In re D.B.: Defective Rule 26 Stipulations as Jurisdictional Defects in West Virginia Abuse and Neglect Proceedings

I. Introduction

The Supreme Court of Appeals of West Virginia’s memorandum decision in In re D.B., No. 23-592 (May 6, 2025), adds important clarity to the law governing stipulated adjudications in child abuse and neglect proceedings. Although framed as a memorandum decision under Rule 21(d) of the West Virginia Rules of Appellate Procedure, the Court’s ruling has significant doctrinal consequences: it reaffirms that a defective stipulation under Rule 26(a) of the Rules of Procedure for Child Abuse and Neglect Proceedings renders the adjudication improper and deprives the circuit court of subject-matter jurisdiction to proceed to disposition, including termination of parental rights.

In addition, the Court again emphasizes that a prior involuntary termination of parental rights is not, by itself, sufficient to adjudicate a parent as “abusing” or “neglecting.” The Department of Human Services (“DHS”) must allege and prove that the parent failed to correct the conditions that led to the prior termination before that history can support adjudication in a new case.

The case arose from the tragic fentanyl overdose death of the child’s father in the home while D.B. was present. Mother A.M. was arrested on child neglect charges; DHS filed an abuse and neglect petition; and at adjudication she orally stipulated to the petition’s allegations. The circuit court adjudicated her as an abusing and neglecting parent, later denied an improvement period, and terminated her parental, custodial, and guardianship rights to D.B. On appeal, however, the Supreme Court did not reach her specific arguments about the improvement period or termination. Instead, it vacated both the adjudicatory and dispositional orders and remanded the case because the stipulation failed to satisfy the strict requirements of Rule 26(a).

Two justices—Justice Armstead and Justice Bunn—dissented, not on the merits, but on the Court’s choice to dispose of the case by memorandum decision instead of full argument and a formal, precedent-setting opinion. Their dissent underscores the systemic importance of the issues involved.

II. Factual and Procedural Background

A. Factual Setting

On December 18, 2022, D.B.’s father fatally overdosed on fentanyl in the family home while D.B. was present. According to DHS, drug paraphernalia was located throughout the home and within reach of the child. The mother, A.M. (“Petitioner Mother”), was charged criminally with child neglect arising from the incident.

DHS filed an abuse and neglect petition on December 20, 2022. The petition alleged that:

The mother failed to protect D.B. from his father’s drug use;
She exposed D.B. to drug paraphernalia in the home;
Her parental rights to another child had been involuntarily terminated in 2016.

Notably, the petition did not explain the basis or underlying conditions of the prior termination in 2016.

B. Adjudication

At an adjudicatory hearing on February 13, 2023, the mother orally stipulated to the allegations. She testified that:

The home was in an unsafe condition;
Drugs and drug paraphernalia were present and accessible to D.B.;
She failed to protect D.B. from his father’s drug use;
Her parental rights to another child were involuntarily terminated in 2016.

On the basis of this stipulation, the circuit court adjudicated her as an abusing and neglecting parent. However, the Supreme Court noted two critical omissions:

Neither the court’s oral colloquy at the hearing nor the written adjudicatory order identified the specific “problems or deficiencies” that the mother would be required to address or correct by the time of final disposition; and
The stipulation itself did not contain such a statement of problems or deficiencies as required by Rule 26(a).

The mother later moved for a post-adjudicatory improvement period—essentially a structured opportunity to participate in services and attempt to correct the conditions of abuse or neglect.

C. Disposition

At a dispositional hearing in September 2023, the circuit court denied the motion for a post-adjudicatory improvement period and terminated the mother’s parental, custodial, and guardianship rights to D.B. The permanency plan for D.B. was adoption in his current placement. D.B.’s father was deceased, so termination of the mother’s rights left adoption or similar permanency as the long-term plan.

The mother appealed the dispositional order, asserting that:

The circuit court abused its discretion in denying her a post-adjudicatory improvement period; and
The court erred in terminating her parental rights.

The Supreme Court, however, determined that the threshold issue was jurisdiction, triggered by the defective stipulation at adjudication.

III. Summary of the Supreme Court’s Decision

The Supreme Court vacated:

The March 7, 2023 adjudicatory order; and
The September 15, 2023 dispositional (termination) order,

and remanded the case to the circuit court for further proceedings consistent with its decision.

