Appellate Deference and Post‑Termination Visitation: Commentary on In re N.D., T.D., and S.D. (W. Va. 2025)

Introduction

The memorandum decision in In re N.D., T.D., and S.D., No. 24‑713 (W. Va. Nov. 4, 2025), addresses a narrow but important question in West Virginia child abuse and neglect law: when, and under what standards, should a circuit court grant post‑termination visitation between a parent and children after parental rights have been terminated?

This decision does not announce an entirely new doctrine; rather, it consolidates and reinforces several principles that are increasingly central in this area:

• The substantive test for post‑termination visitation—focused on emotional bonding, absence of detriment, and the child’s best interests—derived from In re Daniel D. and In re Christina L..
• The strong appellate deference owed to circuit courts on factual findings and especially on credibility determinations, reiterated through In re Cecil T., State v. Guthrie, and In re D.S..
• The transitional posture of West Virginia law with respect to post‑termination visitation, given the Supreme Court’s recent provisional amendment of Rule 15 of the Rules of Procedure for Child Abuse and Neglect Proceedings and its decision in In re Z.D.-1.

The Supreme Court of Appeals of West Virginia affirmed the circuit court’s denial of the father’s motion for post‑termination visitation with three of his children (N.D., T.D., and S.D.), emphasizing that the record supported the circuit court’s findings that there was no existing parent‑child bond and that visitation would not be in the children’s best interests.

I. Case Background

A. Parties and Procedural Posture

The case arises from an abuse and neglect proceeding initiated by the West Virginia Department of Human Services (“DHS”) in Berkeley County. The key actors are:

• Petitioner Father (C.D.) – the appellant, whose parental rights to several children were terminated by the circuit court. He appears by counsel on appeal.
• DHS – the petitioner below, represented by the Attorney General and an Assistant Attorney General.
• The Children – multiple children were included in the underlying case, but on appeal the father only challenges the ruling regarding post‑termination visitation with N.D., T.D., and S.D. (two other children, L.D.-1 and L.D.-2, are expressly excluded from this appeal).
• Guardian ad litem – counsel appointed to represent the children’s best interests.

Crucially, the father does not appeal the termination of his parental rights itself. He limits his challenge to the denial of post‑termination visitation with three of the children after his parental rights had already been terminated.

B. Underlying Abuse and Neglect Allegations

DHS filed the abuse and neglect petition in September 2023. The petition alleged, in substance:

• Exposure of the children to domestic violence in the home.
• Drug use by both parents that impaired their ability to parent.

At the adjudicatory hearing in October 2023, the father:

• Admitted that he physically abused the mother in the presence of the children.
• Admitted that his drug use negatively affected his parenting ability.

Based on these admissions, the circuit court adjudicated the father as an abusive and neglectful parent.

C. Improvement Period and Visitation History

Following adjudication, the circuit court granted the father a post‑adjudicatory improvement period. This is a structured opportunity, under West Virginia law, for a parent to correct the conditions of abuse or neglect through services such as treatment, counseling, and parenting education.

However, concerns soon arose about the father’s conduct:

• His supervised visitation with the children was suspended because of concerns about his behavior during visits.
• Later, the court permitted visitation to recommence, but only:
  • With the two younger children (T.D. and S.D.), and
  • Under strict conditions: visits had to be supervised and video recorded.

This history of restricted and closely monitored contact foreshadows the court’s later findings about the quality of the parent‑child relationship.

D. Dispositional Hearing and Termination of Parental Rights

The dispositional phase—where the court decides the ultimate outcome regarding parental rights—occurred across several days between July and October 2024. Key evidence included:

