations

omitted).



               Here, while the Department’s petition to institute these proceedings alleged,

in part, that the father had voluntarily relinquished his parental rights to a biological daughter

after allegations of sexual abuse were substantiated, and while the circuit court

acknowledged this prior relinquishment on the record at the conclusion of the June 28, 2012,

hearing,15 we conclude that these prior substantiated allegations of sexual abuse must be

more fully explored and addressed on remand. This would include, but is not necessarily

limited to, whether there was an adjudication in this earlier child abuse proceeding against

the father and whether these substantiated allegations of sexual abuse constitute a separate




       15
         The circuit court stated that the father “has had prior involvement with Child
Protective Services” and had “relinquished his rights to [another] child . . . after allegations
of sexual abuse were substantiated in a preliminary investigation[.]”

                                               17

and/or additional basis for the termination of the father’s parental rights to Darrien B. and

Andrew B.



               Accordingly, this Court vacates the circuit court’s July 31, 2012, order and

remands this case to the circuit court for a full evidentiary hearing to explore the

Department’s position concerning the termination of the petitioners’ parental rights to

Darrien B. and Andrew B. and to further address the substantiated allegations of sexual abuse

involving the father and his biological daughter to whom he voluntarily relinquished his

parental rights.16



                                       IV. Conclusion

               Based upon this Court’s thorough review of this matter and for the foregoing

reasons, the order of the Circuit Court of Raleigh County terminating the parental rights of

the parents with regard to Darrien B. and Andrew B. is hereby vacated and this case is

remanded to the circuit court for an expedited evidentiary hearing consistent with this


       16
           We find that the other assignments of error asserted by the parents in the case sub
judice, including, but not limited to, the father’s argument that the circuit court erred in
denying him a dispositional improvement period and in failing to place adequate weight on
the recommendations of the Department and the in-home services provider, need not be
addressed as they have either been rendered moot by this Court’s opinion herein and/or will
necessarily be considered anew by the circuit court on remand. See Cole v. Fairchild, 198
W.Va.736, 752 n. 22, 482 S.E.2d 913, 929 n. 22 (1996) (“The parties raise a number of other
alleged errors in their briefs . . . We carefully have reviewed each alleged error and find they
. . . are rendered moot by our above decision . . . .”).

                                              18

opinion. To facilitate the commencement of the proceedings on remand, the Clerk is directed

to issue the mandate of the Court contemporaneously with the issuance of this opinion.

                                                  Vacated and Remanded with Directions.




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