          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                   January 2019 Term
                                   _______________
                                                                               FILED
                                     No. 18-0448                           March 14, 2019
                                                                           released at 3:00 p.m.
                                   _______________                     EDYTHE NASH GAISER, CLERK
                                                                       SUPREME COURT OF APPEALS
                                                                            OF WEST VIRGINIA
                         IN RE A.P.-1, A.P.-2, A.P.-3
       ____________________________________________________________

                   Appeal from the Circuit Court of Raleigh County
                    The Honorable Robert A. Burnside, Jr., Judge
              Case Nos. 2017-JA-154-B, 2017-JA-155-B, 2017-JA-156-B

               VACATED AND REMANDED WITH DIRECTIONS
       ____________________________________________________________

                               Submitted: January 15, 2019
                                 Filed: March 14, 2019

 Gavin Ward, Esq.                            Patrick Morrissey, Esq.
 Beckley, West Virginia                      Attorney General
 Counsel for Petitioner D.P.                 Brandolyn N. Felton-Ernest, Esq.
                                             Assistant Attorney General
 Stanley I. Selden, Esq.                     Charleston, West Virginia
 Beckley, West Virginia                      Counsel for Respondent Department of
 Guardian ad litem of A.P.-1, A.P.-2,        Health and Human Resources
 and A.P.-3
                                             Sidney Bell, Esq.
                                             Beckley, West Virginia
                                             Counsel for Respondent J.B.

                                             Sarah F. Smith, Esq.
                                             Public Defender Corporation
                                             Beckley, West Virginia
                                             Counsel for Respondent T.W.

CHIEF JUSTICE WALKER delivered the Opinion of the Court.

JUSTICE WORKMAN concurs, in part, and dissents, in part, and reserves the right to file
a separate opinion.
                              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.” Syllabus Point 1, In Interest of Tiffany Marie S., 196 W. Va.

223, 470 S.E.2d 177 (1996).



              2.     “Interpreting a statute or an administrative rule or regulation presents

a purely legal question subject to de novo review.” Syllabus Point 1, Appalachian Power

Co. v. State Tax Dep’t of W. Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995).



              3.     “In a child abuse and neglect hearing, before a court can begin to make

any of the dispositional alternatives under W.Va.Code, 49–6–5, it must hold a hearing

under W.Va.Code, 49–6–2, and determine ‘whether such child is abused or neglected.’



                                              i
Such a finding is a prerequisite to further continuation of the case.” Syllabus Point 1, State

v. T.C., 172 W. Va. 47, 303 S.E.2d 685 (1983).



              4.     “When no factors and circumstances other than incarceration are

raised at a disposition hearing in a child abuse and neglect proceeding with regard to a

parent’s ability to remedy the condition of abuse and neglect in the near future, the circuit

court shall evaluate whether the best interests of a child are served by terminating the rights

of the biological parent in light of the evidence before it. This would necessarily include

but not be limited to consideration of the nature of the offense for which the parent is

incarcerated, the terms of the confinement, and the length of the incarceration in light of

the abused or neglected child’s best interests and paramount need for permanency, security,

stability and continuity.” Syllabus Point 3, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873

(2011).




                                              ii
WALKER, Chief Justice:
              Petitioner D.P. is serving a lengthy prison sentence for first-degree murder

and is ineligible for parole until 2029. He is also father to three minor children: A.P.-1,

A.P.-2, and A.P.-3. In April 2018, the Circuit Court of Raleigh County terminated

Petitioner’s parental rights to the three children, despite concluding three months earlier

that Petitioner had not abused or neglected them. Petitioner now challenges the termination

of his parental rights. Because our law is clear that a circuit court may not terminate a

parent’s rights to his child without first finding that the parent abused or neglected his child,

we vacate the circuit court’s April 2018 order and remand this matter to the circuit court

for further proceedings.



