Harmless Error in Missing Family Case Plan: Termination Affirmed Absent Prejudice Where Improvement-Period Requirements Were Clear

1. Introduction

This abuse-and-neglect appeal arose from proceedings in the Circuit Court of Wyoming County culminating in a December 18, 2024 dispositional order terminating the parental rights of petitioner mother A.W. to two children, M.P. and D.S. The Department of Human Services (“DHS”) initially alleged that the mother failed to protect M.P. from sexual abuse and later amended to add allegations of neglect of the children’s basic needs—particularly hygiene and unsafe/unsanitary home conditions.

The mother stipulated at adjudication to failing to protect M.P. from sexual abuse by a family member and to inadequate home conditions and hygiene. She received a post-adjudicatory improvement period. Although the adjudicatory order required DHS to prepare and submit a family case plan, no case plan was filed. The mother’s improvement period was later revoked based on lack of progress, continued unsafe home conditions, and her failure to acknowledge the abuse/neglect. At disposition, the circuit court found no reasonable likelihood the conditions could be substantially corrected in the near future and that termination was in the children’s best interests.

The appeal presented two central issues: (1) whether the DHS’s failure to file a family case plan required reversal or vacatur; and (2) whether termination was an abuse of discretion given arguments for less restrictive alternatives and the asserted primacy of parental custody.

2. Summary of the Opinion

The Supreme Court of Appeals affirmed. While acknowledging that DHS did not comply with the requirement to file a family case plan within thirty days after an improvement period is granted (citing W. Va. R. P. Child Abuse & Neglect Proc. 37 and W. Va. Code § 49-4-408), the Court held the mother failed to show prejudice from that error. The Court emphasized that the mother’s written stipulation and the circuit court’s on-the-record explanation of improvement-period terms sufficiently identified the problems to be remedied and the steps required.

The Court further held that termination was permissible without less restrictive alternatives because the circuit court had ample evidence supporting “no reasonable likelihood” of correction, including the mother’s continuing failure to accept responsibility and her minimization/disbelief of the child’s sexual abuse, combined with ongoing unfit home conditions despite extensive services.

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 decision: Provided the standard of review: factual findings reviewed for clear error; legal conclusions reviewed de novo. The Court used this framework to defer to the circuit court’s credibility and evidence-weight determinations, particularly on improvement-period progress and best interests.
• Syl. Pt. 2, in part, In re Desarae M., 214 W. Va. 657, 591 S.E.2d 215 (2003) (quoting Syl. Pt. 5, State ex rel. W. Va. Dep't of Hum. Servs. v. Cheryl M., 177 W. Va. 688, 356 S.E.2d 181 (1987))
  Role in decision: Defined the purpose of a family case plan as an organized, realistic method to identify family problems and steps to resolve them. The Court used these cases to frame the case-plan omission as a functional inquiry: whether the parent had clear notice of problems and steps—not merely whether a document was filed.
• Syl. pt. 5, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001)
  Role in decision: Supplied the remedial principle that vacatur is required when the abuse-and-neglect process has been “substantially disregarded or frustrated.” The Court distinguished the case-plan omission here as not meeting that threshold because the mother had adequate notice of requirements and services targeted those requirements.
• In re H.D., No. 23-148, 2024 WL 4503958 (W. Va. Oct. 16, 2024) (memorandum decision)
  Role in decision: Offered closely analogous support: affirming termination despite no filed case plan where the parent “knew what was required.” The Court relied on the same prejudice/notice rationale to reject automatic reversal.
• 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 decision: Restated the rule that termination may occur without intervening less restrictive alternatives when there is no reasonable likelihood the conditions can be substantially corrected. This directly answered the mother’s “less restrictive disposition” argument.
• In re Timber M., 231 W. Va. 44, 743 S.E.2d 352 (2013) (quoting In re Charity H., 215 W. Va. 208, 599 S.E.2d 631 (2004))
  Role in decision: Anchored the Court’s focus on insight and accountability: a parent must first acknowledge the abuse/neglect to remedy it; denial renders the problem “untreatable.” The Court treated the mother’s repeated minimization and disbelief—despite earlier stipulation—as powerful evidence supporting “no reasonable likelihood.”
• Syl. Pt. 4, in part, State ex rel. P.G.-1 v. Wilson, 247 W. Va. 235, 878 S.E.2d 730 (2021)
  Role in decision: Disposed of the mother’s post-dispositional improvement period claim: a written motion is required. Because no written motion appeared in the record, no relief was available.
• Syl. Pt. 1, in part, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) (and Syl. Pt. 5, in part)
  Role in decision: The mother invoked parental custody as “paramount,” but the Court relied on Willis’s qualifier: parental rights are not absolute and may be terminated if the parent is proved unfit—harmonizing constitutional/parental preference principles with the abuse-and-neglect statutory scheme.
• In re D.S., 251 W. Va. 466, 914 S.E.2d 701 (2025) and Syl. Pt. 1, in part, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177(1996)
  Role in decision: Reinforced appellate restraint: the Court does not reweigh evidence, and it must affirm plausible factual accounts supported by the record—supporting deference to findings that the mother failed to participate fully and that her home remained unfit.

