No Abuse or Neglect Without Proof of Parental Knowledge of Pregnancy:
Commentary on the West Virginia Supreme Court’s Decision in In re J.B.

1. Introduction

The Supreme Court of Appeals of West Virginia’s memorandum decision in In re J.B., No. 23‑697 (Nov. 12, 2025), is a significant clarification of what must be proven to adjudicate a child as “abused” or “neglected” where the State relies primarily on a mother’s prenatal drug use and poor material circumstances.

At stake was the termination of L.B.’s parental rights to her infant son, J.B., born extremely prematurely at approximately 31–32 weeks’ gestation. The Department of Human Services (“DHS”) alleged that L.B.’s drug use, lack of prenatal care, lack of baby items, and unstable housing rendered J.B. an abused and neglected child under West Virginia law. The circuit court agreed, adjudicated L.B. as an abusing/neglectful parent, and ultimately terminated her parental rights.

On appeal, L.B. challenged the adjudication itself, arguing that the evidence did not meet the “clear and convincing” standard required for a finding of abuse or neglect. Crucially, the circuit court had already found that DHS failed to prove that she knew or should have known she was pregnant before delivery, and that the baby had no drugs in his system at birth. Despite those findings, the court still adjudicated her as abusive/neglectful.

The Supreme Court vacated both the adjudicatory and dispositional orders, holding that DHS did not carry its burden of proving that J.B. was an “abused” or “neglected” child as defined in West Virginia Code § 49‑1‑201. The Court remanded with instructions for reunification, subject to reasonable conditions and with a gradual transition plan.

The central legal principle emerging from In re J.B. is this:

Parental substance use and poverty, standing alone, do not constitute abuse or neglect under West Virginia law.
When the theory of abuse/neglect rests on prenatal conduct, the State must prove by clear and convincing evidence that:
- the parent knew (or that the State has proven she should have known) she was pregnant, and
- the child was actually harmed or threatened with harm within the statutory definitions.

Without such proof, a newborn is not an “abused” or “neglected” child merely because the mother used drugs before or during an unrecognized pregnancy, lacked baby items, or was poor.

2. Factual and Procedural Background

2.1 Birth and Initial DHS Involvement

L.B. delivered J.B. on February 7, 2023, at Ruby Memorial Hospital in Morgantown, West Virginia. J.B. was born prematurely (31–32 weeks gestation) and remained in the Neonatal Intensive Care Unit (NICU). L.B. tested positive for marijuana at admission and admitted marijuana use during the pregnancy, but told hospital staff she had not known she was pregnant.

The hospital tested the baby’s umbilical cord, which was negative for all substances tested — and critically, the panel did not test for THC or marijuana, and there is no indication DHS requested such testing. There was no evidence that J.B. had illegal drugs in his system. L.B. was discharged on February 15, 2023; J.B. remained hospitalized.

On March 6, 2023, the day before J.B.’s anticipated discharge from the NICU, DHS filed an emergency abuse and neglect petition. The petition claimed that J.B. was abused and neglected because his parents had:

knowingly or intentionally inflicted physical or emotional injury on him, and/or
threatened his physical or mental health by failing or being unable to provide needed clothing, shelter, supervision, or medical care.

DHS grounded these broad allegations in the following particulars:

L.B.’s use of controlled substances allegedly impacting her ability to parent;
lack of suitable housing and lack of baby items;
the child’s “very low birth weight” and L.B.’s lack of prenatal care;
an assertion that L.B. knew or should have known she was pregnant and failed to obtain prenatal care;
unemployment and alleged lack of financial means; and
a claim that L.B. had not visited the baby after her discharge from the hospital.

The petition was filed against both L.B. and J.B.’s biological father; the father’s rights were later terminated and he did not appeal.

2.2 Early Proceedings and Amended Petition

L.B. appeared at a preliminary hearing on March 13, 2023, and waived her right to an evidentiary preliminary hearing. The court ordered:

supervised visitation (two hours, twice weekly), contingent on clean drug screens;
psychological evaluations;
maintenance of safe and suitable housing;
full-time verifiable employment; and
parenting and adult life skills classes.

