It would be difficult to find someone who does not agree that society must do all it can to protect children from harm. It would be hard to find a culture anywhere in the world that does not at least pay lip service to the ideals of child protection. Keeping them from suffering, preserving their innocence, and shielding them from emotional and mental distress are all-important goals. A political regime can instantly sway public opinion in its favor by showcasing harm suffered by children at the hands of political opponents. ¹ It is a universal ethos; we must protect our children, even if doing so puts adults at risk.

The basic premise is easy to agree upon, but protecting children is not as simple as it sounds. What constitutes harm can be hard to determine, balancing the harm in removing children from their parents’ care against the harm of staying in an abusive or neglectful circumstance is difficult, and maintaining a productive relationship with at-risk children and parents is challenging. It is a delicate process that requires flexibility and care. The Supreme Court has made clear that the constitutional rights of parents are fundamental and must only be invaded after a thoughtful evidentiary analysis and a high level of deference to those compelling rights. ² Unfortunately, some courts do not bring a surgeon’s scalpel to aid them in the termination of parental rights process—they bring a sledgehammer.

On March 4, 2014, the West Virginia Legislature passed House Bill 4445. ¹ This Bill “modif[ied] the definition of ‘battery’ and ‘domestic battery’ to conform with federal laws.” ² More specifically, House Bill 4445 was passed pursuant to the Fourth Circuit’s decision in United States v. White. ³ The enactment of House Bill 4445 erased the offense of simple battery from the books of West Virginia’s Code and transformed battery and domestic battery into offenses that inherently encompass violent force.

The year is 1907. Two siblings, Walter and Florence, have co-owned a tract of land as tenants in common for several years. They have previously sold the rights to the coal underlying the parcel to a third party. Now, Florence has a deed drawn up conveying to Walter her “one-seventh undivided interest in the surface only with the hereditaments and appurtenances thereto, (the coal and mining privileges having been previously sold).” The title transfers and is entered into the county tax books. Florence dies intestate in 1930. For over a century after the conveyance, nothing of note happens. Walter’s interest is sold a number of times, eventually coming into the ownership of a man named Morgan. Finally, in 2011, Morgan files a declaratory judgment action against Florence’s successors to establish himself as the sole owner of the oil and gas underlying the tract. The record does not contain a single mention of oil and gas rights in any of the deeds.