Reaffirming the Prohibition on “Back‑Door” Adjudications and the Requirement of Statutory Findings in Termination of Parental Rights: Commentary on In re P.M. and A.M.

Reaffirming the Prohibition on “Back‑Door” Adjudications and the Requirement of Statutory Findings in Termination of Parental Rights:
Commentary on In re P.M. and A.M. (W. Va. Nov. 5, 2025)

I. Introduction

The Supreme Court of Appeals of West Virginia’s memorandum decision in In re P.M. and A.M., No. 25‑77 (Nov. 5, 2025), continues a now‑clear line of authority insisting on strict adherence to procedural and statutory safeguards in abuse and neglect proceedings, especially where termination of parental rights is sought.

The case arises from the termination of the parental rights of J.M. (“the petitioner father”) to his two children, P.M. and A.M., following a sequence of petitions and improvement periods. The central questions on appeal were:

  • Whether the circuit court could terminate the father’s parental rights based primarily on “new” conduct—his alleged inability to manage A.M.’s Type 1 diabetes and his mental health and anger issues—where those conditions had never been alleged in the abuse and neglect petition or adjudicated as abuse/neglect; and
  • Whether the circuit court’s dispositional order, which simply concluded that termination was in the children’s “best interests” without more, was legally sufficient.

The Department of Human Services (DHS) itself conceded that the circuit court erred by terminating on grounds not encompassed in the adjudication and asked for a remand to allow filing of an amended petition. The guardian ad litem (GAL) supported the termination. The Supreme Court, accepting DHS’s confession of error but independently reviewing the matter, vacated the dispositional order and remanded.

Although styled as a memorandum decision under Rule 21 of the West Virginia Rules of Appellate Procedure, the opinion is doctrinally significant. It reinforces two core principles in West Virginia abuse and neglect jurisprudence:

  1. Termination of parental rights cannot be “fundamentally premised” on conditions of abuse or neglect that have not been properly alleged and adjudicated; and
  2. Any order terminating parental rights must contain the explicit statutory findings and factual support required by West Virginia Code § 49‑4‑604(c)(6) and Rule 36(a) of the Rules of Procedure for Child Abuse and Neglect Proceedings; a bare “best interests” conclusion is inadequate.

II. Factual and Procedural Background

A. Initial Petition and First Adjudication (Housing)

In January 2023, DHS filed an abuse and neglect petition in the Circuit Court of Roane County. As relevant to this appeal, the petition alleged that:

  • The family lived in a camper with no hot water or sewer service;
  • The home had “excessive clutter and trash”; and
  • The petitioner failed to protect the children from the drug abuse of their mother, K.M.

At a February 2023 adjudicatory hearing, the petitioner stipulated that he had failed to provide adequate housing. By order dated March 13, 2023, the circuit court adjudicated him as an abusive and neglectful parent on that basis. No adjudication was made as to medical neglect or mental health concerns at this stage.

K.M. (the mother) was subsequently adjudicated as abusive and neglectful on May 30, 2023, and her parental rights were terminated on June 26, 2023.

B. Amended Petition and Second Adjudication (Substance Abuse)

On June 27, 2023, DHS amended its petition to add new allegations of substance abuse against the petitioner father. He admitted those allegations, and the circuit court entered a second adjudicatory order on August 29, 2023, further adjudicating him abusive/neglectful on the basis of his substance use.

Crucially, these two adjudications established:

  • Adjudicated bases for abuse/neglect: inadequate housing and substance abuse;
  • Non‑adjudicated issues: no adjudication was ever entered for alleged medical neglect of A.M.’s diabetes or for the petitioner’s anger, “fits of rage,” suicidal threats, or failure to follow mental health treatment.

C. Post‑Adjudicatory Improvement Period

On the petitioner’s written motion, the circuit court granted a six‑month post‑adjudicatory improvement period, later extended by ninety days. The family case plan—which the court referenced in its second adjudicatory order—required the father to:

  • Participate in parenting and adult life skills services;
  • Attend visitation with the children;
  • Submit to drug screening;
  • Maintain appropriate housing and employment; and
  • Participate in therapy to address trauma, depression, and anxiety.