• Child psychologist (bonding evaluation):
  • Performed a bonding assessment between the father and the children.
  • Testified that the children did not have a bond with the father.
• Mother’s testimony:
  • Described extensive physical, mental, and verbal abuse by the father.
  • Stated that the father:
    • Made multiple threats to kill her.
    • Degraded her and threw objects at her.
  • Described a particularly serious incident following a drug deal and robbery in the home:
    • The father yelled at and shoved her.
    • This caused her to suffer a seizure and lose consciousness.
    • The children were present when this occurred.
• Daycare provider’s testimony:
  • Testified that T.D. and S.D. attended her daycare during the summer of 2023 for approximately four months.
  • Described the father as appearing to be a responsible parent during that period.
• Father’s conflicting testimony about daycare:
  • The father later testified that the daycare provider only watched the two younger children for a total of ten days, undermining the daycare provider’s timeframe and raising credibility issues.
• CPS worker’s testimony:
  • Opined that the father was unable to take accountability for his abuse of the children and the mother.
• Father’s own testimony:
  • Claimed to have changed his life and promised not to abuse women or children in the future.
  • Minimized the seriousness of the findings by asserting that he was only adjudicated for:
    • “smoking marijuana” and
    • the children having a diaper rash.
  • Confronted with a completion letter from a program stating that he still had “a way to go in gaining a full understanding of what would be considered abusive behavior,” he:
    • Denied that the letter referred to him.
    • Claimed it referred to another program participant with the same first name.
  • Testified that his therapist had purportedly told him he no longer needed therapy.

At the conclusion of disposition, the circuit court made several critical factual findings:

• The father’s testimony was inconsistent and untruthful.
• His actions demonstrated a continued lack of self‑control.
• He had not demonstrated any meaningful change during the improvement period.
• His witnesses, including the daycare worker, had limited knowledge of the overall case and could not credibly testify to positive changes in his behavior.
• He had not substantially complied with the improvement period.
• There was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future.
• Termination of parental rights was necessary for the children’s welfare.

Based on these findings, the court terminated the father’s parental rights to all of the children, including N.D., T.D., and S.D. The mother’s parental rights were also terminated. The permanency plan for the children was adoption in their current foster placement.

E. Motion for Post‑Termination Visitation

After his parental rights were terminated, the father filed a motion in October 2024 requesting post‑termination visitation with N.D., T.D., and S.D. At that hearing:

• The father testified that he had a strong bond with the children, especially with the oldest child, N.D.
• The circuit court considered the prior testimony of the child psychologist, who had already stated that the children did not have a bond with the father.

The circuit court ultimately:

• Found that the children no longer had a bond with the father, and
• Determined that post‑termination visitation would not be in the children’s best interests.

On that basis, the court denied the motion. The father then appealed this denial to the Supreme Court of Appeals of West Virginia.

II. Summary of the Supreme Court’s Decision

The Supreme Court affirmed the circuit court’s order denying post‑termination visitation.

On appeal, the father argued:

• That the circuit court erred in finding no bond between him and the children, and
• That the court should have given more weight to his testimony (and that of the daycare provider) than to the psychologist’s bonding evaluation.

The Supreme Court held:

• The circuit court’s factual finding that there was no meaningful emotional bond between the father and the children was supported by the evidence and was not clearly erroneous.
• Under well‑established standards of review, the Supreme Court would not reweigh the evidence or reassess the credibility of witnesses, which are matters entrusted to the trial court as fact‑finder.
• Given the circuit court’s findings that there was no bond and that visitation would not be in the children’s best interests, there was no legal error in denying post‑termination visitation.

The Court applied the traditional post‑termination visitation standards articulated in In re Daniel D. and In re Christina L., while noting—importantly—that after the circuit court’s order, it had provisionally amended Rule 15 of the Rules of Procedure for Child Abuse and Neglect Proceedings and adopted new standards for post‑termination visitation, as recognized in In re Z.D.-1. Because those changes occurred after the order under review, the Court applied the pre‑amendment standards to this case.

III. Legal Framework

A. Standard of Review on Appeal: In re Cecil T. and In re D.S.

The Supreme Court restated its standard of review for abuse and neglect appeals:

On appeal from a final order in an abuse and neglect proceeding, this Court reviews the circuit court’s findings of fact for clear error and its conclusions of law de novo. (Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011))

In addition, the Court quoted from State v. Guthrie, reaffirmed in In re D.S., that:

“An appellate court may not decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact.”

