Introduction

In a memorandum decision issued on September 10, 2025, the Supreme Court of Appeals of West Virginia affirmed the termination of the parental rights of K.S. (Petitioner Father) to his infant child, A.S. The appeal challenged two core determinations by the Circuit Court of Fayette County: (1) the adjudication of K.S. as an abusive and neglectful parent based on his incarceration and associated inability to provide for the child; and (2) the dispositional termination of his parental rights, including the denial of an improvement period as a less restrictive alternative.

The Court’s decision clarifies and reinforces several important principles in West Virginia abuse and neglect law:

• The “time-of-filing” rule controls adjudication: the conditions existing when the petition is filed—not later events—govern whether abuse or neglect is proven by clear and convincing evidence.
• Incarceration may constitute “neglect” when it results in a parent’s inability to provide necessary food, clothing, shelter, medical care, education, or supervision.
• The burden to obtain an improvement period rests with the respondent parent, who must prove by clear and convincing evidence a likelihood of full participation; agencies are not required to create services that are unavailable during incarceration.
• Termination without intervening less restrictive alternatives is permissible when there is no reasonable likelihood the conditions of neglect or abuse can be corrected in the near future and termination is necessary for the child’s welfare.

Parties included: Petitioner Father K.S.; the West Virginia Department of Human Services (DHS); and the child A.S. A guardian ad litem appeared for the child. The child’s mother’s parental rights were also terminated; the child’s permanency plan is adoption in the current placement.

Summary of the Opinion

The Court affirmed the circuit court’s October 18, 2024 order terminating K.S.’s parental rights. Key holdings include:

• Adjudication: The circuit court properly adjudicated K.S. as an abusive and neglectful parent. The Court applied the “time-of-filing” rule and rejected K.S.’s reliance on later orders setting child support to zero and imposing no-contact, because those orders post-dated petition filing. At the time of filing, K.S.’s incarceration and substance abuse rendered him unable to provide the child’s necessities, satisfying neglect under West Virginia Code § 49-1-201, as explained in In re B.P., 249 W. Va. 274, 895 S.E.2d 129 (2023) (Syl. Pt. 3).
• Improvement Period: The circuit court did not err in denying a post-adjudicatory improvement period. The burden rested with K.S. to demonstrate by clear and convincing evidence his likelihood to participate; he offered none. DHS testimony established it could not provide services during incarceration.
• Termination: Termination was proper because there was no reasonable likelihood the conditions of neglect could be corrected in the near future, and termination was necessary for the child’s welfare. The circuit court weighed incarceration factors identified in In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (Syl. Pt. 3), including the felony drug nature of the offense, the terms and length of confinement (projected discharge in 2036, parole eligibility in two years), and the child’s paramount need for permanency and stability. Termination without less restrictive alternatives is consistent with West Virginia Code § 49-4-604(c)(6) and In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011).

Analysis

Precedents and Authorities Cited

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

The Court reiterated the familiar bifurcated standard: factual findings are reviewed for clear error, while legal conclusions are reviewed de novo. This frames appellate deference to trial-level credibility determinations and fact-finding in abuse and neglect proceedings.

2) Time-of-Filing Rule: In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176 (1997), quoting In re S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981); West Virginia Code § 49-4-601(i)

The Court underscored that adjudication focuses on “conditions existing at the time of the filing of the petition,” which must be proven by clear and convincing evidence. Later events, such as orders setting support to zero or restricting contact, cannot retroactively alter the adjudicatory analysis. This principle prevented K.S. from using post-petition orders to defeat adjudication.

3) Incarceration as Neglect: In re B.P., 249 W. Va. 274, 895 S.E.2d 129 (2023) (Syl. Pt. 3); West Virginia Code § 49-1-201

In B.P., the Court held that incarceration resulting in a parent’s inability to provide necessary food, clothing, shelter, medical care, education, or supervision is a form of “neglect” under § 49-1-201. In re A.S. applies B.P. directly: K.S.’s incarceration at the time of filing prevented him from providing for the infant’s basic needs, satisfying neglect. That K.S. later had a zero-support order and was barred from contact at adjudication did not change the analysis.

4) Improvement Period Burden: West Virginia Code § 49-4-610(2)(B); In re J.D.-1, 247 W. Va. 270, 879 S.E.2d 629 (2022)

The respondent parent bears the burden of proving by clear and convincing evidence that he or she is likely to fully participate in an improvement period. K.S. offered no evidence; DHS established that services were unavailable during incarceration. The circuit court acted within its discretion to deny an improvement period when no improvement was likely, consistent with In re Tonjia M., 212 W. Va. 443, 573 S.E.2d 354 (2002).