The Court held:

The mother’s stipulated adjudication did not comply with Rule 26(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings because it omitted a “statement of respondent’s problems or deficiencies to be addressed at the final disposition.”
Because the circuit court’s adjudication as an abusing parent rested on this defective stipulation, the adjudication was improper.
Under In re Z.S.-1, a failure to render a proper adjudication deprives the court of subject-matter jurisdiction to conduct disposition. Thus the circuit court lacked jurisdiction to terminate the mother’s parental rights to D.B.
Even though the mother did not raise the Rule 26(a) defect on appeal, the Supreme Court was obligated to notice the lack of jurisdiction on its own (sua sponte).
The Court further “reminded” the parties and the circuit court that a prior involuntary termination of parental rights is not a per se ground for adjudication as an abusing parent. DHS must allege and prove that the parent failed to correct the conditions underlying the prior termination.

Two justices dissented, stating they would have set the case for oral argument and issued a formal opinion rather than a memorandum decision, given the importance of the issues raised.

IV. Analysis

A. Precedents and Statutory Framework

1. Standard of Review: In re Cecil T.

The Court restated the conventional standard of review for abuse and neglect appeals:

In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011), Syl. Pt. 1:

“Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous.”

This was background law only. The Court did not undertake a traditional clear-error review of the factual findings because it found a threshold jurisdictional defect.

2. Rule 26(a) Stipulations and Jurisdiction: In re Z.S.-1

The central precedent is In re Z.S.-1, 249 W. Va. 14, 893 S.E.2d 621 (2023). There, the Court interpreted Rule 26(a) and the nature of adjudication in abuse and neglect proceedings.

Rule 26(a) requires that a stipulated adjudication must include two distinct elements:

(1) “Agreed upon facts supporting court involvement regarding the respondent[’s] problems, conduct, or condition”; and
(2) “A statement of respondent’s problems or deficiencies to be addressed at the final disposition.”

In Syllabus Point 3 of In re Z.S.-1, the Court held:

“Rule 26(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings requires a stipulated adjudication to include both ‘(1) [a]greed upon facts supporting court involvement regarding the respondent['s] problems, conduct, or condition’ and ‘(2) [a] statement of respondent's problems or deficiencies to be addressed at the final disposition.’”

Importantly, Z.S.-1 also held that failure to render a proper adjudication deprives the court of jurisdiction to proceed to disposition:

“[F]ailure to render a proper adjudication deprives the court of jurisdiction to proceed to the dispositional phase of an abuse and neglect proceeding and is a clear violation of the established procedures governing abuse and neglect proceedings.” (In re Z.S.-1, 249 W. Va. at 24, 893 S.E.2d at 631.)

The Court in In re D.B. quotes and applies this principle directly. It finds that the mother’s stipulation covered factual circumstances but failed to include “a statement of [her] problems or deficiencies to be addressed at the final disposition,” so it did not satisfy Rule 26(a) as interpreted in Z.S.-1. As a result, the circuit court’s adjudication was defective, and the court lacked jurisdiction to enter a dispositional order terminating parental rights.

3. Sua Sponte Review of Jurisdiction: Universal Underwriters, Boggs’ Estate, and Z.H.

The Court emphasized that it is obligated to examine jurisdiction even if no party raises the issue. It cited a chain of authority:

State ex rel. Universal Underwriters Ins. Co. v. Wilson, 239 W. Va. 338, 801 S.E.2d 216 (2017), Syl. Pt. 2 (quoting earlier precedent):
“This Court, on its own motion, will take notice of lack of jurisdiction at any time or at any stage of the litigation pending therein.”
In re Boggs’ Estate, 135 W. Va. 288, 63 S.E.2d 497 (1951), which is the earlier pronouncement reiterated in Universal Underwriters.
In re Z.H., 245 W. Va. 456, 859 S.E.2d 399 (2021), Syl. Pt. 4:
A lack of jurisdiction “may be taken notice of by this court on its own motion.”

Applying these precedents, the Court in In re D.B. explicitly notes that, although the mother did not argue that the adjudication was defective under Rule 26(a), the Court was “obligated” to examine whether jurisdiction existed for the circuit court to proceed to termination. Thus, the jurisdictional nature of a proper adjudication cannot be waived or forfeited by the parties.

