Improper Burden‑Shifting at Disposition Requires Remand: Justice Armstead’s Dissent in In re K.V.

Introduction

This commentary examines Justice Armstead’s dissenting opinion in In re K.V., No. 23-339 (Supreme Court of Appeals of West Virginia, March 26, 2025). The case arises from an abuse and neglect proceeding involving a mother (“petitioner”) whose parental rights to seven older children had been involuntarily terminated in 2014. In the present matter concerning infant K.V., the Department of Human Services (DHS) presented evidence at disposition that the petitioner refused to acknowledge prior abuse and neglect, exhibited significant mental health concerns identified during a psychological evaluation, and failed to engage in recommended psychiatric treatment during the improvement period. The circuit court terminated the petitioner’s parental rights.

The majority reversed and remanded for a new dispositional hearing on the ground that the circuit court impermissibly shifted the burden of proof to the petitioner. Justice Armstead dissented, arguing that the majority conflated DHS’s evidentiary burden with the parent’s statutory duties during an improvement period, that any burden-shifting was harmless in light of overwhelming evidence, and that the termination order should have been affirmed.

The key issues presented include:

Whether the circuit court improperly shifted the burden of proof from DHS to the parent at disposition.
Whether the parent’s failure to acknowledge abuse and neglect, combined with untreated mental health concerns, supported a finding of “no reasonable likelihood” of correction of conditions in the near future under West Virginia Code § 49-4-604(c)(6) (2020).
Whether any burden-shifting, if it occurred, was harmless in light of the record developed at the dispositional hearing.
How a parent’s statutory obligations during an improvement period intersect with DHS’s burden to prove abuse and neglect.

Summary of the Opinion

According to the dissent, the majority ordered a remand for a new disposition based on an impermissible shifting of the burden of proof by the circuit court. The majority’s disposition suggests that the trial court misallocated the responsibility to establish the grounds for termination, potentially infringing on the parent’s due process rights.

Justice Armstead’s dissent advances three central points:

First, even in cases triggered by a prior termination of parental rights under West Virginia Code § 49-4-605(a)(3) (2018), DHS retains the burden to prove abuse and neglect—but the parent also has a statutory duty to initiate and complete improvement-period requirements under § 49-4-610(4)(A) (2015). Enforcing that statutory duty is not “burden shifting.”
Second, DHS presented substantial evidence at disposition—including expert testimony about hypomanic features and erratic behavior, the petitioner’s refusal to acknowledge abuse, violations of visitation rules, and repeated refusals to pursue psychiatric evaluation and treatment—supporting termination under § 49-4-604(c)(6).
Third, to the extent any burden-shifting occurred, the error was harmless because DHS adduced clear and convincing evidence, and the parent did not suffer prejudice. The dissent distinguishes In re K.L., where reversal followed because the circuit court failed to require the agency to present evidence at disposition.

