Failure to Appear and Failure to Prove Likelihood of Participation Justify Denial of Improvement Period and Support Termination

1. Introduction

In re A.W., H.W., and S.W.-1 (W. Va. Sup. Ct. App. Mar. 24, 2026) is an abuse-and-neglect appeal by Petitioner Father (S.W.-2) challenging an order of the Circuit Court of Randolph County terminating his parental rights to three children (A.W., H.W., and S.W.-1). The father argued chiefly that the circuit court erred by terminating his rights without granting him a post-adjudicatory improvement period.

The Department of Human Services (“DHS”) filed the petition in June 2024 alleging methamphetamine addiction, unstable housing, violations of a domestic violence protective order involving the children’s mother, and domestic violence resulting in criminal charges. The petition also alleged the father’s parental rights to other children were involuntarily terminated in 2016 for similar reasons (drug use, domestic violence, unstable housing, and failure to participate in an improvement period). An amended petition in September 2024 added another domestic-violence incident and incarceration.

At adjudication in October 2024, the father stipulated to the petition’s facts and was adjudicated an abusing parent. He then moved for a post-adjudicatory improvement period. At the final dispositional hearing in January 2025, the father failed to appear, and the circuit court denied a continuance request and proceeded to disposition, ultimately terminating his parental rights. The permanency plan was for the children to remain with their nonabusing mother.

2. Summary of the Opinion

The Supreme Court of Appeals affirmed in a memorandum decision. Applying clear-error review to facts and de novo review to legal conclusions, the Court held:

  • The circuit court did not abuse its discretion by denying a post-adjudicatory improvement period because the father did not attend the dispositional hearing and therefore presented no evidence to meet his statutory burden to show, by clear and convincing evidence, that he was likely to fully participate.
  • The circuit court did not err by terminating parental rights where the record supported findings that there was no reasonable likelihood the conditions of abuse and neglect could be substantially corrected in the near future, particularly given relapse after treatment and the case’s similarity to the father’s prior termination case.
  • The Court declined to address the father’s continuance argument because it was inadequately briefed and unsupported by controlling authority.

3. Analysis

3.1 Precedents Cited

In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011)

Cited for the governing standard of review in abuse-and-neglect appeals: factual findings are reviewed for clear error, while legal conclusions are reviewed de novo. This standard framed the Court’s approach—deference to the circuit court’s credibility and factfinding (e.g., relapse, noncontact with DHS, unchanged circumstances) while independently reviewing whether statutory requirements for improvement periods and termination were satisfied.

In re Tonjia M., 212 W. Va. 443, 573 S.E.2d 354 (2002)

The Court relied on the principle that a circuit court has discretion to refuse an improvement period “when no improvement is likely.” In re Tonjia M. functions here as the doctrinal bridge between the improvement-period statute and the circuit court’s evaluative role: even where an improvement period is legally available, it is not automatic; it depends on a predictive assessment grounded in record evidence. The father’s relapse after treatment and incarceration supported the discretionary determination that improvement was not likely.

State v. Larry A.H., 230 W. Va. 709, 742 S.E.2d 125 (2013)

Cited for the appellate briefing rule that issues mentioned without supporting authority are not considered on appeal, even under liberal construction of briefs. This case underpinned the Court’s refusal to reach the continuance issue because the father did not provide analysis or controlling authority.

State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996)

Quoted within the State v. Larry A.H. proposition. Its inclusion reinforces that waiver/forfeiture principles apply where a party fails to develop an argument with authority—important in abuse-and-neglect appeals where time-sensitive permanency interests demand focused briefing.

In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011)

Cited for syllabus point 5: termination may be employed without less restrictive alternatives when there is no reasonable likelihood that conditions can be substantially corrected. This precedent supported affirmance once the statutory “no reasonable likelihood” finding was sustained, and it signaled that the circuit court need not attempt intermediate dispositions when the record justifies termination.

In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)

Quoted through In re Kristin Y. as the foundational source for the “no reasonable likelihood”/no less restrictive alternatives rule. The Court’s reliance on this line of authority confirms continuity in West Virginia’s termination jurisprudence: when statutory correction is not reasonably likely, the child’s welfare permits (and can require) finality.

3.2 Legal Reasoning

(a) Denial of post-adjudicatory improvement period (W. Va. Code § 49-4-610(2)(B))

The Court emphasized the statutory burden: a parent must demonstrate by clear and convincing evidence that he is likely to fully participate in the improvement period. The father’s appellate claim (motivation, literacy, prior completion of drug court) was not evidence presented at disposition. Critically, the father did not appear at the final dispositional hearing and therefore did not offer testimony or other proof to satisfy § 49-4-610(2)(B).