4. Prior Involuntary Terminations: In re K.L., George Glen B., and W. Va. Code § 49-4-605

In footnote 4, the Court addressed DHS’s and the circuit court’s treatment of the mother’s 2016 involuntary termination of parental rights to another child. The petition mentioned the prior termination but did not allege the underlying basis or conditions. Those conditions were never introduced into evidence or admitted by the mother.

The Court “remind[ed]” the parties that:

A prior involuntary termination is not a per se ground for adjudicating a parent as abusing or neglecting.
W. Va. Code § 49-4-605 requires DHS (absent an exception) to file a petition when there has been a prior involuntary termination, but it does not relieve DHS of the obligation to prove current abuse or neglect.
Under In re K.L., 233 W. Va. 547, 759 S.E.2d 778 (2014), DHS must demonstrate that the parent failed to correct the conditions that led to the prior termination.
“[T]he Department was required to prove that the child was abused and/or neglected by showing [the parent] failed to correct the conditions that led to the prior termination of her parental rights.” (In re K.L., 233 W. Va. at 554, 759 S.E.2d at 785.)
Under In re George Glen B., Jr., 205 W. Va. 435, 518 S.E.2d 863 (1999), Syl. Pt. 2:
In cases involving a prior termination, the question is “whether the parent has remedied the problems which led to the prior involuntary termination sufficient to parent a subsequently-born child.”

In In re D.B., the Court crystallizes the procedural requirements:

“To be clear, for the circuit court to adjudicate the petitioner as an abusing parent based on the prior involuntary termination of her parental rights, the DHS must first allege in its petition that the petitioner failed to correct the conditions that led to her prior termination. Then, at the adjudicatory hearing, the DHS bears the burden of proving its allegations and that the child is an abused and/or neglected child, as those terms are defined in West Virginia Code § 49-1-201.”

B. The Court’s Legal Reasoning

1. The Two-Element Requirement of Rule 26(a)

The Court’s analysis begins with the structure of Rule 26(a). A stipulation must:

Set out agreed facts that justify court intervention; and
Identify the parent’s specific problems or deficiencies that must be addressed.

The mother’s stipulation, and the court’s colloquy and written order, did satisfy the first element. The mother admitted the factual circumstances that warranted court involvement:

Unsafe home conditions;
Accessible drugs and paraphernalia;
Failure to protect from the father’s drug use;
Existence of a prior involuntary termination (though with no factual context).

However, the stipulation and the adjudicatory order failed to satisfy the second element. Neither articulated a clear, forward-looking statement of what maternal problems or deficiencies had to be addressed by disposition (for example, substance-abuse treatment, mental-health treatment, parenting skills, domestic-violence issues, or housing instability).

The Court highlighted the rationale behind this requirement, borrowing from In re Z.S.-1: including both elements in stipulated adjudications “helps to avoid discrepancies between adjudicatory and dispositional rulings.” If the adjudicatory order contains only general facts but not a defined list of parental deficiencies, the dispositional court may later terminate rights for unarticulated or shifting reasons, undermining fairness, notice, and appellate review.

2. Adjudication as a Jurisdictional Predicate to Disposition

Under West Virginia’s abuse and neglect scheme, adjudication and disposition are sequential and conceptually distinct:

Adjudication determines whether the child is abused or neglected and whether the respondent is an abusing or neglecting parent.
Disposition then determines what should happen to the child and the parent (e.g., reunification with services, termination of rights, guardianship, etc.).

In In re D.B., the Court reaffirms that a valid adjudication is a strict jurisdictional prerequisite to disposition. Quoting Z.S.-1, it notes that failure to render a proper adjudication deprives the court of jurisdiction to conduct disposition. Thus:

“Because the petitioner's adjudication as an abusing parent was based on her defective stipulation, her adjudication was improper, and the circuit court lacked subject matter jurisdiction to proceed to disposition.”

The jurisdictional frame is critical. If adjudication were merely a procedural step that could be waived by the parties, defects might be cured by consent or failure to object. But because adjudication goes to the court’s subject-matter jurisdiction to take the drastic step of terminating parental rights, it cannot be waived, and an appellate court must correct such a defect whenever it comes to light.

3. Sua Sponte Jurisdictional Review

The Court then invokes its duty to examine jurisdiction at any stage, even if the parties are silent. Citing Universal Underwriters, Boggs’ Estate, and Z.H., the Court stresses that jurisdiction is a matter of capability, not convenience:

If the circuit court lacked jurisdiction to terminate, the termination order is void; and
The Supreme Court must acknowledge and remedy that defect even without a party’s briefed argument.

