Terminating a Father's Parental Rights Over Abuse of a Toddler

Attorney Answer

You almost certainly cannot terminate his rights yourself — but that is not the remedy that will actually protect your two-year-old, and there is one that works faster.

The governing law

Under W. Va. Code § 49-4-604(c)(6), a court may terminate parental rights only "upon a finding that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future and, when necessary for the welfare of the child." Both findings are required, and the standard is deliberately hard to meet.

Just as important is where termination happens. It is a disposition within a child abuse and neglect proceeding, ordinarily initiated by the Department or by a reputable person under § 49-4-601. One parent generally cannot unilaterally terminate the other parent's rights outside such a proceeding. A private dispute between two parents about one parent's conduct is handled instead through the custody and parenting-plan provisions of Chapter 48.

So there are two doors, and you may need both. Reporting the conduct can lead to a Chapter 49 proceeding, which you do not control. Filing in family court for custody and a parenting plan that limits or supervises his time with the children is the door you do control, and it is usually the faster route to keeping a child away from someone.

One more thing, said plainly because of your son's history: repeated blows to the head of a two-year-old who has had head surgery are a medical emergency question as much as a legal one. Do not wait for a court to address that.

What you can do

1. If he is struck in the head again, have your son medically evaluated the same day and tell the provider exactly what happened and that he has had head surgery. A contemporaneous medical record carries far more weight in court than anything you write later. 2. Tell your son's pediatrician and surgeon about the blows to the head. Medical providers are mandated reporters, and their documentation becomes independent evidence. 3. Report the conduct to Child Protective Services. Under § 49-4-601 a proceeding is ordinarily initiated by the Department or a reputable person — you cannot file the termination petition yourself, but you can put the facts in front of the people who can. 4. File in family court for custody and a parenting plan, and ask specifically for supervised or restricted contact. This is the practical remedy that is actually available to you. 5. If you believe there is immediate danger, ask the family court for emergency or temporary relief rather than waiting for a full hearing date. 6. Keep a dated log: what was said, what was done, who else was present, and photographs of any marks. Write it the same day. 7. Do not withhold the children in violation of an existing court order, if there is one. Get the order changed instead — unilateral withholding is the fastest way to lose credibility with a family court judge.