According to the GAL’s later report, the petitioner was broadly compliant with this plan through the end of 2023, though he was warned repeatedly about maintaining contact with K.M.

D. Early 2024: Motion to Suspend Visitation and Revoke Improvement Period

In early 2024, DHS moved to:

  • Suspend the petitioner’s visitation;
  • Revoke his improvement period; and
  • Terminate his parental rights,

relying on:

  • His continued social media contact with K.M.; and
  • Alleged failure to follow “medication recommendations” related to mental health treatment.

Around March 2024, A.M. was diagnosed with Type 1 diabetes, adding a significant medical component to the case that had not been part of the original or amended petitions.

On April 18, 2024, the circuit court held a dispositional hearing and entered disposition as to two other children in the family (whose case was later affirmed in In re A.M., No. 24‑400 (W. Va. July 30, 2025)). Those children are not at issue in this appeal.

E. Post‑Dispositional Improvement Period as to P.M. and A.M.

As to P.M. and A.M., the docket shows that on May 14, 2024, the petitioner moved for a post‑dispositional improvement period, which the circuit court apparently granted. The record, however, does not contain:

  • A transcript of any hearing granting this improvement period; or
  • An order setting out any new or modified case plan.

The Supreme Court notes that there is no indication the original case plan (focused on housing, substance use, parenting, and mental health therapy) was amended to specifically address A.M.’s newly diagnosed diabetes or any new allegations of medical neglect.

F. Termination of Post‑Dispositional Improvement Period

On October 17, 2024, the circuit court held a hearing on a motion to terminate the post‑dispositional improvement period. The petitioner and the children’s foster mother testified, but there is no transcript in the record.

In a November 20, 2024 order, the circuit court summarily concluded that the petitioner:

  1. “has shown an inability to maintain [A.M.’s blood] sugar levels at a safe level or address the [blood] sugar levels when they reach unsafe levels[]”; and
  2. “has repeatedly shown an inability to control ‘fits of rage’ during these proceedings.”

The order referenced no supporting testimony or exhibits. It further reasoned that there were “no compelling circumstances to continue offering services” because the children had been out of the petitioner’s custody “for at least 15 of the preceding 22 months.”

The GAL’s report—though not a substitute for a transcript—adds that:

  • During one visit, A.M.’s blood sugar “dropped dangerously low,” the petitioner “slept through the alarms,” and purportedly overdosed her on insulin;
  • On another occasion, the petitioner and a provider allegedly miscalculated carbohydrates and gave A.M. the wrong insulin amount; and
  • The petitioner threatened self‑harm when visitation was changed, and was described as “unable to control his temper.”

Again, none of these alleged deficiencies were ever the subject of an amended petition or adjudication.

G. Final Dispositional Hearing and Termination Order

At the November 21, 2024 dispositional hearing, DHS (joined by the GAL) sought termination of the petitioner’s parental rights to P.M. and A.M., emphasizing that the post‑dispositional improvement period had recently been terminated and arguing that the children “deserve[d] to be adopted.”

The petitioner’s counsel opposed termination, arguing:

  • The children “love and know their father” and should be reunified;
  • At most, the court should terminate only custodial rights, not all parental rights; and
  • The case began as a “dirty house” and “possible drug use”—issues the petitioner had corrected—and that only in “the last stretch” did the alleged diabetes management deficiencies arise.

DHS countered that the petitioner had a longstanding “mental health problem” that had been a “theme throughout the pendency of this case,” including failure to take medication and threats of self‑harm. All parties, however, agreed that post‑termination visitation would be appropriate due to the children’s strong bond with their father.

At the close of the hearing, the circuit court announced only that “it would be in each child’s best interest” to terminate the petitioner’s parental rights, and stated that it was:

  • Adopting “the recommended findings of fact that were placed on the record by the DHS”; and
  • Adopting its “findings of fact from the … October 17th hearing” (terminating the post‑dispositional improvement period).

The written dispositional order, entered December 30, 2024, was even more skeletal. It contained essentially a single operative finding:

“it would be in the best interest of the [children] for the parental rights of [the petitioner] to be terminated.”