This approach protects system-wide integrity, particularly in parental rights cases where the consequences of a mistaken termination are profound and permanent.

4. Clarifying the Role of Prior Terminations

The Court also clarifies the proper legal treatment of a prior involuntary termination. The statute, W. Va. Code § 49-4-605, generally requires DHS to file a petition if a parent has had parental rights involuntarily terminated to another child. This is a filing trigger, not an automatic adjudicatory conclusion.

The Court stresses two points:

DHS must allege in its petition, not simply that there was a prior termination, but that the parent failed to remediate the underlying conditions that led to the prior termination.
At adjudication, DHS bears the burden of proving those allegations, and of proving that the present child meets the statutory definition of an “abused” or “neglected” child in W. Va. Code § 49-1-201.

This requirement aligns with earlier case law (K.L. and George Glen B.) but is stated here in especially clear and directive terms, functioning as a direct warning to both DHS and trial courts.

C. Impact on Future Cases and Practice

1. Heightened Scrutiny of Stipulated Adjudications

In re D.B. sharply raises the stakes for Rule 26(a) compliance:

For circuit judges: They must ensure that stipulated adjudications include both required elements on the record and in the written order. A bare admission of factual events is no longer sufficient.
For counsel and guardians ad litem: They must insist on clear, specific articulation of the parent’s “problems or deficiencies” in any stipulation. Generic language or oral shorthand may not suffice, especially if not captured in the written order.
For DHS: It must frame stipulations and proposed orders to expressly identify the problems to be addressed—e.g., “substance-abuse addiction,” “unsafe housekeeping and environmental neglect,” “failure to protect from substance-abusing paramours,” etc.—to avoid later jurisdictional challenges.

Because an improper adjudication deprives the court of jurisdiction, any subsequent termination order is vulnerable to vacatur—even years later—if the defect is discovered on appeal or in collateral proceedings.

2. Clearer Structure for Case Planning and Disposition

Requiring a precise statement of parental deficiencies at adjudication has practical benefits beyond jurisdictional doctrine:

It gives parents clear notice of what they must address to regain or maintain custody;
It guides DHS in developing case plans and services targeted at those articulated issues;
It focuses dispositional decision-making on whether the identified deficiencies have been remedied, rather than on ad hoc or unarticulated concerns;
It facilitates meaningful appellate review of whether dispositional decisions are reasonably related to, and supported by evidence of, the adjudicated deficiencies.

3. Renewed Emphasis on the Non–Per Se Effect of Prior Terminations

The Court’s footnote concerning prior involuntary terminations is more than a passing reminder. It has systemic implications:

Pleading practice: DHS must go beyond reciting “prior involuntary termination” and must allege that the parent failed to correct specific prior conditions (substance abuse, domestic violence, mental health, etc.).
Proof at adjudication: Evidence must be introduced about the nature of the prior case and the extent to which the parent has, or has not, remedied those problems.
Guardrails against automatic termination: Courts are reminded that each case must be factually grounded in current parental capacities and conditions, even where there is a troubling history of prior termination.

This reinforces that the child-welfare system cannot merely treat a parent’s history as dispositive; it must examine whether the parent’s current situation continues to pose risk to the child.

4. Procedural Consequences of Jurisdictional Framing

By treating an improper adjudication as a jurisdictional defect, the Court ensures that:

Errors in stipulated adjudications cannot be waived by failing to object;
Parents may obtain relief even if appellate counsel does not specifically raise the Rule 26(a) issue;
The integrity and uniformity of adjudication procedures are more strictly enforced across the state.

This approach, while protective of parents’ rights and procedural regularity, may also complicate permanency planning if terminations are later vacated for adjudicatory defects. Trial courts and agencies may respond by devoting more time and care to building the record at adjudication, even in “stipulated” cases, to avoid later instability.

5. The Dissent and the Use of Memorandum Decisions

Justices Armstead and Bunn dissented solely because they believed the case warranted oral argument and a formal opinion rather than a memorandum decision. This suggests they viewed the Rule 26(a) issue and its implications as sufficiently novel or important to merit full precedential treatment.