On the same day, a hair follicle test showed L.B. was positive for methamphetamine. DHS then filed an amended petition adding allegations of methamphetamine use during pregnancy.

2.3 Adjudicatory Hearing

A contested adjudicatory hearing took place on May 4, 2023. The circuit court heard from:

a Child Protective Services (CPS) worker;
L.B.;
L.B.’s mother; and
the child’s paternal grandmother and paternal aunt (the father’s sister).

Key evidence included:

L.B.’s admitted drug use. She testified she:
- used methamphetamine one time in November 2022; and
- used marijuana during the time she was, in fact, pregnant,
but maintained she did not know she was pregnant at the time.
Lack of knowledge of pregnancy. L.B. testified that:
- she had gained only about 10 pounds and assumed it was “holiday weight”;
- she continued to have periods (at least twice) and remained on birth control; and
- she had no symptoms that would have caused her to suspect pregnancy.
She only learned of the pregnancy on February 6, 2023, when she presented to a clinic for what she thought was a stomach bug; she was then life-flighted to the hospital, where severe pregnancy complications (HELLP syndrome, preeclampsia, etc.) were diagnosed.
Evidence of post-birth involvement. L.B. produced evidence that after discharge she:
- stayed at a Ronald McDonald House near the hospital;
- received agency assistance to visit the baby; and
- remained in constant telephone contact with hospital staff while J.B. was in the NICU.
Contrary testimony from paternal relatives. The paternal grandmother testified she twice asked L.B. (in October 2022 and January 2023) whether she was pregnant, based on weight gain and clothing changes. The paternal aunt testified about conversations regarding food cravings that she believed were signs of pregnancy. L.B. firmly denied those conversations occurred.
Drug testing of the child. The court found J.B.’s umbilical cord was negative for all substances tested, and that the panel did not include THC/marijuana. There was no evidence J.B. had methamphetamine in his system at birth.

2.4 The Circuit Court’s Adjudicatory Findings

In an amended adjudicatory order dated May 25, 2023, the circuit court made a mixture of favorable and unfavorable findings about L.B. It expressly held that DHS had not proven by clear and convincing evidence that:

J.B. had a very low birth weight and did not receive prenatal care (a finding somewhat puzzling on these facts, but explicitly made);
L.B. failed to return to the hospital to visit J.B. after discharge; or
L.B. knew or should have known she was pregnant and failed to obtain appropriate prenatal care.

Yet the court also found DHS had proven by clear and convincing evidence that:

L.B. tested positive for marijuana at admission and admitted marijuana use during pregnancy;
L.B. claimed she did not know she was pregnant until delivery;
L.B. was unemployed and lacked financial means to support the child;
L.B. had been living with the father in a motel room with no baby items;
the CPS worker could not confirm that L.B. had a fit, apt, and suitable home or necessary baby items (e.g., car seat, crib); and
L.B.’s use and abuse of controlled substances impacted her ability to properly parent the child.

The court acknowledged, on the record, that it found it “difficult to believe” L.B. did not know she was pregnant, but expressly recognized that “that is not the standard” and that the State had not proved knowledge of pregnancy by clear and convincing evidence. It also stated:

“The Court is not making a finding that the child had marijuana in [his] system. What the Court is saying is that, quite frankly, the test doesn't prove either way involving the THC in the case.”

Despite its explicit adverse findings against DHS on critical facts (knowledge of pregnancy and drug exposure of the baby), the court still adjudicated L.B. as “an abusive and/or neglectful parent” and J.B. as an abused and/or neglected child.

2.5 Post‑Adjudicatory Developments and Disposition

After adjudication:

On May 12 and May 30, 2023, L.B. tested positive for methamphetamine and amphetamine.
She refused another drug screen on June 2, 2023.
On June 19, 2023, she entered a 28‑day residential treatment program but left on July 5, 2023, against medical advice.

Based on the failed and refused drug screens, the court suspended her visitation with J.B. on June 8, 2023. The case proceeded to a dispositional hearing on October 19, 2023.

At disposition, the court heard from:

L.B.;
a CPS worker;
a licensed psychologist; and
a counselor.

