Aggravated Circumstances Do Not Shift the Burden: DHS Must Prove Termination by Clear and Convincing Evidence — Commentary on In re K.V.

Introduction

In In re K.V., the Supreme Court of Appeals of West Virginia vacated a dispositional order terminating a mother’s parental rights and remanded for a new dispositional hearing. The Court held that the circuit court impermissibly shifted the burden of proof onto the parent by requiring “complete compliance” and by treating the case as one of “aggravated circumstances” due to prior terminations. Reaffirming bedrock due process principles in abuse and neglect proceedings, the Court clarified that the Department of Human Services (DHS) always bears the burden to prove by clear and convincing evidence both that there is no reasonable likelihood the conditions of abuse or neglect can be substantially corrected in the near future and that termination is necessary for the child’s welfare. The case also underscores fairness concerns when DHS waits until late in the proceedings to weaponize known, long-tolerated “noncompliance” and to rely on a late-issued psychological evaluation without allowing the parent a meaningful opportunity to address new recommendations.

Parties and posture: Petitioner mother C.V. appealed from the Circuit Court of Kanawha County (Hon. Jennifer F. Bailey), which terminated her parental rights to K.V. DHS was respondent; a guardian ad litem represented the child. The Supreme Court (Justice Walker writing; Justice Armstead dissenting) vacated and remanded.

Summary of the Court’s Opinion

• The Court vacated the termination order and remanded for a new dispositional hearing because the circuit court improperly shifted the burden of proof to the parent by:
  • Classifying the case as one involving “aggravated circumstances” and asserting that the mother had “the burden to demonstrate complete compliance” with services, and
  • Stating that, “given that this is a case involving prior termination of parental rights,” the mother had “not met her burden of proof.”
• The Court reaffirmed that:
  • DHS always bears the burden in abuse and neglect cases, including at disposition, and must meet the clear and convincing evidence standard to terminate parental rights (Syllabus Pt. 6, In re Willis; Syllabus Pt. 2, In re S.C.).
  • Even where “reasonable efforts” may be excused under West Virginia Code § 49-4-604(c)(7)—including when there were prior involuntary terminations—this does not shift or reduce the State’s evidentiary burden at disposition.
• Due process and fundamental fairness concerns were implicated because DHS:
  • Did not allege mental health issues in the petition or obtain an adjudication on such grounds;
  • Treated mental health counseling as a nominal improvement-period condition without enforcement, while representing to the court through repeated status hearings that the mother was “compliant” and “doing well;” and
  • Pivoted to termination immediately after a psychological evaluation issued a “poor prognosis,” holding the mother to newly articulated expectations (weekly psychotherapy and psychiatric medication management) with little to no notice or opportunity to comply.
• Because the “process established by the Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes” was substantially frustrated, the order was vacated and the matter remanded under Syllabus Pt. 5, In re Edward B. (reaffirmed in In re K.S.).

Factual Background

The mother’s parental rights to seven other children were terminated in 2014. In January 2021, DHS filed a petition as to K.V. based on those prior terminations. The mother completed a pre-adjudicatory improvement period, and K.V. was returned to her custody in October 2021. Before the dismissal order was entered, a December 2021 domestic incident occurred: the mother, intoxicated, struck the child’s father; a confrontation with police ensued while she was holding the child, who suffered a minor injury. DHS filed an amended petition on December 22, 2021. Notably, the State agreed it would be “inappropriate to raise any prior actions” in the re-opened proceeding, signaling that this would not be treated as a presumptive termination case.

In February 2022, the mother stipulated to adjudication for alcohol use and domestic violence in the child’s presence and sought a post-adjudicatory improvement period. Throughout spring and summer 2022, DHS providers (Liam’s Place) delivered services: individualized parenting, adult life skills, drug screens, AA support, and domestic violence resources. While provider notes mentioned a goal to seek psychiatric counseling (referrals to WVU Behavioral Medicine and Lasting Solutions), the court was repeatedly advised the mother was “compliant” and “doing well,” with consistently negative drug screens and positive visitation reports indicating secure attachment and appropriate caregiving during supervised visits.

Two episodes of unauthorized contact occurred: early in the case (January 2022) and at a public event in mid-2022. These were discussed in MDT meetings but were not presented to the court at the time as serious or ongoing noncompliance. In August 2022, DHS filed a family case plan recommending termination based on the seven prior terminations; critically, the mental-health sections of that plan were left blank. At the August hearing, DHS again reported compliance and did not object to increased visitation.