No statutory references, no “no reasonable likelihood” finding, and no recitation of underlying facts or linkage to any enumerated condition under West Virginia Code § 49‑4‑604(d).

H. Issues on Appeal

On appeal, the petitioner raised three principal points:

  1. The circuit court erred by terminating his parental rights on the basis of “new alleged conduct”—medical management of A.M.’s diabetes and his anger/mental health issues—on which he had never been adjudicated;
  2. Termination of his parental rights was not the least restrictive alternative; and
  3. The court improperly terminated his post‑dispositional improvement period for matters outside the scope of the improvement plan.

DHS confessed error as to the first issue, acknowledging that “issues of medical neglect and mental health … should be addressed by the filing of an amended petition” and requesting remand to do so. The GAL supported the circuit court’s termination order.

III. Summary of the Supreme Court’s Decision

The Supreme Court:

  • Vacated the December 30, 2024 dispositional order terminating the petitioner’s parental rights; and
  • Remanded the case to the circuit court for further proceedings consistent with its opinion (including the potential filing of an amended petition by DHS).

In doing so, the Court held:

  1. The circuit court’s disposition was improperly “fundamentally premised” on unadjudicated allegations—medical neglect (A.M.’s diabetes management) and mental health/anger issues—in violation of the due‑process‑rooted rule articulated in In re K.L., In re Lilith H., and In re C.L.;
  2. The dispositional order was statutorily deficient because it lacked the findings of fact and conclusions of law required under:
    • Rule 36(a) of the Rules of Procedure for Child Abuse and Neglect Proceedings; and
    • West Virginia Code § 49‑4‑604(c)(6) and (d), as interpreted in In re C.S. and In re Edward B.;
  3. “Best interests” language alone cannot substitute for the mandatory statutory findings required before terminating parental rights (In re C.L.);
  4. The petitioner’s least‑restrictive‑alternative argument need not be addressed because the termination itself was vacated; and
  5. The challenge to the termination of the post‑dispositional improvement period was not reviewable due to an inadequate appendix record and inadequate record citations, under Rules 7(d) and 10(c)(7) of the Rules of Appellate Procedure.

The Court accepted DHS’s confession of error but, citing Freeland v. Marshall, emphasized that it independently reviewed and agreed that the termination order was legally defective.

IV. Detailed Legal Analysis

A. Adjudication vs. Disposition: The “No Back‑Door Adjudication” Rule

1. The Basic Structure of Abuse and Neglect Proceedings

Abuse and neglect cases in West Virginia proceed in two main stages:

  1. Adjudication – The court determines whether the child is abused/neglected based on the specific allegations in the petition, applying the statutory definitions. Parents must receive notice of the allegations and an opportunity to contest them. An adjudication is a formal finding that specific conditions exist.
  2. Disposition – Once abuse/neglect is adjudicated, the court considers what remedy is appropriate: return of the child, improvement periods, custody changes, or termination of parental rights. Disposition must flow from the conditions adjudicated and the statutory framework in West Virginia Code § 49‑4‑604.

Due process requires that the grounds used to justify the most drastic remedy—termination of parental rights—be:

  • Clearly alleged in the petition;
  • Subject to an adjudicatory hearing; and
  • Proven by clear and convincing evidence.

2. The Court’s Reliance on In re K.L., In re Lilith H., and In re C.L.

The Court roots its analysis in a well‑developed line of cases:

  • In re K.L., 247 W. Va. 657, 885 S.E.2d 595 (2022).
    There the Court stated the core rule applied again in this case:
    “termination of parental rights may not be fundamentally premised on conditions of abuse and/or neglect upon which a parent has not been properly adjudicated.”
  • In re Lilith H., 231 W. Va. 170, 744 S.E.2d 280 (2013).
    The Court reversed where parental rights were terminated based on the parents’ “continued acrimony”—a factor that “was never even alleged to constitute abuse and/or neglect in the petition.” The Court condemned this as a “back door” adjudication: using disposition to effectively adjudicate new grounds without notice or a proper adjudicatory hearing.
  • In re C.L., 249 W. Va. 95, 894 S.E.2d 877 (2023).
    There, the father’s adjudication concerned inadequate housing, but the court later terminated based on alleged abandonment—never pleaded in the petition. The Supreme Court reversed, finding termination improper when based on unadjudicated conditions.