Evidence showed continued substance use, incomplete treatment, limited participation in services, and an absence of visitation or bonding between L.B. and J.B. since visitation had been suspended.

On November 8, 2023, the circuit court terminated L.B.’s parental rights, making findings that:

she used controlled substances during the case;
she was not forthright with her counselor and failed to benefit from counseling;
she had no bond with J.B.;
she violated an order not to associate with drug users, including the father;
she failed to complete inpatient treatment;
she refused DHS services to address her substance use;
she failed to comply with DHS services from early July to at least mid‑September; and
she failed to accept responsibility for her actions.

The court concluded there was “no reasonable likelihood” L.B. could substantially correct the circumstances of abuse and neglect in the foreseeable future and denied her post‑termination visitation.

L.B. appealed, challenging only the adjudication and arguing that, if the adjudication was unsound, termination built upon it necessarily fell.

3. Summary of the Supreme Court’s Opinion

The Supreme Court reviewed the circuit court’s factual findings for clear error and its legal conclusions de novo, in accordance with syllabus point 1 of In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).

The Court’s core holdings can be summarized as follows:

DHS bears the burden of proving abuse or neglect—by clear and convincing evidence—based on conditions existing at the time of the petition.
Relying on In re Christina L. and its predecessors, the Court reiterated that West Virginia Code § 49‑6‑2(c) (now embodied in the current statutory scheme) requires clear and convincing proof of the alleged conditions at the time the petition is filed.
The statutory definitions of “abused child” and “neglected child” require a showing that a parent knowingly or intentionally harmed, or threatened to harm, a child whose existence is known to the parent, or that the parent refused, failed, or was unable to meet the known needs of the child (not due primarily to poverty).
The Court emphasized the knowledge and harm/threat-of-harm components of West Virginia Code § 49‑1‑201.
On these facts, DHS failed to prove that J.B. was an “abused” or “neglected” child.
Specifically:
- The circuit court explicitly found DHS did not prove that L.B. knew or should have known she was pregnant.
- The circuit court also found that J.B. tested negative for methamphetamine and that there was no evidence of drugs in his system.
- Without proof that L.B. knew she was pregnant, DHS could not establish that her drug use was knowingly directed at a child, as required for an “abused child.”
- Nor could DHS prove neglect based merely on lack of baby items, uncertain housing, or unemployment, especially where any inability to provide was tied to poverty and ignorance of pregnancy.
Poverty and lack of baby items cannot, by themselves, support an abuse or neglect adjudication.
The statutory definition of “neglected child” expressly excludes situations where the inability to provide is primarily due to lack of financial means. The Court found no legal basis for adjudicating a child abused or neglected solely because parents lack a crib, car seat, or other baby items.
The absence of drugs in the newborn’s system distinguishes this case from prior precedent that allows a per se inference of abuse from a positive newborn drug screen.
The Court explicitly contrasted this case with In re A.L.C.M., where a positive newborn toxicology screen for illegal drugs sufficed to support the filing of a petition. Here, there was no such evidence.
Because the adjudication was not supported by clear and convincing evidence, the termination order could not stand.
The Supreme Court vacated both the adjudicatory and dispositional orders and remanded the case with instructions focused on reunification.
On remand, the circuit court must focus on reunification with a gradual transition and may impose reasonable conditions.
Unless new evidence justifies a new petition, the circuit court must:
- expeditiously establish a gradual transition plan to reunify J.B. with L.B.;
- consider imposing conditions to ensure L.B. can care for him, has suitable housing, can provide for him, and has childcare while working; and
- consider whether continued visitation with the paternal grandparents (current caregivers) is in J.B.’s best interests, in light of the grandparent visitation statutes (W. Va. Code §§ 48‑10‑101 to -1201).

The Court’s mandate was ordered to issue contemporaneously with the decision, signaling the urgency of correcting the error and moving toward reunification.

4. Detailed Analysis

4.1 Statutory Framework: Definitions and Burden of Proof

4.1.1 Definitions of “Abused Child” and “Neglected Child”

The decision turns heavily on the statutory definitions found in West Virginia Code § 49‑1‑201.

