Beyond the Triggering Event: Best‑Interests‑Focused Modification of Disposition under W. Va. Code § 49‑4‑606(a)
Commentary on In re R.B. (Bunn, J., concurring)

I. Introduction

The concurring opinion of Justice Bunn in In re R.B., No. 24‑312 (W. Va. Nov. 13, 2025), addresses a recurring and difficult problem in West Virginia abuse and neglect practice: what happens when, after an initial dispositional order, the family’s circumstances materially change and a party moves to modify that disposition under West Virginia Code § 49‑4‑606(a)?

The factual setting is characteristic of many modern child welfare cases:

• A parent has been adjudicated for abuse or neglect (here, chiefly related to substance abuse).
• The parent’s custodial rights are removed, but she retains residual parental rights (such as some decision‑making power, potential visitation, and a legal relationship to the child).
• The child is placed with a permanent legal guardian, rather than immediately proceeding to termination and adoption.
• Years later, circumstances change dramatically — in R.B., the permanent guardian dies; the parent remains addicted; and a fit relative emerges who is willing to adopt.

At that point, both the parent and the Department of Human Services (“DHS”) file competing motions for modification. The parent argues that the death of the guardian is the only material change, and that this change can be addressed simply by appointing a new guardian; she contends that her residual parental rights should remain intact. DHS argues that the death of the guardian, the parent’s unrelenting substance abuse, and the availability of adoption constitute a constellation of material changes justifying termination of the parent’s residual rights to achieve permanency for the child.

The circuit court agreed with DHS and terminated the mother’s parental rights. The Supreme Court of Appeals of West Virginia affirmed. Justice Bunn concurred fully in that outcome, but wrote separately to:

• clarify how § 49‑4‑606(a) should be applied when the same “material change of circumstances” could, in theory, be addressed without altering the existing disposition; and
• explain why, on these facts, termination and adoption were appropriate, even though in a superficially similar case (In re H.T.) she had advocated maintaining the status quo.

The concurrence develops a nuanced reading of § 49‑4‑606(a): a material change of circumstances does more than authorize the court to fix the narrow problem that triggered the motion. Once that threshold is met, the court must re‑evaluate, as of now, what disposition best serves the child’s interests, taking into account all current circumstances, including the impact of lingering residual parental rights on permanency.

II. Summary of Justice Bunn’s Concurrence

Justice Bunn begins by identifying the recurring pattern in modification cases: parents who have lost custody but retained parental rights seek modification after some change (typically improvement in their own condition), while DHS may file a competing motion seeking a more restrictive outcome, often termination. She notes the Court has confronted this in a series of decisions where parents’ circumstances improved, deteriorated, or only partially improved.

The statutory starting point is West Virginia Code § 49‑4‑606(a), which she quotes in relevant part:

Upon motion of a child, a child's parent or custodian or the department alleging a change of circumstances requiring a different disposition, the court shall conduct a hearing pursuant to section six hundred four of this article and may modify a dispositional order if the court finds by clear and convincing evidence a material change of circumstances and that the modification is in the child's best interests.

The mother’s core argument is that the death of R.B.’s legal guardian, standing alone, merely required appointment of a new guardian, not termination of her parental rights; she insists that the statute does not compel a new, more restrictive disposition. Justice Bunn rejects this argument for both case‑specific and doctrinal reasons:

• Factually, the mother herself first moved for modification based on the guardian’s death, tacitly conceding that the death did require a different disposition.
• Procedurally, DHS filed a competing modification motion, invoking additional changed circumstances: the mother’s continued substance abuse and the emergence of a fit relative willing to adopt.
• Substantively, the circuit court found that, over four years, the mother had failed to make a substantial change; in light of the guardian’s death, her ongoing addiction, and adoption now being available, terminating her parental rights was necessary to secure permanency for R.B.

Justice Bunn then addresses the broader doctrinal question raised by the mother’s argument:

[I]s a court prohibited from modifying disposition where the material change of circumstances may be addressed without altering disposition?