And in In re D.S., the Court similarly emphasized that it would not:

“reweigh the evidence or make credibility determinations.”

Together, these precedents frame the appellate role: the Supreme Court will respect the circuit court’s fact‑finding unless there is clear error, and it will not substitute its own view of the evidence or of witness credibility.

B. Substantive Standard for Post‑Termination Visitation: Daniel D. and Christina L.

The Court relied on long‑standing law governing post‑termination visitation, particularly:

• Syllabus Point 11 (in part), In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002), which incorporates
• Syllabus Point 5, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995).

Although the full syllabi are not reproduced, the opinion highlights two core inquiries for post‑termination visitation:

1. Emotional Bond: Whether a close emotional bond has been established between parent and child.
2. Best Interests / No Detriment: Whether the evidence indicates that visitation:
   • Would not be detrimental to the child’s well‑being, and
   • Would be in the child’s best interests.

Thus, even if some emotional bond exists, post‑termination visitation is not automatic. It must also be affirmatively shown that visitation will not harm the child and will serve the child’s best interests.

C. Emerging Framework Under Amended Rule 15 and In re Z.D.-1

In footnote 5, the Court indicates that, after the circuit court’s order in this case, it:

“provisionally amended Rule 15 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings and ‘adopt[ed] appropriate standards for consideration of post-termination visitation outside of a fact-based context.’” (In re Z.D.-1, 251 W. Va. 743, 916 S.E.2d 375, 382 n.21 (2025))

Two key points follow:

• The Supreme Court explicitly states it is applying the standards in place at the time of the circuit court’s order. In other words, Daniel D. and Christina L. govern this appeal.
• The Court situates this case in a transitional period in West Virginia’s law on post‑termination visitation, signaling that future cases will be evaluated under the amended Rule 15 standards announced in Z.D.-1.

The opinion does not reproduce the new standards themselves, and thus, for this case, the controlling law remains the earlier case law. However, the reference foreshadows a more codified or structured approach to post‑termination visitation in future proceedings.

IV. Analysis of the Court’s Reasoning

A. Emotional Bond: Competing Evidence and the Bonding Evaluation

The crux of the appeal was whether the circuit court erred in finding that the children no longer had a bond with the father.

The record contained conflicting evidence:

• In favor of a bond:
  • The father’s own testimony that he had a strong bond with the children, particularly with N.D.
  • The daycare provider’s testimony that the father appeared to be a responsible parent during the children’s attendance at her daycare.
• Against a bond:
  • The child psychologist’s professional bonding evaluation, concluding that the children did not have a bond with the father.
  • The overall context of continuing domestic violence, lack of accountability, and limited/restricted visitation.

The father argued that the circuit court should have given greater weight to his and the daycare provider’s testimony than to the psychologist’s. The Supreme Court rejected this argument for two reasons:

1. The circuit court explicitly found that:
   • The father’s testimony was not credible, and
   • The daycare provider had insufficient knowledge of the case to meaningfully speak to long‑term bonding or changed behavior.
2. Under appellate standards, weighing competing testimony and deciding credibility is exclusively the trial court’s task, not the appellate court’s.

Given the psychologist’s evaluation and the circuit court’s credibility determinations, the Supreme Court found no clear error in the conclusion that the children did not have a close emotional bond with the father at the time of disposition and the visitation hearing.

B. Credibility Determinations and Appellate Deference

This decision is particularly emphatic about deference to the trial court’s credibility findings. Several aspects of the record illustrate why the circuit court doubted the father’s credibility:

• The father’s attempt to minimize his adjudication as being only about “smoking marijuana” and a “diaper rash,” despite his own prior admissions of domestic violence and drug‑impacted parenting.
• The dispute between the daycare provider’s testimony (four months of care) and the father’s testimony (ten days), reflecting inconsistency.
• The father’s denial that a program letter—explicitly stating that the participant still had progress to make in understanding abusive behavior—was about him, instead claiming it pertained to another participant with the same first name.

