Failure to Acknowledge Neglect as a Bar to Improvement Periods and a Basis for Termination of Custodial Rights: Commentary on In re D.H., A.H., and G.W.

Failure to Acknowledge Neglect as a Bar to Improvement Periods and a Basis for Termination of Custodial Rights: Commentary on In re D.H., A.H., and G.W.

I. Introduction

This memorandum decision of the Supreme Court of Appeals of West Virginia, In re D.H., A.H., and G.W., No. 24‑739 (Nov. 25, 2025), addresses whether a circuit court may terminate the custodial rights of a non‑parent custodian in an abuse and neglect proceeding without first granting an improvement period, even when the Department of Human Services (“DHS”) recommends such an improvement period.

The case centers on petitioner A.M., the mother’s partner but not the biological father of any of the three subject children. DHS alleged chronic neglect: unfit and unsanitary home conditions, failure to provide basic needs, educational neglect through truancy, unmet medical needs, driving under the influence with the children in the vehicle, and failure to act on a child’s disclosure of sexual abuse by a male relative.

At the adjudicatory stage, A.M. stipulated to several core neglect allegations, but at disposition he effectively disclaimed wrongdoing, saying he was “not sure” what he had done wrong and asserting that others had lied. A psychological evaluation yielded a “poor prognosis” for improved parenting, largely because of his lack of acceptance of responsibility.

The circuit court denied his request for an improvement period and terminated his custodial rights. On appeal, A.M. argued that the circuit court erred by terminating his rights without first granting him an improvement period to correct the conditions of neglect.

The Supreme Court affirmed. The decision reinforces a recurring theme in West Virginia abuse and neglect jurisprudence: a parent or custodian who fails to acknowledge the underlying problems that led to state intervention cannot typically satisfy the statutory requirement to obtain an improvement period and may be subject to direct termination when necessary for the children’s welfare.

II. Summary of the Opinion

The Supreme Court resolves two principal issues:

  1. Denial of an improvement period. The Court holds that the circuit court did not abuse its discretion in denying any improvement period to A.M. because he failed to demonstrate, by clear and convincing evidence, that he was likely to fully participate in an improvement period as required by W. Va. Code § 49‑4‑610. His refusal to accept responsibility for the neglect rendered any improvement period an exercise in futility under established precedent.
  2. Termination of custodial rights. The Court affirms the termination of A.M.’s custodial (not biological parental) rights, concluding that:
    • There was “no reasonable likelihood” that the conditions of neglect could be substantially corrected in the near future, as defined by W. Va. Code § 49‑4‑604(d), and
    • Termination was necessary for the welfare of the children under W. Va. Code § 49‑4‑604(c)(6).

In reaching these conclusions, the Court reiterates several settled principles:

  • Improvement periods are discretionary and conditioned on a showing, by clear and convincing evidence, of likely full participation.
  • Failure to acknowledge the truth of the abuse or neglect allegations makes the problem effectively “untreatable,” justifying denial of an improvement period.
  • When there is no reasonable likelihood that conditions can be substantially corrected, termination may be ordered without imposing lesser, intermediate remedial measures.

The Court decides the appeal by memorandum decision under Rule 21 of the Rules of Appellate Procedure, without oral argument, indicating that it views the issues as controlled by existing law rather than raising new, complex legal questions.

III. Factual and Procedural Background

A. DHS Petition and Allegations

DHS filed its original abuse and neglect petition on October 13, 2023, against A.M., identified as the mother’s partner. The petition alleged multiple forms of neglect:

  • Failure to provide a fit and safe home;
  • Failure to ensure the children’s basic needs were met, including food and clothing;
  • Failure to ensure regular school attendance (truancy);
  • Failure to attend adequately to the children’s medical needs; and
  • The children attended school visibly dirty, unkempt, and smelling of body odor, urine, and feces.

DHS later filed an amended petition after further investigation, adding serious allegations:

  • A.M. drove under the influence of alcohol with the children in the vehicle; and
  • He failed to act after child G.W. disclosed sexual abuse by a male relative.