An “abused child” is, in relevant part:

“A child whose health or welfare is being harmed or threatened by:
(A) A parent, guardian, or custodian who knowingly or intentionally inflicts, attempts to inflict, or knowingly allows another person to inflict, physical injury or mental or emotional injury upon the child or another child in the home.”

A “neglected child” is a child:

(A) “[w]hose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child's parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care, or education, when that refusal, failure, or inability is not due primarily to a lack of financial means on the part of the parent, guardian, or custodian;”

(B) “[w]ho is presently without necessary food, clothing, shelter, medical care, education, or supervision because of the disappearance or absence of the child's parent or custodian;” or

(C) excludes a child whose education is lawfully conducted under the compulsory education statutes.

In In re A.L.C.M., the Court had interpreted these provisions to mean that:

abuse includes knowingly or intentionally inflicted (or attempted) harm; and
neglect includes harmful or threatening conduct arising from refusal, failure, or inability to meet a child’s needs—provided the problem is not primarily due to poverty.

In re J.B. applies that same framework, but insists that the statutory elements be meaningfully proven on the facts of the case—specifically:

there must be a child known to the parent; and
the parent’s conduct must be shown to harm or threaten that child’s health or welfare.

4.1.2 Burden of Proof: “Clear and Convincing Evidence”

The Court again invokes the longstanding rule, as articulated in In re Christina L. (and tracing back through In Interest of S.C., Peggy F., and In re Beth), that:

the State must prove “conditions existing at the time of the filing of the petition” in an abuse and neglect case “by clear and convincing proof.”

“Clear and convincing” evidence:

requires more than a “mere scintilla” of evidence;
is a higher standard than “preponderance of the evidence”; but
is lower than “beyond a reasonable doubt” used in criminal cases (In re A.M.).

The Supreme Court stresses that DHS must meet this standard as to each essential element of abuse or neglect at the time the petition is filed. Post‑petition events may be relevant at disposition, but they cannot cure a failure of proof at adjudication.

4.2 Precedents Cited and Their Influence

4.2.1 In re Christina L. and Its Lineage: Burden and Timing of Proof

In syllabus point 3 of In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995), the Court reiterated that under then‑W. Va. Code § 49‑6‑2(c) (now functionally mirrored in current law), the State must prove by clear and convincing evidence the conditions existing at the time of the petition. That syllabus point itself quoted:

syllabus point 1 of In Interest of S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981);
which had been reaffirmed in West Virginia Dep’t of Human Services v. Peggy F., 184 W. Va. 60, 399 S.E.2d 460 (1990); and
In re Beth, 192 W. Va. 656, 453 S.E.2d 639 (1994).

This line of precedent serves two roles in In re J.B.:

It reinforces that DHS cannot rely on vague assertions or inferences; it must show, by clear and convincing proof, that statutory abuse or neglect already existed when it filed the petition.
It undercuts the circuit court’s attempt to rely on its own skepticism (i.e., finding it “difficult to believe” L.B. did not know of her pregnancy) as a surrogate for actual proof of that fact.

4.2.2 Wright v. Scott C. and In re Katie S.: Child Welfare as the Primary Goal

The Court cites W. Va. Dep’t of Health & Human Res. ex rel. Wright v. Scott C., 200 W. Va. 304, 489 S.E.2d 281 (1997), and syllabus point 3 of In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996), for the fundamental proposition that the primary goal in abuse and neglect cases is the health and welfare of the child, even as parental rights remain substantial and deserving of protection.

In In re J.B., this principle plays out in two specific ways:

During adjudication: It does not dilute DHS’s burden of proof. Protecting children does not authorize the courts to loosen statutory standards or shift the burden to the parent.
On remand: It justifies the Court’s insistence on a gradual, carefully managed reunification plan rather than immediate, abrupt custody transfer, in order to protect the child’s emotional welfare.

4.2.3 In re A.M.: Clarifying “Clear and Convincing Evidence”

In re A.M., 243 W. Va. 593, 849 S.E.2d 371 (2020), is cited for the definition of the “clear and convincing” standard. The Court quotes its explanation that this standard requires more than a mere scintilla but less than proof beyond a reasonable doubt.

