§ 49-4-604(c)(6) Permits Termination of Custodial and/or Guardianship Rights Without Terminating Parental Rights

Case: In re M.G., S.G., and O.G.
Court: Supreme Court of Appeals of West Virginia
Date: June 5, 2026
Disposition: Affirmed, in part; vacated in part; remanded with instructions

1. Introduction

This abuse and neglect appeal arose after the West Virginia Department of Human Services (“DHS”) filed a February 2023 petition alleging that mother A.B. emotionally abused her children (M.G., S.G., and O.G.) and failed to protect S.G. from self-harming behaviors. Key allegations included severe verbal degradation, domestic-violence-type conduct directed at the children (notably, breaking down S.G.’s bedroom door and threatening her with a spiked baseball bat), and ongoing minimization of harm.

The children were placed with their non-offending father, R.G. After adjudication, the circuit court granted the mother a post-adjudicatory improvement period and conducted in camera interviews of the children. At disposition, the circuit court terminated only the mother’s custodial and guardianship rights—leaving parental rights intact—prompting a central statutory-interpretation issue on appeal: whether § 49-4-604(c)(6) permits termination of custodial/guardianship rights alone.

2. Summary of the Opinion

The Court:

• Affirmed disposition: upheld termination of the mother’s custodial and guardianship rights, finding no abuse of discretion because she failed to acknowledge the adjudicated abuse and thus failed to meaningfully correct conditions in a manner consistent with the children’s best interests.
• Affirmed adjudication in part but vacated in part: agreed that certain adjudicatory findings (failure to provide basic needs, excessive corporal punishment, pattern of physical abuse) were unsupported by the record and must be removed on remand; nonetheless, adjudication was supported by evidence of emotional abuse and domestic-violence-type conduct affecting the children.
• Announced/clarified a rule of law: under West Virginia Code § 49-4-604(c)(6), circuit courts may terminate custodial and/or guardianship rights without terminating parental rights.