These additional allegations elevated the risk profile of the case: one concerns immediate physical danger (drunk driving with children), and the other concerns failure to protect a child from sexual abuse once on notice of such allegations.

B. Motion for Improvement Period

On October 17, 2023, almost immediately after the petition was filed, A.M. filed a written motion requesting any available improvement period under W. Va. Code § 49‑4‑610—pre‑adjudicatory, post‑adjudicatory, or post‑dispositional.

This early motion is notable because it shows at least a formal willingness to engage in remedial services. But as the Supreme Court’s analysis makes clear, the statutory test is not mere willingness, but likelihood of full participation, established by clear and convincing evidence.

C. Adjudicatory Hearing

At the January 2024 adjudicatory hearing:

  • A.M. denied the allegations that:
    • The children attended school unclean and foul‑smelling; and
    • He drove under the influence with the children.
  • He stipulated (i.e., formally admitted) to:
    • Neglect associated with the children’s truancy;
    • Unmet medical needs; and
    • His failure to act when G.W. made allegations of sexual abuse against a male relative.

The circuit court heard testimony from:

  • Two DHS witnesses,
  • The children’s mother,
  • A.M. himself, and
  • Reviewed portions of the children’s Child Advocacy Center (CAC) interviews.

After weighing this evidence, the court:

  • Found that A.M. indeed drove under the influence of alcohol with the children in the car; and
  • Found that the children appeared at school dirty, unkempt, and smelling of body odor.

On the combined basis of A.M.’s stipulations and these factual findings, the circuit court adjudicated A.M. as a neglectful custodian and ordered him to undergo a psychological/parental fitness evaluation.

D. Dispositional Hearing

The dispositional hearing occurred in August 2024. There, the evidence was mixed:

  • DHS recommendation. DHS recommended an improvement period, supported by a CPS worker’s testimony that:
    • A.M. had obtained full‑time employment;
    • He had secured suitable housing; and
    • He had complied with services offered by DHS.
  • Psychological evaluation. The forensic psychologist reported a poor prognosis for improved parenting because:
    • A.M.’s acceptance of responsibility was “questionable”; and
    • He told the evaluator that he became involved with CPS “because people lied.”
  • A.M.’s testimony. A.M. told the court:
    • He would comply with any terms of an improvement period; and
    • He had done everything DHS asked of him.
    But crucially, when asked what he had done wrong, he responded that he was “not sure” and stated that he disagreed with the adjudication, despite his earlier stipulations to neglect.

We thus see a clear tension:

  • Objective progress (employment, housing, service participation) and DHS’s recommendation, versus
  • Subjective denial of wrongdoing and psychological assessment of poor rehabilitation prospects.

The circuit court gave decisive weight to A.M.’s failure to accept responsibility, concluding that he had not shown a likelihood of fully participating in any improvement period. It further found:

  • No reasonable likelihood that A.M. could substantially correct the conditions of neglect within a reasonable time; and
  • Termination of his custodial rights was necessary to protect the children’s welfare.

The court terminated A.M.’s custodial rights. The mother’s parental rights were also terminated. The fathers’ cases were still pending, and the permanency plan for all three children was adoption in their current placements.

E. Appeal to the Supreme Court

On appeal, A.M. argued:

  • The circuit court erred by terminating his custodial rights without first granting him an improvement period.

He cited:

  • His own testimony expressing willingness to comply with improvement period terms; and
  • The CPS worker’s testimony that he:
    • Secured full‑time employment;
    • Obtained fit housing; and
    • Complied with services.

However, he did not contest on appeal the circuit court’s factual findings that:

  • He failed to accept responsibility for his neglect; and
  • Termination was necessary for the children’s welfare.

The Supreme Court affirmed the dispositional order in full.

IV. Legal Framework and Precedents

A. Standard of Review – In re Cecil T.

The Court begins by citing Syl. Pt. 1 of In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011), for the standard of review:

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.

