2. Background and Procedural History
The investigation and removal
H.J. had a history of substance abuse and prior abuse and neglect adjudications, but she had successfully completed family treatment court in late 2022. When the present proceeding began, she worked full-time, had health insurance and transportation, rented her own home without assistance, and cared for her children.
The investigation arose from messages discovered on the phone of C.C., an individual arrested for possessing controlled substances with intent to deliver. H.J. had asked whether he could deliver “a 20” to her workplace. She also offered him a box of nine-millimeter ammunition. H.J. explained that the requested purchase concerned marijuana and that she did not know C.C. was a convicted felon.
During a brief DHS interview, H.J. acknowledged occasional marijuana use and disclosed that she had stopped taking prescribed depression medication. DHS implemented a seven-day protection plan on December 13, 2023. H.J. requested a drug screen that day, but the testing center was closed. Her tests on the following day and December 18 were negative for all substances.
Before filing its petition on December 20, DHS conducted no further investigation. It did not inspect the home, obtain daycare or pediatric records, or interview other relevant witnesses. Its supervisor later conceded that there was no evidence that H.J. was failing to provide appropriate food, shelter, supervision, medical attention, or other necessary care.
The evidentiary record and adverse inference
The contested preliminary hearing supplied the only evidentiary testimony in the case. H.J. testified that her marijuana use was occasional, occurred outside the children’s presence, and did not impair her parenting or employment. She introduced four negative drug screens. The deputy who investigated C.C. testified that “a 20” usually referred to heroin or methamphetamine in his experience, but the record did not establish that H.J. had purchased either substance.
The guardian ad litem then representing the children requested hair-follicle testing. H.J. objected to that request before receiving a preadjudicatory improvement period. Crucially, the circuit court never decided the testing motion and never ordered her to undergo the test.
Nevertheless, at T.G.’s request, the circuit court treated the objection as affirmative evidence that H.J. had purchased and used a controlled substance more serious than marijuana. It relied on that inference, her history, and her communications with C.C. to adjudicate her neglectful in July 2024.
Disposition and appeal
The circuit court denied both preadjudicatory and post-adjudicatory improvement periods. By the later proceedings, counsel represented that H.J. had produced dozens of negative drug screens, resumed medication, returned to therapy, and participated in services and visitation. The prosecuting attorney acknowledged that she had “done everything right since the filing of the petition.”
The court ultimately terminated her custodial rights through a purported conditional voluntary relinquishment that reserved an appeal. The Supreme Court reversed the adjudicatory and dispositional orders, concluding that neither the adverse inference nor the underlying evidence supported the required finding of statutory neglect.
4. Analysis
A. The statutory framework: concern is not proof of neglect
West Virginia Code § 49-4-601(i) requires adjudicatory findings based on conditions existing when the petition was filed, established by clear and convincing evidence. The court must determine both whether the child is abused or neglected and whether the respondent falls within the relevant parental classification.
The controlling definition in West Virginia Code § 49-1-201 requires harm or threatened harm to a child’s physical or mental health resulting from a present refusal, failure, or inability to supply necessary food, clothing, shelter, supervision, medical care, or education. The definition also excludes circumstances attributable primarily to insufficient financial means.
This structure matters. The statute does not authorize adjudication whenever a court believes that a parent’s conduct generally threatens a child’s well-being. The threatened harm must be connected to the specified parental failure or inability. Actual injury need not occur before intervention, but the statutory connection cannot be assumed.
Here, the circuit court identified troubling circumstances without establishing that connection. H.J.’s history, occasional marijuana use, communications with C.C., and provision of ammunition did not prove that she presently failed or was unable to provide necessary care. DHS’s own witness conceded the absence of evidence of deficient parenting.
The Court therefore rejected both the circuit court’s broad reference to threatened “well-being” and DHS’s argument that a general threat from substance abuse was sufficient. Those formulations omitted an essential part of the statutory definition.
B. An unsupported inference cannot supply the missing evidence
The circuit court’s reasoning required several unsupported steps: H.J. objected to hair testing; therefore, the test would have contradicted her account; therefore, she must have sought and used a more serious drug. The Supreme Court characterized DHS’s defense of this reasoning as a theory rather than evidence.
Several features made the inference untenable:
- The testing motion remained undecided.
- H.J. had not disobeyed any testing order.
- She testified and explained the messages rather than refusing to respond.
- She admitted marijuana use instead of denying all substance use.
- Repeated drug screens were negative.
- No probative evidence established use of the unidentified “more serious” substance.
