                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

In Re: A.G. & N.G.                                                                FILED
                                                                                 May 18, 2015
No. 15-0147 (Morgan County 14-JA-8 & 14-JA-9)                                RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA


                              MEMORANDUM DECISION
        The guardian ad litem (“guardian”) for A.G. and N.G., Margaret Gordon, appeals the
Circuit Court of Morgan County’s February 5, 2015, order denying her motion to modify the
dispositional order in this abuse and neglect proceeding.1The children’s maternal grandmother,
by counsel Michael Donadieu, filed a response in support of the guardian’s appeal. Respondent
Mother J.G.-1, by counsel Randy Miller, filed a response in support of the guardian’s appeal.
The mother’s live-in boyfriend K.R., by counsel Nicholas Colvin, also filed a response in support
of the guardian’s appeal. The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Lee Niezgoda, also filed a response in support of the guardian’s appeal.
Respondent Father J.G.-2, by counsel R. Steven Redding, filed a response in opposition of the
guardian’s appeal.2 The guardian filed a reply. On appeal, the guardian argues that the circuit
court erred in denying her motion to modify the dispositional order without holding a proper
evidentiary hearing in accordance with Rule 46 of the Rules of Procedure for Child Abuse and
Neglect Proceedings.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds that the circuit court did not comply with the requirements of Rule 46
of the West Virginia Rules of Procedure for Abuse and Neglect Proceedings by failing to hold a
proper evidentiary hearing on the guardian’s motion to modify the dispositional order. This case
satisfies the “limited circumstances” requirement of Rule 21(d) of the Rules of Appellate
Procedure and is appropriate for a memorandum decision rather than an opinion.

        In May of 2014, the DHHR filed an amended abuse and neglect petition against J.G.-1,
J.G.-2 and K.R. alleging that J.G.-1 and K.R. committed domestic violence in the presence of the
children and that J.G-1. failed to protect the children.3 Thereafter, J.G.-1 and K.R. admitted to

       1
        The circuit court also denied several other motions including the guardian’s motion for
an expert evaluation and notice of intent to offer testimony.
       2
          Because the biological parents in this case have the same initials, J.G., we have
distinguished each of them using numbers 1 and 2 after their initials in this memorandum
decision.
        3
          J.G.-2 is only the father of A.G. and N.G. J.G.-1 and K.R. lived together and they had
three children who are not subject to this appeal.


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certain allegations as contained in the petition for abuse and neglect and were granted a post­
adjudicatory improvement period. By order entered November 24, 2014, the circuit court found
that J.G.-1 and K.R. successfully completed their improvement periods and were dismissed from
the case. The circuit court also granted J.G.-1 and J.G.-2 shared legal custody of the children.4

        In December of 2014, the children disclosed to the guardian that they were afraid to visit
J.G.-2 because his girlfriend threatened to hit them with a board. N.G. also disclosed that he
witnessed J.G.-2’s girlfriend hit another child with a board.5 Accordingly, the guardian filed
several motions including an ex parte motion to modify the dispositional order, a notice of intent
to offer testimony, and a motion for an expert sexual abuse evaluation. Prior to the hearing on the
guardian’s motions, A.G. disclosed to the guardian that she was “uncomfortable” around J.G.-2
and described recent incidents of alleged sexual abuse by J.G.-2. By order entered February 5,
2015, the circuit court denied the guardian’s various motions without allowing the guardian to
present any evidence in support of her motions. It is from this order that the guardian appeals.

       This Court has held that:

               “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 [alleged] to be abused or neglected
       has been substantially disregarded or frustrated, the resulting order . . . will be
       vacated and the case remanded for compliance with that process and entry of an
       appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
       558 S.E.2d 620 (2001).

Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009).

        Upon review, we find that the circuit court erred in failing to hold a proper hearing on the
guardian’s motion to modify the dispositional order. Pursuant to Rule 46 of the Rules of
Procedure for Child Abuse and Neglect Proceedings, “[t]he court shall conduct a hearing and,
upon a showing of a material change of circumstances, may modify . . . the order if, by clear and
convincing evidence, it is in the best interest of the child.” Furthermore, Rule 6 states that “[t]he
[circuit] court retains exclusive jurisdiction over placement of the child while the case is
pending, as well as over any subsequent requests for modification, including, but not limited to,
changes in permanent placement or visitation . . . .” In the case before us, the circuit court failed
to conduct a proper hearing to such an extent that the circuit court solely reviewed the DHHR’s
safety assessment.6 The circuit court denied the guardian the opportunity to present any evidence
in support of her motions regarding the new allegations of sexual abuse or that there was a

       4
        In the petition for abuse and neglect, J.G.-2 acknowledged that there was not a prior
custody agreement and that he “rarely” saw his children.
       5
        The DHHR conducted a safety assessment based upon these allegations. The allegations
were not substantiated.
       6
       In the underlying proceedings, the DHHR opposed the guardian’s motions. On appeal,
the DHHR now states that the guardian is entitled to a full hearing on the merits of her motions.

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material change in circumstance. For these reasons, the requirements of Rule 46 and West
Virginia Code § 49-6-2(c) have been “substantially disregarded or frustrated.”

       For the foregoing reasons, the Court vacates the circuit court’s February 5, 2015, order
denying the guardian’s various motions, and remands the matter for further proceedings in
compliance with Rule 46 West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings and West Virginia Code § 49-6-2(c).

       The Clerk is directed to issue the mandate forthwith.


                                                        Vacated and Remanded with Directions.

ISSUED: May 18, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISSENTING:

Justice Menis E. Ketchum




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