Dispositional Orders Must Expressly Decide Post-Termination Visitation Motions and, If Granted, Set a Concrete Plan (Not Left to Placement Discretion)

1. Introduction

In re A.G. and A.W.-1 arises from an abuse and neglect case in Putnam County in which Mother A.W.-2’s parental rights to A.G. and A.W.-1 were terminated after prolonged substance-abuse relapse and instability. The appeal presented four principal issues:

• whether the circuit court erred in refusing to accept the mother’s proposed voluntary relinquishment of only custodial rights;
• whether the circuit court erred in denying a post-adjudicatory improvement period;
• whether the termination of parental rights was proper under West Virginia Code § 49-4-604;
• whether the circuit court erred by failing to award—or even rule on—post-termination visitation.

While the Supreme Court affirmed the refusal to accept a limited relinquishment, affirmed denial of an improvement period, and affirmed termination, it remanded with directions because the circuit court failed to rule on the mother’s motion for post-termination visitation in its dispositional order—thereby impairing appellate review and raising procedural fairness concerns.

2. Summary of the Opinion

On remand, the circuit court must: (a) address the mother’s post-termination visitation motion in an order; (b) analyze whether post-termination visitation is proper under the necessary considerations; (c) award it only if continued contact is in the children’s best interests; and (d) if granted, implement a specific visitation plan and not leave visitation to the placement’s discretion.

3. Analysis

3.1. Precedents Cited

A. Standards of review and appellate posture

• In re K.S., -- W. Va. --, -- S.E.2d --, 2026 WL 1362143 (W. Va. May 15, 2026) (Syl. Pt. 1)
  The Court restated the familiar tri-part standard: abuse of discretion for substantive rulings, clear error for factual findings, and de novo for legal questions. This framed why the Supreme Court deferred to the circuit court on termination/improvement-period choices but could not defer where the circuit court made no ruling at all on a properly raised issue (post-termination visitation).

B. Voluntary termination/relinquishment is discretionary with the circuit court

• In re James G., 211 W. Va. 339, 566 S.E.2d 226 (2002) (Syl. Pt. 4, in part)
  This case supplied the controlling rule: a circuit court has discretion to accept or reject a proffered voluntary termination of parental rights and proceed to involuntary termination after independent review. Here, even though DHS and the guardian did not oppose the mother’s request to relinquish only custodial rights, the circuit court was not obliged to accept that proposal. The Supreme Court upheld the circuit court’s factor-based decision emphasizing permanency, the children’s ages, and the mother’s lengthy pattern of deficiency.

C. Improvement periods: participation likelihood and discretionary denial

• In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015)
  Cited for the proposition that circuit courts have discretion whether to grant improvement periods, even when requested.
• In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002)
  Reinforced that a circuit court may deny an improvement period “when no improvement is likely.” The mother’s repeated relapses and failure to complete treatment supported the circuit court’s predictive finding.

D. Termination without less restrictive alternatives when “no reasonable likelihood” exists

• In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (Syl. Pt. 5) (quoting In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980) (Syl. Pt. 2))
  These cases supplied the core termination principle: once the circuit court finds no reasonable likelihood the conditions can be substantially corrected, termination may proceed without resort to less restrictive alternatives. The Supreme Court used this line of authority to affirm termination given persistent polysubstance abuse and failed rehabilitation efforts.

E. Adequate findings and rulings are required to enable appellate review

• In re Edward B., 210 W. Va. 621, 632, 558 S.E.2d 620, 631 (2001)
  The pivotal procedural precedent in this appeal. The Court quoted In re Edward B. for the principle that the rules and statutes supply a necessary framework for appellate review, and that absent compliance shown in a final order, appellate review is “thwarted.” Although In re Edward B. dealt with missing termination findings, the Supreme Court treated it as instructive for missing rulings on post-termination visitation motions.
• In re Z.D.-1, No. 22-0458, 2023 WL 2385835, at *2 (W. Va. Mar. 7, 2023) (memorandum decision)
  Cited as an example of remand being appropriate when a dispositional order fails to include a ruling on an improvement-period motion—supporting the same remedy here for the missing ruling on the visitation motion.

F. Post-termination visitation: hearing, factors, best interests, and enforceable structure

• In re Marley M., 231 W. Va. 534, 745 S.E.2d 572 (2013) (Syl. Pt. 5, in part)
  The Supreme Court emphasized that when a parent properly moves for post-termination visitation, the circuit court should hear evidence and argument and consider the factors established in Christinia L. This was especially salient because the supplemental record showed visitation was denied later on the guardian’s motion without the mother present and seemingly without notice.
• In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995) (Syl. Pt. 5)
  Provided the substantive factors: whether a close emotional bond exists and whether contact would not be detrimental and would be in the child’s best interest. The remand directs the circuit court to apply the “necessary considerations,” which, read with the Court’s citations, include these Christinia L. factors.
• In re K.S., 246 W. Va. 517, 531, 874 S.E.2d 319, 333 (2022)
  The Court cited In re K.S. for a practical enforcement principle: if visitation is ordered, it cannot be left to the placement’s discretion (in that case, the biological fathers). This decision strengthens the remedial direction that any post-termination visitation must be embodied in a “proper visitation plan,” rather than a discretionary arrangement that can be unilaterally withheld.

