In re B.J.: Prior-Termination Adjudications Require Proof of Uncorrected Conditions and Bar Collateral Attacks on Unappealed Prior Terminations

1. Introduction

In In re B.J., the Supreme Court of Appeals of West Virginia affirmed the Circuit Court of Wood County’s termination of petitioner mother S.J.’s parental rights to newborn B.J. The Department of Human Services (“DHS”) filed an abuse and neglect petition in May 2024 shortly after B.J.’s birth, alleging (1) maternal THC positivity at delivery and impaired parenting, and (2) a recent, involuntary termination of the mother’s parental rights to another child, R.K., in December 2023, arising from an unexplained spiral fracture suffered by the then-infant child.

The central appellate issue was narrow: the mother challenged the circuit court’s adjudication, arguing it “erred in adjudicating her based upon a prior termination” because her parental rights to R.K. “should have never been terminated.” The Supreme Court rejected that attempt to revisit the prior, unappealed termination and held the adjudication was supported by clear and convincing evidence that the mother had not corrected the conditions leading to the prior termination.

2. Summary of the Opinion

The Court affirmed. It held that the mother could not collaterally attack the December 2023 termination because she did not timely appeal it under W. Va. R. App. P. 5(b) and 5(f). Turning to the merits of the new adjudication, the Court applied W. Va. Code § 49-4-601(i) (clear and convincing standard) and reiterated that, even when relying on a prior termination, the DHS must still “allege and prove” the current child is abused/neglected by showing the parent “failed to correct the conditions that led to the prior termination.” The record supported the circuit court’s finding of unchanged circumstances—dishonesty to hospital staff/CPS, ongoing deflection and equivocation about the cause of R.K.’s injury, and minimal treatment engagement—so the adjudication stood. The Court also declined to consider other asserted errors due to briefing defects under Rule 10(c)(7).

3. Analysis

3.1. Precedents Cited

  • Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011)
    The Court grounded its review framework in In re Cecil T.: factual findings are reviewed for clear error and legal conclusions de novo. This standard is pivotal in abuse/neglect appeals because adjudications and dispositional outcomes frequently turn on credibility determinations and inferences from parental conduct. Here, the circuit court’s findings that the mother remained unwilling or unable to identify the cause of R.K.’s injury, had not meaningfully engaged in services, and had been dishonest with CPS were treated as factual determinations entitled to deference absent clear error.
  • In re A.M., 243 W. Va. 593, 849 S.E.2d 371 (2020)
    In re A.M. was used to explain the “clear and convincing” burden under W. Va. Code § 49-4-601(i). The Court emphasized that the standard requires more than a scintilla but less than beyond a reasonable doubt. This framing supports the Court’s conclusion that the evidence of unchanged circumstances—dishonesty, lack of accountability, and minimal therapeutic progress—was sufficiently weighty to satisfy adjudication.
  • In re D.B., No. 23-592, 2025 WL 1305829 (W. Va. May 6, 2025) (memorandum decision) (quoting In re K.L., 233 W. Va. 547, 759 S.E.2d 778 (2014))
    These authorities supplied the operative rule for “prior termination” adjudications: DHS must still prove the new child “was abused and/or neglected” by showing the parent “failed to correct the conditions that led to the prior termination.” The Court’s opinion in In re B.J. is an application of that rule rather than an automatic, status-based adjudication. The Court highlighted that DHS presented evidence of the same unresolved core concern from the prior case—no credible explanation or identification of the perpetrator of a serious injury to an infant while in the parents’ care—coupled with ongoing evasiveness and dishonesty when CPS attempted to assess risk at B.J.’s birth.
  • In re D.T., No. 24-592, 2025 WL 3162156 (W. Va. Nov. 12, 2025) (memorandum decision) (quoting State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996))
    These cases supported the Court’s refusal to address the mother’s undeveloped assignment of error concerning an improvement period, termination, and post-termination visitation. By invoking In re D.T. and State v. LaRock, the Court reinforced a procedural principle with substantive consequences: appellate review in child welfare cases remains bounded by adequate briefing and citation to authority, consistent with Rule 10(c)(7).

3.2. Legal Reasoning

A. No collateral attack on an unappealed prior termination

A substantial portion of the mother’s argument attempted to re-litigate the correctness of the December 2023 termination involving R.K. The Court treated this as an impermissible end-run around appellate deadlines: because she did not appeal within the time limits in W. Va. R. App. P. 5(b) (notice of appeal within 30 days) and 5(f) (appeal perfected within four months), the prior termination stood as final. The Court therefore “will not address the circuit court’s earlier disposition.”

Functionally, In re B.J. underscores that a parent cannot use a later abuse/neglect case to reopen the merits of a final, unappealed termination order; the proper vehicle is a timely direct appeal (or other authorized post-judgment mechanism, if available).