5) Dispositional Analysis with Incarceration: In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (Syl. Pt. 3)

When incarceration underlies a parent’s inability to correct conditions, courts must consider the nature of the offense, the terms and length of confinement, and the child’s best interests and need for permanency, security, stability, and continuity. The circuit court’s order satisfied this analysis, emphasizing K.S.’s felony drug convictions, projected discharge in 2036, and the child’s immediate need for permanency.

6) Termination Without Lesser Alternatives: West Virginia Code § 49-4-604(c)(6); In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011); In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)

When there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future and termination is necessary for the child’s welfare, courts may terminate parental rights without imposing less restrictive alternatives. The Court affirmed this disposition given K.S.’s circumstances.

Legal Reasoning

A) Adjudication: Time-of-Filing Controls and Incarceration-Based Neglect

The Court first addressed K.S.’s challenge to adjudication. The record showed that:

• DHS initially filed in November 2023 after the mother tested positive for amphetamines at birth and alleged K.S. intended to abandon the newborn because he had never seen or visited her.
• An amended petition in July 2024 alleged K.S. was unable to care for A.S. due to incarceration and substance abuse. K.S. had pled guilty to drug offenses, entered treatment court, relapsed around November 2023, violated program conditions, and received the underlying sentence of incarceration.
• At adjudication in August 2024, K.S., through counsel, stipulated to the petition’s factual allegations insofar as he was incarcerated and could not deny he would be incarcerated for a significant period. He argued that incarceration did not rise to “abuse or neglect.”

Applying the “time-of-filing” rule, the Court rejected K.S.’s reliance on later orders setting child support to zero (entered months after DHS filed) and a no-contact directive at adjudication. Those orders had no bearing on whether, at the time DHS filed, K.S.’s incarceration rendered him unable to provide A.S.’s necessities. Under In re B.P., such incarceration-based inability is “neglect” within § 49-1-201. The circuit court’s adjudicatory finding—clear and convincing evidence of neglect based on inability to support, maintain, or educate due to incarceration and substance abuse—was therefore affirmed.

B) Improvement Period: Burden on the Parent; Unavailable Services During Incarceration

At disposition, K.S. sought a post-adjudicatory improvement period. The Court held that he carried the burden to show a likelihood of full participation by clear and convincing evidence, and he offered none. DHS presented unrebutted testimony that it could not provide services to K.S. during incarceration. Under In re Tonjia M., a circuit court may deny an improvement period when “no improvement is likely.” The denial was well within the court’s discretion.

This aspect of the decision is practical and straightforward: the improvement period is a tool for correcting conditions now, not a placeholder for hoped-for future availability. Where a parent cannot access services or demonstrate meaningful steps toward addressing core issues (here, substance abuse and criminal conduct), and release is not imminent, an improvement period is unwarranted.

C) Termination: Cecil T. Incarceration Factors, No Reasonable Likelihood, and Necessity for the Child’s Welfare

The circuit court’s dispositional order conducted the required incarceration analysis under Cecil T. (Syl. Pt. 3):

• Nature of offense: Felony manufacturing or delivering a controlled substance and conspiracy; additional plea related to transporting heroin into a holding cell, reflecting continued involvement in drug-related criminal conduct.
• Terms and length of confinement: Projected discharge in 2036; parole eligibility in approximately two years; next parole hearing set for early 2027.
• Child’s best interests: A.S., an infant at case initiation, requires immediate permanency, security, stability, and continuity.

The court also found K.S. had not meaningfully addressed his substance use and that any sobriety was “forced” by incarceration. Given these findings, the court concluded there was no reasonable likelihood the conditions of neglect could be substantially corrected in the near future and that termination was necessary for the child’s welfare. Under § 49-4-604(c)(6) and Kristin Y., termination without less restrictive alternatives was permissible.

Impact and Practical Implications

1) Clarifying the Reach of In re B.P. in Adjudication

In re A.S. reflects a straightforward application—and practical clarification—of B.P.: incarceration that prevents a parent from providing necessities can satisfy neglect at adjudication when that condition exists at the time of filing. Defense efforts to rely on post-petition support adjustments or no-contact orders will not erase earlier neglective conditions. Counsel must focus on contemporaneous facts at petition filing rather than later developments.