Her answer is no. She reasons that:

• A material change almost never occurs in isolation; it affects the child’s needs and opportunities.
• The statute’s text requires two independent findings: (1) a material change of circumstances, and (2) that modification is in the child’s best interests.
• The court is not confined to repairing only the isolated problem that constitutes the “material change”; instead, it must ask what disposition now serves the child’s best interests in light of all current circumstances.

Applying this framework, Justice Bunn concludes that:

• In R.B., because the guardian died, the parent remained unsuitable, and adoption by a willing relative became available, a mere change of guardian would not adequately serve permanency; termination was justified.
• By contrast, in some cases (such as her dissent in In re H.T.), a material change may actually support maintaining the existing disposition when the parent is improving, but not yet ready for reunification.

She closes by emphasizing that § 49‑4‑606(a) does not limit courts to minimally disturbing prior dispositions. Instead, once a material change is established, the statute requires the court to determine whether the child's best interests, as affected by the material change of circumstances, presently requires a different disposition. On the facts of R.B., termination of residual rights was necessary to clear the way for permanency through adoption, so she concurs.

III. Statutory and Procedural Framework

A. Dispositional Orders and Residual Parental Rights

In West Virginia abuse and neglect cases, the circuit court proceeds through two broad phases:

1. Adjudication — deciding whether the child is abused or neglected.
2. Disposition — determining what should happen to the child and the family going forward.

Under West Virginia Code § 49‑4‑604(c), the dispositional stage includes a spectrum of options, ranging from returning the child home to terminating parental rights. Between those extremes lie intermediate options such as:

• transferring legal and/or physical custody to a non‑offending parent or a suitable relative;
• placing the child in a legal guardianship;
• granting (or extending) an improvement period, subject to specified conditions; or
• removing custody while allowing the parent to retain “residual parental rights.”

Residual parental rights are the rights that remain when custody has been transferred but the parent’s legal relationship to the child has not been fully severed. These typically include:

• the right to reasonable visitation (if consistent with the child’s welfare);
• the right (or at least a veto) to consent to adoption;
• the right to receive notice of and participate in certain proceedings; and
• other limited decision‑making authority, depending on the dispositional order.

Residual rights can be protective of parental interests and sometimes, indirectly, of the child’s interests. But they can also, as Justice Bunn underscores, impede permanency, particularly when:

• the parent is not realistically moving toward reunification; and
• the existence of residual rights delays or complicates the child’s prospective adoption or long‑term placement.

B. Modification of Disposition: § 49‑4‑606(a)

Section 49‑4‑606(a) authorizes subsequent modification of an existing dispositional order. Three elements are central:

1. A motion alleging a change of circumstances that requir[es] a different disposition, filed by a parent, custodian, the child, or the department.
2. An evidentiary hearing under § 49‑4‑604, at which the court receives evidence on the family’s current situation.
3. Two findings, proven by clear and convincing evidence:
   • that a material change of circumstances has occurred since the prior disposition; and
   • that the proposed modification is in the child’s best interests.

The concurring opinion’s core insight is about the relationship between these elements. The “material change of circumstances” is a trigger that reopens the dispositional question; it does not limit the court to a surgical fix of that one event. Once the threshold is met, the court must look broadly at the family’s current condition, the child’s needs, and the available permanency options.

Justice Bunn also connects the modification analysis back to the general dispositional framework in § 49‑4‑604(c): just as at an initial disposition, the court must evaluate:

• the parent’s progress or deterioration;
• the child’s physical and emotional needs;
• available placements (guardianship, foster care, relative placement, adoption); and
• the status and practical effect of any residual parental rights.

IV. Precedents Cited and Their Influence

A. The Line of Modification Cases: Improvement, Deterioration, and Mixed Progress

Justice Bunn situates R.B. within a broader line of West Virginia decisions dealing with modification of disposition where a parent’s circumstances have changed.

• In re K.K., No. 23‑341, 2024 WL 4751685 (W. Va. Nov. 12, 2024) (mem. decision) — The mother, adjudicated for substance abuse, later sought modification based on her sobriety and the apparent relapse of the custodial parent. This illustrates the first category: substantial improvement by a previously offending parent coupled with deterioration in the custodial placement, prompting re‑evaluation of custody.

