“Inability to Comply Because of Incarceration Does Not Excuse Non-Participation”
A Structured Commentary on the Supreme Court of Appeals of West Virginia’s Memorandum Decision in In re P.F. and S.H. (2025)

I. Introduction

The Supreme Court of Appeals of West Virginia (hereafter “the Court”) delivered a memorandum decision on 30 July 2025 in In re P.F. and S.H., No. 24-354, affirming a circuit court order that (1) terminated a mother’s (N.M.) post-dispositional improvement period, (2) terminated her parental rights, and (3) denied post-termination visitation. The children’s fathers retained parental rights, and separate permanency plans were established for each child.

The appeal raised three principal issues:

1. Whether the circuit court erred in revoking N.M.’s improvement period once she was jailed for domestic battery and probation violations;
2. Whether termination of parental rights was warranted by the statutory criterion of “no reasonable likelihood” of correction of conditions;
3. Whether the denial of post-termination visitation contravened the children’s best interests.

The Court concluded that none of the mother’s assignments of error had merit and that the circuit court acted within its discretion and statutory authority.

II. Summary of the Judgment

The Court, applying a “clear-error” standard to factual findings and a de novo standard to conclusions of law (In re Cecil T.), held:

• The mother failed to “fully participate” in her improvement period within the meaning of W. Va. Code § 49-4-610(7), thereby justifying its termination.
• Substantial evidence supported the circuit court’s determination that there was no reasonable likelihood that the mother could correct the underlying conditions (W. Va. Code § 49-4-604(d)), authorising termination of her parental rights under § 49-4-604(c)(6).
• The circuit court properly denied post-termination visitation because it expressly found that continued contact would be detrimental to the children, thus failing the statutory and case-law test (In re Daniel D.; Rule 15(b)(2)(A), Rules of Procedure for Child Abuse & Neglect).

III. Analysis

A. Precedents Cited and Their Influence

1. In re Cecil T., 228 W. Va. 89 (2011) – Provides the bifurcated standard of review (clear-error for facts; de novo for law).
2. Michael D.C. v. Wanda L.C., 201 W. Va. 381 (1997) – Affirms deference to the trial court’s credibility determinations; crucial because the mother’s testimony was found “evasive, performative, and lacking credibility.”
3. In re Lacey P., 189 W. Va. 580 (1993) – Recognises the circuit court’s discretion to end an improvement period when progress is inadequate.
4. In re Timber M., 231 W. Va. 44 (2013) and In re Charity H., 215 W. Va. 208 (2004) – Stress that a parent’s failure to acknowledge the problem renders it un-treatable; the Court relied on these holdings in rejecting the mother’s “auto-brewery syndrome” defence and persistent denial of substance abuse.
5. In re Kristin Y., 227 W. Va. 558 (2011) and In re R.J.M., 164 W. Va. 496 (1980) – Endorse termination of parental rights without less-restrictive alternatives if the statutory findings are present.
6. In re Daniel D., 211 W. Va. 79 (2002) and In re Christina L., 194 W. Va. 446 (1995) – Establish the test for post-termination visitation (must affirmatively serve the child’s best interests and be non-detrimental).
7. In re Jamie Nicole H., 205 W. Va. 176 (1999) – Confirms that even if a dispositional order does not parrot statutory language word-for-word, the appellate court can affirm if the required conclusions are evident from the record.

These precedents collectively fortified the Court’s rejection of the mother’s arguments, particularly regarding credibility, statutory compliance, and discretionary determinations.

B. Legal Reasoning of the Court

1. Termination of the Improvement Period
   • W. Va. Code § 49-4-610(7) mandates termination once a parent “failed to fully participate.” The Court interpreted incarceration—stemming from the parent’s own misconduct—as incompatible with full participation.
   • The mother’s claim that incarceration prevented her from complying was rejected; the Court drew a clear causal line between her choices (domestic violence, probation violation) and the resultant inability to attend visitation or services.
2. Finding of “No Reasonable Likelihood”
   • Persistent positive drug and alcohol screens, denial of substance abuse, and reliance on a debunked medical explanation underscored “inadequate capacity to solve the problems” (§ 49-4-604(d)).
   • The Court emphasised that “last-minute compliance” cannot erase an extensive history of non-compliance, especially when new misconduct (domestic battery) occurs during the improvement period.
3. Children’s Best Interests & Termination of Rights
   • Credible testimony indicated that visitation caused emotional turmoil for the children.
   • Termination promotes stability and permanency, meeting the paramount “best-interest” criterion.
4. Post-Termination Visitation
   • Rule 15(b)(2)(A) and Daniel D. require an affirmative finding that continued contact would not be detrimental. The circuit court made the opposite finding, based on behavioural evidence. The appellate court deferred to that factual assessment.

C. Anticipated Impact of the Decision

• Clarification of Incarceration & Compliance – The decision squarely holds that a parent cannot use incarceration—particularly incarceration stemming from new misconduct—as an excuse for non-participation in an improvement period. Future litigants will find it harder to argue for extensions when their own criminal behaviour occasions service interruptions.
• Denial of Medical “Excuses” Without Objective Proof – The rejection of the unsubstantiated “auto-brewery syndrome” claim sends a clear message: extraordinary medical defences must be medically verified.
• Strengthening of Credibility Findings – By explicitly affirming the circuit court’s adverse credibility assessment, the Court reinforces trial-level discretion and discourages appellate relitigation of factual disputes absent clear error.
• Post-Termination Visitation Standard Restated – The Court restates that the burden lies squarely with the parent to prove visitation benefits the child, not the other way around.

IV. Complex Concepts Simplified

Improvement Period

A court-ordered span of time (post-adjudicatory or post-dispositional) during which an abusing or neglectful parent must complete services (e.g., therapy, drug screens) to demonstrate the ability to safely parent. Failure to “fully participate” allows the court to revoke it.

Post-Adjudicatory vs. Post-Dispositional

“Adjudicatory” refers to the stage where abuse/neglect is first adjudicated; “dispositional” concerns the eventual outcome (reunification, guardianship, termination). A post-dispositional improvement period is a second chance granted after disposition has technically occurred but before termination.

“No Reasonable Likelihood” Standard

A statutory phrase (§ 49-4-604(d)) describing a scenario where parents cannot correct abusive or neglectful conditions within a reasonable time, even with help. Once found, it authorises termination of parental rights.

Post-Termination Visitation

Contact between parent and child after parental rights are terminated. It is not an automatic right; it is allowed only when it benefits the child and causes no harm.

V. Conclusion

In re P.F. and S.H. crystallises a pragmatic rule: if a parent’s own behaviour results in incarceration and prevents compliance with an improvement period, the statutory duty to “fully participate” is breached, and termination may follow. The decision re-emphasises longstanding principles— credibility determinations, acknowledgement of problems, child-centred best-interest analysis—while adding sharper contours to how courts may treat non-compliance stemming from new criminal activity. Future abuse-and-neglect litigants and counsel must therefore recognise that last-minute compliance, speculative medical defences, and visitation requests lacking child-centred evidence will rarely suffice once a pattern of non-participation and instability is established.