The record evidence that was presented supported the circuit court’s predictive judgment that “no improvement is likely”: DHS testimony showed relapse shortly after rehabilitation and a pattern consistent with the father’s prior termination case, plus incarceration for much of the proceeding and lack of contact with DHS after release. Under In re Tonjia M., those facts supported discretionary denial.

(b) Termination of parental rights (W. Va. Code § 49-4-604(c)(6) and (d)(1))

Termination required findings that (1) there was no reasonable likelihood the conditions of neglect or abuse could be substantially corrected in the near future, and (2) termination was necessary for the children’s welfare. The Court upheld both determinations.

On the “no reasonable likelihood” prong, the Court pointed to § 49-4-604(d)(1), which specifically addresses substance addiction that seriously impairs parenting where the parent has not responded to or followed through with appropriate treatment. The circuit court had evidence of addiction, recent relapse after treatment, and repeating circumstances mirroring the father’s earlier termination—supporting the statutory conclusion that near-future correction was not reasonably likely.

On the “welfare of the child” prong, the Court noted there was ample evidence supporting welfare-based necessity and that the father did not challenge that finding on appeal. With these predicates established, the Court invoked In re Kristin Y. (quoting In re R.J.M.) to confirm that termination may proceed without less restrictive alternatives.

(c) Nonconsideration of the continuance assignment of error (W. Va. R. App. P. 10(c)(7))

The Court’s refusal to address the continuance argument rested on briefing sufficiency: without developed analysis and controlling authority, an assignment of error is not reached. This reflects a procedural discipline: appellate review is not a venue for undeveloped claims, particularly in expedited child-welfare contexts.

3.3 Impact

  • Reinforces the evidentiary burden for improvement periods: A parent’s entitlement is not presumed; the parent must produce clear and convincing evidence of likely participation. Failure to attend the dispositive hearing can be outcome-determinative where it leaves the record devoid of proof supporting participation.
  • Affirms relapse-and-recurrence as powerful predictors in “no reasonable likelihood” findings: The Court treated relapse after treatment and repetition of prior-termination circumstances as strong indicators that conditions cannot be corrected in the near future.
  • Signals strict enforcement of appellate briefing rules in abuse-and-neglect appeals: The decision underscores that arguments must be developed with authority, or they risk being deemed waived—important for counsel handling time-sensitive permanency matters.
  • Supports permanency where a nonabusing parent is available: While not the legal basis for termination, the permanency posture (children to remain with nonabusing mother) illustrates how termination decisions can align with stabilizing existing safe placements.

4. Complex Concepts Simplified

Post-adjudicatory improvement period
A court-supervised period after a parent has been adjudicated as abusing/neglecting, during which the parent is given structured services (e.g., treatment, drug testing, parenting education) to correct the problems that brought the case to court. It is discretionary and requires proof the parent is likely to participate.
Clear and convincing evidence
A heightened evidentiary standard—more than “more likely than not,” but less than “beyond a reasonable doubt.” It requires a firm belief in the truth of the allegation (here, that the parent is likely to fully participate).
Disposition / dispositional hearing
The phase where the court decides the case outcome (services, placement, custody arrangements, or termination). It is typically the critical hearing for presenting evidence on improvement periods and the child’s welfare.
No reasonable likelihood the conditions can be substantially corrected
A statutory conclusion that, based on the record, the parent is not likely to fix the underlying abuse/neglect problems soon enough to meet the child’s need for safety and stability. West Virginia law lists circumstances supporting this finding, including substance addiction with failure to respond to treatment.
Less restrictive alternatives
Measures short of termination (e.g., temporary custody arrangements, guardianship). West Virginia precedent recognizes that when “no reasonable likelihood” is proven and termination is necessary for welfare, courts need not attempt intermediate options.
Judicial notice
A procedural tool allowing a court to recognize certain facts or records without formal proof, such as prior proceedings or documents in the case record, where appropriate.

5. Conclusion

In re A.W., H.W., and S.W.-1 affirms two practical, record-driven rules in West Virginia abuse-and-neglect litigation: (1) improvement periods require the parent to meet a clear-and-convincing evidentiary burden of likely participation—something a parent may fail to do when absent from the critical dispositional hearing; and (2) termination is proper where relapse after treatment and repeated prior-termination patterns support a finding of no reasonable likelihood of near-future correction, allowing termination without less restrictive alternatives under the In re Kristin Y./In re R.J.M. framework. The decision also underscores that appellate courts will not reach inadequately briefed issues, reinforcing disciplined advocacy in expedited child-welfare appeals.