Clear-and-Convincing Proof of Likely Participation Required for Post-Adjudicatory Improvement Period; Termination Appropriate When Parenting Deficits Persist and Child’s Need for Permanency Prevails

1. Introduction

In re L.H.-L. (No. 25-110) is a West Virginia abuse-and-neglect appeal in which petitioner mother N.S. challenged the Circuit Court of Marshall County’s October 31, 2024 dispositional order (1) denying her a post-adjudicatory improvement period and (2) terminating her parental rights to her infant child, L.H.-L. The Department of Human Services (“DHS”) opposed an improvement period and sought termination; the child’s guardian ad litem agreed, emphasizing the child’s young age and the mother’s limited progress despite services.

The central issues were whether the mother met the statutory burden to obtain an improvement period—by showing clear and convincing evidence she was likely to fully participate—and whether the circuit court was required to adopt a less restrictive disposition instead of termination.

2. Summary of the Opinion

The Supreme Court of Appeals of West Virginia affirmed in a memorandum decision under W. Va. R. App. P. 21. The Court held the circuit court did not abuse its discretion in denying a post-adjudicatory improvement period, citing evidence that the mother did not fully comply with drug screening and attempted to obtain marijuana shortly before disposition despite knowing it was illegal. The Court further held that termination was permissible without less restrictive alternatives because the circuit court found (and the record supported) that there was no reasonable likelihood the conditions of abuse and neglect could be substantially corrected in the near future and that termination was necessary for the child’s welfare—particularly given the child’s very young age and need for permanency.

3. Analysis

3.1. Precedents Cited

• Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011)
  Role in the decision: The Court applied the familiar abuse-and-neglect appellate standards: factual findings are reviewed for clear error, while legal conclusions are reviewed de novo. This framing is consequential because improvement-period determinations and dispositional calls often turn on credibility and record-supported factfinding—areas in which appellate courts typically defer to the circuit court.
• In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002)
  Role in the decision: The Court emphasized that granting an improvement period is discretionary and may be denied when “no improvement is likely.” In In re L.H.-L., this discretionary principle supported affirmance because the circuit court tied its denial to concrete evidence of noncompliance and poor prospects for meaningful change within the child’s timeframe.
• Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (quoting Syl. Pt. 2, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980))
  Role in the decision: This syllabus point supplies the controlling dispositional rule: termination may be ordered without intervening less restrictive alternatives when there is no reasonable likelihood the conditions of abuse/neglect can be substantially corrected. The Court used this authority to reject the mother’s “less restrictive disposition” argument once the “no reasonable likelihood” finding was supported by the record.
• Syl. Pt. 1, In re R.J.M., 164 W. Va. at 496, 226 S.E.2d at 114
  Role in the decision: The Court invoked In re R.J.M. for the proposition that courts need not exhaust speculative possibilities of improvement before terminating parental rights where a child’s welfare would be seriously threatened—an approach “particularly applicable” to children under three due to vulnerability and developmental needs. This precedent reinforced that the child’s age compresses the acceptable timeline for parental change.

3.2. Legal Reasoning

A. Denial of the post-adjudicatory improvement period

West Virginia Code § 49-4-610(2)(B) allows a post-adjudicatory improvement period only if the parent demonstrates by clear and convincing evidence that the parent is likely to fully participate. The Court accepted the circuit court’s assessment that the mother failed to meet this burden. The opinion highlights:

• Drug-screen compliance deficits: the mother requested screening but admitted she failed to call in for “a couple” screens. In abuse-and-neglect practice, missed screens are frequently treated as noncompliance indicators because they impede monitoring and accountability.
• Recent drug-seeking conduct: the mother admitted making a social media post seeking marijuana three days before the hearing, acknowledged the illegality, and indicated she did not obtain it only due to lack of transportation. The circuit court treated this as probative of present decision-making and willingness to prioritize legal compliance and stability at the critical dispositional stage.
• Parenting-capacity concerns despite services: the guardian and providers reported ongoing concerns, including the mother’s need for assistance with basic tasks during supervised visits and the parental fitness evaluation’s conclusion that she lacked parental capacity “at the time” absent changes.

Against this record, the Supreme Court concluded the circuit court acted within its discretion—consistent with In re Tonjia M.—to deny an improvement period when it found full participation and meaningful improvement unlikely within the timeframe relevant to the child.

B. Termination rather than a less restrictive alternative

The Court’s disposition analysis proceeded in two steps that mirror West Virginia’s statutory structure:

1. “No reasonable likelihood” finding (W. Va. Code § 49-4-604(d)): The Court emphasized the statutory definition— an inadequate capacity to solve abuse/neglect problems “on [her] own or with help.” The record supported this finding because, after nearly a year of services, the mother’s parenting skills and independent caregiving capacity had not progressed to an expected level, and she demonstrated recent unlawful drug-seeking conduct.
2. Necessity for the child’s welfare (W. Va. Code § 49-4-604(c)(6)): The Court stressed the child’s age (about one year old) and the recognized need for continuity and timely permanency, invoking In re R.J.M. to support that courts need not delay permanency for speculative improvement, especially for very young children.

Once both findings were supported, In re Kristin Y. (quoting In re R.J.M.) supplied the doctrinal bridge: termination may be ordered without attempting less restrictive dispositions. The Court therefore affirmed termination.

3.3. Impact

• Improvement periods remain evidence-driven and time-sensitive: The decision underscores that participation in some services is not the same as proving likelihood of full participation. Recent conduct—especially immediately before disposition—can be heavily weighted as a predictive indicator.
• “Child’s clock” is central for infants: By relying on In re R.J.M. and focusing on the child’s young age, the opinion reinforces that courts may prioritize permanency over extended remediation when progress is inadequate after substantial time and support.
• Less restrictive alternatives are not mandatory after “no reasonable likelihood” findings: The opinion reiterates that, once the statutory and syllabus-point predicates are met, termination can be ordered without incremental steps—constraining appellate challenges that argue for lesser dispositions in the absence of a credible, near-term corrective trajectory.

4. Complex Concepts Simplified

• Post-adjudicatory improvement period: A court-supervised window after the parent is adjudicated as abusing/neglecting, during which the parent must follow a structured plan (services, screenings, visitation rules) to show they can safely parent.
• Clear and convincing evidence: A heightened standard of proof—more than “more likely than not,” less than “beyond a reasonable doubt.” Here, the parent must strongly demonstrate they are likely to fully comply with the improvement plan.
• No reasonable likelihood conditions can be substantially corrected: A legal conclusion that the parent lacks adequate capacity to fix the problems (even with help) within a timeframe consistent with the child’s needs.
• Less restrictive alternative: Dispositions short of termination (e.g., temporary custody to others, guardianship, continued services). Under West Virginia law, courts need not use these steps if the required findings justify termination as necessary for the child’s welfare.

5. Conclusion

In re L.H.-L. reaffirms two practical rules in West Virginia abuse-and-neglect jurisprudence: (1) a parent seeking a post-adjudicatory improvement period must prove—by clear and convincing evidence—a genuine likelihood of full participation, and recent noncompliance or unlawful conduct may defeat that showing; and (2) termination may be imposed without less restrictive alternatives when the record supports “no reasonable likelihood” of near-term correction and termination is necessary for an infant’s welfare and permanency. The decision thus highlights how courts evaluate progress, credibility, and time-to-safety when the child is very young.