By affirming the circuit court’s findings without reexamining these disputes, the Supreme Court underscores:

• That witness credibility is central to decisions about whether a parent has truly changed,
• And that appellate courts will rarely disturb those credibility assessments absent a clear and demonstrable error.

In other words, the father’s effort to relitigate factual credibility issues on appeal was fundamentally incompatible with the governing standard of review.

C. Best Interests and Potential Detriment

Even if a bond had existed, the law requires the court to determine whether visitation would:

• Not be detrimental to the child’s well‑being, and
• Be in the child’s best interests.

Here, the circuit court concluded that post‑termination visitation was not in the children’s best interests. While the memorandum decision does not recite a detailed best‑interests analysis, the overall record supports this conclusion:

• Significant and repeated domestic violence, including incidents witnessed by the children.
• Ongoing issues of drug use and related criminal activity (e.g., the drug deal and robbery in the home).
• The father’s failure to accept responsibility for his conduct, suggesting limited insight and risk of recurrence.
• The permanency plan of adoption in the current foster placement, pushing toward stability and finality for the children.

When combined with the lack of a meaningful emotional bond, these factors offered a solid basis for the circuit court’s conclusion that further contact with the father would be more likely to harm than help the children.

D. Use and Weight of Expert Bonding Evaluations

A notable feature of this case is the reliance on a bonding evaluation by a child psychologist. Bonding assessments can be pivotal in post‑termination visitation decisions because they:

• Provide an expert, structured evaluation of the child’s attachment to the parent.
• Help courts move beyond subjective impressions of parental “love” or “effort” to assess the child’s emotional reality.

The father attempted to challenge the psychiatrist’s evaluation by asserting on appeal that the bonding study was conducted only with the two younger children and not with the oldest (N.D.). However:

• The father failed to cite any portion of the record on appeal to support this contention, in violation of W. Va. R. App. P. 10(c)(7).
• The circuit court’s order explicitly found that the psychologist’s testimony applied to all of the children.

The Supreme Court therefore declined to credit the father’s unsupported assertion. This underscores two points:

• Experts’ bonding evaluations can carry significant weight, particularly when corroborated by the broader record.
• Appellants must rigorously comply with record citation requirements when attempting to undermine or reinterpret expert testimony on appeal.

E. Application of Rule 10(c)(7): Record Citations and Appellate Practice

The Court briefly but pointedly references West Virginia Rule of Appellate Procedure 10(c)(7), which requires that an appellant’s brief include:

“citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal.”

The father’s failure to support his assertion about the scope of the bonding evaluation (i.e., that it did not cover the oldest child) with record citations meant his argument was procedurally deficient. The Supreme Court relied instead on the circuit court’s written findings indicating that the psychologist’s testimony covered all of the children.

This serves as a practical reminder: appellate arguments that are not anchored in the record—and properly cited—are unlikely to gain traction, especially when they contradict explicit trial court findings.

V. Precedents Cited and Their Influence

A. In re Cecil T. – Standard of Review in Abuse and Neglect Appeals

Cecil T. established the now‑familiar standard that:

• Factual findings are reviewed under a clearly erroneous standard.
• Legal conclusions are reviewed de novo.

By citing Cecil T. in the first syllabus point, the Court signals continuity with prior jurisprudence. It uses that framework to uphold the circuit court’s factual findings on bonding and best interests and to confirm that there was no error of law in denying post‑termination visitation.

B. In re Daniel D. and In re Christina L. – Substantive Standard for Post‑Termination Visitation

These two cases provide the substantive test for post‑termination visitation, focusing on:

• The existence of a close emotional bond between parent and child.
• The absence of detriment and the promotion of the child’s best interests.

In In re N.D., T.D., and S.D., the Court:

• Restates that these factors remain central for cases decided under pre‑Rule‑15‑amendment law.
• Applies them to affirm the denial of visitation where the bond was found lacking and visitation would not serve the children’s welfare.

Thus, the decision reaffirms that post‑termination visitation is not a parental “right” surviving termination, but a limited, child‑centered remedy reserved for cases where genuine attachment and benefits to the child can be demonstrated.