• In re D.G., No. 22‑767, 2023 WL 6144639 (W. Va. Sept. 20, 2023) (mem. decision); In re J.P., No. 19‑0472, 2020 WL 6542021 (W. Va. Nov. 6, 2020) (mem. decision) — In both, this Court affirmed modification where the parent’s condition had worsened; the “worsening of petitioner’s condition…was the change in circumstances that justified modification.” These cases are examples of post‑disposition deterioration supporting more restrictive measures, including termination.

• In re H.T., 250 W. Va. 11, 902 S.E.2d 143 (2024) — The key precedent in the concurrence. There, “competing motions for modification” were filed, and the mother had made significant progress toward remedying her issues. The majority took one path; Justice Bunn dissented, arguing that the child’s best interests would be served by denying both motions and preserving the status quo (i.e., maintaining the existing disposition).

  H.T. thus provides a contrast: a parent with a dramatic recovery who still is not quite ready for reunification, but whose improvements counsel against termination or more restrictive modification.

By citing this range of cases, Justice Bunn underscores that “material change” can pull in multiple directions:

• Improvement by the parent (potentially favoring reunification or less restrictive dispositions).
• Deterioration by the parent (supporting termination or other restrictive actions).
• Mixed or partial progress (sometimes favoring continuation of the existing arrangement).

R.B. involves not primarily a change in the parent’s status, but in the child’s circumstances and permanency options: the death of the guardian and the emergence of a willing adoptive relative, combined with the parent’s stagnation. That combination is what triggers the more searching best‑interests review Justice Bunn describes.

B. The “Competing Motions” Paradigm: In re H.T.

Justice Bunn explicitly contrasts her approach here with her dissent in H.T. There, she wrote:

[G]iven the level of sobriety achieved by M.L., and her employment and stable home, I believe H.T.'s interests are best served by denying both motions for modification, leaving the Disposition 5 in place to preserve the status quo as to H.T.'s custody.

She invoked H.T. again to emphasize that the “change in circumstances must be viewed in the context of a 'different disposition' as requested in the motion to modify.” That footnote from H.T. (250 W. Va. at 18 n.10, 902 S.E.2d at 150 n.10) is important because it frames the modification inquiry as:

1. identify the material change; and then
2. consider whether the particular different disposition requested is consistent with the child’s best interests.

In R.B., Justice Bunn builds on this principle. The presence of competing motions (one from the parent, one from DHS) reinforces that the court is not confined to addressing the narrow consequence of the triggering event (the guardian’s death). Instead, it must decide:

• whether any disposition change is warranted at all; and if so
• which alternative — new guardianship, termination and adoption, or some other arrangement — best serves the child at this stage.

In H.T., Justice Bunn believed the correct answer was “no change” despite the material change, because the parent had markedly improved and the existing custody arrangement still served the child’s interests. In R.B., she concludes that the combination of facts points the other way: maintaining residual rights in the face of the guardian’s death and a ready adoptive placement would unduly delay permanency.

C. Terminating Residual Rights After Another Parent’s Failure: In re E.S.

Justice Bunn relies heavily on In re E.S., No. 16‑0821, 2017 WL 678881 (W. Va. Feb. 21, 2017) (mem. decision). That case is structurally analogous to R.B.:

• Initially, the circuit court terminated the mother’s custodial rights but left her with residual rights, instructing her to address substance abuse, depression, and housing.
• The father was progressing in an improvement period, so the court adopted a “less‑restrictive” disposition as to the mother, assuming permanency might be achieved through him.
• When the father later failed his improvement period and his parental rights were terminated, the DHS moved to modify the mother’s disposition.
• The circuit court found that the father’s termination was a “material change of circumstances.” Considering the children’s ability to achieve permanency through adoption by their foster family, the court terminated the mother’s residual parental rights as well.
• The Supreme Court affirmed, noting that the mother had over a year to remedy her issues but had not done so.

Justice Bunn reads E.S. as confirming that:

• Even if the triggering event (the father’s termination) did not logically require any change in the mother’s disposition considered in isolation, it substantially altered the children’s permanency prospects.
• Once that occurred, the court had to ask whether the mother’s unresolved issues, combined with the new permanency path, made termination of her residual rights appropriate.