These cases collectively prohibit termination being “fundamentally premised” on any condition that:

  • Was not alleged in the petition (original or amended); and
  • Was not subjected to adjudication under the procedural protections of Chapter 49.

3. Application to In re P.M. and A.M.

In In re P.M. and A.M., the petitioner father was adjudicated on two, and only two, grounds:

  1. Inadequate housing; and
  2. Substance abuse.

By the time of disposition, however, the focus had shifted entirely away from those adjudicated conditions. As the Supreme Court observed:

  • Neither inadequate housing nor substance abuse was discussed at the dispositional hearing;
  • The dispositional debate centered instead on:
    • The petitioner’s alleged “inability to manage A.M.’s diabetes”; and
    • His “mental health problem,” including anger, “fits of rage,” and threats to kill himself.
  • The circuit court referred expressly to its prior findings regarding:
    • The petitioner’s “fits of rage”; and
    • A.M.’s blood sugar levels.

Critically, however:

  • No petition was ever amended to allege that the petitioner’s mental health issues or management of A.M.’s diabetes constituted abuse or neglect;
  • No adjudicatory finding was made that these new concerns satisfied the statutory definitions of abuse or neglect as to P.M. or A.M.; and
  • Thus, these concerns never passed through the procedural gateway of adjudication that due process requires.

The Court therefore concluded that the termination was, in the language of K.L., “fundamentally premised” on unadjudicated issues. DHS’s confession of error, asking for a remand to file an amended petition to address “medical neglect and mental health,” effectively conceded this point.

The remedy: the termination order had to be vacated. On remand, DHS may file an amended petition and seek a new adjudication that properly puts these new allegations before the court and the petitioner.

B. Mandatory Statutory Findings in Termination Orders

1. The Statutory Framework: West Virginia Code § 49‑4‑604(c)(6) and (d)

Termination of parental rights in West Virginia is governed by West Virginia Code § 49‑4‑604. Subsection (c)(6) authorizes termination where:

  • The court makes “a finding that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future”; and
  • “termination is necessary for the welfare of the child.”

Subsection (d) explains what “no reasonable likelihood that conditions of neglect or abuse can be substantially corrected” means, listing several non‑exclusive scenarios (e.g., chronic substance abuse with failure to respond to treatment, failure to follow through with a reasonable family case plan, etc.) that may support such a finding.

In In re C.S., 247 W. Va. 212, 875 S.E.2d 350 (2022), the Court held in Syllabus Point 5 (in part) that a circuit court “must make the findings required by West Virginia Code § 49‑4‑604(c)(6) (2020)” to justify termination of parental rights.

2. Procedural Overlay: Rule 36(a)

Rule 36(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings adds an important procedural requirement:

“At the conclusion of the disposition hearing, the court shall make findings of fact and conclusions of law, in writing or on the record, as to the appropriate disposition in accordance with the provisions of W. Va. Code § 49‑4‑604. The court shall enter a disposition order, including findings of fact and conclusions of law, within ten (10) days of the conclusion of the hearing.”

Two key components emerge:

  • Findings must be both factual and legal; and
  • They must be recorded either in the written order or clearly stated on the record and incorporated into the order.

3. The Court’s Reliance on In re C.S. and In re Edward B.

The Court cites In re C.S., where it vacated terminations because:

“the circuit court’s written dispositional orders contain none of the findings required by West Virginia Code § 49‑4‑604(c)(6) for the termination of parental rights. The court did not find, or explain, why there is no reasonable likelihood that the conditions of neglect or abuse could not be substantially corrected in the near future.”

The Court also invokes Syllabus Point 4 (in part) of In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001):

“Where a trial court order terminating parental rights merely declares that there is no reasonable likelihood that a parent can eliminate the conditions of neglect, without explicitly stating factual findings in the order or on the record supporting such conclusion, and fails to state statutory findings required by West Virginia Code § [49‑4‑604(c)(6)] on the record or in the order, the order is inadequate.”