Analysis

Precedents Cited and Their Influence

W. Va. Dep’t of Health & Hum. Res. ex rel. Wright v. Doris S., 197 W. Va. 489, 475 S.E.2d 865 (1996).
The Court in Doris S. held that a parent must acknowledge the abuse or neglect problem to render it treatable; refusal makes the problem “untreatable.” The dissent relies heavily on this doctrine: petitioner’s refusal to acknowledge past and present abuse and neglect foreclosed the possibility of meaningful remediation within the near future, thus supporting termination under § 49-4-604(c)(6).
W. Va. Code § 49-4-604(c)(6) (2020).
Provides that parental rights may be terminated upon a finding that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future and termination is necessary for the child’s welfare. The dissent treats the facts—non-acknowledgment, untreated mental health concerns, and erratic conduct—as satisfying this standard.
In re George B., Jr., 207 W. Va. 346, 532 S.E.2d 64 (2000) (Syl. Pt. 5, in part).
Even when a petition is filed because of a statutory trigger (e.g., prior involuntary termination, § 49-4-605(a)(3)), DHS still bears the burden to prove the child is abused or neglected under § 49-4-601. The dissent agrees with this baseline rule and argues that recognizing the parent’s improvement-period duties does not dilute DHS’s burden.
In Interest of S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981) (Syl. Pt. 1), and W. Va. Dep’t of Human Services v. Peggy F., 184 W. Va. 60, 399 S.E.2d 460 (1990).
S.C. requires the State to prove by clear and convincing evidence the conditions existing at the time the petition was filed. Peggy F. emphasizes that DHS need not prove its case by showing failure to comply with a family case plan; rather, DHS must prove the statutory elements by clear and convincing evidence, without any prescribed “mode” of proof. The dissent uses these authorities to clarify that DHS’s burden is distinct from, and not satisfied by, mere noncompliance—but that noncompliance and related behavior remain probative at disposition.
In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).
Interpreting the predecessor statute (former § 49-6-5(a)(6)), Carlita B. explains that termination is authorized upon a finding of no reasonable likelihood of correction and necessity for the child’s welfare. The dissent quotes this to confirm the governing dispositional standard.
In re Jonathan Michael D., 194 W. Va. 20, 459 S.E.2d 131 (1995).
The circuit court has discretion to assess the overall success of the improvement period “regardless of whether or not the individual has completed all suggestions or goals set forth in family case plans.” This supports the dissent’s position that partial compliance does not compel reunification if the parent’s overall progress is insufficient in context.
In re B.H. and S.S., 233 W. Va. 57, 754 S.E.2d 743 (2014) (Syl. Pt. 4).
At disposition, the best interests of the child remain the controlling standard. The dissent invokes this as a compass for weighing compliance and progress.
In re K.L., 233 W. Va. 547, 759 S.E.2d 778 (2014).
A burden-shifting due process violation can warrant reversal when it prejudices the parent—there, the court “did not require the DHHR to adduce evidence or provide testimony at the dispositional hearing.” The dissent distinguishes K.L. on the facts: here, DHS presented extensive testimony and documentary evidence, so any burden-shifting did not result in prejudice.
State ex rel. Grob v. Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975) (Syl. Pt. 5).
Constitutional error is reversible unless harmless beyond a reasonable doubt. The dissent applies this standard and concludes any burden-shifting was harmless given the robust evidentiary record.
In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) (Syl. Pt. 1).
Recognizes a parent’s right to custody as a fundamental liberty interest protected by due process. The dissent acknowledges this baseline but emphasizes that due process errors still undergo harmless-error analysis unless prejudice is shown.
Birchfield v. Zen’s Development, LLC, 245 W. Va. 82, 857 S.E.2d 422 (2021) (Syl. Pt. 7).
Assignments of error not asserted on appeal are deemed waived. The dissent notes the petitioner did not assign burden-shifting as error, questioning why the majority reached out to decide the issue.

Legal Reasoning in the Dissent

Justice Armstead’s reasoning proceeds in three phases: allocation of burdens, evidentiary sufficiency, and harmless error.

Allocation of Burdens vs. Improvement-Period Duties.
The dissent underscores that DHS always bears the burden to prove abuse or neglect (including in petitions filed under § 49-4-605(a)(3) based on prior terminations). However, once an improvement period is granted, the parent “shall be responsible for the initiation and completion of all terms of the improvement period.” W. Va. Code § 49-4-610(4)(A). According to the dissent, insisting that the parent carry out those statutory duties is not a shift of DHS’s proof burden; it is enforcing the statute. The majority, in the dissent’s view, conflated these distinct concepts.
Evidentiary Sufficiency Supporting Termination.
The dissent details a record that, in its view, meets the clear-and-convincing standard and the dispositional criteria of § 49-4-604(c)(6):
- A September 9, 2022 psychological evaluation reported a “poor” prognosis for petitioner’s attainment of minimally adequate parenting and noted refusal to answer questions about children to whom she no longer had rights.
- Licensed psychologist Dr. Megan Green testified to concerns consistent with hypomania: tangential and circumstantial thought processes, loud speech, difficulty remaining on topic, and intense demeanor indicating possible bipolar-spectrum issues insufficiently addressed.
- Service provider Stevie Edwards testified that paranoia impeded service delivery; petitioner became convinced her positive codeine screen resulted from someone “slipping something” into her drink; she eventually refused to attend services.
- CPS worker Caitlyn Henshey testified that petitioner refused to acknowledge abuse and neglect in both the prior and current cases; exhibited erratic behavior; fixated on imagined medical risks (e.g., unfounded accusations of HIV and tuberculosis exposure); violated visitation stipulations (including unsupervised contact and removing the child at a public event over a “dirty stroller”); attempted to identify the foster family’s location; and harassed the drug-testing lab regarding her positive codeine result. When visitation was suspended, petitioner responded nonsensically (“I have only eaten fast food. I have not had their drinks.”).
- Despite case-plan requirements for mental health treatment and psychiatric evaluation, petitioner repeatedly failed to attend scheduled evaluations (WVU Behavioral Health referrals in March and April 2022) and declined offered psychiatric services.
The dissent views this evidence—paired with the Doris S. acknowledgment doctrine—as establishing “no reasonable likelihood” of correcting conditions in the near future and justifying termination in K.V.’s best interests.
Harmless Error and Lack of Prejudice.
Even assuming arguendo the circuit court referenced the parent’s shortcomings in a manner that could be labeled “burden-shifting,” the dissent maintains that any error was harmless beyond a reasonable doubt under Grob v. Blair. Unlike In re K.L., where the agency was not required to present evidence at disposition, DHS here presented substantial testimonial and documentary evidence. Because prejudice was not shown, reversal is unwarranted.

