Moving Beyond “Failure to Protect” in West Virginia

Katheryn Yetter, JD, Senior Attorney, Family Violence Department, NCJFCJ

The Family Violence Department thanks Joyce Yedlosky, protective services coordinator, West Virginia Coalition Against Domestic Violence, and Catherine Munster, JD, counsel with McNeer, Highland McMunn and Varner, LC, for their substantial contributions to the writing of this article.

Summary: A collaborative model developed in West Virginia is enabling CPS workers to partner with adult victims of domestic violence and empower them to protect their children.

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Finding creative, supportive and effective ways to manage the co-occurrence of domestic violence and child abuse is a challenge for most communities. Several years ago, the state of West Virginia tackled this challenge with an innovative collaborative effort modeled after the Greenbook [1] approach of working across systems.

A statewide panel, the Domestic Violence/Child Victimization Study and Policy Workgroup, examined the cross-training and policy-analysis practices of the child protection system, the domestic violence advocacy network, the court and legal systems, and community domestic violence prevention and intervention services.  

The workgroup determined that when a child’s exposure to domestic violence rose to the level of child abuse, the state had only two options: find both parents at fault for the child maltreatment or leave the protective parent out of the case and proceed with a case against the abusive parent. The state did not have a way to intervene in the lives of both parents without accusing the adult victim of unfit behavior, i.e., of failure to protect. A series of discussions resulted in an innovative statewide approach to Child Protective Services (CPS) cases involving domestic violence. The state implemented several changes, including: (1) the adult victim and the state may now co-petition the court to bring the child within their jurisdiction; (2) if co-petitioning is not the best option, the state may request a no-fault battered parent adjudication; and (3) the term “failure to protect” was eliminated from all agency policies.

It should be noted that in West Virginia, and most other states, the vast majority of CPS cases are not in the court system. The co-petition and no-fault options typically are seen only in the most egregious cases of abuse.

Joining Forces

If the adult victim is not at fault for abusing or neglecting the child, but the child was abused to the extent that a child abuse/neglect petition is warranted, CPS will now consider co-petitioning with the adult victim against the abusing parent. In West Virginia, CPS has a policy of partnering with parents who are trying to protect their children. Co-petitioning was found to be one way to assist and provide services to these parents. Co-petitioners have their own counsel and keep legal and physical custody of the children while the batterer proceeds through the legal process, up to and including termination of parental rights. In co-petition cases, it is essential before moving forward that the victim parent feel safe from the abuser because the victim parent will be asked to identify the abuser in the petition and to admit that child abuse did occur.

The No-Fault Option

If the adult victim does not want to or is afraid to co-petition with the state, CPS can file a petition with both parents[2] as respondents. CPS then requests a no-fault battered parent adjudication.[3] The battered parent and child are provided support services while the batterer proceeds through the dependency process for creating the harm to the child. Sanctions such as termination of parental rights for the no-fault adjudicated battered parent occur only if parenting skills are seriously impaired and the parent refuses to or is unable to cooperate with a reasonable treatment plan.

In both the co-petition and no-fault options, the petition is filed against the batterer for doing harm to the child. The victim parent is not held responsible for failing to protect the child from the abuser. In fact, the term “failure to protect” has never been in West Virginia code – the language in the code that addresses this concept refers to parents who “intentionally, knowingly” allow a third party to abuse their child. In domestic violence cases, the state analyzes whether the abuse was intentionally or knowingly allowed by assessing whether the victim parent took steps to protect the child that were reasonable considering the threat the victim parent faced from the abuser. Again, responsibility for harm to a child is placed squarely on the batterer.

Generally, victim parents can go to one of two court systems to seek redress from battering and legal protection for their children: juvenile court or family court. Juvenile court was seen as the least desirable forum because it required governmental intervention and a sometimes less-than-helpful child protective services system. However, Catherine Munster, a private attorney who was instrumental in implementing West Virginia’s collaborative process, said the changes instituted in West Virginia resulted in “a complete paradigm shift about how we look at the duty of child protective services to protect children and not leave the abused parent out to flounder in a private custody case.” She said that judges joined the effort to revamp West Virginia’s CPS system because they were concerned that serious allegations of child abuse were being prosecuted by pro se protective parents in family court.  Judges felt that these parents were in the wrong court for such serious allegations of child abuse.

Once the systemic changes were made in West Virginia, their impact was measured and monitored through court improvement projects and by the West Virginia Coalition Against Domestic Violence. Because training within all systems was identified as critical to the success of the program, an in-service curriculum was piloted to address issues including the following: what happens when domestic violence rises to the level of child abuse; when the trauma coping mechanism of accommodation takes on the appearance of condoning child abuse; practical applications of co-petitioning and battered parent adjudication; working with victims of domestic violence who also abuse or neglect children; and working with batterers.

According to Munster, “It is truly exciting to see CPS workers finally able to partner with adult victims to empower them to protect their children, rather than have no choice but to force children through the trauma of removals to foster care. That can now be prevented.”

For more information on the West Virginia initiative, please contact Joyce Yedlosky, protective services coordinator at the West Virginia Coalition Against Domestic Violence, at (304) 965-3552. For more information about cross-system collaboration, please visit the Greenbook website


[1] Susan Schechter & Jeffrey Edleson, NCJFCJ, Effective Intervention in Domestic Violence & Child Maltreatment Cases:  Guidelines for Policy and Practice (1999) available at http://www.thegreenbook.info.

[2] In some limited circumstances, co-petitions may be filed with a non-parent as the respondent (e.g., boyfriend or girlfriend).

[3] In a no-fault battered parent adjudication, it is judicially determined that the victim parent neither condoned the abuse/ neglect nor was not able to stop the abuse/neglect of the child due to being a victim of domestic violence.


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