No Burden-Shift in Abuse & Neglect Disposition: Parents’ Duty to Prove Improvement-Period Compliance While DHS Retains Clear-and-Convincing Burden

1. Introduction

In re L.J., I.J., A.J., and G.J.-1 (W. Va. Sup. Ct. App. Mar. 12, 2025) is a consolidated appeal by G.J. (“father”) and J.J. (“mother”) from a Wood County order terminating their parental rights to four children. The case began in October 2021 with allegations of domestic violence in the home in the children’s presence and parental noncooperation with safety efforts. Over the life of the proceedings, substance abuse—relapses, missed drug screens, and a newborn added by amended petition after a positive drug test at birth—became central.

The appeal presented two core issues: (1) whether the circuit court “shifted the burden of proof” to the parents at disposition by stating “it is the burden of the parents to show that they have eliminated the causes for why the petition was brought,” and (2) whether termination was improper because a less restrictive alternative could have been used.

2. Summary of the Opinion

The Supreme Court of Appeals affirmed in a memorandum decision. The Court held:

  • No plain error burden-shift: Read in context, the circuit court’s statement was treated as referring to the parents’ obligation to initiate and complete improvement-period terms, not a transfer of DHS’s statutory burden to prove abuse/neglect by clear and convincing evidence.
  • Termination affirmed as statutorily permissible: The circuit court did not err in finding “no reasonable likelihood” that the conditions could be corrected in the near future given relapses, missed screens, noncompliance, and the length of the case; thus termination could be ordered without less restrictive alternatives.
  • Permanency considerations were proper: The circuit court’s focus on stability and the children’s extended time in foster care (including the cumulative time across multiple proceedings) supported the best-interests determination.

Dissent: Chief Justice Wooton, joined by Justice Trump, argued the circuit court explicitly and repeatedly placed the burden on the parents, failed to apply the “clear and convincing” standard, and improperly relied on prior proceedings and factors not tied to “conditions existing at the time of the filing of the petition.”

3. Analysis

A. Precedents Cited

Standards of Review and Proof

  • In re Cecil T., Syl. Pt. 1: Reaffirmed the appellate standard—factual findings for clear error, legal conclusions de novo— framing the Court’s deference to the circuit court’s disposition-level factfinding.
  • In re Willis, Syl. pt. 6: Anchored the constitutional gravity of termination by reiterating the “clear, cogent and convincing” proof requirement when parental rights are limited or terminated.
  • In re S.C., Syl. Pt. 2 (and, in the dissent, In re C.S., Syl. Pt. 3, in part): Both articulate the controlling rule that “the burden of proof in a child abuse and neglect case does not shift” from the State agency to the parent—even during an improvement period.

Plain Error Doctrine (Procedural Default)

  • State v Miller: Supplied both the general rule that unpreserved issues are procedurally barred and the four-part “plain error” test (Syl. pt. 7) applied by the Court to evaluate the unobjected-to burden statement.
  • In re K.L.: Confirmed that plain error review is available in abuse and neglect matters, supporting the Court’s willingness to review the burden-shift claim despite the lack of objection.

Improvement Period Compliance and Disposition

  • In the Interest of Carlita B., Syl. Pt. 6: Provides the doctrinal template for what happens at the end of an improvement period: the court reviews parental performance toward goals and decides whether conditions are satisfied and whether return is justified. The majority used this to interpret the circuit court’s “burden” language as shorthand for improvement-period performance review.
  • In re Kristin Y.: Emphasized that improvement-period participation indicates future potential and willingness to change; the majority leveraged this concept to treat missed screens and relapse evidence as predictive of continuing risk.
  • In re B.H., Syl. Pt. 4: Reinforced that while best interests control disposition, parental compliance with improvement-period terms is a relevant factor—supporting the circuit court’s focus on screens, relapses, and therapy noncompliance.
  • State ex rel. P.G.-1 v. Wilson, Syl. Pt. 5: Cited for the statutory cap on extensions—only one extension of a post-adjudicatory improvement period under W. Va. Code § 49-4-610(6)—bolstering the conclusion that further extensions were not an available “less restrictive alternative.”