Thus:

  • Factual determinations (e.g., whether A.M. drove under the influence, whether the children were dirty at school, whether he accepted responsibility) are reviewed for clear error—a deferential standard.
  • The interpretation and application of statutory provisions governing improvement periods and termination are reviewed de novo.

B. Improvement Periods – W. Va. Code § 49‑4‑610

Although A.M. did not specify which type of improvement period he sought, his motion requested any of:

  • Pre‑adjudicatory improvement period;
  • Post‑adjudicatory improvement period; or
  • Post‑dispositional improvement period.

The Court correctly notes that § 49‑4‑610 imposes the same substantive requirement across all three:

[T]o receive any improvement period, the petitioner was required to “demonstrate[], by clear and convincing evidence, that [he was] likely to fully participate in the improvement period.” W. Va. Code § 49‑4‑610(1)(B), (2)(B), and (3)(B).

Key points:

  • Burden of proof. The respondent (here, A.M.) carries the burden to show eligibility for an improvement period.
  • Standard. “Clear and convincing evidence” is a heightened civil burden, requiring evidence that is highly and substantially more likely to be true than not.
  • Substantive test. The focus is on likely full participation, not merely willingness or partial compliance.

Thus, the circuit court had discretion to deny an improvement period if it found that A.M. had not met this statutory threshold.

C. Failure to Acknowledge Neglect – In re Timber M. and In re Charity H.

The Court’s most critical reliance is on In re Timber M., 231 W. Va. 44, 743 S.E.2d 352 (2013), which in turn quotes In re Charity H., 215 W. Va. 208, 599 S.E.2d 631 (2004):

"[F]ailure to acknowledge the existence of the problem, i.e., the truth of the basic allegation pertaining to the alleged abuse and neglect . . . , results in making the problem untreatable and in making an improvement period an exercise in futility at the child[ren]'s expense."

This principle has become a cornerstone of West Virginia abuse and neglect law. It reflects a practical insight:

  • Therapeutic and rehabilitative services can only work if the parent or custodian accepts that a problem exists.
  • Without that acknowledgment, the underlying risks to the child remain, and any “improvement” is superficial.

In In re Timber M. and In re Charity H., the Court made clear that lack of acknowledgment can justify:

  • Denial of an improvement period; and
  • Termination of rights where there is no reasonable likelihood of successful remediation.

Here, the same reasoning is applied to A.M.: his statements that “people lied” and that he was “not sure” what he had done wrong, despite prior stipulations, signal a lack of acknowledgment rendering services ineffective.

D. Discretion to Deny Improvement Period – In re Tonjia M.

The Court further cites In re Tonjia M., 212 W. Va. 443, 573 S.E.2d 354 (2002):

[Recognizing circuit courts' discretion to deny an improvement period when no improvement is likely].

This reinforces that:

  • Improvement periods are not automatic, even where DHS recommends them; and
  • Circuit courts retain broad discretion to protect children from prolonged uncertainty when prospects for successful rehabilitation are poor.

E. Termination Standards – W. Va. Code § 49‑4‑604, In re Kristin Y., and In re R.J.M.

The statutory test for termination of custodial or parental rights appears in W. Va. Code § 49‑4‑604.

Under § 49‑4‑604(d):

“‘No reasonable likelihood that the conditions of neglect or abuse can be substantially corrected’ means that . . . the abusing adult . . . [has] demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own or with help.”

Under § 49‑4‑604(c)(6), the court may terminate rights:

"[u]pon a finding that there is no reasonable likelihood that the conditions of neglect . . . can be substantially corrected and, when necessary for the welfare of the child[ren]."

The Court also relies on Syl. Pt. 5 of In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), which in turn draws from Syl. Pt. 2 of In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980):

Termination of rights is permitted “without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood . . . that conditions of neglect or abuse can be substantially corrected.”

In other words:

  • If no reasonable likelihood of substantial correction exists, the court need not attempt lesser interventions such as additional services, supervision, or trial reunification.
  • This principle directly supports the decision to terminate A.M.’s custodial rights without first granting him an improvement period.