3.2. Legal Reasoning

A. Refusal to accept voluntary relinquishment of only custodial rights

The mother sought a stipulated disposition relinquishing only custodial rights while preserving parental rights, coupled with post-termination visitation. Invoking In re James G., the Court treated acceptance of a proffered voluntary termination/relinquishment as discretionary and requiring independent review. The circuit court expressly weighed permanency-related factors (the long history of deficiencies, the children’s young ages, and their need for permanency). That record-based balancing was sufficient to defeat the claim of error.

B. Denial of a post-adjudicatory improvement period

Applying West Virginia Code § 49-4-610(2)(B), the Court focused on whether the mother proved by clear and convincing evidence that she was “likely to fully participate.” With In re M.M. and In re Tonjia M. underscoring judicial discretion, the Supreme Court relied on facts showing repeated relapse, repeated failed treatment episodes, and continued substance use even after supervised visitation was allowed. The key reasoning is predictive: the circuit court’s forward-looking assessment (“no improvement is likely”) was supported by a long pattern of noncompliance and relapse.

C. Affirmance of termination of parental rights

The Supreme Court affirmed termination under West Virginia Code § 49-4-604(c)(6), emphasizing two findings: (1) no reasonable likelihood that conditions could be corrected in the near future and (2) termination was necessary for the children’s welfare. The Court also highlighted statutory definitions of “no reasonable likelihood” in West Virginia Code § 49-4-604(d)(1), (3), including habitual substance abuse and failure to follow through with reasonable rehabilitative efforts. The mother’s admissions and the evidence of repeated failed treatment supported the findings; notably, the “necessary for the welfare” finding was not challenged on appeal.

D. Remand for failure to rule on post-termination visitation motion (and related due process concerns)

The dispositive procedural error was not an incorrect visitation decision, but the absence of any decision at disposition. Quoting In re Edward B., the Court explained that when a final order lacks required findings/rulings and compliance cannot be gleaned from the record, appellate review is thwarted. The Court reinforced that “adequate findings must be made” to protect litigants’ rights and facilitate appellate review.

The supplemental appendix intensified the concern: during appeal, the circuit court denied post-termination visitation on the guardian’s motion at a hearing where neither the mother nor her attorney was present and where it appeared she was not notified. The Supreme Court treated this as compounding the problem rather than curing it, because the circuit court still had not addressed the mother’s motion at disposition nor afforded her an opportunity to present evidence and be heard, as contemplated by In re Marley M..

The remand directions were practical and enforceable: the circuit court must decide the mother’s motion, evaluate whether contact is in the children’s best interests using the appropriate factors, and, if visitation is ordered, create a concrete plan not subject to unilateral veto by placements—consistent with In re K.S. (2022).

3.3. Impact

• Procedural discipline at disposition: The decision reinforces that a dispositional order must expressly resolve properly filed motions—including post-termination visitation—so that appellate courts can review the exercise of discretion. This encourages more complete, reviewable dispositional orders and reduces reliance on post hoc fixes during appeal.
• Meaningful hearing requirement for post-termination visitation: By emphasizing In re Marley M. and In re Christina L., the opinion signals that post-termination visitation determinations should be evidence-based and adversarially tested (with notice and an opportunity to be heard), rather than decided informally or by motion practice that excludes a party.
• Enforceable visitation plans: The citation to In re K.S. (2022) operationalizes visitation orders: if ordered, visitation must be structured and not left to the discretion of custodial placements. This can materially affect cases where children are placed with a nonabusing parent who opposes contact with the terminated parent.
• Interplay with evolving rules: The opinion notes an amendment to Rule 15(b) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings adopting clearer standards for post-termination visitation. The remand directive, read with that amendment, will likely push circuit courts toward explicit factor findings and detailed visitation terms.

4. Complex Concepts Simplified

• “Voluntary relinquishment of custodial rights” vs. “termination of parental rights”: Custodial rights concern day-to-day care and decision-making; parental rights termination is more fundamental and ends the legal parent-child relationship. The circuit court was not required to accept a partial relinquishment if it concluded it would undermine permanency.
• “Post-adjudicatory improvement period”: A structured opportunity (with services and conditions) for a parent to correct problems after the court adjudicates abuse/neglect. It is not automatic; the parent must prove they are likely to participate fully, and courts may deny it when the record shows improvement is unlikely.
• “No reasonable likelihood that conditions can be substantially corrected”: A legal threshold that allows termination when the parent’s problems (e.g., habitual substance abuse and failure to comply with treatment/case plans) are not likely to be remedied soon enough to meet the child’s need for safety and permanency.
• “Post-termination visitation”: Even after rights are terminated, a court may allow continuing contact if it is in the child’s best interests and not harmful. But it must be addressed by an order with findings, and if granted, it must be specific and enforceable (not left to a custodian’s discretion).

5. Conclusion

In re A.G. and A.W.-1 affirms core abuse-and-neglect principles—discretion to reject voluntary relinquishment proposals, discretionary denial of improvement periods when progress is unlikely, and termination when statutory “no reasonable likelihood” findings are supported. Its most consequential contribution is procedural and remedial: a circuit court must rule on a parent’s post-termination visitation motion in the dispositional order (or otherwise in a manner that ensures notice, a hearing opportunity, and reviewable findings), and any visitation that is granted must be implemented through a concrete plan rather than delegated to the placement’s discretion. This strengthens both appellate review and the integrity of post-termination visitation determinations in West Virginia.