Thus, a court cannot simply recite statutory language or announce a conclusion; it must document:

  • The specific facts it finds; and
  • How those facts satisfy one or more of the conditions in § 49‑4‑604(d), demonstrating that there is “no reasonable likelihood” of correction in the near future and that termination is necessary for the child’s welfare.

4. “Best Interests” Cannot Replace Statutory Findings: In re C.L.

The Court also cites In re C.L. for the proposition that:

“While it is true that ‘[t]he controlling standard that governs any dispositional decision remains the best interests of the child[ren],’ when considering termination under § 49‑4‑604(c)(6), the circuit court must properly make the [required statutory] finding before it progresses to a best-interest analysis.”

In other words:

  • The child’s best interests are indeed paramount, but;
  • Best interests cannot lawfully be determined without first satisfying the statutory prerequisites—particularly the “no reasonable likelihood” standard.

5. Application to the Dispositional Order in In re P.M. and A.M.

The Court’s critique of the December 30, 2024 dispositional order is blunt:

  • The order “finds only that ‘it would be in the best interest of the [children] for the parental rights of [the petitioner] to be terminated.’”
  • It “contains none of the findings or conclusions necessary to substantiate termination of the petitioner’s parental rights”;
  • It never references § 49‑4‑604(c)(6) or (d); and
  • It does not explain why the court concluded there was “no reasonable likelihood” that the conditions of neglect or abuse could be corrected in the near future.

Nor can the order be saved by the court’s statement at the hearing that it was “adopting” DHS’s recommendations and its prior October 17 findings:

  • The October 17 order itself was thin and focused on unadjudicated issues (A.M.’s diabetes management, the petitioner’s temper), not on adjudicated grounds (housing, substance abuse);
  • There is no transcript of that hearing; and
  • In any case, neither the oral nor written record provides the detailed statutory analysis required by § 49‑4‑604(c)(6) and (d).

Therefore, the order is not merely imperfect but statutorily non‑compliant, mirroring the deficiencies that led to vacatur in In re C.S. and Edward B.

C. Confession of Error and Independent Judicial Duty

DHS candidly acknowledged on appeal that it had proceeded improperly—seeking termination based on unadjudicated issues of mental health and medical neglect—and requested a remand so it could file an amended petition.

The Court, however, emphasizes that a confession of error does not automatically control its decision. Citing Freeland v. Marshall, 249 W. Va. 151, 895 S.E.2d 6 (2023), the Court notes that:

“a confession of error does not relieve this Court of its judicial duty to independently … determine if [it] … is meritorious.”

Here, after its own analysis, the Court agrees that:

  • The circuit court terminated the petitioner’s parental rights on matters for which he was never adjudicated; and
  • The dispositional order was inadequate on its face for lack of statutory findings.

Accordingly, the Court both accepts the confession and independently finds reversible error.

D. Appellate Review and the Inadequate Record

The petitioner also argued that his post‑dispositional improvement period was improperly terminated for conduct outside the scope of his improvement plan. On this point, the Supreme Court declined to reach the merits because the record was inadequate.

Under:

  • Rule 7(d) of the Rules of Appellate Procedure – the petitioner must prepare and file an appendix containing the parts of the record necessary for consideration of the appeal; and
  • Rule 10(c)(7) – arguments must contain “appropriate and specific citations to the record on appeal,” and the Court “may disregard errors that are not adequately supported by specific references to the record.”

The petitioner failed to include:

  • The GAL’s motion to terminate the improvement period;
  • The transcript of the October 17, 2024 hearing; and
  • Any exhibits admitted at that hearing.

The Supreme Court had only the “meager” November 20, 2024 order and portions of the GAL’s report. That was insufficient for meaningful appellate review. Thus, the Court declined to consider this assignment of error.

This aspect of the decision underscores that:

  • Even in child welfare cases, the appellate court will not reconstruct the missing record; and
  • Appellants (and their counsel) bear a clear responsibility to assemble and cite the record carefully.