B. Prior termination is not self-executing proof; DHS must prove unchanged conditions by clear and convincing evidence

Applying W. Va. Code § 49-4-601(i) and the In re D.B./In re K.L. rule, the Court examined whether DHS proved the conditions leading to the prior termination had not been corrected. The Court pointed to multiple, interlocking facts supporting that finding:

  • Continuing lack of accountability/clarity about R.K.’s injury: the mother acknowledged the injury “happened” but did not accept responsibility for causing it; she remained equivocal about the perpetrator, only stating at adjudication that R.B. “could have” caused it.
  • Ongoing evasiveness and dishonesty with CPS: she falsely told hospital staff B.J. was her only child and presented herself as a “first-time” mother, and she was unwilling to provide information to CPS at the hospital (including refusing to provide the baby’s name).
  • Minimal service engagement: she attended only one individual therapy session after the prior termination.

The Court treated these facts as strong indicators that the original risk factors—lack of protective capacity, unwillingness to provide truthful information, and failure to meaningfully address the circumstances surrounding a serious, unexplained infant injury—remained present at the time of B.J.’s birth.

C. Procedural default for undeveloped claims

The Court also applied Rule 10(c)(7) to reject the mother’s additional claims (improvement period denial, termination, and post-termination visitation) because her brief contained no supporting legal authority. Citing In re D.T. and State v. LaRock, the Court reaffirmed that it will not decide inadequately briefed issues—even in the high-stakes context of parental rights.

3.3. Impact

  • Stability and finality of prior terminations: The decision reinforces finality principles in child welfare litigation. Once the appeal window closes, the prior termination is not subject to re-litigation in subsequent proceedings involving different children. This promotes permanency and reduces repetitive litigation over the same underlying adjudicatory findings.
  • Clear evidentiary roadmap in “prior termination” petitions: DHS cannot rely on the prior termination alone; it must build a record of current failure to correct the prior conditions. Here, the Court implicitly validated a pattern of proof commonly available at a newborn’s birth: parental dishonesty with CPS, refusal to engage, and lack of treatment progress can establish unchanged circumstances.
  • Litigation discipline on appeal: By enforcing Rule 10(c)(7), the Court signals that appellate counsel must fully brief improvement period/visitation/termination arguments with authority or risk waiver—an important practical lesson given how often these issues arise.
  • Protective-capacity focus: The Court’s emphasis on the mother’s unwillingness to identify an abuser (or provide an explanation consistent with medical evidence) suggests that, where a prior termination involved serious, unexplained injuries, a parent’s continued equivocation may be treated as a continuing condition of abuse/neglect—especially when coupled with evasiveness toward CPS.

4. Complex Concepts Simplified

  • Adjudication (in abuse and neglect): the court’s determination—after a hearing—that the parent is “abusive and neglectful” and the child is “abused and neglected.” It is a liability-like phase, distinct from disposition (the remedy, such as improvement periods or termination).
  • Clear and convincing evidence: a medium-high level of proof. It requires the evidence to be highly and substantially more probable to be true than not, but it is less demanding than proof beyond a reasonable doubt.
  • Prior termination as a basis for a new case: a prior termination does not automatically mean a new child is abused/neglected. The State must show the parent has not fixed the problems that led to the earlier termination (e.g., untreated substance abuse, unresolved violence risk, refusal to protect, chronic dishonesty with CPS).
  • Collateral attack: an indirect attempt to invalidate an earlier final order in a different case. The Court rejected the mother’s effort to challenge the prior termination’s merits in B.J.’s later proceeding.
  • Improvement period: a court-ordered opportunity for a parent to participate in services to correct problems (therapy, parenting, substance treatment) before the court decides whether to terminate rights.
  • Waiver by inadequate briefing: if an appellant does not provide legal argument and citations, the appellate court may decline to review the issue (as applied via Rule 10(c)(7) and cases like State v. LaRock).

5. Conclusion

In re B.J. consolidates two practical rules for West Virginia abuse and neglect litigation. First, a parent may not use a later proceeding to re-litigate an unappealed prior termination; appellate deadlines under W. Va. R. App. P. 5(b) and 5(f) matter. Second, when DHS relies on a prior termination, it must still prove by clear and convincing evidence under W. Va. Code § 49-4-601(i) that the parent has not corrected the earlier conditions—an evidentiary burden satisfied here by continued evasiveness, dishonesty, minimal treatment engagement, and unresolved accountability/protective-capacity concerns tied to a serious infant injury. The decision also serves as a cautionary procedural reminder: issues not supported with pertinent authority may be deemed waived under Rule 10(c)(7).