Context Matters: A Circuit Court’s “Burden on Parents” Remark Is Not Plain Error When It Reflects Improvement-Period Compliance, Not DHS’s Proof Burden

1. Introduction

In re L.J., I.J., A.J., and G.J.-1 (W. Va. Mar. 12, 2025) is a consolidated appeal from the Circuit Court of Wood County’s July 31, 2023 dispositional order terminating the parental rights of father G.J. and mother J.J. to four children. The West Virginia Department of Human Services (“DHS”) initiated the case in October 2021 alleging domestic violence in the home while the older children were present and noncooperation with safety efforts; the case later expanded to include allegations of substance abuse affecting parenting after the youngest child was born and mother tested positive for marijuana at birth.

The key appellate issues were (1) whether the circuit court shifted the burden of proof to the parents by stating at disposition that “it is the burden of the parents to show that they have eliminated the causes for why the petition was brought,” and (2) whether the court erred by terminating parental rights rather than employing a less restrictive alternative, given some service providers’ reunification opinions.

2. Summary of the Opinion

The Supreme Court of Appeals affirmed in a memorandum decision. Applying the abuse-and-neglect standard of review from In re Cecil T., the Court held:

  • No reversible burden shifting occurred. Although the circuit court’s “burden” remark was “ill-advised,” the majority found it was made in the context of evaluating improvement-period performance and did not shift DHS’s continuing obligation to prove abuse/neglect by clear and convincing evidence.
  • Termination was proper because the record supported a finding of “no reasonable likelihood” of substantial correction in the near future under W. Va. Code § 49-4-604(d), and permanency needs weighed against further delay—especially given the statutory limits on improvement-period extensions and the children’s extended time in foster care.

Dissent: Chief Justice Wooton (joined by Justice Trump) would have reversed, concluding the circuit court plainly and repeatedly placed the burden on the parents—both orally and in its written order—and did not apply the clear-and-convincing standard, thereby implicating due process and fundamental parental rights.

3. Analysis

3.1. Precedents Cited

A. Standards of review and proof

  • In re Cecil T. (Syl. Pt. 1): Anchored appellate review—factual findings for clear error, legal conclusions de novo.
  • In re Willis (Syl. pt. 6): Reaffirmed that limiting/terminating parental rights requires “clear, cogent and convincing proof.” The majority used this to underscore DHS’s continuing burden notwithstanding improvement periods.
  • In re S.C. (Syl. Pt. 1 in part; Syl. pt. 2): Central authority for the rule that DHS must prove petition conditions by clear and convincing evidence and that the burden does not shift to parents even when an improvement period is granted. The majority cited it to acknowledge the governing rule; the dissent cited it to argue the circuit court violated it.

B. Plain error doctrine

  • State v Miller: Provided both the procedural bar principle (failure to object) and the four-part plain error test (Syl. pt. 7). The majority applied Miller to conclude there was no “error” in context, ending the plain-error inquiry.
  • In re K.L.: Supported the proposition that plain error is not limited to criminal cases and may be noticed in abuse and neglect matters—opening the door to review despite no objection.

C. Improvement periods and the parent’s responsibilities

  • In the Interest of Carlita B. (Syl. Pt. 6): Framed the circuit court’s post-improvement-period duty to review parental performance and decide whether conditions are satisfied and whether improvement justifies return.
  • In re Kristin Y.: Used for two propositions. First, parental participation in an improvement period indicates future potential and willingness to change. Second, Syl. Pt. 5 (quoting In re R.J.M.) allows termination without less restrictive alternatives when “no reasonable likelihood” exists under W. Va. Code § 49-4-604(d).
  • In re B.H. (Syl. Pt. 4): Identified improvement-period compliance as a factor in disposition, while the child’s best interests remain controlling.
  • State ex rel. P.G.-1 v. Wilson (Syl. Pt. 5): Supported the conclusion that only one extension of a post-adjudicatory improvement period is authorized, constraining the circuit court’s ability to “try more time.”

D. Best interests, permanency, and foster care time

  • State ex rel. Cash v. Lively, State ex rel. David Allen B. v. Sommerville,, and In the Interest of Kaitlyn P.: Provided the “welfare of the child is the polar star” formulation that the majority invoked to justify focusing on stability and permanency.
  • In re Timber M. (Syl. Pt. 3): Reinforced the best-interests framing through the “polar star” line of cases.

E. Dissent’s additional authorities: “court speaks through its orders,” conditions-at-filing, and fundamental rights

  • In re C.S. (Syl. Pt. 3 in part; Syl. Pt. 8 in part): The dissent relied on this for (1) the non-shifting burden principle and (2) the requirement that adjudicatory “abused/neglected child” findings be based on conditions at the time of filing.
  • State ex rel. Erlewine v. Thompson (and Evans v. Bayles): Invoked to argue that the written dispositional order itself reflected burden shifting (“it has not been shown...”).
  • In re D.R. (memorandum decision), citing State v. C.N.S. and State v. Carl B.: Used to emphasize DHS must produce clear and convincing evidence for the “no reasonable likelihood” finding before severance.
  • Williams v. Precision Coil, Inc. and Debord v. Frazier: Cited to criticize the circuit court’s use of a “totality of the evidence” formulation associated with summary judgment/administrative review rather than clear-and-convincing proof.
  • In Re Willis (Syl. Pt. 1): The dissent additionally highlighted parental custody as a fundamental liberty interest protected by due process.