Best Interests, Permanency, and Foster Care Time

  • State ex rel. Cash v. Lively, Syl. pt. 1, as quoted through State ex rel. David Allen B. v. Sommerville, Syllabus Point 4 and carried into In the Interest of Kaitlyn P. and In re Timber M.: These authorities supply the “polar star” principle—child welfare governs—and were used to justify emphasizing stability and permanency.

Termination Without Less Restrictive Alternatives

  • In re R.J.M., Syllabus point 2, as reiterated in In re Kristin Y., Syllabus point five: Provides the key dispositional doctrine that termination may be employed without intervening less restrictive alternatives when “no reasonable likelihood” exists that conditions can be substantially corrected.

Dissent’s Authorities on Orders, Standards, and “Conditions at Filing”

  • State ex rel. Erlewine v. Thompson and Evans v. Bayles: Invoked to argue that “a court of record speaks only through its orders,” yet the dissent contended the written order itself adopted burden-shifting phrasing (“it has not been shown”).
  • In re D.R. (citing State v. C.N.S., and referencing State v. Carl B. and In re Willis): Used to underscore that the State must present clear and convincing evidence before severing parental rights and to critique the circuit court’s failure to identify or apply that standard.
  • Williams v. Precision Coil, Inc., Syl. Pt. 2 (and Debord v. Frazier): Cited to illustrate the dissent’s claim that the circuit court mistakenly used a “totality of the evidence” standard akin to summary judgment or other preponderance-based administrative review, rather than clear and convincing proof.
  • In re C.S., Syl. Pt. 8, in part: Quoted by the dissent to argue that adjudication must be based on “conditions existing at the time of the filing of the abuse and neglect petition,” and to criticize reliance on issues (e.g., later relapse/missed screens) and heavy emphasis on prior proceedings.

B. Legal Reasoning

1. The “burden shift” question: framing the comment as performance-review rather than proof-allocation

The majority’s central move was contextual interpretation. It acknowledged the circuit court’s statement was “ill-advised” but concluded it was made while “recounting the evidence” about improvement period participation, which is governed by: (a) the court’s end-of-improvement review duty (In the Interest of Carlita B., Syl. Pt. 6), and (b) the respondent’s statutory responsibility to initiate and complete improvement-period terms (W. Va. Code § 49-4-610(4)).

In other words, the opinion draws a sharp doctrinal line:

  • DHS’s burden never shifts and remains “clear and convincing” (In re S.C.; In re Willis); but
  • parents still carry responsibility for fulfilling their improvement-period obligations (W. Va. Code § 49-4-610(4)), and their degree of compliance is probative at disposition (In re B.H.; In re Kristin Y.).

Applying State v Miller plain-error requirements, the majority held there was no “error” at all because, on this record, the comment did not reflect an actual reallocation of the evidentiary burden.

2. Less restrictive alternatives and “no reasonable likelihood”: statutory ceilings and evidentiary skepticism

The parents argued that providers recommended reunification with continued services. The circuit court discounted that testimony because providers were unaware of missed drug screens and relapse history and relied on parents’ self-reporting. The Supreme Court treated that as a permissible credibility and weight assessment.

The Court then tied the disposition to statutory structure:

  • Extensions are constrained (State ex rel. P.G.-1 v. Wilson, Syl. Pt. 5; W. Va. Code § 49-4-610(6)), supporting the finding that “more time” was not a viable alternative.
  • DHS is required to seek termination when the child has been in foster care “15 of the most recent 22 months” (W. Va. Code § 49-4-605), reinforcing permanency urgency.
  • Once “no reasonable likelihood” exists under W. Va. Code § 49-4-604(d), termination may proceed without less restrictive alternatives (In re R.J.M., Syllabus point 2, as reiterated in In re Kristin Y., Syllabus point five).

