Rule 11 - Abuse & neglect appeals(a)Applicability. This Rule governs all appeals from a circuit court final judgment in abuse and neglect cases under West Virginia Code §49-4-601, et seq.(b)Docketing the appeal. Within thirty days of entry of the judgment being appealed, the petitioner shall file the notice of appeal and the attachments required in the notice of appeal form contained in Appendix A of these Rules. The notice of appeal shall be filed in the Office of the Clerk of the Supreme Court. In addition to serving the notice of appeal in accordance with Rule 37, the party appealing shall serve a copy of the notice of appeal, including attachments, on all parties to the action in circuit court, on the clerk of the circuit court from which the appeal is taken which shall be made a part of the record in the circuit court and on each court reporter from whom a transcript is requested. To the extent that a transcript of a particular proceeding is necessary for the Supreme Court to review a disputed evidentiary or testimonial issue, the petitioner must so indicate in the notice of appeal. Upon motion filed in accordance with Rule 39(b), the Supreme Court may extend the time period for filing a notice of appeal for good cause shown.(c)Parties to the appeal. All parties to the proceeding in the court from which the appeal is taken, including the guardians ad litem for the minor children, shall be deemed parties in the Supreme Court, unless the appealing party shall indicate on the notice of appeal that one or more of the parties below has no interest in the outcome of the matter. A party mistakenly designated as no longer interested may remain a party in the Supreme Court by notifying the Clerk, with notice given to the other parties, that they have an interest in the appeal, within twenty days of the filing of the notice of appeal.(d)Scheduling order. As soon as practicable after the proper filing of the notice of appeal, the Supreme Court will issue a scheduling order. As appropriate to the circumstances, the scheduling order will contain the dates on which the petitioner's brief, the response brief, the reply brief, and the designated record or appendix shall be filed; will set forth whether a transcript will be prepared, the extent of any transcript, and the date the transcript is due; will set forth deadlines for filing motions; and may set forth such other matters as deemed beneficial or necessary. The scheduling order will set forth the official caption of the case, which should be used on the cover page of all documents filed with the Supreme Court.(e)Failure to comply with scheduling order. If a party fails to comply with a scheduling order the Supreme Court may impose sanctions or dismiss the appeal, or both.(f)Perfecting the appeal timing. Unless otherwise provided by law, an appeal in an abuse and neglect case must be perfected within sixty days of the date the judgment being appealed was entered in the office of the circuit clerk; provided, however, that the circuit court from which the appeal is taken or the Supreme Court may, for good cause shown, by order entered of record, extend such period, not to exceed a total extension of two months, if the notice of appeal was properly and timely filed by the party seeking the appeal. If a motion for leave to extend the time for perfecting an appeal is filed with the circuit court, a copy of the motion must be filed with the Clerk, and the order of the circuit court ruling on the motion must also be provided to the Clerk. A motion that is filed with this Court to extend time to perfect an appeal must comply with Rule 29 and must state with particularity the reasons why an extension is necessary. Upon motion filed on or before the deadline for perfecting an appeal, the Supreme Court may grant leave to the petitioner to perfect an appeal where a notice of appeal has not been filed and a scheduling order has not been entered. Such relief will be granted only in extraordinary circumstances, and if the motion is granted, the Supreme Court may, in its discretion, deny oral argument or impose other sanctions for failure to comply with the Rules.(g)Perfecting the appeal method. An appeal is perfected by the timely and proper filing in the Office of the Clerk of: (1) the petitioner's brief prepared in accordance with Rule 10 and (2) the appendix record prepared in accordance with Rule 7, unless the Supreme Court has specifically provided that an appendix record is not required. Failure by the petitioner to perfect an appeal will result in the case being dismissed from the docket of the Supreme Court.(h)Responsibilities of guardian ad litem. Unless the guardian ad litem brings an appeal for a child as the petitioner, the guardian ad litem for any minor child involved in an abuse and neglect appeal must file a respondent's brief-or a summary response in an appropriate case and if argument is held the guardian must appear and present argument unless otherwise specifically ordered by the Supreme Court.(i)Special requirements for briefs. In addition to the items required by Rule 10, the briefs filed by the parties (including the guardian ad litem) must contain a section immediately following the concise summary of argument required by Rule 10(c)(5), setting forth the current status of the minor children and any plans for permanent placement, and the current status of the parental rights of all the children's parents.(j)Update regarding the current status of the child. The parties shall provide a written statement of any change in the circumstances that were set forth in the briefs within one week of any oral argument scheduled by the Supreme Court or within such other time as may be specified by order.(k)Consideration of the appeal. After the response brief or summary response has been filed in accordance with Rule 10, and any reply brief deemed necessary has been filed (or the time for filing a reply has expired), the appeal will be deemed to be mature, and thereafter the Supreme Court will fully consider the written arguments of all parties to the appeal. Thereafter, the Supreme Court will: (1) decide the case on the merits without oral argument; or (2) set the case for oral argument and decide the case on the merits; or (3) issue an appropriate order after considering any written and oral arguments made by the parties.Last amended by Order dated November 24, 2015,1/1/2016; amended June 15, 2022, effective 7/1/2022.Clerk's Notes on Rule 11
Subsection (a) has been updated to reflect that during the 2015 Regular Session, the West Virginia Legislature repealed West Virginia Code §§ 49-1-1 through 49-11-10 and recodified these statutes, with some revisions, into West Virginia Code §§ 49-1-101 through 49-7-304.
Because transcripts are essential to review abuse and neglect appeals, the statement in lieu of transcript requirement in Rule 11(i) was deleted. The required update on the status of children has been moved to its own subsection (j) in order to highlight this important requirement.