This standard is crucial here because the circuit court’s comments show it was acting on skepticism, suspicion, and what it found “difficult to believe,” rather than on clear and convincing proof that L.B. knew she was pregnant or that her behavior had harmed or threatened a child.

4.2.4 In re A.L.C.M.: Per Se Abuse from Newborn Drug Exposure – and Its Limits

In re A.L.C.M., 239 W. Va. 382, 801 S.E.2d 260 (2017), is the leading case on newborn drug exposure. In syllabus point 1, the Court held:

“When a child is born alive, the presence of illegal drugs in the child's system at birth constitutes sufficient evidence that the child is an abused and/or neglected child, as those terms are defined by W. Va. Code § 49‑1‑201, to support the filing of an abuse and neglect petition pursuant to W. Va. Code § 49‑4‑601.”

This creates a kind of per se sufficiency rule: if a newborn tests positive for illegal drugs, the State can validly file a petition and, if other elements are shown, move forward toward adjudication and possible termination.

In re J.B. distinguishes, not disavows, A.L.C.M.:

In A.L.C.M., the newborn did have illegal drugs in his system, directly connecting maternal drug use to harm or threat of harm.
In J.B., the baby’s umbilical cord was negative for all substances tested, and there was no evidence of any drug exposure to J.B. at birth.

Thus, A.L.C.M. remains good law, but J.B. underscores that it has limits: it does not authorize a finding of abuse or neglect where there is no proof that the infant was drug‑exposed, and where the mother’s knowledge of pregnancy was not proven.

4.2.5 State ex rel. P.G.-1 v. Wilson and Birchfield v. Zen’s Dev., LLC: Improvement Period and Waiver

The Court briefly references syllabus point 4 of State ex rel. P.G.-1 v. Wilson, 247 W. Va. 235, 878 S.E.2d 730 (2021), for the rule that a circuit court may not grant a post‑adjudicatory improvement period unless the respondent files a written motion under W. Va. Code § 49‑4‑610. L.B. had asked for an improvement period, but the record was unclear whether a written motion existed.

It also cites syllabus point 7 of Birchfield v. Zen's Dev., LLC, 245 W. Va. 82, 857 S.E.2d 422 (2021), for the principle that assignments of error not asserted on appeal are waived.

These precedents mainly serve to explain why the Court declines to reach L.B.’s alternative, undeveloped argument that she should have been granted a post‑adjudicatory improvement period. Since the Court is granting relief on the sufficiency of the adjudication itself, it finds no need to address that issue.

4.2.6 James M. v. Maynard and Honaker v. Burnside: Gradual Transition in Custody Changes

Syllabus point 3 of James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991), is quoted for the proposition that:

“It is a traumatic experience for children to undergo sudden and dramatic changes in their permanent custodians. Lower courts in cases such as these should provide, whenever possible, for a gradual transition period, especially where young children are involved.”

The Court further references Honaker v. Burnside, 182 W. Va. 448, 388 S.E.2d 322 (1989), as an example of a case where a transition period of several months was deemed reasonable.

In In re J.B., these cases shape the remedy. Even though the Court vacates termination and orders reunification, it emphasizes the need for a gradual transition period—likely several months—given the length of time J.B. has been separated from L.B. This underscores that correcting a legal error in adjudication must still be implemented in a child‑sensitive manner.

4.2.7 Grandparent Visitation Statutes

Finally, the Court cites West Virginia Code §§ 48‑10‑101 to -1201 (grandparent visitation) in directing the circuit court, on remand, to consider whether continued reasonable visitation between J.B. and his paternal grandparents (his current relative placement) is in his best interests. This further highlights:

the Court’s concern for continuity and the child’s emotional stability; and
the legal mechanism by which grandparent relationships might be preserved even as custody shifts back to a biological parent.

4.3 The Court’s Legal Reasoning

4.3.1 Central Flaw: Adjudication Without Statutory Grounds

The core of the Supreme Court’s reasoning is that the circuit court’s own factual findings undermined its legal conclusion that J.B. was an abused and/or neglected child. The Court points to two pivotal findings:

the explicit finding that DHS failed to prove that L.B. knew or should have known she was pregnant; and
the explicit finding that J.B. was negative for methamphetamine (and that no test was done for THC, leaving no evidence of prenatal drug exposure).

