Substantial-Change Showing Required for a Post-Dispositional Improvement Period After an Earlier Improvement Period

1. Introduction

Case: In re A.F.-1, No. 25-170 (W. Va. Sup. Ct. App. Mar. 3, 2026) (memorandum decision).
Parties: Petitioner Father (A.F.-21) appealed the Kanawha County Circuit Court’s termination of his parental rights to A.F.-1; the West Virginia Department of Human Services (“DHS”) and the child’s guardian ad litem opposed.

The abuse and neglect case began in March 2023. Initial allegations focused on substance abuse and mistreatment in the home, and that the father exposed the child to the mother whose parental rights were previously terminated. The petition was later amended to add allegations that the father physically abused other children, used marijuana, and would disappear for days. After the father stipulated at adjudication to inadequate housing and failure to protect, he received a post-adjudicatory improvement period with multiple services (domestic violence counseling, parenting/life skills, drug screening, high-conflict resolution therapy, and a psychological evaluation with a “guarded” prognosis).

In late 2024, DHS amended again, alleging the father physically abused A.F.-1 during supervised visitation. Following additional evidence, the circuit court re-adjudicated the father as abusive/neglectful based on clear and convincing evidence of abuse during visits. At disposition (January 2025), the father requested a post-dispositional improvement period instead of termination. The circuit court denied the request and terminated parental rights, emphasizing lack of improvement despite extensive services and the child’s need for permanency—particularly given the statutory foster-care time limits. The Supreme Court of Appeals affirmed.

2. Summary of the Opinion

The Court held that the circuit court did not err by (1) denying a post-dispositional improvement period and (2) terminating parental rights. The opinion applies:

  • W. Va. Code § 49-4-610(3)(D): after a parent has already received an improvement period, a post-dispositional improvement period may be granted only upon a substantial change in circumstances and a showing the parent is likely to fully participate.
  • The principle that “compliance” with services can exist without meaningful parenting improvement (In re Jonathan Michael D. quoting W. Va. Dep't of Hum. Servs. v. Peggy F.).
  • W. Va. Code § 49-4-610(9): foster-care time limits (15 of the most recent 22 months) constrain extensions absent clear and convincing “compelling circumstances.”
  • W. Va. Code § 49-4-604(d)(3) and § 49-4-604(c)(6): termination is proper where there is no reasonable likelihood the conditions can be substantially corrected in the near future and termination is necessary for the child’s welfare.

3. Analysis

3.1. Precedents Cited

Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011)

The Court used In re Cecil T. to frame the appellate standard of review: factual findings are reviewed for clear error and legal conclusions de novo. This matters because the father’s appeal largely attacked the circuit court’s evaluative judgments (credibility, improvement, and risk), which are typically upheld unless clearly erroneous.

In re Jonathan Michael D., 194 W. Va. 20, 459 S.E.2d 131 (1995) (quoting W. Va. Dep't of Hum. Servs. v. Peggy F., 184 W. Va. 60, 399 S.E.2d 460 (1990))

This pair of authorities supplies the key doctrinal distinction the Court relied upon: a parent may “comply” with elements of a case plan yet fail to achieve the deeper rehabilitative goal—an improved “overall attitude and approach to parenting.” The opinion used this principle to reject the father’s argument that participation in some services justified another improvement period. The circuit court found persistent aggression, denial of misconduct, refusal to accept redirection, and worsening behavior—classic indicators of “compliance without change.”

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

The Court invoked In re Tonjia M. to emphasize the circuit court’s discretion to deny an improvement period “when no improvement is likely.” Here, extensive services had already been provided, yet the father’s aggression persisted (and, in some respects, worsened), supporting the discretionary denial of a further improvement period.

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))

These cases support the proposition that termination may occur without “less restrictive alternatives” where there is no reasonable likelihood the conditions can be substantially corrected. The opinion uses In re Kristin Y. (and its quotation of In re R.J.M.) to validate the circuit court’s move directly to termination once it found the statutory “no reasonable likelihood” condition satisfied.

3.2. Legal Reasoning

The Court’s reasoning proceeds in two linked steps:

(A) Denial of a post-dispositional improvement period under W. Va. Code § 49-4-610(3)(D)

Because the father had already received a post-adjudicatory improvement period, the statute required him to demonstrate: (1) a substantial change in circumstances since the initial improvement period, and (2) that, due to that change, he was likely to fully participate.