              I.      FACTUAL AND PROCEDURAL BACKGROUND

              On June 12, 2017, the West Virginia Department of Health and Human

Resources (DHHR) filed a “Petition for Finding of Abuse and/or Neglect and/or

Abandonment” with the Circuit Court of Raleigh County (the Petition) regarding

Petitioner’s three minor children: A.P.-1, A.P.-2, A.P.-3.1 In the Petition, DHHR alleged

that Petitioner was incarcerated at Mount Olive Correctional Facility, sentenced to life with

mercy, and ineligible for parole until 2029. DHHR asked the circuit court to find that

Petitioner had abandoned his children and, based upon that finding, terminate his parental



       1
          Consistent with our long-standing practice in cases with sensitive facts, we use
initials where necessary to protect the identities of those involved in this case. See In re
K.H., 235 W.Va. 254, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015). Because the children share
the same initials, we will refer to them as A.P.-1, A.P.-2, and A.P.-3, respectively.


                                               1
rights to A.P.-1, A.P.-2, and A.P.-3. DHHR did not allege that Petitioner had otherwise

neglected or abused the children.2



              The circuit court held an adjudicatory hearing on October 3, 2017.3 There,

DHHR argued that Petitioner had abandoned his children due to his lengthy incarceration.

The circuit court was not convinced, and stated in its October 6, 2017 order that it “was of

the opinion that the Department’s interpretation of the definition of abandonment was not

correct.” The circuit court then ordered the guardian ad litem and Petitioner to provide

additional authority on that issue.4



              The adjudication hearing continued on December 12, 2017.            Petitioner

testified to his ongoing relationship with A.P.-1, A.P.-2, and A.P.-3, stating that he was

with them nearly every day before his incarceration in March 2014, and that he had




       2
          The Petition also contained allegations of abuse against T.W., the children’s
mother, and factual allegations regarding J.B., a non-offending father to another child of
T.W.’s; and E.P., D.P.’s sister, to whom T.W. had granted temporary custody of A.P.-1,
A.P.-2, A.P.-3 before the filing of the Petition. The circuit court dismissed E.P. from these
proceedings by order entered July 26, 2017. J.B. did not file a brief in Petitioner’s appeal.
In November 2018, this Court affirmed the circuit court’s termination of T.W.’s parental
rights to A.P.-1, A.P.-2, and A.P.-3, and another infant not at issue in this appeal. See In
re A.P.-1, No. 18-0444, 2018 WL 5258859, *5 (W. Va. Oct. 19, 2018).
       3
         The Court’s October 6, 2017 “Order with Respect to Adjudication of [T.W.] and
[D.P.].” refers to the October 3 hearing as a “preliminary hearing.”
       4
         The circuit court docket shows that the parties did provide additional authority on
this issue to the circuit court. Those filings were not made a part of the appendix record,
however, and have not been reviewed by this Court.


                                             2
provided for their physical and emotional needs. Petitioner further testified that, since

entering prison, he talked to the children by telephone at least twice each week and sent his

prison wages to his sister E.P., with whom the children were placed, for their maintenance.



                The circuit court again continued the adjudication hearing to January 30,

2018, when the children’s mother, T.W., testified and confirmed Petitioner’s earlier

statements: that he provided emotional and financial support to his children before his 2014

incarceration and that he remained involved in the children’s lives through telephone

conversations and cards, post-incarceration. Petitioner’s sister, E.P., also confirmed that

he maintained meaningful contact with A.P.-1, A.P.-2, and A.P.-3 from prison and

supported them financially, to the best of his ability. Following argument from the parties,

and the State’s concession that there was no “factual basis in good faith for the Court to

make any finding of abandonment,” the circuit court concluded that the facts did not

support a finding that Petitioner had abandoned A.P.-1, A.P.-2, and A.P.-3 and adjudication

was “not supported and [was] refused.”



                The circuit court then held a disposition hearing on April 17, 2018.

Petitioner’s counsel “object[ed] to any type of termination on the record considering that

there’s been no finding of abuse and neglect,” and directed the circuit court to this Court’s

decision in State v. T.C.5 The guardian ad litem for A.P.-1, A.P.-2, and A.P.-3 presented



       5
           172 W. Va. 47, 303 S.E.2d 685 (1983).