C. State v. Guthrie – No Reweighing of Evidence on Appeal

Although a criminal case, Guthrie is often cited in civil appeals for its articulation of the principle that:

“An appellate court may not decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact.”

Here, that principle directly defeats the father’s request that the Supreme Court give more credence to his and the daycare provider’s testimony than to the psychologist’s evaluation. The Court reiterates that it must defer to the circuit court’s weighing of conflicting testimony.

D. In re D.S. – Reaffirmation of Non‑Reweighing in Abuse and Neglect Context

The more recent decision in In re D.S., 251 W. Va. 466, 914 S.E.2d 701 (2025), is cited to reiterate the same principle in the specific context of abuse and neglect:

This Court will review a circuit court’s decision under the applicable standards and will “not reweigh the evidence or make credibility determinations.”

By pairing Guthrie (criminal) with D.S. (abuse and neglect), the Court underscores that deference to credibility findings is not merely a technical rule, but a broad and consistent feature of appellate review across subject areas.

E. In re Z.D.-1 – Transition to a Rule‑Based Standard for Post‑Termination Visitation

Although Z.D.-1 is not applied to the facts of this case, its mention in footnote 5 is strategically important. The Court notes that in Z.D.-1 it:

• Provisional amended Rule 15 of the Rules of Procedure for Child Abuse and Neglect Proceedings.
• Adopted “appropriate standards for consideration of post-termination visitation outside of a fact-based context.”

This signals a doctrinal shift:

• From case‑by‑case, fact‑driven articulation of visitation standards through case law (Christina L., Daniel D.),
• To a more codified, rule‑based framework that will guide courts even before, or apart from, detailed case‑specific fact patterns.

While the details of the amended Rule 15 are not provided in this opinion, practitioners should understand that In re N.D., T.D., and S.D. likely represents one of the last applications of the pre‑amendment legal regime.

VI. Complex Concepts Simplified

A. Adjudication vs. Disposition in Abuse and Neglect Cases

• Adjudication is the phase where the court decides whether the children are abused or neglected and whether the parent is responsible, often based on evidence or admissions.
• Disposition is the phase where the court decides what to do in light of those findings—e.g., grant an improvement period, place the child in foster care, or terminate parental rights.

Here, the father admitted to conduct (domestic violence and drug use) that led to an adjudication of abuse and neglect. The later dispositional hearings determined that termination of his parental rights was necessary.

B. Improvement Period

An improvement period in West Virginia is a defined period during which a parent is given services and an opportunity to correct the conditions of abuse or neglect. To succeed in an improvement period, a parent typically must:

• Participate in services (e.g., counseling, treatment).
• Demonstrate genuine behavioral change.
• Show insight and accountability for prior misconduct.

The circuit court found that the father did not substantially comply with his improvement period and did not meaningfully change his behavior.

C. Termination of Parental Rights

Termination of parental rights is the most drastic remedy in abuse and neglect law, permanently severing the legal relationship between parent and child. It is ordered when:

• There is no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected in the near future.
• Termination is necessary for the child’s welfare.

Once parental rights are terminated, the parent remarkably loses all ordinary legal rights to custody or visitation—post‑termination visitation, if allowed, is a highly discretionary, child‑centered exception.

D. Post‑Termination Visitation

Post‑termination visitation is the possibility of some continued contact between a child and a former parent after that parent’s rights have been terminated. It is:

• Not automatic—parents have no residual right to contact once rights are terminated.
• Granted only when the court finds that:
  • A close emotional bond exists.
  • Visitation will not be detrimental to the child.
  • Visitation is in the child’s best interests.

In this case, the circuit court found no such bond and determined that visitation was not in the children’s best interests.

E. Bonding Evaluation

A bonding evaluation is a clinical assessment—usually by a psychologist or similar professional—that examines:

• The quality and strength of the relationship between the child and the parent.
• The child’s level of attachment, comfort, and emotional reliance on the parent.

Here, the bonding evaluation concluded that the children did not have a bond with the father, providing critical support for the trial court’s decision to deny visitation.