While memorandum decisions are formally nonprecedential under Rule 21(d) (except as law of the case), the Court’s reasoning and explicit reliance on Z.S.-1 will still guide practitioners and lower courts. The dissent, however, hints that more detailed elaboration might have been useful for the bench and bar, especially around remand procedures and best practices for remedial adjudications.

V. Simplifying Key Legal Concepts

1. Adjudication vs. Disposition

Abuse and neglect proceedings in West Virginia have two main phases:

Adjudication: The court decides whether the child is an “abused” or “neglected” child and whether the parent is an “abusing” or “neglecting” parent. Think of this as the liability phase: Did abuse or neglect occur, and is the parent legally responsible?
Disposition: If the parent is adjudicated abusing/neglecting, the court then decides what to do: order services and return the child, keep the child in foster care, or in extreme cases, terminate parental rights. Think of this as the remedy or consequences phase.

A valid adjudication is required before the court can move to disposition.

2. Stipulated Adjudication under Rule 26(a)

A “stipulated adjudication” happens when a parent agrees, instead of going through a contested hearing, that certain facts are true and that the court may adjudicate based on those facts.

Rule 26(a) requires that any such stipulation include:

Agreed facts – the basic events that occurred (e.g., drugs in the home, unsafe conditions).
Statement of problems or deficiencies – a clear list of the parent’s issues that must be corrected (e.g., substance abuse, failure to protect, unsafe housing).

If the stipulation lacks the second part, it is defective and cannot support a valid adjudication.

3. Subject-Matter Jurisdiction

“Subject-matter jurisdiction” means a court’s legal power to hear a certain type of case and to enter certain kinds of orders. If a court lacks subject-matter jurisdiction:

Its orders are void (legally ineffective);
The parties cannot “agree” to give the court jurisdiction it does not have;
Higher courts must correct the problem whenever they notice it.

In abuse and neglect law, West Virginia treats a valid adjudication as a jurisdictional prerequisite to entering a termination order. If there is no valid adjudication, there can be no valid termination.

4. Improvement Period

An “improvement period” is a defined period during which the parent is given an opportunity to participate in services (counseling, drug treatment, parenting classes, etc.) and to correct the problems that led to the child’s removal. The court sets terms and reviews progress. Denial of an improvement period can be a step toward termination, but in In re D.B., the Supreme Court did not reach the correctness of that denial because it vacated on jurisdictional grounds.

5. Prior Involuntary Termination as a Risk Factor, Not an Automatic Ground

If a parent has previously had rights involuntarily terminated to another child, West Virginia law generally requires DHS to file a new petition if a later child comes into the system. But that prior termination:

Does not automatically make the parent abusive or neglectful in the new case;
Is a warning sign that must be taken seriously; but
Still requires DHS to prove that the underlying problems were not remedied and that the current child is abused or neglected.

VI. Conclusion and Key Takeaways

In re D.B. is formally a memorandum decision, but it has substantial practical and doctrinal implications for West Virginia’s child welfare system. Its core contributions are:

Reaffirmation and concretization of Rule 26(a): A valid stipulated adjudication must include both (a) agreed facts supporting court involvement and (b) a clear statement of the parent’s problems or deficiencies to be addressed at disposition. Omitting the second element renders the adjudication invalid.
Jurisdictional framing of adjudicatory defects: A defective adjudication deprives the circuit court of subject-matter jurisdiction to proceed to disposition. Consequently, a termination of parental rights based on such an adjudication must be vacated, and the Supreme Court must recognize this defect even if the parties do not raise it.
Clarification of the role of prior involuntary terminations: Prior terminations trigger DHS’s duty to file but are not per se proof of current abuse or neglect. DHS must allege and prove that the parent failed to correct the prior conditions; courts must focus on whether those problems persist and endanger the current child.
Practical guidance for the bench and bar: Circuit courts, DHS, parents’ counsel, and guardians ad litem must ensure that stipulated adjudications are carefully drafted, with explicit identification of the parental deficiencies to be corrected, and that prior case histories are pleaded and proven with specificity when relied upon.

Ultimately, In re D.B. reinforces a core principle of child welfare law: the extraordinary remedy of terminating parental rights can be imposed only through scrupulous adherence to procedural safeguards at every stage, beginning with a proper, fully-compliant adjudication. Even in tragic and compelling factual circumstances, structural protections—like Rule 26(a)’s dual requirements—remain indispensable to the legitimacy of the process and to the protection of both children’s safety and parents’ fundamental rights.