                                             3
the opposite view, stating, “[t]he law does not say that because there was no finding of

abuse, neglect, or abandonment at the adjudicatory phase that [Petitioner’s] parental rights

can’t be terminated at a dispositional phase. It’s exactly the opposite of that.” Then, the

guardian ad litem drew upon this Court’s decision in In re Cecil T.6 to assure the circuit

court that it could “terminate [Petitioner’s] parental rights at a dispositional hearing solely

on the basis of him being incarcerated[.]”



                Ultimately, the circuit court adopted the guardian ad litem’s view,

concluding that, although it explicitly found that Petitioner had not abandoned his children

at the earlier adjudicatory hearing, it was not precluded from “considering the

circumstances of the parties and devising a—or coming to a resolution of the question of

disposition in the best interests of the child, or the children.” Relying on In re Cecil T., the

court found that “the lengthy incarceration of [D.P.] does support the finding of termination

to allow the Department the options to take care of [A.P.-1, A.P.-2, and A.P.-3].” The

court’s written order, entered on April 24, 2018, reflected that termination ruling:

                [T]hat [D.P.] has a lengthy prison sentence which includes his
                ineligibility for parole until March 16, 2029; that the
                opportunity for contact with his children is clearly limited; that
                the children’s interests control at disposition; that while the
                Court recognizes [D.P.’s] interests the same are outweighed by
                the children’s interests; In Re: Cecil T[.], . . . controls this
                matter; and that the children’s best interests require termination
                of [D.P.’s] parental rights.




       6
           228 W. Va. 89, 717 S.E.2d 873 (2011).


                                                4
               Petitioner now appeals the circuit court’s April 24, 2018 order terminating

his parental rights.7



                            II.     STANDARD OF REVIEW

               In abuse and neglect appeals, this Court reviews a circuit court’s conclusions

of law de novo.8 “Interpreting a statute or an administrative rule or regulation presents a

purely legal question subject to de novo review.”9 This Court only sets aside a circuit

court’s factual findings in an abuse and neglect case when those findings are clearly

erroneous and not because this Court would have decided the case differently:

                       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.[10]




       7
         After D.P. filed this appeal, questions arose regarding the paternity of A.P.-3.
According to the guardian ad litem, D.P. is A.P.-3’s psychological father and not her
biological father. That issue was not presented to the circuit court and falls outside the
scope of Petitioner’s appeal to this Court.
       8
        See Syl. Pt. 1, in part, In Interest of: Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d
177 (1996).
       9
        Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W. Va. 573,
466 S.E.2d 424 (1995).
       10
          See Syl. Pt. 1, in part, In Interest of: Tiffany Marie S., 196 W. Va. at 223, 470
S.E.2d at 177.


                                               5
                                    III.    DISCUSSION

                Petitioner raises three assignments of error. We consolidate the first two

because they are duplicative. They are also dispositive of this appeal; thus, we need not

address the third. Petitioner contends that the circuit court erroneously terminated his

parental rights at the April 17, 2018 disposition hearing because it did not find, at the earlier

adjudicatory hearing, that he had abused, neglected, or abandoned A.P.-1, A.P.-2, or A.P.-

3. Stated differently, Petitioner argues that the circuit court improperly moved forward to

the disposition phase of the abuse and neglect proceeding without first making the

prerequisite finding that he had, in fact, abused, neglected, or abandoned his children.



                DHHR argues that a finding of abuse, neglect, or abandonment at an

adjudicatory hearing is not a prerequisite to disposition. Alternatively, DHHR argues that,

although the circuit court did not adjudicate Petitioner as an abusive or neglectful parent,

or one who had abandoned his children, it did find that Petitioner had abandoned his

children at the disposition hearing and that the children’s interest in permanency

outweighed Petitioner’s interest in retaining his parental rights. The guardian ad litem

adopts the position of DHHR on appeal. He also renews his argument that our decision,

In Re Cecil T.,11 justifies the termination of Petitioner’s parental rights at the April 17, 2018




       11
            228 W. Va. at 89, 717 S.E.2d at 873.