F. “Best Interests of the Child” and “Detriment”

In family and child welfare law, the best interests of the child is the paramount guiding principle. Factors may include:

• Safety and freedom from abuse or exposure to violence.
• Emotional stability and the avoidance of confusion or trauma.
• Continuity and permanency (e.g., stable foster or adoptive placements).

“Detriment” refers to harm or risk of harm to the child’s well‑being—either physical, emotional, or psychological. Even if a child has some affection for a parent, courts must deny visitation if it would be detrimental or contrary to the child’s long‑term welfare.

VII. Practical Implications and Future Impact

A. For Parents and Their Counsel

This decision reinforces several practical lessons:

• Accountability Matters: Minimizing or denying abusive conduct—even after adjudication—undercuts a parent’s credibility and prospects for both reunification and post‑termination contact.
• Credibility Is Critical: Inconsistencies (such as conflicting testimony about daycare duration) and implausible denials (such as disclaiming authorship of a negative program letter) significantly weaken a parent’s position.
• Evidence of Bond Must Be Substantial: General assertions about “loving” the child or feeling bonded are not enough. Objective evidence, including expert evaluations, observations from neutral supervisors, and consistent positive conduct, may be crucial.
• Appellate Limits: Arguments on appeal must be grounded in the record and cannot depend on re‑arguing credibility issues. Violations of Rule 10(c)(7) (lack of record citations) will be fatal to many appellate claims.

B. For DHS and Guardians ad Litem

For DHS and guardians ad litem, the case underscores:

• The strategic value of bonding evaluations, particularly when a parent seeks post‑termination visitation.
• The importance of building a record showing:
  • Lack of safe and healthy attachment, and
  • Potential detriment to the child from continued contact.
• The continued centrality of best interests and the court’s obligation to prioritize permanency, especially where adoption is the permanency plan.

C. For Circuit Courts

For trial judges, the decision provides reassurance and guidance:

• Findings about bonding and best interests will generally be upheld if:
  • Supported by the record, and
  • Clearly articulated in written orders.
• Detailed credibility findings (as here, regarding the father’s lack of truthfulness and accountability) are particularly important, both to the integrity of the decision and to its sustainability on appeal.
• The decision illustrates, one more time, that post‑termination visitation is a discretionary remedy, not an entitlement, especially where the parent has demonstrated persistent abuse, denial, or instability.

D. Positioning Within the Emerging Rule 15 Framework

Although In re N.D., T.D., and S.D. applies pre‑amendment standards, it will likely be read in conjunction with the post‑Z.D.-1 rule‑based framework on post‑termination visitation. Its key enduring contributions are:

• A reaffirmation of deference to trial courts on bonding and credibility.
• A clear example of how lack of a bond and negative best‑interests findings justify denial of all post‑termination contact.
• A cautionary tale about the importance of consistent, truthful engagement with services and the court process.

Even as Rule 15 evolves, these core themes are likely to remain central to West Virginia’s handling of post‑termination visitation questions.

VIII. Conclusion

In re N.D., T.D., and S.D. is a focused memorandum decision, but it carries significant doctrinal and practical weight. It:

• Reaffirms that post‑termination visitation is governed by the twin pillars of emotional bonding and the child’s best interests, as established in Christina L. and Daniel D..
• Stresses that appellate courts will not reweigh evidence or re‑decide credibility, relying heavily on Cecil T., Guthrie, and D.S..
• Places this case within a transitional moment in West Virginia law, acknowledging the new, rule‑based standards for post‑termination visitation referenced in Z.D.-1.
• Demonstrates how a parent’s persistent lack of accountability, inconsistent testimony, and weak evidence of a bond can decisively defeat a request for continued contact after termination of parental rights.

In the broader legal context, the decision reinforces that the rights and preferences of parents—especially after termination—are subordinate to the safety, emotional stability, and long‑term welfare of the child. Post‑termination visitation remains an exceptional remedy, reserved for cases where a genuine, healthy bond exists and where ongoing contact can be shown to serve the child’s best interests without detriment.