She analogizes E.S. to R.B.: in both, the triggering event (the father’s termination in E.S.; the guardian’s death in R.B.) did not, by itself, automatically demand a different disposition as to the remaining parent. But that event changed the children’s overall situation in a way that, when coupled with the parent’s ongoing shortcomings, did justify termination to secure permanency.

D. The Best‑Interests Limitation on Modification: In re S.W.

Justice Bunn cites In re S.W., 236 W. Va. 309, 779 S.E.2d 577 (2015), for the proposition that a material change of circumstances does not, by itself, authorize modification:

[D]espite material change of circumstances, [the] statute “prohibit[s] a modification of the disposition…in the absence of a showing that the child's best interests would be served by altering the status quo.”

S.W. thus reinforces that § 49‑4‑606(a) imposes a two‑pronged test:

1. Material change of circumstances; and
2. Best interests favoring the proposed modification.

This precedent underpins Justice Bunn’s insistence that the statute:

• permits a court to decline both parties’ modification requests and preserve the status quo (as she believed was correct in H.T.); and
• allows a court, once a material change is shown, to undertake a full best‑interests review that may lead to a disposition more restrictive than the minimum necessary to respond to the specific event that triggered the motion.

V. Legal Reasoning in the Concurrence

A. Textual Reading of § 49‑4‑606(a)

Justice Bunn’s analysis begins, as she emphasizes, with the text of § 49‑4‑606(a). She draws out four key interpretive points:

1. The statute requires the motioning party to alleg[e] a change of circumstances requiring a different disposition. This is a pleading requirement: the movant must identify a change serious enough to justify revisiting disposition.

2. The court may modify the dispositional order only if it finds, by clear and convincing evidence, that there is:

   • a material (not trivial) change of circumstances; and
   • that the proposed modification is in the child’s best interests.

3. The phrase requiring a different disposition does not mean that the changed circumstance must be such that no other response is possible; rather, it signals that the court’s authority is triggered by substantial changes that, at least arguably, call for revisiting the prior order.

4. Once the jurisdictional “gate” is opened by a material change, the court is directed to ask not, “What is the least this change compels us to do?” but rather, “What disposition is now in the child’s best interests?”

This reading reconciles the seemingly narrow “requiring a different disposition” language with the broader best‑interests standard. It prevents parents from using the statutory phrasing as a shield to argue that the court may address only the most minimal fix to the triggering event.

B. The Parent’s Argument and Its Rejection

The mother in R.B. argued essentially:

• The only material change of circumstance was the legal guardian’s death.
• This change could be resolved by simply appointing a new guardian.
• Therefore, the statute did not “require” a different disposition with respect to her parental rights, and termination was unwarranted.

Justice Bunn responds in three layers:

1. Internal inconsistency. The mother herself was the first to move for modification based on the guardian’s death, thereby, as Justice Bunn puts it, tacitly conceding that a different disposition was required. It is logically inconsistent to invoke § 49‑4‑606(a) to seek relief, then argue the statute does not allow the court to alter disposition in response to that change.
2. Competing circumstances. DHS’s motion introduced additional, uncontroverted changes: the mother’s unrelenting substance abuse and the appearance of a fit, willing relative to adopt R.B. The case thus presented not a single, self‑contained change (the guardian’s death), but a composite set of developments affecting permanency.
3. Permanency and best interests. Four years had passed since the original disposition. The mother had failed to achieve a substantial change in her condition. The guardian had died. An adoptive placement was available. Under these circumstances, leaving the mother’s residual rights in place would materially impede R.B.’s path to a permanent, stable home. The best‑interests analysis therefore supported termination, not minimal adjustment.

C. The “Beyond the Triggering Event” Principle

The most important doctrinal articulation in the concurrence is that:

The court is not limited to addressing only what the specific changed circumstance necessitates, but rather what is in a child's best interests in light of that changed circumstance and under the circumstances as they then exist.

In other words:

• The “material change” is a lens, not a prison.
• The court must evaluate the child’s situation at the time of the modification hearing, not freeze its analysis at the narrow issue that triggered the motion.
• This aligns with the fundamental principle that in abuse and neglect cases, the paramount consideration is the child’s best interests, not the parent’s preferred level of state intervention.