                                               6
disposition hearing and that the circuit court properly weighed A.P.-1, A.P.-2, and A.P.-

3’s interests in permanency. We address these arguments in turn, below.



                                                A.

                In November 2018, during the pendency of this appeal, this Court decided In

re K.H.12 There, the petitioner-father raised the same issue on appeal that Petitioner now

raises: that the “circuit court erroneously terminated his parental rights at a disposition

hearing after previously declining to adjudicate him as an abusive or neglectful parent on

the same grounds.”13 Because the primary issues in the two cases are identical, we

expressly adopt and elaborate upon the reasoning employed in In re K.H. to resolve

Petitioner’s appeal.



                As we did in In re K.H., we begin our analysis with West Virginia Code §§

49-4-601 and 49-4-604 (2015). Section 49-4-601 controls adjudicatory hearings, which

are hearings “to determine whether a child has been abused and/or neglected as alleged in

[DHHR’s] petition[.]”14        Section 49-4-604 controls disposition hearings, which are

hearings

                held after a child has been adjudged to be abused and/or
                neglected, at which the court reviews the child and family case



       12
            No. 18-0282, 2018 WL 6016722 (W. Va. Nov. 16, 2018).
       13
            Id. at *4 (emphasis in original).
       14
            W. Va. R. of Pro. for Child Abuse and Neglect 3(a).


                                                7
                 plan filed by [DHHR] and determines the appropriate
                 disposition of the case and permanency plan for the family.[15]



                 The adjudicatory hearing required by § 49-4-601 and the disposition hearing

required by § 49-4-604 create a “two-stage process [that] is well-recognized in our case

law.”16 As we have explained, each stage has a separate purpose:

                 The first phase culminates in an adjudication of abuse and/or
                 neglect. [See section 49-4-601]. The second phase is a
                 dispositional one, undertaken to achieve the appropriate
                 permanent placement of a child adjudged to be abused and/or
                 neglected. [See section 49-4-604].[17]

The adjectives “first” and “second” are not to be glossed over. As this Court stated in 1983,

                        [i]n a child abuse and neglect hearing, before a court can
                 begin to make any of the dispositional alternatives under [§ 49-
                 4-604], it must hold a hearing under [§ 49-4-601], and
                 determine “whether such child is abused or neglected.” Such a
                 finding is a prerequisite to further continuation of the case.[18]



                 So, if a circuit court answers the initial, adjudicatory question in the negative,

“then the petition is dismissed under W.Va.Code, 49–6–5(a)(1) [recodified at W. Va. Code




       15
            Id. at R. 3(i).
       16
            In re K.H., 2018 WL 6016722, at *4.
       17
         Id. at *5–6 (quoting In Re Beth Ann B., 204 W.Va. 424, 427, 513 S.E.3d 472, 475
(1998)) (emphasis added).
       18
            Syl. Pt. 1, State v. T.C. at 47, 172 W. Va. at 47, 303 S.E.2d at 685 (emphasis
added).


                                                 8
§ 49-4-604(b)(1)]”19 and the court may not proceed to consider the disposition options laid

out in § 49-4-604(b)(2)–(6). Stated even more plainly, our statutes, cases, and rules instruct

that a circuit court may not terminate parental rights at a § 49-4-604 disposition hearing

without first finding that the parent abused or neglected the child in question at a § 49-4-

601 adjudicatory hearing.20



                  As we recognized in State v. T.C. and restated more recently in In Re K.H.,

jurisdictional and constitutional concerns mandate this two-phase approach:

                  [T]he primary purpose of making an initial finding of abuse or
                  neglect is to protect the interest of all parties and to justify the
                  continued jurisdiction of the court. The two-stage process
                  supports the constitutional protections afforded to parents in
                  permanent child removal cases—constitutional rights
                  guaranteed by the Due Process Clause of the Fourteenth
                  Amendment. Indeed, with regard to minor children, no rule is
                  more firmly established than that the right of a natural parent
                  to the custody of his or her infant child is paramount to that of
                  any other person; it is a fundamental personal liberty protected
                  and guaranteed by the Due Process Clauses of the West
                  Virginia and United States Constitutions.[21]



                  Just as in In re K.H., the circuit court in this matter held an adjudicatory

hearing on DHHR’s allegation that Petitioner had abandoned A.P.-1, A.P.-2, and A.P.-3.22


       19
            Id. at 50, 303 S.E.2d at 688.
       20
         The circuit court must also observe the additional procedural requirements and
safeguards contained in West Virginia Code Chapter 49, Article 4.
       21
            In re K.H., 2018 WL 6016722, at *5 (cleaned up).
       22
            Id.