3.2. Legal Reasoning

A. The “burden shifting” claim and plain error

The majority treated the challenged remark as occurring during the circuit court’s required improvement-period performance review. Relying on In the Interest of Carlita B. and the statutory language in W. Va. Code § 49-4-610(4) (“the respondent shall be responsible for the initiation and completion of all terms of the improvement period”), the Court drew a line between: (1) DHS’s continuing burden to prove abuse/neglect and dispositional predicates by clear and convincing evidence (as recognized in In re Willis and In re S.C.), and (2) a parent’s obligation to demonstrate participation/compliance with the improvement period’s requirements.

In that framing, the circuit court’s comment was interpreted as shorthand for the second concept—parents must do the work of the improvement period and show they complied—rather than a declaration that DHS no longer had to prove its case. Because the majority found no error, it declined to apply State v Miller’s plain error doctrine.

The dissent, by contrast, read both the oral pronouncement (“it is the burden of the parents...”) and the court’s later language (“I don't believe it's been shown...”) plus the written order (“it has not been shown...”) as a repeated allocation of the legal burden to the parents—directly contrary to In re S.C. and In re C.S.. In the dissent’s view, this was not contextual imprecision but a structural due process error affecting the integrity of the proceeding.

B. Termination versus less restrictive alternatives

The majority upheld termination by applying the familiar framework: termination may be used without less restrictive alternatives when “no reasonable likelihood” exists that conditions can be substantially corrected. It invoked In re Kristin Y. (Syl. Pt. 5, quoting In re R.J.M.) and the statutory definition in W. Va. Code § 49-4-604(d), including § 49-4-604(d)(3) (failure to respond to or follow through with case plans/rehabilitative efforts).

On the facts, the circuit court credited evidence of missed drug screens and relapses and discounted reunification opinions from service providers who lacked full information and appeared to rely on parental self-reporting. The court also emphasized that further improvement time was not realistically available: only one post-adjudicatory extension is authorized under State ex rel. P.G.-1 v. Wilson, and W. Va. Code § 49-4-605 requires DHS to seek termination when the child has been in foster care for 15 of the most recent 22 months. The children’s cumulative time in foster care and need for stability were treated as best-interests factors under the “polar star” line of cases (including In the Interest of Kaitlyn P. and In re Timber M.).

The dissent argued that DHS’s evidence was not clear and convincing as to the statutory “no reasonable likelihood” finding and criticized what it saw as heavy reliance on prior proceedings and elapsed foster-care time. It also emphasized that adjudication must be based on conditions at the time of filing (citing In re C.S.) and suggested the original petition allegations (domestic violence/noncooperation) were not the same deficiencies relied upon at disposition.

3.3. Impact

  • Contextual approach to alleged burden shifting: The decision signals that appellate courts may treat an imprecise “burden on parents” remark as non-reversible where the record shows the court was discussing improvement-period compliance rather than reallocating DHS’s legal burden. This places a premium on transcript context and on whether the written order reflects the correct burden.
  • Provider testimony will be weighed against informational completeness: Reunification recommendations may be discounted where providers are unaware of missed drug screens/relapses and rely on self-reports.
  • Permanency timelines have dispositive gravity: By emphasizing statutory limits on extensions and the 15-of-22 months foster care trigger, the opinion reinforces that prolonged cases (here, ~21 months) narrow the court’s range of lawful options.
  • Dissent flags litigation risks: The dissent provides a roadmap for future appellants: point to exact burden language in the order (“it has not been shown”), insist on express clear-and-convincing framing, and argue conditions-at-filing vs. disposition drift.

4. Complex Concepts Simplified

  • Burden of proof (DHS) vs. responsibility to comply (parent): DHS must prove abuse/neglect and the legal basis for termination by clear and convincing evidence. Separately, when a parent receives an improvement period, the parent must initiate and complete the required services and can be judged on compliance when the court decides whether reunification is safe.
  • Plain error: Even without an objection, an appellate court can correct an obvious, serious mistake. Under State v Miller, the appellant must show an error that is plain, affects substantial rights, and seriously harms the fairness/integrity of the proceeding.
  • “No reasonable likelihood”: A statutory finding (W. Va. Code § 49-4-604(d)) that, even with help, the parent has shown inadequate capacity to solve the problems, often evidenced by failure to follow through with a reasonable case plan (§ 49-4-604(d)(3)).
  • Less restrictive alternatives: Courts often prefer options short of termination (e.g., guardianship), but In re Kristin Y. (quoting In re R.J.M.) allows termination without those alternatives when “no reasonable likelihood” exists.
  • Permanency clock: W. Va. Code § 49-4-605 pushes cases toward permanency by requiring DHS to seek termination when a child has been in foster care for 15 of the most recent 22 months (with statutory nuances and exceptions not addressed in depth in the decision).

5. Conclusion

In re L.J., I.J., A.J., and G.J.-1 affirms termination of parental rights where ongoing substance-related noncompliance and instability persisted after extensive services, and where permanency timelines constrained further extensions. The majority’s most notable move is its context-based rejection of a burden-shifting claim: it treated the circuit court’s “burden of the parents” language as referring to improvement-period compliance obligations rather than a transfer of DHS’s clear-and-convincing proof burden.

The dissent underscores the constitutional and procedural stakes of imprecise burden language in both oral rulings and written orders and warns that such language can indicate (and cause) an unlawful allocation of proof in termination proceedings. Together, the opinions highlight a recurring practical lesson in abuse-and-neglect litigation: careful articulation of standards—especially burdens of proof—can be outcome-determinative.