Justice Bunn stresses that material changes rarely happen in a vacuum; they produce ripple effects in the child’s life. A death of a guardian, the failure of an improvement period, a relapse, or a new adoption opportunity each changes the context in which residual rights operate. The court’s job under § 49‑4‑606(a) is to re‑assess that changed context with the child’s welfare foremost.

D. When the Status Quo Should Be Preserved

The concurrence also cautions that not every material change calls for a more restrictive outcome. Some changes, particularly those reflecting parental improvement, may counsel in favor of maintaining the existing disposition.

Justice Bunn cites her own dissent in H.T. and S.W. to illustrate this point:

• In H.T., despite the mother’s dramatic progress, reunification was not yet realistic due to limited visitation history. Yet, in her view, termination was equally unwarranted. The best‑interests balance pointed toward keeping the existing arrangement intact and reassessing later if improvement continued.
• In S.W., the Court emphasized that a material change without a best‑interests showing cannot justify modifying disposition. The statute may indeed prohibit modification in such situations.

This reinforces a symmetry in Justice Bunn’s reading of § 49‑4‑606(a):

• A material change opens the door to review, but does not oblige the court to change the disposition at all.
• The court may:
  • deny one motion and grant another;
  • deny both motions and preserve the status quo; or
  • craft a different disposition altogether, so long as it is supported by clear and convincing evidence and serves the child’s best interests.

E. The Centrality of Permanency

Running through the concurrence is a strong emphasis on permanency, consistent with both state law and federal policies (such as the Adoption and Safe Families Act).

In R.B., Justice Bunn highlights that the mother had:

• already been given four years to establish a substantial change in circumstances;
• failed to resolve her substance abuse issues; and
• continued to exercise residual rights that impeded a ready and suitable adoption by a relative.

Terminating those residual rights, she concludes, was necessary to clear a path for R.B.'s permanent placement. A mere substitution of guardians would have prolonged legal uncertainty and delayed true permanency.

This focus dovetails with E.S. and similar cases where, once it became clear that a parent would not remedy underlying issues within a reasonable time, the Court deemed termination appropriate to allow stable adoption.

VI. Impact on Future Cases and the Law of Modification

A. Clarifying the Scope of Judicial Authority under § 49‑4‑606(a)

Although this is a concurring opinion rather than the majority’s, Justice Bunn’s reasoning is grounded in, and consistent with, prior binding precedents such as S.W. and E.S.. It offers valuable guidance likely to influence:

• Trial courts in structuring modification hearings and orders; and
• Practitioners in framing arguments and evidentiary showings under § 49‑4‑606(a).

In practice, R.B. signals that:

• Courts may — and should — look beyond the immediate triggering event when evaluating modification motions.
• Once a material change is proven, the court’s task is to revisit the full dispositional question in light of current circumstances, not to perform the narrowest necessary fix.
• Residual parental rights are a legitimate focus of inquiry, particularly where they hinder otherwise available permanency options.

B. Strategic Implications for DHS and Parents

For DHS:

• The concurrence supports using significant events (e.g., guardian death, failed placement, failed improvement period) as occasions to re‑examine whether long‑standing residual rights should continue where progress has stalled.
• It emphasizes the importance of building a record on:
  • the parent’s history since the original disposition;
  • the child’s current and prospective placements; and
  • how residual rights affect permanency timelines.

For parents:

• Filing a modification motion based on a material change is a double‑edged sword: it invites a full best‑interests review that may result in a more restrictive disposition if the parent has not demonstrably corrected the underlying conditions.
• Parents must therefore carefully consider:
  • whether they can show sustained and substantial improvement;
  • whether competing motions may be filed; and
  • whether the existence of new permanency options (like a prospective adoptive relative) might tip the balance toward termination rather than reunification.

C. Doctrinal Balance: Protection and Flexibility

The concurrence ultimately advances a balanced doctrinal framework:

• Protection against arbitrary change — The clear and convincing evidence standard and the best‑interests requirement (reinforced by S.W.) prevent modification on flimsy grounds or solely to accommodate adult preferences.
• Flexibility to respond to evolving realities — Courts are not trapped by the original dispositional assumptions. When a prior plan built on one parent or custodian fails (e.g., guardian death or parent’s termination), the court can reconsider whether a parent with residual rights is now an appropriate placement or an obstacle to permanency.

