TERMINATION OF PARENTAL RIGHTS Reversed WEST VIRGINIA: In re Ashton M.

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TERMINATION OF PARENTAL RIGHTS 
WEST VIRGINIA: In re Ashton M. 
The Supreme Court of Appeals of West Virginia reversed the Circuit Court of Webster County’s order terminating appellant-mother’s parental rights, holding that the lower court failed to comply with the Rules of Procedure for Abuse and Neglect Proceedings by failing to schedule a dispositional hearing after rejecting the state’s case plan for the child and the lower court erred when it failed to take the child’s opinion into consideration before ordering the termination. Under In re Edward B., 210 W.Va. 621, the court held that a permanency plan can be implicitly rejected by the disposition of the court, triggering the Rule 34 requirement that the state submit a revised plan and for the court to hold a dispositional hearing. Here, the Department of Health and Human Resources (DHHR) recommended termination of appellant’s custodial rights, but the lower court ultimately terminated appellant’s parental rights. The Supreme Court of Appeals of West Virginia found the lower court’s actions to be an implicit rejection of the permanency plan and, accordingly, determined that the failure to hold an additional dispositional hearing was error. The court further found that, as the child was over the age of 14, W.Va. Code § 49-6-5(a) required her wishes to be considered, but the lower court did not do so. Accordingly, the court remanded to the lower court in order to comply with Rule 34 and consider child’s wishes if DHHR sought termination of parental rights in its revised plan. 
Cite: No. 11-0755, 2012 W.Va. LEXIS 97 (W.Va. Feb. 28, 2012)      
Link to Full Opinion