                                                   9
And, as in In re K.H., the circuit court considered the evidence presented and found that

Petitioner had not. As a result, the circuit court lacked the continued jurisdiction to then

terminate Petitioner’s parental rights at the April 17, 2018 disposition hearing. So, we

vacate that portion of the circuit court’s order of April 24, 2018 purporting to terminate

Petitioner’s parental rights to A.P.-1, A.P.-2, and A.P.-3.



                                             B.

                DHHR’s position—that a finding of abuse and neglect at an adjudicatory

hearing is not a prerequisite to disposition—is untenable under the plain language of West

Virginia Code §§ 49-4-601 and 49-4-604, as well as Syllabus Point 1 of our decision in

State v. T.C., decided more than thirty-five years ago.23 Similarly, the department’s

position that the circuit court somehow “carried over” the evidence offered at the

adjudicatory hearing to the disposition hearing, and then lawfully adjudged Petitioner to

have abandoned A.P.-1, A.P.-2, and A.P.-3. before terminating his parental rights is

similarly unavailing.



                The circuit court and guardian ad litem’s reliance upon In re Cecil T. in

support of the termination of Petitioner’s parental rights requires more consideration. In

In re Cecil T., this Court considered the termination of parental rights when incarceration

was the only factor or circumstance raised in support of termination at the disposition




       23
            172 W. Va. at 47, 303 S.E.2d at 685.


                                             10
hearing.24 We made clear that the circuit court adjudged Cecil T. to be a neglected child25

before denying DHHR’s motion to terminate his father’s parental rights.26 DHHR then

appealed the circuit court’s disposition decision, not its adjudicatory one, to this Court.27

That distinction is vital, and it is reflected in Syllabus Point 3 of In re Cecil T.:

                       When no factors and circumstances other than
                incarceration are raised at a disposition hearing in a child abuse
                and neglect proceeding with regard to a parent’s ability to
                remedy the condition of abuse and neglect in the near future,
                the circuit court shall evaluate whether the best interests of a
                child are served by terminating the rights of the biological
                parent in light of the evidence before it. This would necessarily
                include but not be limited to consideration of the nature of the
                offense for which the parent is incarcerated, the terms of the
                confinement, and the length of the incarceration in light of the
                abused or neglected child’s best interests and paramount need
                for permanency, security, stability and continuity.[28]



                On its face, Syllabus Point 3 of In re Cecil T. applies only in the context of a

lawful disposition hearing held after a circuit court makes a finding of abuse or neglect at

the adjudicatory hearing. Here, the circuit court lacked the continued jurisdiction to



       24
            See Syl. Pt. 3, In re Cecil T., 228 W. Va. at 89, 717 S.E.2d at 873.
       25
            See id. at 93, 717 S.E.2d at 877.
       26
            Id. at 94, 717 S.E.2d at 878.
       27
          Id. (“Appellants maintain that the lower court erred by not terminating the
parental rights of Appellee pursuant to West Virginia Code § 49–6–5(a)(6) [now §49-4-
604] because the failure to terminate does not provide a meaningful permanency plan for
Cecil T., and wrongly places the father’s parental rights above that of the best interests of
the child.”).
       28
            Id. at 89, 717 S.E.2d at 875.


