From Presumption to Discretion: Clarifying the Standard for Post-Dispositional Improvement Periods in West Virginia – A Commentary on In re D.S. (Supreme Court of Appeals, 2025)

Introduction

In re D.S., No. 24-388, decided June 26 2025 by the Supreme Court of Appeals of West Virginia, addresses the perennial tension between parental rights and child protection in abuse-and-neglect proceedings. The petitioner mother, S.U., challenged the circuit court’s denial of her post-dispositional improvement period and the ultimate termination of her parental rights to her eight-year-old son, D.S.

Central issues included:

Whether mere participation in services suffices to obtain a post-dispositional improvement period under W. Va. Code § 49-4-610(3)(B);
Whether a circuit court must grant an improvement period absent “compelling circumstances,” as older precedent once suggested; and
Whether the termination order adequately addressed statutory prerequisites, particularly the “reasonable likelihood” standard of § 49-4-604(c)(6).

The decision firmly re-positions the standard for improvement periods after the 2015 recodification of Chapter 49, emphasizing judicial discretion and the parent’s burden to acknowledge and address the underlying abuse or neglect.

Summary of the Judgment

Affirming the Kanawha County Circuit Court, the Supreme Court held:

The mother failed to prove, by clear and convincing evidence, a likelihood of fully participating in an improvement period because she persistently denied her role in the abuse and maintained ties with the abusive boyfriend.
The circuit court did not err in finding “no reasonable likelihood” of correcting conditions in the near future, satisfying § 49-4-604(c)(6).
In re Emily’s “shall be allowed unless compelling circumstances” language is obsolete; post-2015, no statutory presumption favors granting an improvement period.
Other alleged procedural defects (reasonable-efforts findings, competency concerns, request for guardian ad litem) lacked merit or were waived.

“Failure to acknowledge the existence of the problem results in making the problem untreatable and in making an improvement period an exercise in futility at the child’s expense.” – Timber M.

Analysis

A. Precedents Cited

Syl. Pt. 1, In re Cecil T. (2011) – Sets the appellate standard: clear-error review of facts, de novo review of law.
In re Timber M. (2013) & In re Charity H. (2004) – Articulate the “failure-to-acknowledge” doctrine.
In re Tonjia M. (2002) – Confirms circuit courts’ discretion to deny improvement periods when no improvement is likely.
In re Emily (2000) – Earlier presumption favoring improvement periods, explicitly curtailed here.
State ex rel. S.W. v. Wilson (2020) – Notes the absence of the old presumption after 2015 recodification.

The Court synthesized these cases to show a clear doctrinal trajectory: from a liberal grant of improvement periods (Emily) toward a pragmatic, child-centered discretion (Wilson, Timber M., and now D.S.).

B. Legal Reasoning

Burden of Proof. Under § 49-4-610(3)(B) the parent—not the State—must produce clear and convincing evidence of likely full participation. Mere attendance at services does not meet this burden.
Acknowledgement as a Prerequisite. The Court reaffirmed that treatment is impossible when the parent disclaims responsibility. The mother’s failure to internalize the child’s abuse and her continued loyalty to the abuser rendered services futile.
Discretion Post-2015. By citing Wilson, the Court clarified that the statutory landscape has changed; the legislature intentionally omitted a presumption in favor of improvement periods.
Reasonable-Likelihood Finding. The termination order explicitly found no additional services could remedy conditions in the near future, satisfying § 49-4-604(d). Thus, statutory mandates were met.
Procedural Defenses Rejected. Competency concerns lacked evidentiary support. The guardian-ad-litem issue was waived for failure to raise it below.

C. Impact on Future Cases

The opinion does not create an entirely new doctrine but solidifies the post-2015 framework and delivers three practical messages to litigants and courts:

No Automatic Improvement Periods. Parents can no longer rely on the pre-2015 “compelling circumstances” safety net.
Acknowledgement Matters More Than Attendance. Practitioners must press clients to confront underlying issues early; surface compliance will not suffice.
Record-Making is Critical. Because appellate review respects circuit-court discretion, a robust factual record is essential for either granting or denying services.

Beyond abuse-and-neglect cases, the opinion exemplifies how statutory recodification can quietly abrogate older precedents, reminding counsel to verify that seemingly authoritative language remains viable.

Complex Concepts Simplified

Improvement Period – A court-monitored timeframe (usually 3–6 months) during which a parent works services to correct abusive conditions. Post-dispositional means it is requested after the court has already found abuse or neglect.
Clear and Convincing Evidence – An intermediate burden of proof requiring the evidence to show that the claim is highly probable, but not beyond a reasonable doubt.
Reasonable Likelihood Standard (§ 49-4-604) – The court must gauge the probability that parenting deficiencies can be remedied “in the near future.” If unlikely, it may proceed to termination.
Failure-to-Acknowledge Doctrine – West Virginia jurisprudence holds that denial of wrongdoing renders rehabilitative services ineffective, justifying termination.

Conclusion

In re D.S. cements a child-centric, discretion-oriented approach to improvement periods in West Virginia. By explicitly disavowing reliance on pre-2015 presumptions, the Court clarifies that parents bear the burden of demonstrating genuine, introspective readiness to change. Attendance at services without acknowledgment of harm is insufficient. Trial courts retain broad authority to deny additional chances when evidence shows no realistic prospect of reform, thereby safeguarding children from protracted uncertainty.

Going forward, advocates must align strategy with this clarified standard—promptly addressing parental denial, meticulously documenting progress (or its absence), and ensuring the record supports the statutory findings essential for either reunification or termination.

From Presumption to Discretion: Clarifying the Standard for Post-Dispositional Improvement Periods in West Virginia – A Commentary on In re D.S. (2025)