3. Analysis

3.1 Precedents Cited (and Their Role)

• Syllabus Point 1, In re K.S., No. 24-740, 2026 WL 1362143, at *1 (W. Va. May 15, 2026).
  The Court used this case to frame the appellate standards of review in abuse and neglect matters: abuse of discretion for substantive rulings, clear error for underlying factual findings, and de novo review for legal/statutory interpretation.
• Syllabus Point 1, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975).
  Cited for the central canon of statutory construction—ascertaining and giving effect to legislative intent— supporting the Court’s contextual reading of “and” in § 49-4-604(c)(6).
• Syl. Pt. 1, in part, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (quoting Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996)).
  Provided the “clearly erroneous” definition used to vacate unsupported adjudicatory findings while leaving supported findings intact.
• Syl. Pt. 7, in part, In re J.S., 233 W. Va. 394, 758 S.E.2d 747 (2014).
  Referenced to reject the mother’s claim of a due-process right to confront/cross-examine the child in this civil proceeding, supporting the circuit court’s decision not to conduct an additional in camera interview.
• Syl. Pt. 6, in part, In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).
  Anchored the principle that the circuit court determines whether improvement period conditions are satisfied and whether improvement is sufficient—within the case’s full context—to justify return of the child.
• Syl. Pt. 4, In re B.H., 233 W. Va. 57, 754 S.E.2d 743 (2014).
  Used to emphasize that compliance with an improvement period is only one factor; the “controlling standard” remains the child’s best interests.
• In re H.T., 250 W. Va. 11, 902 S.E.2d 143 (2024).
  Cited twice: (1) for the “least restrictive alternative” mandate in dispositions under § 49-4-604, and (2) to reiterate the best-interests standard as controlling.
• In re Jonathan Michael D., 194 W. Va. 20, 27, 459 S.E.2d 131, 138 (1995) (quoting W. Va. Dept. of Hum. Servs. v. Peggy F., 184 W. Va. 60, 64, 399 S.E.2d 460, 464 (1990)).
  Supported the proposition that “box-checking” compliance can coexist with a failure to improve the overall parenting attitude and approach—critical to affirming the disposition where the mother did not internalize accountability.
• In re A.W., No. 20-0830, 2021 WL 1549949, at *3 (W. Va. Apr. 20, 2021) (memorandum decision).
  Used to reinforce that a parent’s refusal to accept the “basic truth” of their conduct can render conditions untreatable and can be determinative on appeal.
• In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013).
  Provided the frequently invoked rule: problems must be acknowledged to be remedied; denial makes the problem “untreatable.” This supported the circuit court’s finding of “no reasonable likelihood” of correction in the near future.
• Pulsifer v. United States, 601 U.S. 124, 151 (2024).
  Supplied the interpretive insight that conjunctions like “and” are context-dependent; the Court used this to justify reading § 49-4-604(c)(6) in harmony with the statutory scheme rather than rigid grammar.
• State v. Marx, 215 P.3d 601, 610 (Kan. 2009).
  Cited as persuasive authority recognizing that “and” and “or” may be interchangeable where context, purpose, or absurdity concerns require it.
• Kingston v. Kingston, 532 P.3d 958, 976 n.91 (Utah 2022).
  Cited for the “bundle of sticks” metaphor, used to conceptualize parental/custodial/guardianship interests as separable rights that may be restricted individually.
• In re H.B., 252 W. Va. 350, 922 S.E.2d 350, 362 n. 18 (2025); In re R.G., No. 20-0509, 2021 WL 2366886, at *1 n.4 (W. Va. June 9, 2021) (memorandum decision); In re K. S., 246 W. Va. 517, 524 n.13, 874 S.E.2d 319, 326 n.13 (2022).
  These cases supported the Court’s statutory “fit” analysis between § 49-4-604(c)(5) and (c)(6), underscoring that (c)(5) is a true guardianship/third-party or DHS placement mechanism and does not describe placement with a fit biological parent—making (c)(6) the appropriate vehicle for terminating only custodial rights when the child is with the non-offending parent.
• Memorandum decisions affirming termination of custodial rights only: In re E.M., No. 25-138, 2025 WL 2781358 (W. Va. Sept. 30, 2025); In re N.S., No. 23-279, 2024 WL 3761074 (W. Va. Aug. 12, 2024); In re H.C., No. 19-1172, 2020 WL 3447603, at *5 (W. Va. June 24, 2020); In re D.H., No. 19-0920, 2020 WL 5240419, at *4 (W. Va. Sept. 3, 2020); In re P.A., No. 17-0704, 2018 WL 1040384 (W. Va. Feb. 23, 2018); In re I.N., No. 16-0394, 2016 WL 6837982 (W. Va. Nov. 21, 2016); In re C.M., No. 13-0134, 2013 WL 5476386 (W. Va. Oct. 1, 2013).
  These authorities were used to demonstrate that West Virginia appellate practice has long accepted “custodial-rights-only” terminations, making the mother’s rigid reading of § 49-4-604(c)(6) inconsistent with established outcomes.

3.2 Legal Reasoning

A. Partial vacatur of adjudicatory findings (clear-error correction)

The Court separated supported from unsupported findings. Although adjudication was supported by evidence of emotional abuse and domestic-violence-type conduct directed at the children, the circuit court also included findings (failure to provide basic needs, excessive corporal punishment, pattern of physical abuse) that the record did not support. Applying the “clearly erroneous” standard, the Court vacated only those unsupported portions and remanded for entry of a corrected adjudicatory order.

The Court also highlighted a practical consequence: because the disposition left parental rights intact, a future modification proceeding (referencing Rule 46 and West Virginia Code § 49-4-606) would likely hinge on the specific adjudicated conditions and whether there has been a “material change of circumstances.” Accuracy in the adjudicatory order therefore matters beyond this appeal.

B. Affirmance of disposition (best interests + failure to acknowledge abuse)

The Court affirmed termination of custodial and guardianship rights under § 49-4-604(c)(6), emphasizing that improvement period “completion” is not dispositive. The circuit court permissibly found the mother “checked the boxes” but continued to externalize blame to the father and DHS, minimized the harm, and failed to show meaningful insight—especially regarding the door/bat incident and pervasive verbal degradation.