The Court also rejected the suggestion that the absence of marijuana in C.C.’s possession at arrest established what H.J. had sought several days earlier. Methamphetamine was likewise absent despite messages from others requesting it, and the deputy testified that marijuana odor had been detected in the vehicle.
The decision does not establish that negative urine screens conclusively exclude every instance of earlier drug use. Rather, it holds that speculation about what another test might have shown cannot substitute for proof, particularly where the parent never refused an ordered test.
C. Due process protects meaningful opposition to a motion
The constitutional defect extended beyond weak evidentiary reasoning. By treating H.J.’s objection as proof against her, the circuit court imposed a cost on exercising the right to be heard.
West Virginia Code § 49-4-601(h) expressly guarantees parties with parental or custodial rights a meaningful opportunity to be heard. That guarantee would be hollow if a parent had to choose between accepting an opposing party’s request without challenge and having opposition treated as evidence of wrongdoing.
The Court’s reasoning protects the distinction between participating in litigation and engaging in evidentially significant conduct. An objection asks the court to decide whether a requested measure is proper. It does not concede the factual premise that the opposing party hopes the measure will establish.
The holding concerns an inference drawn from the mere exercise of a procedural right. It does not decide the consequences of disobeying a valid testing order or authorize disregard of otherwise admissible evidence.
D. Precedents cited and their influence
In re K.S., 253 W. Va. 154, 930 S.E.2d 400 (2026)
This case supplied the three-part appellate standard of review. Substantive abuse and neglect rulings receive abuse-of-discretion review; supporting factual findings receive clear-error review; legal questions and statutory interpretation receive de novo review.
The present opinion applied those distinctions directly. Drawing the adverse inference and adjudicating neglect constituted abuses of discretion, while the resulting finding that H.J. used a more serious controlled substance was clearly erroneous. The meaning and requirements of the governing statutes remained questions of law.
Simpson v. Stanton, 119 W. Va. 235, 193 S.E. 64 (1937)
The Court reproduced this precedent’s rule that state and federal due process require both notice and the right to be heard. Its inclusion in the syllabus emphasizes that the reversal rests partly on a fundamental procedural guarantee, not simply an assessment of the strength of the drug-use evidence.
Applied here, the right to be heard encompassed the ability to oppose a motion without having the opposition itself converted into proof of culpability.
Hattman v. Darnton, 201 W. Va. 371, 497 S.E.2d 348 (1997)
This decision repeated the notice-and-hearing principle from Simpson v. Stanton. It reinforced the continued authority of that constitutional rule and helped connect the older formulation to the present procedural dispute.
In re T.S., 241 W. Va. 559, 827 S.E.2d 29 (2019)
This precedent specifically recognizes that statutory and decisional law require a meaningful opportunity to be heard for parents and others with custodial or parental rights and responsibilities. It placed the general due process principle within child welfare practice and supported the Court’s application of § 49-4-601(h).
Griffin v. California, 380 U.S. 609 (1965)
This criminal case forbids using prosecutorial comment or judicial instruction to make a defendant’s silence evidence of guilt. The Court invoked its explanation that penalizing the exercise of a constitutional privilege makes that privilege costly.
The analogy was functional: using H.J.’s objection against her burdened the exercise of a protected procedural right. The opinion did not transform every civil adverse inference into a prohibited criminal-law inference or hold that silence can never have evidentiary significance in child welfare proceedings.
West Virginia Department of Health & Human Resources ex rel. Wright v. Doris S., 197 W. Va. 489, 475 S.E.2d 865 (1996)
This was the principal authority invoked to justify the adverse inference, but the Court found it materially distinguishable. There, clear, convincing, and unrefuted evidence showed that a respondent was present when a child sustained fatal injuries. The respondent declined to testify or offer evidence explaining the circumstances. The Court permitted consideration of that silence in the face of probative evidence.
H.J., by contrast, testified, explained her conduct, and submitted to repeated testing. There was no comparable evidence of serious drug use awaiting an answer. Her written opposition to an unresolved motion was not silence in the face of proof.
The decision therefore preserves the earlier precedent while rejecting its extension to ordinary procedural advocacy. An adverse inference must not become a means of manufacturing the evidentiary predicate that is otherwise missing.
In re C.S., 247 W. Va. 212, 875 S.E.2d 350 (2022)
The Court cited this decision for the requirement that adjudication concern statutory abuse or neglect based on conditions existing when the petition was filed. That timing requirement prevented prior adjudications from replacing proof of present statutory neglect.
The opinion expressly noted that In re C.S. had been overruled on other grounds by In re R.M.. Its use was thus confined to the proposition identified in the opinion, rather than an unqualified endorsement of all its holdings.