From these, the Supreme Court draws a straightforward conclusion: without proof that L.B. knew she was pregnant and without evidence that J.B. himself was drug‑exposed or otherwise harmed, DHS failed to carry its burden of showing that J.B. fit within the statutory definitions of “abused” or “neglected” child.

4.3.2 Knowledge of Pregnancy as a Predicate for Prenatal “Abuse”

The Court reads the definition of “abused child” as requiring that the parent “knowingly or intentionally inflicts” or attempts to inflict injury upon a child. It reasons that one cannot knowingly harm a child whose existence one does not know about. Thus:

“Simply stated, the child was not an ‘abused child’ or ‘neglected child’ within the statutory definitions where, as here, the evidence offered by the DHS failed to show the petitioner's knowledge of pregnancy, because both statutory definitions of ‘abused child’ and ‘neglected child’ require knowledge of a child that is harmed or threatened in some way.”

This does not mean that any claim of “I didn’t know I was pregnant” is sufficient to defeat an abuse/neglect case. Rather, it means that DHS must produce clear and convincing evidence that the parent either:

actually knew of the pregnancy; or
at least (and provably) should have known, based on objective facts.

In In re J.B., the circuit court explicitly found DHS had failed to make that showing. The paternal relatives’ testimony about suspected pregnancy and food cravings did not clearly and convincingly outweigh:

L.B.’s ongoing use of birth control;
her reported continuation of menstrual periods; and
the sudden emergency discovery of pregnancy shortly before birth during a medical crisis.

Because DHS failed to meet its burden on knowledge, the Court holds that prenatal drug use in this case cannot be treated as abuse of a child under § 49‑1‑201(1)(A).

4.3.3 No Evidence of Harm or Threat of Harm to the Child

The Court further stresses that J.B. tested negative for methamphetamine and that there was no evidence he had THC or marijuana in his system. This sharply distinguishes the case from those where the newborn is drug‑exposed (A.L.C.M.).

Absent:

evidence of drugs in the baby’s system;
evidence of other physical injury; or
evidence that the baby’s health or welfare was otherwise harmed or threatened

the State could not establish either:

“physical injury or mental or emotional injury” inflicted knowingly or intentionally (abuse); or
present harm or threatened harm to physical or mental health due to failure to provide necessary care (neglect).

4.3.4 Poverty and Lack of Baby Items: Legally Insufficient

The Supreme Court is particularly clear that:

lack of financial means – by the statute’s plain language – cannot, “when … due primarily to a lack of financial means,” be the basis for neglect; and
there is “no basis in our law” for an abuse/neglect adjudication grounded solely in the absence of baby items, such as a crib or car seat.

The Court notes:

DHS and the circuit court placed weight on the fact that the parents did not have baby items and that the CPS worker could not confirm the suitability of housing; but
DHS’s inability to confirm conditions is not the same as proving they are unsafe or neglectful; and
because L.B. did not know she was pregnant, her lack of baby items was fully explained and cannot be viewed as a neglectful omission.

Importantly, the Court underscores that when poverty explains a parent’s inability to provide, § 49‑1‑201(A) expressly removes that from the definition of neglect.

4.3.5 Post‑Adjudicatory Drug Use Cannot Retroactively Justify a Defective Adjudication

One might be tempted to argue that L.B.’s subsequent:

positive methamphetamine screens after adjudication,
withdrawal from inpatient treatment against medical advice,
non‑participation in services, and
lack of a bond with J.B.

demonstrate that the child was indeed at risk, thereby justifying termination. The Court implicitly rejects that line of reasoning, because:

adjudication and disposition are separate phases, each with distinct standards; and
if the statutory prerequisites for adjudication (abuse or neglect) were never met, any later deterioration in circumstances cannot cure the foundational defect.

In other words, the State cannot:

“bootstrap a termination of parental rights upon a fatally flawed adjudication.”