After a September 9, 2022 psychological evaluation reported a “poor” prognosis and recommended weekly psychotherapy and psychiatric evaluation for possible medication management, DHS immediately changed course (October 12, 2022), sought to move to disposition, and recast the prior visitation incidents and failure to engage in mental health treatment as grounds for termination. In January 2023, a single positive screen for codeine occurred; visits were suspended; the mother’s behavior toward providers became erratic; she distrusted the drug testing and declined further testing. At disposition (January–February 2023), DHS and the GAL argued that, given prior terminations, the case involved “aggravated circumstances,” placing the burden on the mother to demonstrate “complete compliance.” The circuit court adopted that posture and terminated.

Analysis

Precedents and Authorities Cited

• Standard of Review: In re S.W., 236 W. Va. 309, 779 S.E.2d 577 (2015) (Syl. Pt. 1 adopting McCormick v. Allstate Ins. Co.) — abuse of discretion for disposition; clearly erroneous for factual findings.
• Burden and Standard of Proof:
  • In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) (Syl. Pt. 6): termination requires clear, cogent, and convincing proof.
  • In re S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981) (Syl. Pt. 2): even when an improvement period is granted, the burden does not shift from the State; DHS retains the burden throughout.
  • State v. C.N.S., 173 W. Va. 651, 319 S.E.2d 775 (1984): termination authorized only upon findings of no reasonable likelihood of correction and necessity for the child’s welfare; DHS must produce clear and convincing evidence.
  • In re C.S., 247 W. Va. 212, 875 S.E.2d 350 (2022): “DHS always has the burden of proof in an abuse and neglect case.”
• Procedural Integrity and Remedy:
  • In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001) (Syl. Pt. 5), reaffirmed in In re K.S., 246 W. Va. 517, 874 S.E.2d 319 (2022) (Syl. Pt. 8): where established process is substantially disregarded or frustrated, vacate and remand.
• Statutory Framework:
  • W. Va. Code § 49-4-604(c)(6): termination standard (no reasonable likelihood of correction; necessary for child’s welfare).
  • W. Va. Code § 49-4-604(d)(3): failure to follow through with the family case plan may support disposition when proven.
  • W. Va. Code § 49-4-604(c)(7): “reasonable efforts” not required in certain circumstances; subpart (A) defines “aggravated circumstances” (abandonment, torture, chronic abuse, sexual abuse); subpart (C) addresses prior involuntary terminations. Excusing reasonable efforts does not alter the State’s burden of proof at disposition.
  • W. Va. Code § 49-4-610: improvement periods; the movant (the parent) must show likelihood of full participation to obtain an improvement period, but the State’s burden at disposition remains unchanged.
  • W. Va. Code § 49-4-605(a)(3): duty to file a petition upon prior involuntary termination (“filing” threshold), distinct from the burden to prove grounds for termination.
• Clarifying George Glen B.:
  • In re George Glen B. I, 205 W. Va. 435, 518 S.E.2d 863 (1999), and II, 207 W. Va. 346, 532 S.E.2d 64 (2000): language about a “lowered threshold” pertains to filing obligations in cases with prior terminations, not to lowering the State’s evidentiary burden at disposition. The Court emphasized that George I/II do not authorize burden shifting or a “complete compliance” standard for parents.

Legal Reasoning

The Court’s reasoning proceeds in three steps.

1. Burden-Shifting Error. The circuit court’s explicit statements—framing the matter as an “aggravated circumstances” case in which the mother bore the “burden to demonstrate complete compliance,” and finding she “has not met her burden of proof”—conflicted with controlling law. DHS retains the burden to present clear and convincing evidence justifying termination. Neither the existence of prior terminations nor the court’s decision to excuse reasonable efforts under § 49-4-604(c)(7) alters that allocation of proof.
2. Due Process and Fundamental Fairness. The Court identified fairness problems:
   • Mental health issues were not pled in the petition, nor was there an adjudication on mental health as a condition of abuse/neglect affecting parenting.
   • Though an MDT goal referenced psychiatric counseling early on, DHS repeatedly reported the mother was “compliant” and “doing well” and did not tell the court she was failing the plan by refusing counseling. The August 2022 family case plan’s mental health section was left blank even as DHS recommended termination based on prior terminations.
   • DHS pivoted to termination immediately after a late-September 2022 psychological evaluation returned a “poor prognosis,” and then faulted the mother for not immediately complying with the evaluation’s recommendations (weekly psychotherapy; psychiatric medication consultation)—recommendations she had only just received. The evaluator described only indications of possible diagnoses, emphasizing the need for longitudinal assessment; the State nonetheless treated the recommendations as if longstanding mandates had been ignored.
   This sequence deprived the mother of a meaningful opportunity to address new, material expectations before those expectations were used to terminate her rights.
3. Process Remedy. Because the combined burden-shifting and fairness errors “substantially disregarded or frustrated” the statutory and rule-based process, vacatur and remand were required under Edward B./K.S. The Court did not determine whether termination would ultimately be appropriate; rather, it directed a new dispositional hearing at which mental health treatment requirements could be clearly explored, evidence taken regarding what the mother did or did not do, and her current mental health status considered.