V. The Court’s Legal Reasoning Applied to the Facts

A. The Core Conflict: Behavior vs. Insight

A.M. pointed to a number of seemingly positive developments:

  • Securing full‑time employment;
  • Obtaining suitable housing;
  • Participating in services offered by DHS; and
  • Expressing willingness to engage in an improvement period.

DHS relied on these facts in recommending an improvement period.

However, the circuit court (and subsequently the Supreme Court) did not view these changes as sufficient. The decisive factor was A.M.’s lack of insight into his own neglectful conduct:

  • He denied doing anything wrong, despite prior formal stipulations to neglect.
  • He framed DHS involvement as a product of others’ lies, not his own behavior.
  • The psychologist’s report characterized his prognosis for better parenting as poor, specifically because of this refusal to accept responsibility.

Under Timber M. and Charity H., this lack of acknowledgment renders the underlying problems “untreatable” in the legal sense. No matter what external changes occur (job, housing), the deeper issues affecting child safety—judgment, protective capacity, recognition of harm—remain unaddressed.

B. Denial of Improvement Period

The statute requires that the respondent demonstrate, by clear and convincing evidence, that he is likely to fully participate in an improvement period. The Court’s reasoning shows that this concept of “full participation” includes:

  • Not just attendance at services; but
  • Meaningful engagement with the issues being addressed—accepting responsibility, internalizing the reasons for state intervention, and actively working to change the underlying behaviors.

The circuit court determined that A.M. had not made such a demonstration because he continued to deny wrongdoing. From that, the court inferred that services would not meaningfully address the neglect conditions, rendering an improvement period futile and potentially detrimental to the children by prolonging instability.

The Supreme Court, applying a deferential standard to this factual assessment, held that:

  • It was not an abuse of discretion to deny an improvement period despite DHS’s contrary recommendation.
  • The controlling legal principle is not DHS’s preference but the statutory requirement of likely full participation, as interpreted in prior case law.

C. Termination of Custodial Rights Without Lesser Alternatives

Having found that no reasonable likelihood existed that A.M. could substantially correct the conditions of neglect—largely due to his persistent denial—the circuit court was statutorily authorized to terminate his rights without imposing lesser alternatives. The Supreme Court explicitly endorses this:

  • The record supported the finding of “no reasonable likelihood” of correction because:
    • A.M. showed “inadequate capacity to solve the problems of abuse or neglect on [his] own or with help.”
    • This inadequacy stemmed from his refusal to recognize his neglectful conduct, making services ineffective.
  • Termination was “necessary for the welfare of the children,” a finding that A.M. did not challenge on appeal.

Under Kristin Y. and R.J.M., the court was not required to experiment with further, less restrictive alternatives once it concluded that the underlying conditions could not reasonably be corrected.

D. The Role of DHS’s Recommendation

An important practical nuance is that DHS, through the CPS worker, actually recommended granting an improvement period. Yet the court declined to follow this recommendation, and the Supreme Court upheld that decision.

This underscores a crucial point for practitioners:

  • DHS’s recommendations are advisory, not binding. The circuit court must exercise independent judgment.
  • Where DHS focuses primarily on observable compliance and stability (employment, housing, attendance at services), the court may—and often should—focus on deeper indicators of change: insight, credibility, sincerity of acknowledgment, and genuine behavioral transformation.

Here, the psychological evaluation, combined with A.M.’s own testimony minimizing or denying wrongdoing, outweighed DHS’s view of his apparent progress.

E. Importance of the Stipulation at Adjudication

Another subtle but important element is A.M.’s stipulation at adjudication versus his later assertion that he had “done nothing wrong.”

  • At adjudication, he stipulated to neglect (truancy, medical neglect, failure to protect from sexual abuse allegations) to avoid a contested finding.
  • At disposition, he effectively repudiated those stipulations by insisting he was unsure what he did wrong and that he disagreed with the adjudication.

This inconsistency:

  • Damaged A.M.’s credibility and reinforced the conclusion that he lacked insight into the neglect;
  • Justified the psychologist’s poor prognosis assessment; and
  • Supported the circuit court’s finding that improvement efforts would not be meaningful.