To address concerns about L.B.’s continued substance use, the Court permits DHS, on remand, to file a new abuse and neglect petition if “new evidence” (i.e., post‑petition conduct) warrants it. But the original petition and adjudication cannot be salvaged by events occurring later.

4.3.6 Remedy: Vacatur, Reunification, and Transition Planning

Because the adjudication was not supported by clear and convincing evidence, and because a valid termination cannot rest on an invalid adjudication, the Court vacates:

the adjudicatory order; and
the dispositional (termination) order.

The Court remands with instructions that:

Reunification is the goal. Unless new evidence justifies a new petition, the case must be set for a hearing to establish a transition plan for reunifying J.B. with L.B.
A gradual transition is required. Echoing James M. and Honaker, the Court directs that lower courts must avoid sudden and dramatic changes in custody, especially with young children. A transition period of “several months” is deemed a reasonable benchmark here.
Protective conditions may be imposed. On remand, the circuit court may require L.B. to:
- demonstrate her ability to care for J.B.;
- verify the suitability of her residence;
- show she can provide for his needs; and
- arrange appropriate childcare while working.
Grandparent contact should be considered. The court should consider whether continued reasonable visitation between J.B. and his paternal grandparents (current caregivers) is in his best interests.

5. Complex Concepts Simplified

5.1 “Clear and Convincing Evidence”

In civil cases like abuse and neglect proceedings, the law sometimes requires more than just “more likely than not.” “Clear and convincing evidence” means:

the evidence must be strong enough to produce a firm belief or conviction about the truth of the allegations;
it must be more persuasive than a simple “51% likely” standard; but
it does not need to eliminate all doubt, as in a criminal “beyond a reasonable doubt” standard.

In practice, if the evidence could reasonably go either way, and the court is left uncertain, the State has not met the clear and convincing standard.

5.2 Adjudication vs. Disposition in Abuse/Neglect Cases

Abuse and neglect proceedings in West Virginia have two major stages:

Adjudication – The court decides whether the child is an “abused” or “neglected” child and whether the parent is an abusing/neglecting parent based on conditions existing at the time of the petition. The State must prove this by clear and convincing evidence.
Disposition – If the child is adjudicated abused/neglected, the court then decides what to do: e.g., offer improvement periods, place the child temporarily, or in extreme cases terminate parental rights. This decision is based on both the adjudicatory record and subsequent developments.

If the State fails at adjudication, there is no lawful basis for proceeding to termination. That is why the Supreme Court in In re J.B. vacated both the adjudication and the termination order.

5.3 Improvement Periods

An “improvement period” is a court‑ordered, time‑limited opportunity for a parent to correct the conditions of abuse or neglect. Under W. Va. Code § 49‑4‑610 and P.G.-1 v. Wilson:

a parent must file a written motion to request a post‑adjudicatory improvement period; and
the court may grant it if the parent demonstrates a likelihood of fully participating and improving conditions.

Improvement periods are not at issue directly in the Court’s holding here, but the discussion reflects how rigorously procedural requirements are enforced: even relief intended to help a parent (like an improvement period) is subject to formal requirements.

5.4 “No Reasonable Likelihood of Substantial Correction”

Termination of parental rights in West Virginia is generally governed by the principle that it may occur when:

there is no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected in the near future; and
termination is necessary for the welfare of the child.

Factors relevant to this determination include continued substance abuse, failure to comply with services, and refusal to acknowledge problems. The circuit court relied heavily on such factors at disposition.

However, In re J.B. underscores that this dispositional analysis presupposes a valid adjudication. Without a lawful finding of abuse or neglect, the “no reasonable likelihood” inquiry cannot legally proceed to termination.

5.5 Memorandum Decision vs. Published Opinion

This case was resolved by “memorandum decision” under Rule 21(d) of the West Virginia Rules of Appellate Procedure. In West Virginia practice:

memorandum decisions are used in “limited circumstances,” often where the Court views the case as controlled by existing law or where a full published opinion is deemed unnecessary;
they are nonetheless part of the Court’s jurisprudence and can be cited, subject to the rules in effect; but
they typically carry somewhat less formal precedential weight than full, signed opinions with syllabus points.

