In re I.E.-S.: “Failure to Remedy Prior-Termination Conditions” Findings Do Not Shift the DHS Burden; Substantive Findings Can Sustain Neglect Adjudication Without Statutory “Magic Words”

3.1. Precedents Cited

a) Appellate review standards

• Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011): The Court applied the familiar abuse-and-neglect appellate framework—clear-error review for factual findings and de novo review for legal conclusions—setting the lens through which it evaluated burden-shifting, adequacy of adjudication, and disposition.

b) Burden of proof and “prior termination” inquiry

• In re K.V., 251 W. Va. 418, 427, 914 S.E.2d 517, 526 (2025): The Court reaffirmed that termination requires clear and convincing evidence and “that burden remains at all times on the [DHS].” This case anchored the petitioner’s burden-shifting argument and framed the Court’s rebuttal: scrutinizing “remedy” is not the same as shifting the burden.
• In re Kyiah P., 213 W. Va. 424, 427, 582 S.E.2d 871, 874 (2003) (quoting Syl. Pt. 2, In the Matter of George Glen B., 205 W. Va. 435, 518 S.E.2d 863 (1999)): The Court relied on these authorities for the rule that where there has been a prior involuntary termination to a sibling, the circuit court must review whether the parent has remedied the earlier problems sufficiently to parent a subsequently born child, and the review is initiated through the abuse/neglect petition procedure. This precedent supplied the doctrinal basis for the circuit court’s focus on “remedy” and was decisive in rejecting the “burden shifting” claim.

c) Requirement of adjudicatory findings and consequences of imperfect orders

• Syl. Pt. 6, in part, In re George Glen B., Jr., 205 W. Va. 435, 518 S.E.2d 863 (1999): The Court cited this for the principle that adjudicatory findings are a prerequisite to continuing the case. The opinion then evaluated whether the circuit court’s order, though not linguistically ideal, adequately performed the adjudicatory function.
• In re R.M., --W. Va. at --, 923 S.E.2d at 366: The Court used this recent decision to uphold an adjudication despite imperfect written specificity where the circuit court’s verbal findings and the record evidence were ample. The same rationale was applied here: the adjudicatory order’s factual findings and the record supported neglect even if the order did not invoke the statute’s phrasing.
• Syl. Pt. 4, in part, In re R.M., -- W. Va. --, 923 S.E.2d 352 (2025): Addressing the petitioner’s “subject matter jurisdiction” assertion, the Court repeated that adjudicatory findings are a statutory prerequisite to proceed to disposition, not a condition of subject matter jurisdiction. This cabins jurisdictional attacks premised solely on adjudicatory-order defects.

d) Improvement periods and acknowledgment of problems

• In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re Charity H., 215 W. Va. 208, 217, 599 S.E.2d 631, 640 (2004)): The Court applied the principle that failure to acknowledge the underlying problem makes it untreatable and can render an improvement period futile “at the child’s expense.” This supported denial of a post-dispositional improvement period where the petitioner allegedly denied responsibility and minimized mental health/parenting deficits.
• In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002): The Court invoked the circuit court’s discretion to refuse an improvement period “when no improvement is likely,” reinforcing the deference accorded to dispositional judgments tied to participation likelihood.

e) Termination without less restrictive alternatives

• Syl. Pt. 5, in part, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (quoting Syl. Pt. 2, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)): The Court relied on the rule that termination may be employed without intervening less restrictive alternatives when there is no reasonable likelihood that conditions can be substantially corrected (as addressed in the statutory framework).

3.2. Legal Reasoning

a) Why “remedy” findings were not burden shifting

The petitioner targeted adjudicatory and dispositional language stating she had not “remedied” the problems leading to her prior involuntary termination. The Court accepted the black-letter rule from In re K.V. that DHS always bears the clear-and-convincing burden, but it distinguished between (i) an improper allocation of the burden and (ii) a required substantive inquiry about remediation after a prior termination.

