In re E.F.-1, C.F.-1, and E.F.-2

Summary

The West Virginia Supreme Court of Appeals reviewed a circuit court’s custodial allocation following a child abuse and neglect proceeding. The Court held that the circuit court failed to apply the mandatory custodial-allocation factors and procedures under West Virginia Code §§ 48-9-206, -207, and -209, and therefore reversed and remanded.

Holdings

1. A circuit court must apply the factors and considerations set forth in West Virginia Code §§ 48-9-206 and 48-9-207 when allocating custodial and decision-making responsibilities for children reunified with parents, guardians, or custodians who are no longer cohabitating at the close of the abuse and neglect proceedings.
2. When findings of abuse or neglect have been established, the circuit court must employ the mandatory considerations and procedures in West Virginia Code § 48-9-209, including making special written findings demonstrating that the allocation adequately protects the child from potential harm arising from the abuse and neglect findings.
3. The custodial-allocation orders could not be affirmed because the circuit court did not discuss or reference the applicability of the statutory factors, and the Supreme Court would not presume that the factors had been considered.

Questions Presented

1. Whether the circuit court was required to apply the factors and considerations in West Virginia Code §§ 48-9-206 and 48-9-207 when allocating custodial and decision-making responsibilities after reunifying children from an abuse and neglect proceeding with parents who no longer cohabit.
2. Whether the circuit court was required to apply the mandatory considerations, procedures, and special-written-findings requirement in West Virginia Code § 48-9-209 after abuse and neglect findings had been established.
3. Whether the circuit court's custodial allocation could be affirmed despite the absence of express discussion or reference to the statutory custodial-allocation factors.

Disposition

reversed_and_remanded