                                                11
conduct a disposition hearing once it declined to adjudge Petitioner as having abandoned

A.P.-1, A.P.-2, and A.P.-3. For that reason, In re Cecil T. could not have applied to

Petitioner’s case, below, nor could it have justified the termination of Petitioner’s parental

rights.29



                We acknowledge the desire of the circuit court, guardian ad litem, and DHHR

to achieve permanency for A.P.-1, A.P.-2, and A.P.-3. However, as we explained in In re

K.H., that desire may not be fulfilled “by terminating the parental rights of a person who

was never adjudicated as abusive or neglectful” and thereby ignoring “well-settled law.”30

Certainly, the parties could have traveled an alternate, procedural route. DHHR could have

amended its original abuse and neglect petition to include new allegations that arose

following the initial adjudication hearing, if warranted, and the circuit court could have

then held another adjudicatory hearing.31 Had the circuit court then found, for example,

A.P.-1, A.P.-2, and A.P.-3 to be neglected children, as that term is defined by West Virginia


       29
         Circuit courts should be mindful that In re Cecil T. does not foreclose a finding at
the adjudicatory stage that a parent’s absence due to incarceration that harms or threatens
the physical or mental health of the child is neglect. West Virginia Code § 49-1-201 (2015)
(defining “neglect”). Of course, in order for the circuit court to make the appropriate
adjudication, it is incumbent upon DHHR to draft a petition that includes all the necessary
allegations and that does not unduly restrict the circuit court’s ability to make the requisite
finding.
       30
            In re K.H., 2018 WL 6016722, at *6.
       31
          See W. Va. R. of Proc. Child Abuse and Neglect Proceedings 19(b) (“[i]f new
allegations arise after the final adjudicatory hearing, the allegations should be included in
an amended petition . . . and the final adjudicatory hearing shall be re-opened for the
purpose of hearing evidence on the new allegations in the amended petition.”).


                                              12
Code § 49-1-201 (2015), it then would have had the jurisdiction to entertain the disposition

of Petitioner’s parental rights under § 49-4-604. Our insistence on procedural integrity in

abuse and neglect cases is not hollow formality. Our statutes, cases, and rules mandate a

two-phase approach in abuse and neglect proceedings to “support[] the constitutional

protections afforded to parents in permanent child removal cases.”32 Petitioner, although

incarcerated, is entitled to no less.



                                         Conclusion

                The circuit court erred by terminating Petitioner’s parental rights to A.P.-1,

A.P.-2, and A.P.-3 without first adjudicating him as an abusive or neglectful parent.

Accordingly, the circuit court lacked the jurisdiction to enter those portions of its April 24,

2018 order purporting to terminate Petitioner’s parental rights. For that reason, we hereby

vacate the portion of the circuit court’s April 24, 2018 order purporting to terminate

Petitioner’s parental rights to A.P.-1, A.P.-2, and A.P.-3.



                We remand the case to the circuit court with instructions to permit DHHR to

file an amended abuse and neglect petition, if warranted, alleging any and all claims that it

may have against the Petitioner. Then, if necessary, the circuit court shall expeditiously

hold an adjudicatory hearing on the newly amended petition and, if the Petitioner is

adjudicated as an abusive or neglectful parent, shall hold a disposition hearing. Unless the




       32
            In re K.H., 2018 WL 6016722 at *5 (internal quotations and citations omitted).


                                              13
circuit court finds reasons indicating that a change in custody is appropriate, A.P.-1 and

A.P.-2 should remain in E.P.’s care pending the outcome of the case. If DHHR does file

an amended petition, we then instruct the circuit court to make E.P. a party to the newly

amended petition and to appoint her counsel.33



             Finally, we direct the circuit court to require DHHR to attempt to identify

A.P-3’s biological father and to take appropriate action given the outcome of those

inquiries. Unless the circuit court finds reasons indicating that a change in custody is

appropriate, A.P.-3 should remain in E.P.’s care pending the outcome of the DHHR’s

inquiries.



                                                  Vacated and remanded with directions.




       33
          See W. Va. Code § 49-4-601(f) and (h); State ex rel. H.S. v. Beane, 240 W. Va.
643, 647–48, 814 S.E.2d 660, 664–65 (2018) (“custodian” in § 49-4-601(h) is one who
“held custodial rights to the children prior to the initiation of the abuse and neglect
petition”).


                                           14