E. Least Restrictive Alternative – Left Open

The petitioner also contended that termination was not the “least restrictive alternative,” suggesting that the court could have chosen a less drastic disposition, such as terminating only custodial rights or establishing a permanency arrangement while preserving some parental rights and ongoing visitation.

Because the Supreme Court vacated the termination on other grounds, it expressly declined to reach this question. Nonetheless, the issue remains important on remand:

  • West Virginia law recognizes a dispositional continuum in § 49‑4‑604, with termination as a last resort;
  • Courts should consider less restrictive alternatives consistent with the children’s safety and welfare when the statutory conditions for termination are not clearly met; and
  • On remand, after any new adjudication and full statutory analysis, the circuit court will again have to consider which disposition is appropriate—this time on a correct legal foundation.

V. Precedents Cited and Their Influence

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

Syllabus Point 1 of Cecil T. sets the standard of review employed in this opinion:

  • Findings of fact in abuse and neglect cases are reviewed for clear error;
  • Conclusions of law are reviewed de novo.

This framework guides the Court’s analysis of both the factual and legal inadequacies in the circuit court’s order.

2. In re K.L., 247 W. Va. 657, 885 S.E.2d 595 (2022)

As discussed above, K.L. is the modern articulation of the rule that termination cannot be “fundamentally premised” on unadjudicated conditions of abuse or neglect. P.M. and A.M. applies this principle to a setting where new concerns—mental health, medical management of a chronic illness—arose mid‑case but were never formally incorporated into the pleadings or subjected to adjudication.

3. In re Lilith H., 231 W. Va. 170, 744 S.E.2d 280 (2013)

Lilith H. famously coined the term “back door adjudication” to describe the impermissible practice of terminating parental rights based on new theories or facts that had never been pleaded or adjudicated. P.M. and A.M. is a paradigmatic example of this concern: the circuit court effectively adjudicated medical neglect and mental health‑based abuse at the dispositional stage, without the procedural protections of a formal adjudication.

4. In re C.L., 249 W. Va. 95, 894 S.E.2d 877 (2023)

C.L. is doubly relevant:

  • Substantively, it involved termination based on abandonment when the adjudication had been only for inadequate housing—closely paralleling the mismatch between adjudicated and relied‑upon conditions in P.M. and A.M.;
  • Procedurally, it clarified that while “best interests” is the controlling standard, a court must first make the statutory “no reasonable likelihood” finding under § 49‑4‑604(c)(6) before then weighing best interests.

P.M. and A.M. extends and reinforces C.L. by insisting that the statutory analysis appear in the written dispositional order, not just in generalized references.

5. In re C.S., 247 W. Va. 212, 875 S.E.2d 350 (2022)

C.S. is the immediate touchstone for the requirement that a dispositional order terminating parental rights must:

  • Explicitly address the “no reasonable likelihood” standard; and
  • Explain why that standard is met in light of the evidence.

Just as in C.S., the Court in P.M. and A.M. encountered a dispositional order with no such findings and no connection to § 49‑4‑604(d), necessitating vacatur.

6. In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001)

Edward B. warned that an order that merely declares there is no reasonable likelihood of correction, without factual support and explicit statutory findings, is inadequate. That principle directly applies here: the circuit court’s order skipped even the bare declaration and went straight to “best interests,” making it even more deficient than the order in Edward B.

7. Freeland v. Marshall, 249 W. Va. 151, 895 S.E.2d 6 (2023)

Freeland provides the doctrinal backdrop for treating DHS’s confession of error. Even when the State agrees that an error occurred, the Supreme Court independently assesses the claim. Here, that independent review reinforced—rather than undercut—the confession, and the Court identified additional deficiencies (lack of statutory findings) beyond those confessed.

VI. Complex Concepts and Terminology Explained

1. Adjudication vs. Disposition

  • Adjudication – A formal determination whether the child is abused or neglected based on the specific allegations in the petition. It answers: Did abuse/neglect occur, and if so, on what factual grounds?
  • Disposition – The remedial phase that follows a finding of abuse/neglect. The court decides: What should happen next to protect the child—return home, services, placement with relatives, or termination of parental rights?

