Contextualizing “Parents’ Burden” During Improvement Period Review: No Impermissible Burden Shift Absent Substantive Reliance

1. Introduction

Case: In re L.J., I.J., A.J., and G.J.-1 (consolidated appeals Nos. 23-472 & 23-498).
Court: Supreme Court of Appeals of West Virginia.
Date: March 12, 2025.
Parties: Petitioners are the children’s father (G.J.) and mother (J.J.); the respondent is the West Virginia Department of Human Services (“DHS”); a guardian ad litem represented the children.

The consolidated appeals arose from a Wood County abuse and neglect proceeding culminating in the termination of both parents’ parental rights. The initial petition alleged domestic violence in the home while the older children were present and noncooperation with DHS safety efforts, against a backdrop of two prior Boone County abuse and neglect matters. Over roughly 21 months, the parents received improvement periods and extensive services, but the record reflected relapses, missed drug screens, and noncompliance with certain services.

Key appellate issues: (1) whether the circuit court impermissibly shifted the burden of proof by stating “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 circuit court erred by terminating parental rights rather than imposing a less restrictive alternative, including continued services or reunification.

2. Summary of the Opinion

The majority affirmed the termination order by memorandum decision. Although acknowledging the circuit court’s “ill-advised comment,” the Court held there was no actual burden shifting when the remark was read in context: the circuit court was discussing the parents’ obligation to initiate and complete improvement period terms and the court’s evaluation of whether improvement period goals had been satisfied.

The Court further held that termination was proper because the evidence supported a finding of no reasonable likelihood the conditions of abuse and neglect could be corrected in the near future, and that the children’s need for permanency—after lengthy foster care involvement—justified termination without less restrictive alternatives.

Dissent: Chief Justice Wooton, joined by Justice Trump, would have reversed. The dissent read the circuit court’s oral remarks and written order as expressly placing the burden on the parents to “show” deficiencies were remedied, contrary to due process and burden-of-proof precedents, and argued DHS did not meet a clear-and-convincing standard.

3. Analysis

A. Precedents Cited

1) Appellate standards of review and proof burdens

  • Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011): Provides the standard of review—factual findings for clear error; legal conclusions de novo—framing how the Supreme Court assessed the disposition order.
  • State v Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995): Supplies the procedural default rule (failure to object) and the four-part “plain error” test (Syl. pt. 7), which the majority used to analyze whether an unpreserved burden-shift claim warranted relief.
  • In re K.L., 233 W. Va. 547, 759 S.E.2d 778 (2014): Cited for the proposition that plain error review may apply in abuse and neglect appeals, supporting the majority’s willingness to consider the argument despite no objection below.
  • Syl. pt. 6, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) and Syl. Pt. 1, in part, In re S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981): Anchor the governing rule that limiting/terminating parental rights requires clear, cogent, and convincing proof and that DHS must prove conditions existing at petition filing by clear and convincing evidence.
  • In re S.C., 168 W. Va. at 366, 284 S.E.2d at 869, syl. pt. 2: Central to both opinions: even when an improvement period is granted, the burden of proof does not shift from DHS to the parent; it remains on DHS throughout. The majority treated this as fully satisfied; the dissent treated it as violated on this record.
  • Syl. Pt. 3, in part, In re C.S., 247 W. Va. 212, 875 S.E.2d 352 (2022): Quoted in the dissent to reinforce that the burden does not shift; also used by the dissent for the “conditions existing at the time of filing” limitation (Syl. Pt. 8, in part).

2) Improvement periods and the court’s evaluative role

  • Syl. Pt. 6, In the Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991): A key structural precedent: at the conclusion of an improvement period, the court reviews performance and determines whether conditions are satisfied and whether sufficient improvement justifies return. The majority used this to interpret the circuit court’s “burden” language as part of performance review, not a shift in DHS’s ultimate burden.
  • In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011): Supports the proposition that participation in an improvement period indicates future potential and willingness to change; and provides the termination-without-less-restrictive-alternatives syllabus (Syl. Pt. 5) relied upon by the majority in affirming termination.
  • Syl. Pt. 4, In re B.H., 233 W. Va. 57, 754 S.E.2d 743 (2014): Recognizes that while best interests control disposition, parental compliance with improvement period terms is a factor—reinforcing the majority’s focus on missed screens/relapses and service noncompliance.

3) Disposition, permanency, and less restrictive alternatives

  • Syl. Pt. 5, State ex rel. P.G.-1 v. Wilson, 247 W. Va. 235, 878 S.E.2d 730 (2021): Establishes that W. Va. Code § 49-4-610(6) authorizes only one extension of a post-adjudicatory improvement period. This supported the circuit court’s and majority’s conclusion that “more time” was not a legally available or appropriate alternative after prolonged services.
  • Syl. Pt. 3, In re Timber M., 231 W. Va. 44, 743 S.E.2d 352 (2013) (quoting custody “polar star” authorities): Used to reiterate the controlling “best interests of the child” standard, justifying consideration of foster care duration and stability. The embedded authorities—State ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972), State ex rel. David Allen B. v. Sommerville, 194 W.Va. 86, 459 S.E.2d 363 (1995), and In the Interest of Kaitlyn P., 225 W.Va. 123, 690 S.E.2d 131 (2010)—collectively situate permanency and welfare as paramount.
  • Syl. Pt. 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980) (as quoted in In re Kristin Y.): Articulates that termination may be employed without intervening less restrictive alternatives when there is no reasonable likelihood conditions can be substantially corrected.