For respondents in abuse and neglect cases, this case illustrates the danger of stipulating at adjudication as a procedural move while continuing to deny the reality of the problem. Courts and evaluators will treat such stance as evidence of lack of insight.

VI. Conceptual Clarifications

A. “Improvement Period”

An improvement period in West Virginia abuse and neglect law is a court‑ordered span of time during which a parent or custodian is given an opportunity to correct the conditions of abuse or neglect that led to state intervention. It typically includes:

  • Participation in treatment or counseling;
  • Parenting classes and services;
  • Substance abuse evaluation/treatment (when relevant);
  • Regular visitation with the children under supervision; and
  • Compliance with case plans and court orders.

But improvement periods are not guaranteed. The respondent must show, by clear and convincing evidence, that he or she is likely to fully participate and benefit. Failure to acknowledge the problem generally defeats such a showing.

B. “Clear and Convincing Evidence”

“Clear and convincing evidence” is a standard of proof higher than “preponderance of the evidence” but lower than “beyond a reasonable doubt.” It requires evidence that:

  • Induces in the fact‑finder a firm belief or conviction in the truth of the allegations; and
  • Leaves little doubt, though not necessarily eliminating all doubt.

In this context, A.M. needed to show clearly and convincingly that he would not only attend services, but engage with them in a way that genuinely addressed his neglect.

C. “No Reasonable Likelihood” of Substantial Correction

Under § 49‑4‑604(d), a “no reasonable likelihood” finding means that the parent or custodian has demonstrated an inadequate capacity to solve the problems of abuse or neglect, whether independently or with help.

This may be shown by:

  • Persistent denial of problems;
  • Failure to benefit from services;
  • Chronic substance abuse or mental illness not controlled by treatment;
  • Continuing unsafe environments or relationships; and
  • Other evidence that indicates the risk to the child will not be meaningfully reduced.

In A.M.’s case, the keystone was his persistent refusal to accept responsibility despite services and adjudication.

D. “Custodial Rights” vs. “Parental Rights”

The Court is careful to describe A.M.’s rights as custodial, not parental, because:

  • He is not the biological father of any of the three children; and
  • The circuit court’s order, though phrased as termination of “parental rights,” is, in substance, a termination of his legal custody and care authority over the children.

Practically, termination of custodial rights means:

  • A.M. no longer has legal authority over the children’s care;
  • He no longer has a legal right to physical contact or visitation (unless separately ordered, which is not indicated here); and
  • It clears the way for adoption or other permanent placements without his consent.

E. Memorandum Decision under Rule 21

The case is resolved as a memorandum decision under W. Va. R. App. P. 21, which:

  • Allows the Court to decide cases without oral argument when the panel determines that the case presents no substantial question of law and is controlled by established precedent;
  • Typically indicates that the Court sees the issues as routine applications of existing law;
  • Means the decision is not a full published opinion elaborating new doctrine, though it may be cited as persuasive authority and guidance on application of settled principles.

Thus, In re D.H., A.H., and G.W. is best understood as a reaffirmation and applied illustration of existing West Virginia law, not a doctrinal innovation.

VII. Impact and Broader Significance

A. Reinforcing the Centrality of Acknowledgment in Abuse and Neglect Cases

The decision reinforces and concretely applies a consistent line of West Virginia precedent: acknowledgment of the problem is the gateway to rehabilitation.

For parents, custodians, and their counsel, this means:

  • Mere participation in services, attendance, and surface‑level compliance are insufficient;
  • Courts will scrutinize whether the respondent:
    • Accepts responsibility for the events and conditions that triggered DHS intervention;
    • Understands how those conditions harmed or endangered the children; and
    • Shows sincere commitment to changing the underlying behaviors.

Where respondents maintain a narrative of total innocence (“people lied,” “I did nothing wrong”) despite adjudication and evidence, courts are likely to find that improvement periods would be merely symbolic and terminate rights when the children’s welfare requires permanency.