Even as a memorandum decision, In re J.B. offers a clear and detailed application of statutory and case law principles that will be influential in similar abuse/neglect cases.

6. Impact and Broader Significance

6.1 Clarifying the Role of Prenatal Conduct in Abuse/Neglect

In re J.B. fits into a developing line of West Virginia cases about prenatal conduct and newborn status:

In re A.L.C.M. established that a newborn with illegal drugs in his system can be treated as abused/neglected sufficient to support filing a petition.
In re J.B. clarifies that where the newborn does not test positive and the State cannot prove the mother knew she was pregnant, prenatal drug use alone does not satisfy statutory definitions.

In practical terms, this means:

DHS must ensure it obtains and presents toxicology evidence from the child, where possible, if it intends to rely on prenatal exposure.
DHS must be prepared to prove the mother’s knowledge or reasonably knowable pregnancy, not just her drug use.
Circuit courts cannot fill evidentiary gaps with personal skepticism or moral disapproval of substance use.

6.2 Reinforcing the Statutory Protection Against Poverty‑Based Adjudications

The decision powerfully reaffirms that economic disadvantage is not, by itself, a basis for removing children. The statutory language excluding lack of financial means from the definition of “neglected child” is given real effect:

Lack of stable employment;
Living in a motel; and
Lack of baby items at a particular point in time

do not, without more, show neglect—especially where the parent did not know she was pregnant.

This has two likely systemic effects:

It discourages DHS from treating poverty as a proxy for neglect.
It pushes courts to scrutinize whether alleged neglect stems from willful refusal or from economic inability beyond the parent’s control.

6.3 Emphasis on Precision in Adjudicatory Findings

The Court’s close reading of the circuit court’s findings sends a message to trial judges:

Inconsistencies between factual findings and legal conclusions will not be ignored.
If a court explicitly finds that key allegations were “NOT proven by clear and convincing evidence,” it cannot nonetheless adjudicate based on those same allegations under a vague umbrella like “substance abuse impacting parenting.”

This should encourage:

more careful drafting of adjudicatory orders;
clear articulation of which allegations are proven and which are not; and
greater attention to the statutory elements of abuse and neglect, not just to a generalized sense of parental unfitness.

6.4 Balanced Protection: Due Process for Parents and Welfare for Children

The decision strikes a deliberate balance:

It robustly enforces parents’ due process rights by demanding strict adherence to statutory definitions and burdens of proof; and
It simultaneously safeguards the child’s welfare by:
- allowing DHS to file a new petition based on later conduct, if warranted; and
- requiring a gradual, child‑centered reunification plan.

This dual focus reflects the Court’s insistence that protecting children does not justify short‑circuiting legal standards, but also that correcting legal errors must be implemented in a way that minimizes emotional harm to the child.

7. Conclusion

In re J.B. is a critical clarification of West Virginia abuse and neglect law in the context of prenatal drug use, poverty, and unknown pregnancy. The Supreme Court of Appeals:

reaffirmed that DHS bears the burden of proving, by clear and convincing evidence, that a child is “abused” or “neglected” as defined by statute at the time of the petition;
held that, where the State cannot prove a mother knew or should have known she was pregnant, and where the newborn is not shown to have illegal drugs in his system, prenatal drug use and lack of baby items do not constitute statutory abuse or neglect;
emphasized that economic hardship and absence of baby gear cannot be the primary basis for adjudicating neglect;
vacated both the adjudicatory and dispositional (termination) orders because they were not supported by legally sufficient proof; and
directed a reunification‑focused remand, with authority for the circuit court to impose reasonable conditions and craft a gradual, child‑sensitive transition plan, while considering continued contact with the paternal grandparents.

The decision underscores a central message: in West Virginia, child protection proceedings must rest on proof of statutory elements, not on generalized concerns about substance use or poverty. At the same time, the Court demonstrates that enforcing parents’ procedural and substantive rights can, and must, be harmonized with careful attention to the child’s ongoing welfare.

No Abuse or Neglect Without Proof of Parental Knowledge of Pregnancy: Commentary on the West Virginia Supreme Court’s Decision in In re J.B.