Impact and Practical Implications

In re K.V. provides clarifying guidance with immediate consequences for West Virginia abuse and neglect practice.

• No “Complete Compliance” Standard; No Burden Shift. Courts and parties must not convert cases involving prior terminations or excused reasonable efforts into de facto presumptive termination proceedings. The State’s clear-and-convincing burden remains intact at disposition.
• “Aggravated circumstances” is a term of art. The Court cautions against using “aggravated circumstances” as a shorthand catch-all. Only § 49-4-604(c)(7)(A) lists “aggravated circumstances” (abandonment, torture, chronic abuse, sexual abuse). Prior involuntary terminations fall under § 49-4-604(c)(7)(C). Both subparts may excuse reasonable efforts; neither lowers the State’s proof burden at disposition.
• Fair Notice and Opportunity to Remedy. If DHS intends to rely on mental health noncompliance or psychological recommendations as a termination ground, it must:
  • Make those conditions explicit in the family case plan;
  • Adopt them formally via MDT and put them on the record;
  • Enforce them consistently during the case; and
  • Provide the parent a meaningful chance to comply before invoking noncompliance as a basis for termination.
• Psychological “poor prognosis” is not dispositive. A boilerplate “poor prognosis” does not substitute for clear and convincing proof of the statutory termination criteria. Evaluations indicating possible diagnoses and recommending longitudinal assessment cannot be used to short-circuit the process.
• Record Integrity Matters. Repeated DHS representations of “compliance” and “doing well” undercut a later pivot to termination premised on longstanding, known noncompliance. Consistency and candor in provider notes, case plans, and hearing updates are crucial.

Practice Pointers

• For DHS and GALs:
  • Do not argue that parents bear a “complete compliance” burden at disposition; avoid language suggesting a shifted burden.
  • When a psychological evaluation is ordered, promptly convene the MDT to integrate recommendations, revise the case plan, and create a compliance timeline.
  • If reasonable efforts are to be excused, seek that determination early; but remember excusing efforts does not diminish the State’s evidentiary burden.
• For Parents’ Counsel:
  • Object to any burden-shifting rhetoric or orders; cite In re K.V., In re Willis, and In re S.C.
  • Demand clarity on improvement-period terms and MDT adoption of psychological recommendations; insist on a reasonable window to comply.
  • Preserve due process arguments if DHS springs new grounds late in the case.
• For Trial Courts:
  • Distinguish between excusing reasonable efforts and reallocating burdens; the latter is impermissible.
  • Ensure that material conditions (e.g., mental health treatment) are clearly articulated on the record, enforced consistently, and supported by findings.
  • When a late psychological evaluation significantly alters expectations, consider continuances or structured compliance periods before disposition.

Complex Concepts Simplified

• Clear and convincing evidence: A high standard of proof requiring that the evidence produces a firm belief or conviction in the truth of the allegations. It is stricter than “preponderance” but less than “beyond a reasonable doubt.”
• Improvement period: A court-ordered period during which the parent receives services and must demonstrate progress to correct the conditions of abuse or neglect. The parent must show a likelihood of full participation to obtain one, but the State keeps the ultimate burden to prove grounds for termination.
• Reasonable efforts/Aggravated circumstances: DHS ordinarily must attempt to reunify families by offering services. Under § 49-4-604(c)(7), certain circumstances (including “aggravated circumstances” such as torture or chronic abuse, or a prior involuntary termination) may excuse that obligation. Excusing efforts does not change who bears the burden at disposition.
• Family case plan: The roadmap for services and expectations. If DHS wants to rely on noncompliance as a termination ground, the plan should clearly set out the requirement, and DHS should enforce it consistently.
• Psychological “poor prognosis”: An evaluator’s prediction that a parent is unlikely to achieve minimally adequate parenting within a reasonable time. It is a data point, not a substitute for proof; courts still need clear and convincing evidence meeting statutory criteria.
• Vacated and remanded: The appellate court nullifies the lower court’s order and sends the case back for further proceedings consistent with the appellate court’s guidance.

Conclusion

In re K.V. fortifies two core principles of West Virginia abuse and neglect law. First, the State never sheds its obligation to prove termination by clear and convincing evidence at disposition, regardless of prior involuntary terminations or excused reasonable efforts. Second, due process requires fair notice and a meaningful opportunity to correct alleged deficiencies—especially when DHS seeks to pivot late in a case based on psychological recommendations or previously tolerated noncompliance. The Court’s remedy—vacatur and remand for a new dispositional hearing—signals that errors in burden allocation and fairness are structural and cannot be salvaged by deference. Going forward, agencies, counsel, and courts must ensure clarity in case planning, consistency in enforcement, and fidelity to the State’s evidentiary burden to protect both child welfare and parental due process.