In re R.M., 252 W. Va. 422, 923 S.E.2d 352 (2025)
This precedent supplied the decisive procedural consequence: a proper adjudication under § 49-4-601 is a statutory prerequisite to proceeding to disposition. The child’s statutory status must be established by clear and convincing evidence before the court may impose a dispositional remedy.
Because the adjudication failed, the later termination of custodial rights could not stand independently. This authority explains why reversal extended beyond the evidentiary finding to the dispositional order and dismissal of the petition.
In re S.C., 248 W. Va. 628, 889 S.E.2d 710 (2023)
This was the central substantive precedent DHS and the circuit court sought to extend. It held that admitted, chronic, and pervasive methamphetamine abuse by a parent exercising physical custody necessarily demonstrated inadequate supervision and threatened the child’s well-being. The parent there also failed to produce a negative drug screen for six months after removal.
The present Court distinguished those facts sharply. There was no established methamphetamine use, no comparable pattern of admitted chronic abuse, and no sustained positive-testing record. The supposed use of a more serious substance existed only through the invalid inference.
The Court did not overrule In re S.C.. Instead, it expressly cautioned against expanding that holding to bypass proof of the statutory requirements. Its reference to Justice Wooton’s dissent underscored the danger of allowing concern over a serious social problem to displace statutory analysis.
In re A.E., 253 W. Va. 11, 927 S.E.2d 447 (2026)
This decision supplied the broader limiting principle that abuse and neglect courts remain bound by constitutional and statutory constraints. It answered the understandable concern that H.J.’s history and association with a drug distributor warranted protective action: protective objectives do not authorize adjudication outside the governing legal standards.
In re K.J., No. 23-230, 2023 WL 7018066 (W. Va. Oct. 25, 2023)
This memorandum decision concerned the earlier custody dispute involving H.J., T.G., and K.J. After H.J. completed family treatment court, the circuit court accepted her proposed shared-custody arrangement. The Supreme Court vacated that order because the required statutory factors for allocating custodial responsibility had not been considered.
Its role here was procedural rather than substantive. It explained the continuing relevance of the earlier case number and why dismissal of the present petition did not eliminate the need to establish an appropriate parenting plan for K.J.
In re B.L.-1, 251 W. Va. 92, 909 S.E.2d 127 (2024)
The Court cited this case for the availability of appeals from adjudicatory orders under § 49-4-601(k). That avenue mattered because the circuit court had accepted a purportedly conditional relinquishment preserving appellate rights.
The Court explained that neither the Child Welfare Act nor the procedural rules authorize such a conditional relinquishment. Unlike a conditional criminal guilty plea, it has no recognized procedural foundation. The appropriate course was an appeal from the adjudicatory order. Once relinquishment is accepted, modification is governed by § 49-4-606 and Rule 46 of the West Virginia Rules of Child Abuse and Neglect Procedure.
E. Scope of the remedy
The Court reversed the July 17, 2024 adjudicatory order and the December 30, 2024 dispositional order, as amended January 21, 2025. It directed dismissal rather than further fact-finding to repair the deficient adjudication.
Dismissal nevertheless required attention to the children’s circumstances. K.W. and M.W. had lived with their paternal grandparents, and K.J. with her father, for nearly three years. The circuit court was instructed to exercise discretion over reunification terms with the multidisciplinary treatment team and promptly conduct proceedings to establish an appropriate parenting plan for K.J.
This separates the legal consequence of an unsupported petition from the practical process of restoring family relationships. The Court required dismissal without ordering an unqualified, immediate physical transfer that ignored the children’s intervening experience.
F. Potential impact
- More disciplined investigation: Agencies must gather evidence relevant to present caregiving capacity rather than rely principally on history or suspicion. The opinion’s criticism of the investigation is not a rigid checklist, but it exposes the weakness of proceeding without corroboration.
- Protection of procedural participation: Parents can oppose motions without that opposition alone becoming evidence of culpability.
- Limits on substance-use shortcuts: Prior addiction and admitted use remain relevant, but they do not automatically establish statutory neglect.
- More precise findings: Courts should identify the particular necessary care that a parent presently refuses, fails, or cannot provide and explain the supporting evidence.
- Careful treatment of precedent: The exceptional reasoning concerning chronic methamphetamine abuse cannot be generalized to every allegation involving controlled substances.
- Earlier appellate review: Counsel should consider appealing an adverse adjudication directly rather than attempting to create an unauthorized conditional relinquishment.
The ruling is not a categorical exemption for marijuana use, nor does it require agencies to wait until a child suffers injury. It requires proof that the particular circumstances satisfy the statute, including its protection against threatened harm.