The West Virginia Supreme Court of Appeals has overturned a lower court’s decision to terminate the parental rights of a mother and father, finding that the judge improperly relied on the mother’s marijuana use before she knew she was pregnant, despite evidence that she stopped using marijuana immediately after learning of the pregnancy.
In a unanimous decision issued October 21, the state’s highest court ruled that the Nicholas County Circuit Court abused its discretion when it denied the parents an opportunity to demonstrate that they could safely care for their child. The justices also criticized the lower court’s treatment of legally prescribed medication used for opioid addiction recovery.
The case, In re W.J., involved parents whose rights to four older children had previously been terminated because of substance abuse. After those proceedings, both parents entered a medication-assisted treatment program in 2020 and maintained compliance with treatment requirements, including counseling, random drug testing and medication monitoring.
In September 2024, the mother tested positive for marijuana during a screening that also revealed she was approximately five months pregnant. Testimony established that the parents had used marijuana for approximately one month following a miscarriage but stopped immediately upon discovering the pregnancy.
Despite that evidence, the circuit court placed substantial weight on what it described as marijuana use during the first five months of pregnancy. The lower court rejected the argument that the mother’s lack of knowledge about her pregnancy should affect its assessment of her conduct.
The Supreme Court directly challenged that reasoning.
“To the extent the circuit court also placed ‘great weight’ on the mother’s cannabis use while pregnant, this too was error,” the justices wrote.
The court emphasized that the West Virginia Department of Human Services presented no evidence contradicting the mother’s testimony that she was unaware of her pregnancy when she used marijuana. The agency also failed to establish that either parent had subsequently tested positive for marijuana or another unauthorized substance.
In a footnote, the court specifically stated that the lower court’s finding that the mother used marijuana throughout the first five months of pregnancy was not supported by the evidence.
Another central issue involved the mother’s prescribed buprenorphine treatment. The newborn experienced withdrawal symptoms requiring medical attention, which prompted child protective services intervention. However, the Supreme Court found that the lower court improperly discounted evidence that the mother had continued treatment under medical supervision and that both parents had made substantial progress in their recovery.
West Virginia law prohibits terminating parental rights solely because a parent participates in a medication-assisted treatment program while successfully meeting treatment obligations.
The justices also rejected the notion that previous terminations automatically justified terminating parental rights to another child when evidence demonstrated that the parents had addressed the underlying problems.
The ruling does not automatically return the child to the parents or guarantee reunification. Instead, it reverses the termination of their parental rights and directs the circuit court to establish an improvement period, with conditions designed to protect the child while allowing the parents to demonstrate their fitness.
The Supreme Court noted that the child had remained in another placement for almost two years and that the parents had been prohibited from having contact during that time. It instructed the lower court to structure the improvement period in a manner that minimizes disruption while safeguarding the child’s well-being.
All five justices concurred in the October 21 decision, and the court ordered its mandate issued immediately so the additional proceedings could move forward.
In a separate ruling issued the same day, the West Virginia Supreme Court also overturned a neglect finding against a mother who admitted to occasionally using marijuana. The Roane County Circuit Court had terminated her custodial rights to three children, partly based on an assumption that she was using more serious drugs after she objected to a proposed hair-follicle test. However, the Supreme Court found that no such test had been ordered, her numerous drug screenings were negative, and officials presented no evidence that she failed to adequately care for her children. The justices reversed the lower court’s orders and directed it to dismiss the neglect petition.
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