The Court agreed with the circuit court that this showing was not made. The record supported findings that:

  • The father repeatedly displayed aggression during supervised visitation and failed to implement coaching on de-escalation and appropriate discipline.
  • A service provider testified that the father physically restrained her, causing services to be suspended; the circuit court credited this testimony and found the provider feared for her safety.
  • The father denied wrongdoing and minimized concerns, which the court treated as evidence of lack of insight and lack of meaningful behavioral change.
  • A psychological evaluation offered a “guarded” prognosis, reinforcing the conclusion that more time/services were unlikely to change the outcome.

The Court also highlighted the statutory time constraint: at disposition the child had been in foster care for over fifteen months, and the circuit court did not find “compelling circumstances” to extend time beyond what W. Va. Code § 49-4-610(9) permits.

(B) Termination under W. Va. Code § 49-4-604

After denying further improvement time, the circuit court terminated parental rights under W. Va. Code § 49-4-604(c)(6), which requires findings that: (1) there is no reasonable likelihood the conditions can be substantially corrected in the near future, and (2) termination is necessary for the child’s welfare.

The “no reasonable likelihood” finding was supported through § 49-4-604(d)(3): failure to respond to or follow through with a reasonable family case plan or rehabilitative efforts. Importantly, the opinion treats “failure to benefit” (continued aggression, refusal to accept responsibility, worsening behaviors) as the functional equivalent of failing to respond to rehabilitative efforts, even if the parent attended or partially complied with services.

Finally, the welfare determination relied on the prolonged duration of the case (since 2023), the child’s young age, and the need for permanency—considerations that align with both the statutory permanency framework and the Court’s cited precedent permitting termination without intermediate alternatives where correction is not reasonably likely.

3.3. Impact

Although issued as a memorandum decision, In re A.F.-1 is a clear application of existing West Virginia doctrine with practical consequences for litigants and courts:

  • Higher bar for a second improvement period: Once an improvement period has been granted, a parent seeking a post-dispositional improvement period must show a genuine, demonstrable change in circumstances, not merely continued participation or promises of future compliance.
  • “Benefit” matters more than “attendance”: The decision reinforces that courts may credit evidence of continued unsafe behaviors (e.g., aggression, inability to take redirection, denial) over check-the-box compliance.
  • Time limits are not background noise: The 15-of-22-month foster-care limit under W. Va. Code § 49-4-610(9) meaningfully constrains additional improvement time absent a well-supported “compelling circumstances” finding.
  • Provider/visitation evidence is pivotal: Credible testimony from service providers and visitation supervisors—especially about safety concerns and coaching that is ignored—can be determinative on the “reasonable likelihood” inquiry.

4. Complex Concepts Simplified

  • Adjudication vs. disposition: Adjudication decides whether the parent abused/neglected; disposition decides what happens next (return home, guardianship, termination, etc.).
  • Improvement period: A court-ordered timeframe for a parent to complete services aimed at fixing problems that made the home unsafe. A “post-dispositional” improvement period is requested after the case reaches the stage where termination is on the table.
  • Substantial change in circumstances: A real, material improvement since the prior improvement period—typically shown by sustained behavioral change, insight, accountability, and credible evidence that the change will persist.
  • Clear and convincing evidence: A higher burden than “more likely than not,” requiring a firm belief in the truth of the allegations.
  • No reasonable likelihood conditions can be corrected: A legal conclusion that further services/time will not fix the core safety problems soon enough for the child.
  • 15 of 22 months rule: The law generally disfavors keeping a child in foster care beyond 15 months out of the most recent 22 months via stacked improvement periods/extensions, unless the court finds compelling circumstances (by clear and convincing evidence) that an extension is in the child’s best interests.

5. Conclusion

In re A.F.-1 affirms that a parent who has already received an improvement period is not entitled to additional improvement time at disposition absent a proven substantial change in circumstances and a showing that full participation is likely. The decision underscores that partial compliance does not equate to meaningful rehabilitation, and it elevates the child’s statutory and developmental need for timely permanency—especially when the child has been in foster care beyond the 15-month threshold. When credible evidence shows continued unsafe behaviors and lack of benefit from services, termination may proceed without less restrictive alternatives.