In this sense, R.B. contributes to an evolving body of law that seeks to:

• give parents meaningful opportunities to improve and reengage, while
• ensuring that children are not kept in prolonged legal limbo when such improvement does not occur within a reasonable time.

VII. Complex Concepts Simplified

A. “Material Change of Circumstances”

A material change of circumstances is a significant development that substantially alters the situation the court considered when it entered the original dispositional order. It must be more than a minor or expected fluctuation.

Examples include:

• Death or incapacity of a guardian or custodian.
• Relapse or new criminal conduct by a parent who had been stable.
• Substantial and sustained sobriety and stability by a parent previously plagued by addiction.
• Discovery of new relatives able and willing to adopt.
• Failure of an improvement period or a prior reunification attempt.

Under § 49‑4‑606(a), the party seeking modification must prove the material change by clear and convincing evidence, meaning the evidence must make it highly probable that the change has occurred and is significant.

B. “Best Interests of the Child”

The best interests of the child is the guiding principle in all abuse and neglect dispositions. It asks: what outcome will best promote the child’s long‑term safety, stability, and well‑being?

Factors typically include:

• Physical safety and protection from harm.
• Emotional and psychological stability.
• The strength of existing attachments (to caregivers, siblings, relatives).
• The likelihood that a parent can safely parent within a time frame that is meaningful for the child.
• The availability of a secure, permanent home (often adoption or long‑term guardianship).

The best‑interests inquiry under § 49‑4‑606(a) is current: it examines the situation as it stands at the time of the modification hearing, not at the time of the original disposition.

C. “Residual Parental Rights”

When a parent’s custodial rights are terminated or limited, but the parent’s underlying legal relationship to the child remains intact, the parent typically retains residual parental rights. These may include:

• the right to consent (or refuse consent) to adoption;
• the right to receive certain notices;
• limited visitation, if not inconsistent with the child’s welfare; and
• some voice in major life decisions, depending on the order.

Residual rights can be positive where there is a realistic path to reunification or where the parent and child have a beneficial bond. But they can also delay permanency when:

• the parent is not progressing; and
• an otherwise suitable adoptive placement is available.

In such cases, as in R.B., courts may conclude that terminating residual rights is necessary to serve the child’s best interests.

D. “Improvement Period”

An improvement period is a court‑ordered window of time in which a parent is given services and an opportunity to remedy the conditions of abuse or neglect. During this time, the court monitors progress. Failure to comply or to improve may lead to more restrictive dispositions, including termination.

In cases like E.S., the failure of one parent’s improvement period can itself be a material change of circumstances justifying reevaluation of the other parent’s rights, especially when permanency options (like adoption) come into clearer focus.

VIII. Conclusion

Justice Bunn’s concurrence in In re R.B. articulates a coherent, best‑interests‑centered approach to modification of dispositional orders under West Virginia Code § 49‑4‑606(a). She emphasizes that:

• a material change of circumstances is the gateway to reconsidering disposition, not a narrow limit on what the court may address;
• once that gateway is open, the statute requires a fresh assessment of what disposition now serves the child’s best interests, viewed in the context of all current circumstances; and
• courts must balance the parent’s progress (or lack thereof) against the child’s pressing need for permanency, including the possibility that residual parental rights may need to be terminated when they impede adoption or long‑term stability.

By contrasting R.B. with cases such as H.T., E.S., and S.W., the concurrence clarifies that modification proceedings are not mechanically outcome‑determinative. A material change may justify:

• a more restrictive disposition (as in R.B. and E.S.),
• a less restrictive disposition (as in cases of substantial parental improvement), or
• no change at all (as Justice Bunn would have held in H.T.),

depending always on the child’s best interests.

In sum, In re R.B. reinforces a flexible but principled framework: courts are empowered — and obligated — to respond to evolving family circumstances with a clear, evidence‑based focus on the child’s current and long‑term welfare, rather than being constrained by the narrow logic of the immediate triggering event or by deference to the status quo when it no longer serves the child.