3.2 Legal Reasoning

(A) The missing family case plan was treated as an error, but not an automatically reversible one.
The Court accepted the governing procedural rule and statute requiring timely filing of a family case plan (W. Va. R. P. Child Abuse & Neglect Proc. 37; W. Va. Code § 49-4-408) and acknowledged noncompliance. The decisive move, however, was the Court’s prejudice-based analysis: the mother had to show that the omission “substantially disregarded or frustrated” the abuse-and-neglect process (In re Edward B.) or otherwise deprived her of meaningful notice and opportunity to comply.

The Court found the functional purpose of a plan (In re Desarae M.; State ex rel. W. Va. Dep't of Hum. Servs. v. Cheryl M.) was met through (1) the mother’s detailed written stipulation identifying the core deficiencies (failure to protect; unsafe home; hygiene) and committing to specific steps (maintain appropriate home; participate in services), and (2) the circuit court’s on-the-record review of improvement-period terms—including what constitutes a “suitable home.” The mother did not claim confusion below, nor identify what additional clarity a filed plan would have provided.

(B) “No reasonable likelihood” was supported by two reinforcing evidentiary themes.
First, persistent environmental neglect: despite relocation and numerous services, the home remained unsafe (exposed wires, missing flooring, clutter, trash). Second, lack of insight and denial/minimization: despite stipulating to failure to protect, the mother later denied neglect, suggested allegations were “not true,” accused professionals of “brainwashing,” sought records to “prove” fabrication, and downplayed sexual abuse during visitation. Under In re Timber M. and In re Charity H., denial makes the problem “untreatable,” supporting the statutory conclusion that she had an inadequate capacity to solve the problems “on [her] own or with help” (W. Va. Code § 49-4-604(d)).

(C) Less restrictive alternatives were not required once statutory prerequisites for termination were met.
Applying Syl. Pt. 5, In re Kristin Y. (quoting In re R.J.M.), the Court held termination may be ordered without less restrictive alternatives where no reasonable likelihood of correction exists. The Court also upheld the circuit court’s best-interests findings, emphasizing the children’s need for continuity and permanence and referencing the statutory termination standard (W. Va. Code § 49-4-604(c)(6)).

(D) Procedural request for a post-dispositional improvement period failed for lack of a written motion.
Under State ex rel. P.G.-1 v. Wilson, the circuit court lacked authority to grant such an improvement period absent a written motion; the absence of that filing foreclosed appellate relief.

3.3 Impact

This decision strengthens a practical, “harmless error” approach to case-plan filing defects in West Virginia abuse-and-neglect litigation: failure to file a family case plan, though erroneous, will not necessarily require reversal if the parent cannot show prejudice—particularly where the record reflects clear notice of conditions to remedy, services addressing those conditions, and a demonstrated understanding of what reunification required.

The case also reinforces a recurring termination rationale: even substantial service participation may be insufficient if the parent cannot internalize and acknowledge the abuse/neglect, because insight is treated as a prerequisite to remediation (In re Timber M.; In re Charity H.). Finally, it highlights the procedural rigidity of improvement-period requests at disposition: oral motions alone do not suffice (State ex rel. P.G.-1 v. Wilson).

4. Complex Concepts Simplified

• Family case plan: A written roadmap identifying what went wrong (e.g., unsafe home; failure to protect) and what must change, including services and measurable tasks. Here, the Court held the roadmap function was effectively supplied by the stipulation plus the court’s on-the-record instructions—even though DHS failed to file the formal document.
• Improvement period (post-adjudicatory): A court-ordered period after a parent is adjudicated (found neglectful/abusive) during which the parent receives services and must demonstrate correction. Failure can lead to revocation and prompt movement to disposition.
• Revocation of improvement period: The court can end the improvement period early if the parent is not participating meaningfully or is not making progress. Revocation here was driven by ongoing unsafe housing and lack of insight.
• “No reasonable likelihood” of correction: A statutory finding (W. Va. Code § 49-4-604(d)) that the parent cannot fix the problems in the near future, even with help. It is a key gateway finding that permits termination under W. Va. Code § 49-4-604(c)(6).
• Less restrictive alternatives: Options short of termination (e.g., guardianship, temporary custody arrangements). West Virginia law permits skipping these if termination criteria are met (In re Kristin Y.).
• Best interests / permanency: Even when a parent-child bond exists, courts prioritize safety, stability, and timely permanence. The opinion underscores that children should not wait indefinitely for a parent to develop insight or create a safe home environment.

5. Conclusion

In re M.P. and D.S. affirms that DHS’s failure to file a family case plan—though contrary to procedural requirements—does not mandate vacatur absent a showing of prejudice, especially where the parent had clear notice of the conditions to correct and received services directed at those conditions. The opinion also reiterates that termination may be ordered without less restrictive alternatives when the parent cannot substantially correct abuse/neglect in the near future, with denial and minimization of harm serving as compelling evidence of untreatability. In the broader abuse-and-neglect framework, the decision signals that substance (notice, opportunity, and demonstrated change) will control over form (a missing filing) when evaluating whether the process was meaningfully frustrated.