Impact and Prospective Significance

Although the controlling majority opinion is not reproduced in the dissent, Justice Armstead’s critique flags important practice consequences on both sides of the “v.”:

For Trial Courts: The dissent signals that courts must articulate dispositions carefully, distinguishing (a) DHS’s continuing burden to prove statutory grounds from (b) the parent’s duty to initiate and complete improvement-period tasks. Courts may rely on the parent’s noncompliance and refusal to acknowledge abuse as probative of “no reasonable likelihood,” but should avoid language that suggests parents bear the burden to “prove” reunification is warranted.
For DHS and Guardians ad Litem: The dissent underscores the importance of building a robust record at disposition—expert testimony, service-provider and CPS testimony, and contemporaneous documentation of case-plan referrals and missed appointments—to ensure that any claimed error is harmless.
For Parents and Counsel: The dissent reiterates the powerful effect of the Doris S. acknowledgment doctrine. Refusal to acknowledge abuse or neglect often becomes a dispositive barrier to reunification because it impedes meaningful treatment and services. Engagement with psychiatric evaluation and treatment—particularly where professional evaluators identify symptomatology consistent with mood disorders—becomes critical.
Appellate Framing: The dissent questions reaching an unassigned error (citing Birchfield), indicating an ongoing tension about when due process concerns justify sua sponte correction. Practitioners should anticipate closer appellate scrutiny of trial-court statements that could be read as shifting the burden and should brief harmless-error considerations where appropriate.

Complex Concepts Simplified

Abuse and Neglect Case Stages:
- Petition/Adjudication (§ 49-4-601): DHS must prove by clear and convincing evidence the conditions of abuse/neglect existing when the petition was filed.
- Improvement Period (§ 49-4-610): A court-authorized period during which the parent is given services and a case plan to remediate conditions. The parent must initiate and complete plan terms. DHS still bears the burden to prove statutory grounds, but the parent’s performance is central to disposition.
- Disposition (§ 49-4-604): The court decides custody outcomes, including possible termination under § 49-4-604(c)(6) when there is no reasonable likelihood conditions can be corrected in the near future and termination is necessary for the child’s welfare.
“Burden of Proof” vs. “Duty of Compliance”:
DHS bears the evidentiary burden to prove abuse/neglect and dispositional grounds. Separately, a parent granted an improvement period has a statutory duty to engage with services and complete case-plan tasks. Recognizing the parent’s duty is not the same as requiring the parent to prove the case; it is part of the statutory framework for assessing progress.
Clear and Convincing Evidence:
A heightened civil standard requiring proof that the facts are highly probable—not as demanding as “beyond a reasonable doubt,” but more than “preponderance.”
“Acknowledgment” Doctrine (Doris S.):
Courts often require parents to acknowledge the truth of core allegations of abuse/neglect because acknowledgment is a gateway to effective treatment. Persistent denial can make the problem “untreatable,” supporting termination.
Harmless Error (Constitutional):
A constitutional error typically mandates reversal unless the reviewing court concludes the error was harmless beyond a reasonable doubt. The dissent applies this to any burden-shifting in this case, finding no prejudice given the extensive DHS proof.
§ 49-4-605(a)(3) (Prior Termination Trigger):
When a parent’s rights to another child were previously terminated, the State must file a petition concerning a new child, but DHS still must prove abuse/neglect as to the new child. The trigger affects initiation and context—not the ultimate burden.
Best Interests of the Child:
The controlling standard at disposition. Even strong parental efforts may yield to the child’s safety, stability, and permanency needs if the overall record shows insufficient progress or ongoing risk.

Conclusion

Justice Armstead’s dissent in In re K.V. contends that the majority improperly characterized the circuit court’s reasoning as burden-shifting, thereby ordering a remand that the dissent believes is unnecessary. The dissent emphasizes three enduring principles of West Virginia abuse-and-neglect law: (1) DHS bears the burden to prove abuse and neglect, but (2) the parent must initiate and complete improvement-period tasks, and (3) termination is justified when there is no reasonable likelihood of correcting the conditions in the near future and it is necessary for the child’s welfare. The dissent’s detailed recitation of the evidentiary record—denial of abuse, concerning mental health indicators, refusal of psychiatric evaluation and treatment, and erratic conduct during services—illustrates how courts evaluate “overall success” in context and why partial compliance may be insufficient to support reunification.

Whether or not one agrees with the majority’s remand for perceived burden-shifting, the dissent provides a clarifying roadmap: distinguish DHS’s proof obligations from the parent’s statutory duties; ensure a fulsome record at disposition; and remain guided by the best interests of the child. The opinion thus contributes to the ongoing refinement of West Virginia law on improvement periods, acknowledgment doctrine, and harmless-error review in termination of parental rights proceedings.