4) Dissent’s additional authorities on “orders speak” and evidentiary standards

  • State ex rel. Erlewine v. Thompson, 156 W. Va. 714, 207 S.E.2d 105 (1973) and Evans v. Bayles, 237 W. Va. 269, 787 S.E.2d 540 (2016): Invoked for the principle that courts speak through orders; the dissent argued the written order itself reflected improper burden allocation.
  • In re D.R., No. 22-0348, 2023 WL 1798623 (W. Va. Feb. 7, 2023), citing State v. Carl B., 171 W. Va. 774, 301 S.E.2d 864 (1983), In re Willis, and State v. C.N.S., 173 W. Va. 651, 319 S.E.2d 775 (1984): Used by the dissent to stress that DHS must produce clear and convincing evidence before severing parental rights, and that the circuit court did not expressly apply that standard.
  • Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995) and Debord v. Frazier, No. 19-0351, 2021 WL 1110020 (W. Va. Mar. 23, 2021): The dissent cited these to criticize the circuit court’s use of a “totality of the evidence” framing, suggesting it imported an inapplicable standard (summary judgment or administrative review paradigms).

B. Legal Reasoning

1) The “burden shift” question turned on context and function.
The majority treated the challenged statement as occurring during the circuit court’s improvement period performance assessment, a phase in which the court necessarily evaluates whether parents satisfied improvement terms and whether return is safe. It emphasized the statutory separation between (a) DHS’s continuing burden to prove abuse/neglect and termination predicates by clear and convincing evidence, and (b) the parent’s statutory responsibility under W. Va. Code § 49-4-610(4) for initiation and completion of improvement period terms.

The dissent, by contrast, read the circuit court’s oral remarks (“burden of the parents”) and parallel order language (“it has not been shown”) as an explicit reallocation of the burden of persuasion on the dispositive questions. It viewed this as a due process error under In re S.C. and In re C.S., made more serious by the court’s alleged failure to articulate or apply a clear-and-convincing standard.

2) Disposition and “no reasonable likelihood” rested on noncompliance and permanency.
The majority accepted the circuit court’s finding under W. Va. Code § 49-4-604(d) that there was no reasonable likelihood the conditions could be substantially corrected, pointing to missed drug screens, relapses, and incomplete follow-through with treatment and therapy. It also endorsed the court’s conclusion that less restrictive alternatives were not required under In re Kristin Y. / In re R.J.M. once “no reasonable likelihood” was found.

The majority also emphasized permanency: the oldest child’s cumulative foster care time (45 months) and the youngest child’s near-lifelong foster care placement (since birth). It linked this to statutory permanency policy, including W. Va. Code § 49-4-605 (termination efforts when a child has been in foster care 15 of the most recent 22 months), and to case law treating the child’s welfare as the “polar star.”

3) Treatment-provider recommendations were discounted as uninformed.
Although service providers recommended reunification, DHS established they lacked awareness of missed screens and relapse events and relied on parental self-reports. The circuit court credited the more complete compliance record over provider optimism; the majority found no error in that evidentiary weighing.

C. Impact

  • Clarifies how appellate courts may interpret problematic trial-court phrasing: This decision signals that an isolated “burden” remark will not automatically require reversal if the record supports that the court was discussing improvement period compliance rather than shifting DHS’s burden of persuasion.
  • Reinforces the dual-track structure: DHS always bears the clear-and-convincing burden on abuse/neglect and disposition predicates, but parents bear responsibility to initiate/complete improvement period tasks and must demonstrate meaningful compliance to earn reunification.
  • Strengthens permanency-centered disposition analysis: The Court’s reliance on cumulative foster-care time and the limited statutory availability of improvement period extensions underscores that prolonged cases will face increasing pressure toward permanency outcomes.
  • Practical caution for circuit courts: The dissent highlights that imprecise language (“it has not been shown”) invites reversible-error arguments; careful articulation that DHS has met its burden—and the standard applied—reduces appellate risk.

4. Complex Concepts Simplified

  • Improvement period: A court-ordered period during which parents receive services (e.g., treatment, parenting education) to correct conditions leading to court involvement. Under W. Va. Code § 49-4-610(4), the parent is responsible for starting and finishing the required tasks.
  • Burden of proof vs. responsibility to comply: “Burden of proof” (DHS’s obligation) means DHS must persuade the court by clear and convincing evidence. “Responsibility to comply” (the parent’s obligation) means the parent must actually do the improvement period requirements and provide reliable evidence of compliance (e.g., attend treatment, submit to screens).
  • Plain error: An appellate safety valve allowing review of unpreserved errors if they are obvious and seriously undermine fairness; the majority found no underlying error here under State v Miller.
  • “No reasonable likelihood … can be substantially corrected”: A statutory finding under W. Va. Code § 49-4-604(d) meaning the parent has shown an inadequate capacity to solve the problems, including by not following through with a reasonable family case plan (§ 49-4-604(d)(3)).
  • Less restrictive alternatives: Options short of termination (e.g., guardianship, extended services). Under In re Kristin Y. / In re R.J.M., termination may proceed without them once “no reasonable likelihood” is found.

5. Conclusion

In re L.J., I.J., A.J., and G.J.-1 affirms termination of parental rights despite a circuit court’s explicit statement that “it is the burden of the parents” to eliminate the causes of the petition, holding that—read in context—the remark addressed improvement period compliance rather than shifting DHS’s ultimate burden of proof. The decision reinforces that DHS must prove abuse/neglect and termination predicates by clear and convincing evidence throughout, while parents remain statutorily responsible for initiating and completing improvement period terms. It also underscores the growing weight of permanency and foster-care duration in disposition decisions, and the limited availability of continued improvement periods once cases become prolonged.