Using In re Kyiah P. and In the Matter of George Glen B., the Court characterized the circuit court’s focus on remediation as mandatory review in subsequent-child cases. It then emphasized that the circuit court’s conclusions were grounded in DHS-presented evidence (nurse testimony, psychological/competency evaluations, and the petitioner’s own testimony reflecting denial and lack of insight), not in a presumption that the petitioner must disprove neglect.

The Court also treated the dispositional “failed to prove” phrasing as descriptive of the evidentiary posture—i.e., the petitioner did not rebut DHS’s showing—rather than a legal reallocation of the ultimate burden.

b) Adequacy of adjudication despite non-ideal statutory phrasing

The petitioner argued disposition was improper because the adjudicatory order did not explicitly adjudicate her as abusing or neglecting the child in statutory terms, invoking the requirement in W. Va. Code § 49-4-601 and the prerequisite principle in In re George Glen B., Jr..

The Court acknowledged the order “does not invoke the language contemplated by the statute,” but—following In re R.M.—looked to whether the factual findings and record established neglect as defined by W. Va. Code § 49-1-201 (harm or threat of harm due to refusal, failure, or inability to provide necessary supervision/care).

The circuit court’s findings focused on the petitioner’s lack of parental capacity tied to unaddressed mental health issues, persistent denial of responsibility for the prior termination, and failure to appreciate the intervention required to parent safely. The Court held these findings, supported by the evidence, sufficiently established neglect and did not “substantially frustrate or disregard” applicable authority.

On the related jurisdictional claim, the Court relied on In re R.M. (Syl. Pt. 4, in part) to clarify that adjudicatory findings are a statutory prerequisite for moving forward, not a subject matter jurisdiction requirement—thereby limiting “jurisdiction” arguments based on adjudicatory-order defects.

c) Denial of improvement period and termination

The Court applied W. Va. Code § 49-4-610, which requires the parent to demonstrate by clear and convincing evidence a likelihood of full participation. It then used In re Timber M. (quoting In re Charity H.) to underscore that non-acknowledgment can make treatment futile. The petitioner’s discharge from adult life skills services and continued denial/minimization supported the circuit court’s conclusion that an improvement period would likely be futile.

For disposition, the Court applied the termination-without-less-restrictive-alternatives rule from In re Kristin Y. (quoting In re R.J.M.) and the statutory “no reasonable likelihood” concepts in W. Va. Code § 49-4-604(c)(6) and § 49-4-604(d) (inadequate capacity to solve problems on one’s own or with help). Given the petitioner’s history of services in the prior case and persistent refusal to acknowledge neglect-related issues, the Court affirmed that there was no reasonable likelihood of correction in the near future and that termination served the child’s best interests, including continuity of care.

3.3. Impact

• Clarifies “remedy” review after prior termination: The decision reinforces that courts must examine whether prior-termination conditions have been remedied for a subsequently born child and that doing so does not inherently shift the burden from DHS. Practically, litigants should expect prior termination reasons to become a central evidentiary focus.
• Reduces “magic words” vulnerability at adjudication (within limits): By leaning on In re R.M., the Court signals that an adjudicatory order’s failure to track statutory phrasing may be survivable on appeal if factual findings and the record plainly establish abuse/neglect. This may discourage appeals premised solely on imperfect drafting, while still leaving circuit courts exposed if findings are too thin to show statutory elements.
• Strengthens futility analysis for improvement periods: The opinion reiterates that lack of insight and refusal to acknowledge problems can justify denial of an improvement period under W. Va. Code § 49-4-610, and it affirms broad circuit-court discretion under In re Tonjia M..
• Confirms termination may proceed without lesser alternatives: Where the record supports “no reasonable likelihood” under W. Va. Code § 49-4-604, termination may be ordered without intermediate options, consistent with In re Kristin Y..
• Limits “jurisdiction” framing: The Court’s reliance on In re R.M. to reject subject matter jurisdiction arguments based on adjudicatory defects may shape how future litigants frame procedural challenges (as statutory compliance/error rather than jurisdiction).