B. Independence of Judicial Discretion from Agency Recommendations

The decision also highlights that circuit courts are not bound by DHS recommendations. Even when DHS favors an improvement period, the court:

  • Must independently interpret and apply the statutory standards;
  • May reject DHS’s recommendation when other evidence (psychological opinions, testimony, demeanor, inconsistencies) indicates poor prospects for meaningful change; and
  • Retains ultimate responsibility for protecting the children’s welfare and ensuring timely permanency.

For DHS and CPS workers, the case underscores the importance of:

  • Not equating surface compliance with actual rehabilitation;
  • Incorporating psychological assessments and acknowledgment‑based criteria into case planning and recommendations; and
  • Providing the court a balanced view that includes insight‑based factors, not only objective milestones like employment and housing.

C. Implications for Non‑Parent Custodians

This case involved a non‑biological custodian (the mother’s partner). The Court’s willingness to terminate custodial rights on the same substantive grounds as parental rights confirms that:

  • Non‑parent caregivers who function in a parental role can be fully subject to abuse and neglect proceedings;
  • They can lose their legal custodial status permanently if they neglect children and fail to correct the circumstances; and
  • The children’s welfare, not the formal status of the caregiver, is paramount.

For practitioners, it means non‑parents who assume parental roles must be advised of the full range of potential consequences and rights, including the possibility of termination and its effect on future contact.

D. Timeliness and Permanency

By affirming termination without an improvement period—even where compliance indicators were present—the Court emphasizes the policy of timely permanency for children.

The legislature and courts have repeatedly stressed that children cannot be kept indefinitely in legal limbo while adults engage in prolonged or ineffective remediation efforts. When prospects for real change are poor, the system must move toward permanent placements (here, adoption).

E. Practice Pointers for Counsel

  • For respondent’s counsel:
    • Stipulations at adjudication should be accompanied by genuine, supported work on insight and acknowledgment, not simply used as a tactical device to avoid confrontation.
    • Prepare clients for psychological evaluations and court testimony that will probe acknowledgment; inconsistent narratives can be devastating.
    • Emphasize concrete behavioral change and coherent, consistent acceptance of responsibility.
  • For guardians ad litem:
    • Highlight for the court the distinction between nominal compliance and actual rehabilitation; lack of acknowledgment can be framed in child‑focused terms: ongoing risk, emotional harm, and instability.
  • For DHS counsel:
    • When recommending improvement periods, candidly address acknowledgment issues and incorporate psychological opinions.
    • Be prepared for the court to diverge from DHS recommendations and ensure the record clearly reflects both strengths and deficits in the respondent’s case.

VIII. Conclusion

In re D.H., A.H., and G.W. does not chart new doctrinal territory; rather, it exemplifies the consistent application of West Virginia’s abuse and neglect jurisprudence to a concrete fact pattern involving a non‑parent custodian.

The key takeaways are:

  • Acknowledgment is central. A respondent who refuses to accept responsibility for neglect—even after stipulating at adjudication—will have difficulty obtaining an improvement period and faces a high risk of termination.
  • Improvement periods are discretionary and conditional. The statutory requirement of clear and convincing evidence of likely full participation allows courts to deny improvement periods when they would be futile, particularly in the face of denial and poor prognostic indicators.
  • Termination without lesser alternatives is permissible. Where there is no reasonable likelihood that neglect conditions can be substantially corrected, and termination is necessary for the children’s welfare, courts may proceed directly to termination.
  • DHS recommendations are not controlling. Courts must exercise independent judgment and may place greater weight on psychological evaluations and acknowledgment issues than on agency recommendations or surface compliance.
  • Non‑parent custodians are fully accountable. Individuals who assume custodial roles over children can have those custodial rights terminated under the same substantive standards that apply to parents.

Viewed in the broader context, this decision reinforces a consistent child‑protection message: genuine insight into past neglect and a credible commitment to change are indispensable in abuse and neglect proceedings. Without them, even substantial compliance with services and favorable agency recommendations may not prevent termination when the children’s need for safety and permanency is at stake.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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