In RE:K.L., 233 W. Va. 547

Background

DHHR filed an abuse-and-neglect petition under W. Va. Code § 49-6-5b(a)(3) because Ashley L. had a prior involuntary termination of parental rights to a sibling; the petition alleged no other specific abuse/neglect facts concerning K.L.
The circuit court adjudicated the petition after Ashley admitted the prior termination; K.L. remained in DHHR legal custody but with Ashley’s physical custody initially.
Following a domestic-violence incident in February 2013, K.L. was removed from Ashley’s physical custody and a dispositional hearing followed.
At the August 2, 2013 dispositional hearing the circuit court expressly shifted the burden to Ashley to prove a substantial change in circumstances since the prior termination and said it would terminate parental rights unless she met that burden.
On August 21, 2013 the court terminated Ashley’s parental rights to K.L.; Ashley appealed.
The Supreme Court of Appeals reversed, holding the circuit court plainly erred by shifting the burden of proof to Ashley and thus violated her due process rights; the case was remanded with directions for further proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the burden of proof shifted to the parent after a prior involuntary termination under § 49-6-5b(a)(3)	Ashley argued the State (DHHR) retained the burden to prove abuse/neglect by clear and convincing evidence; burden never shifts to parent	DHHR/guardian contended the lowered statutory threshold and the court’s view placed burden on parent to show changed circumstances	Court held burden never shifts; circuit court plainly erred by requiring Ashley to prove changed circumstances and thereby violated due process
Whether the prior involuntary termination alone mandates termination of parental rights to a later-born child	Ashley: prior termination alone is insufficient; DHHR must present additional evidence of present abuse/neglect	DHHR: filing under §49-6-5b(a)(3) supports termination or lowers threshold for termination	Held: prior termination only lowers the evidentiary threshold and requires DHHR to introduce additional evidence; it does not mandate termination by itself
Whether the constitutional standard of proof applies	Ashley: termination demands clear and convincing proof and due process protections	DHHR: argued best interests or procedural posture justify outcome despite procedural issues	Held: Clear-and-convincing standard (Santosky) applies; due process violated when burden was shifted
Remedy for burden-shifting error	Ashley: reversal and remand for correct proceedings with DHHR bearing burden	DHHR: urged affirmance based on child’s best interests or harmless error	Held: Reversed and remanded; if DHHR proceeds it must file an amended petition (if needed) and prove abuse/neglect by clear and convincing evidence; if returning child, court must plan gradual transition

Key Cases Cited

In Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996) (standard of review for bench-tried abuse-and-neglect cases)
State v. Myers, 204 W. Va. 449, 513 S.E.2d 676 (1998) (court may notice plain error sua sponte)
State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995) (plain-error four-part test and meaning of "plain")
In Interest of S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981) (burden of proof remains with DHHR in abuse/neglect proceedings)
In re George Glen B., Jr., 207 W. Va. 346, 532 S.E.2d 64 (2000) (prior involuntary termination lowers evidentiary threshold but does not mandate termination; DHHR must prove abuse/neglect of current child)
In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) (parental custody is a fundamental liberty interest; clear, cogent, and convincing standard applies)
Santosky v. Kramer, 455 U.S. 745 (1982) (Due Process requires clear-and-convincing evidence before terminating parental rights)
State ex rel. Grob v. Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975) (failure to observe a constitutional right is reversible error unless harmless beyond a reasonable doubt)
In Re B.H., 233 W. Va. 57, 753 S.E.2d 743 (2014) (parent compliance with improvement period is one factor; best interests govern dispositional decisions)
James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991) (use gradual transition plans to minimize trauma when returning children)