The key point in this opinion: you cannot base disposition—especially termination—on grounds never adjudicated.

2. Improvement Periods (Post‑Adjudicatory and Post‑Dispositional)

  • Post‑adjudicatory improvement period – A time‑limited opportunity for the parent to address adjudicated conditions (e.g., housing, substance abuse) through a family case plan.
  • Post‑dispositional improvement period – Sometimes granted after an initial dispositional decision (including as to siblings), giving the parent an additional period to correct conditions before final disposition (especially termination) is decided for some children.

In both, the case plan must be linked to the adjudicated issues. In P.M. and A.M., the plan addressed housing, substance use, parenting skills, and mental health treatment—but not, at least explicitly, the specialized demands of managing Type 1 diabetes in a child.

3. “No Reasonable Likelihood that Conditions … Can Be Substantially Corrected”

This statutory phrase from § 49‑4‑604(c)(6) is central to termination. It does not mean that the parent has failed thus far or is imperfect; it means:

  • Given the parent’s past and present behavior and efforts; and
  • Given the child’s developmental needs and the timeframe in which permanency is required,

there is no realistic, near‑term prospect that the underlying conditions of abuse/neglect can be substantially remedied. Subsection (d) lists examples (chronic unresolved substance abuse, repeated refusal of services, etc.) that support such a finding.

4. “Best Interests of the Child”

“Best interests” is the overarching standard guiding all dispositional decisions in abuse and neglect matters. Factors commonly include:

  • Safety and physical health;
  • Emotional and psychological stability;
  • Continuity in caregiving and attachments;
  • Sibling relationships;
  • Children’s wishes (depending on age and maturity); and
  • The benefits and harms of permanency options (e.g., adoption vs. long‑term guardianship vs. return home).

But as P.M. and A.M. reiterates, “best interests” is not a free‑floating standard that can override statutory prerequisites. The court must first determine that statutory criteria for termination are met.

5. Medical Neglect and Complex Child Health Needs

Although the Court does not define “medical neglect” in this decision, the underlying facts highlight a recurring issue: when a child has serious, chronic medical needs (e.g., Type 1 diabetes), inadequate management can become a ground for abuse/neglect if it significantly endangers the child’s health.

P.M. and A.M. suggests:

  • Such concerns can be legitimate grounds for state intervention; but
  • They must be:
    • Formally alleged (e.g., in an amended petition);
    • Subject to a full adjudication; and
    • Addressed in a tailored case plan (e.g., specialized training, support) before they may justify termination.

6. Confession of Error

A “confession of error” occurs when an appellee—here, DHS—tells the appellate court: we agree the lower court committed reversible error. While helpful, it is not binding. The appellate court still:

  • Reviews the record;
  • Determines whether error truly occurred; and
  • Crafts an appropriate remedy.

This preserves the judiciary’s independent role in declaring and applying legal principles.

7. “15 of the Preceding 22 Months”

The phrase that the children had been removed for “at least 15 of the preceding 22 months” reflects a permanency benchmark drawn from federal and state law (influenced by the Adoption and Safe Families Act). It often:

  • Triggers a duty on the part of the agency to consider filing for termination; and
  • Signals the need for timely permanency decisions.

However, the mere passage of 15 months does not automatically justify termination. The statutory conditions in § 49‑4‑604(c)(6) and (d) must still be proven and properly found, as this case underscores.

8. Guardian ad Litem (GAL)

The GAL is a lawyer appointed to represent the best interests of the children—not to act as counsel for DHS or for either parent. The GAL’s report here provided detailed factual background, but:

  • Its contents do not substitute for formal adjudicatory findings; and
  • Reliance on facts in a GAL report to support termination is improper unless those facts have been introduced into evidence and connected to adjudicated grounds and statutory criteria.