3. Best interests as the dispositional “north star,” including cumulative foster-care time

The Court relied on best-interests jurisprudence (the “polar star” line culminating in In re Timber M.) to approve the circuit court’s focus on stability, long foster-care duration (including cumulative time across cases), and the children’s need for permanency—factual considerations that can outweigh incremental improvement.

C. Impact

  • Judicial phrasing at disposition matters, but context may save the order: The decision signals that a circuit court’s imprecise “burden” language will not necessarily require reversal if the record supports that DHS’s burden remained intact and the language can be understood as describing improvement-period compliance obligations.
  • Providers’ recommendations may be discounted when uninformed: The case underscores that reunification opinions from parenting/visitation providers may carry less weight if they are not aware of relapse/missed screens and rely on parental self-reporting.
  • Permanency timelines remain central: By emphasizing statutory limits on extensions and the “15 of 22 months” framework, the decision reinforces that long-running cases face a steep uphill climb against additional services as an alternative to termination.
  • Live controversy preserved by the dissent: The dissent lays a blueprint for future litigants: (a) object contemporaneously to burden statements; (b) demand express findings invoking “clear and convincing” evidence; (c) argue tethering to “conditions existing at the time of the filing” when the case’s theory evolves.

4. Complex Concepts Simplified

Improvement period
A court-ordered window for parents to complete services (treatment, screening, therapy, parenting education) to address problems that led to the case. Under W. Va. Code § 49-4-610(4), the respondent is responsible for initiating and completing its terms.
Burden of proof (and “burden shifting”)
“Burden of proof” means who must prove the legal requirements for the court to take action. In abuse/neglect, DHS must prove the case by “clear and convincing” evidence. “Burden shifting” is improper when a court requires parents to prove DHS’s case for termination.
Clear and convincing evidence
A heightened civil standard—more than “more likely than not,” less than “beyond a reasonable doubt”—reflecting the fundamental rights at stake in parental termination.
Plain error
An appellate safety valve allowing review of an unobjected-to error if it is obvious and seriously affects fairness (State v Miller). Here, the majority found no underlying error because it read the remark as improvement-period compliance commentary.
No reasonable likelihood conditions can be corrected
A statutory finding (W. Va. Code § 49-4-604(d)) that, even with help, the parents have shown inadequate capacity to solve the problems—often evidenced by noncompliance with a reasonable case plan (W. Va. Code § 49-4-604(d)(3)).
Less restrictive alternative
A dispositional option short of termination (e.g., guardianship, continued improvement period). Under In re R.J.M., termination may occur without such alternatives if “no reasonable likelihood” exists that conditions can be corrected.
15 of 22 months in foster care
A permanency benchmark: W. Va. Code § 49-4-605 requires DHS to seek termination when a child has been in foster care for 15 of the most recent 22 months, subject to statutory exceptions.

5. Conclusion

In re L.J., I.J., A.J., and G.J.-1 affirms termination while clarifying (and contesting, in dissent) how to interpret a circuit court’s “burden” language at disposition. The majority treats the challenged statement as a permissible reference to the parents’ statutory responsibility for improvement-period performance, not an impermissible transfer of DHS’s clear-and-convincing burden. The decision also reinforces that extended timelines, missed screens, relapse evidence, and statutory limits on extensions can justify a “no reasonable likelihood” finding and permit termination without less restrictive alternatives—especially where permanency needs are acute.

The dissent’s warning is equally consequential: imprecise judicial language and unclear articulation of the applicable proof standard can threaten due process in a context where fundamental parental rights are at stake. Together, the opinions highlight a practical lesson for courts and litigants alike: the record must clearly reflect who bears the burden, what standard is applied, and how the evidence satisfies the statutory elements for termination.