Relying on the principle that unacknowledged abuse is often “untreatable,” the Court held the circuit court did not abuse its discretion in concluding there was “no reasonable likelihood” of substantial correction in the near future and that restricting custody was in the children’s best interests.

C. Statutory interpretation: “and” in § 49-4-604(c)(6) (context over grammar)

The mother argued § 49-4-604(c)(6) permits termination only if the court terminates “parental, custodial and guardianship rights” all together. The Court rejected this “all-or-nothing” reading.

The Court reasoned:

• Contextual reading of conjunctions: Following Pulsifer v. United States, “and” is not applied mechanically where context indicates otherwise.
• Statutory structure: § 49-4-604(c)(6) applies to an “abusing parent,” which by definition includes “a parent, guardian, or other custodian” (W. Va. Code § 49-1-201). Those categories do not always possess the same set of rights, implying the statute must function for partial-rights holders too.
• Avoiding absurd results: Reading “and” rigidly would prevent courts from terminating only the rights a respondent actually holds (or only those needing restriction), undermining the ability to craft a workable, least-restrictive disposition.
• Least restrictive alternative: The Court aligned its interpretation with the mandate recognized in In re H.T.—the law favors the least restrictive disposition consistent with the child’s welfare.
• Interplay with § 49-4-604(c)(5): Because (c)(5) is not the proper tool for placing a child with a fit non-offending parent (as explained in In re H.B., In re R.G., and In re K. S.), (c)(6) must be available to terminate custodial rights when the child is already safely with the other parent.

3.3 Impact

• Clarified dispositional flexibility: Courts may now cite this decision’s syllabus holding to support a tailored outcome: restricting custody/guardianship while preserving parental status, which can preserve future pathways (e.g., later modification) without compromising child safety.
• Reduced pressure toward all-rights termination: By confirming partial termination under § 49-4-604(c)(6), the Court strengthens the availability of less drastic alternatives where the child can be protected by placement with a non-offending parent.
• Heightened importance of accurate adjudicatory findings: The partial vacatur signals that overinclusive adjudicatory orders are vulnerable on appeal, especially where future modification may turn on precisely what conditions were adjudicated.
• Practical guidance in “fit parent placement” cases: The opinion reinforces that placement with a natural fit parent is not a “guardianship” under (c)(5), pushing practitioners toward (c)(6) as the proper statutory framework for custody-only terminations.

4. Complex Concepts Simplified

• Adjudication vs. disposition: “Adjudication” answers whether abuse/neglect occurred; “disposition” decides the remedy (custody, services, termination of certain rights).
• Improvement period “checking the boxes”: Completing services (classes, therapy attendance, etc.) does not automatically mean the underlying problem is corrected; courts look for insight and behavioral change.
• “No reasonable likelihood” of correction: A legal conclusion that, based on evidence, the parent lacks adequate capacity to solve the problems of abuse/neglect—alone or with help—in the near future.
• “Bundle of sticks” (parental rights): Rights related to a child can be thought of as separate sticks—custody, guardianship authority, decision-making, etc. This case confirms a court can remove some sticks (custody/guardianship) without eliminating the entire bundle (parental status).
• Clear error vs. abuse of discretion: “Clear error” concerns mistaken factual findings; “abuse of discretion” concerns whether the court’s decision, given the facts and law, fell outside reasonable choices.

5. Conclusion

In re M.G., S.G., and O.G. does two important things. First, it polices the accuracy of adjudicatory orders by vacating unsupported findings while preserving supported grounds, recognizing the downstream consequences those findings can have. Second—and most significantly—it establishes that West Virginia Code § 49-4-604(c)(6) authorizes termination of custodial and/or guardianship rights without requiring termination of parental rights. In doing so, the Court aligns statutory interpretation with legislative intent, avoids absurd results, and reinforces the system’s guiding principle: dispositions must be driven by the child’s best interests and implemented through the least restrictive alternative that adequately protects the child.