VII. Practical and Doctrinal Impact

A. For Circuit Judges

This decision sends a clear message to trial courts:

  • Stay within the pleadings and adjudications. If new concerns arise—like medical neglect or mental health instability—require DHS to file an amended petition and hold an adjudicatory hearing before relying on those issues for disposition.
  • Draft detailed dispositional orders. A single “best interest” sentence is insufficient. Orders must:
    • Set out the factual findings leading to the conclusion;
    • Identify which conditions under § 49‑4‑604(d) are met; and
    • Explicitly state that there is “no reasonable likelihood” of correction in the near future, and why.
  • Be wary of adopting findings by reference. Merely “adopting” agency recommendations or prior orders is risky, especially if those documents focus on unadjudicated issues or lack statutory analysis.
  • Balance permanency with due process. Even where children have been out of the home for 15 of 22 months, termination must rest on properly adjudicated grounds and statutorily adequate findings.

B. For DHS and Child Welfare Agencies

For DHS, P.M. and A.M. underscores several practice points:

  • Amend promptly. When serious new issues arise—like mismanagement of a child’s life‑threatening medical condition—file an amended petition and seek adjudication on those grounds.
  • Align case plans with adjudicated issues. Ensure that every key concern supporting a termination request has:
    • Been alleged and adjudicated; and
    • Been addressed through specific, documented services in the family case plan.
  • Build a robust record. Present clear evidence connecting the parent’s conduct to the statutory factors in § 49‑4‑604(d), and articulate how services have been insufficient to correct conditions.

C. For Parents’ Counsel

Defense counsel can draw several lessons:

  • Object to back‑door adjudications. When new allegations arise at disposition that were never pleaded or adjudicated, place a clear objection on the record and demand formal adjudication.
  • Insist on complete and accurate orders. Request that the circuit court include detailed findings and statutory references; if the order is sparse, consider a motion to alter or amend before appealing.
  • On appeal, build the record. Ensure that the appendix includes all key motions, transcripts, and exhibits; failure to do so can foreclose review, as happened here on the improvement‑period issue.

D. For Guardians ad Litem

GALs must navigate the line between advocating for children’s safety and respecting procedural safeguards:

  • Ground recommendations in adjudicated issues. If concerns arise outside the original petition, GALs should encourage DHS and the court to address those concerns through amended pleadings and adjudication, rather than relying on them informally at disposition.
  • Document, but do not replace, evidence. GAL reports are vital contextual documents, but they must be corroborated by admissible evidence and proper judicial findings.

VIII. Place of In re P.M. and A.M. in West Virginia’s Abuse and Neglect Jurisprudence

Although issued as a memorandum decision under Rule 21, the opinion in In re P.M. and A.M. fits squarely within, and reinforces, an unmistakable trend in West Virginia law:

  • Procedural precision is essential in abuse and neglect cases;
  • Parents’ due process rights—notice, opportunity to be heard, adjudication limited to pleaded allegations—must be honored even when serious concerns about child safety arise mid‑case; and
  • Statutory text matters. Termination orders must track the structure of § 49‑4‑604(c)(6) and (d) and must contain explicit factual and legal findings.

Together with Lilith H., K.L., C.S., C.L., and Edward B., this decision provides a robust framework for reviewing abuse and neglect dispositions. It sends a strong signal that shortcuts—whether in pleading, adjudicating new issues, or drafting dispositional orders—will not survive appellate scrutiny.

IX. Conclusion

In re P.M. and A.M. is a careful restatement and application of two fundamental principles in West Virginia child welfare law:

  1. No back‑door adjudication: Termination of parental rights cannot be based on conditions of abuse or neglect that have not been properly alleged and adjudicated. New concerns—such as medical neglect or mental health issues—must be raised by amended petition and adjudicated before they can serve as the basis for termination.
  2. Mandatory statutory findings: A dispositional order terminating parental rights must contain clear findings of fact and conclusions of law demonstrating:
    • That there is no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected in the near future, as defined in § 49‑4‑604(d); and
    • That termination is necessary for the welfare of the child.
    A bare “best interests” statement is insufficient.

The decision also underscores the importance of a complete appellate record and reminds all participants—courts, agencies, and counsel—that the gravity of terminating parental rights demands both rigor in process and fidelity to statutory law.

Note: This commentary is for informational and analytical purposes only and does not constitute legal advice.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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