2) The Time-of-Filing Rule Limits “Adjudication by Afterthought”

The Court’s emphasis that later orders “have no bearing” on adjudication preserves critical structural safeguards in abuse and neglect litigation: adjudication separates proof of past conditions from future-oriented disposition. While later changes may bear on disposition, they do not retroactively defeat adjudicatory findings.

3) Improvement Periods Are Not Automatic—Especially During Incarceration

The decision reiterates that improvement periods are neither presumptive nor agency-driven. The parent must make an evidentiary showing of likely participation. When services are not available during incarceration and the parent presents no concrete plan or progress, denial is proper. Practically, incarcerated parents and counsel should document available in-facility programs, certificates, and relapse-prevention plans to meet the statutory burden, recognizing that unavailability of services can be dispositive.

4) “Near Future” Is Child-Centered and Time-Compressed for Infants

For newborns and very young children, the “near future” is measured in months, not years. A projected release in 2036 and earliest parole in 2027 fundamentally conflicts with an infant’s need for permanency within a short time horizon. In re A.S. exemplifies that prolonged incarceration, standing alongside unaddressed substance-use issues, will often satisfy the “no reasonable likelihood” standard.

5) Less Restrictive Alternatives Are Not Required Where Statutory Findings Are Met

The Court’s reliance on § 49-4-604(c)(6) and Kristin Y. reinforces that once “no reasonable likelihood” and “necessity for the child’s welfare” are established, termination may be ordered without guardianship or other interim measures. Trial courts should still ensure a thorough Cecil T. analysis in incarceration cases, but if findings are robust, no additional dispositional steps are mandated.

6) Practice Pointers

• For Respondent Parents: Do not assume later no-contact or zero-support orders will insulate you from an adjudication grounded in earlier conditions. If incarcerated, compile and present concrete evidence of available treatment, classes, and a workable plan that can commence immediately, not after speculative release.
• For DHS and Guardians ad Litem: Document the unavailability of services during incarceration and the child’s permanency needs. Establish projected release dates, parole eligibility, and the nature of offenses to meet Cecil T.
• For Trial Courts: Make explicit findings linking incarceration to the statutory definition of neglect, apply the time-of-filing rule, and set out Cecil T. factors at disposition. Explain why improvement is unlikely where services are unavailable.

Complex Concepts Simplified

• Adjudication vs. Disposition: Adjudication decides whether the child was abused or neglected based on conditions at the time of filing, proven by clear and convincing evidence. Disposition determines what to do next (services, placement, termination) based on the child’s best interests.
• Time-of-Filing Rule: Only conditions existing when DHS filed the petition count for adjudication. Later orders or events generally do not undo adjudicatory proof.
• Neglected Child (W. Va. Code § 49-1-201): A child whose physical or mental well-being is threatened by a parent’s failure or inability to provide necessary care, including food, clothing, shelter, medical care, education, or supervision. Incarceration that causes such inability can qualify.
• Clear and Convincing Evidence: A high standard of proof requiring that the evidence be highly and substantially more likely to be true than not; more than a preponderance, less than beyond a reasonable doubt.
• Improvement Period (§ 49-4-610): A court-ordered period for a parent to correct conditions, with services and monitoring. The parent must prove by clear and convincing evidence a likelihood to fully participate.
• No Reasonable Likelihood: A dispositional finding that the conditions of abuse or neglect cannot be substantially corrected in the near future. Often informed by chronic issues, lack of progress, or barriers like lengthy incarceration.
• Least Restrictive Alternative: The principle that courts should use the least drastic disposition consistent with the child’s welfare. If “no reasonable likelihood” is found and termination is necessary for the child’s welfare, the court may terminate without intermediate steps.
• Cecil T. Incarceration Factors: Nature of the offense, terms and length of confinement, and the child’s best interests, particularly the need for permanency and stability, guide dispositional decisions when incarceration is central.
• Memorandum Decision (Rule 21): A shorter appellate decision without oral argument, used where the law is settled and the facts and arguments can be adequately addressed on the briefs.

Conclusion

In re A.S. is an important reaffirmation of three pillars of West Virginia abuse and neglect law: (1) adjudication is anchored to the conditions at petition filing; (2) incarceration-based inability to provide for a child’s necessities constitutes neglect under § 49-1-201 (as articulated in In re B.P.); and (3) termination without less restrictive alternatives is proper when the statutory “no reasonable likelihood” and “necessity for the child’s welfare” findings are made, particularly after a thorough Cecil T. analysis of incarceration.

For practitioners, the decision underscores that parents bear the burden to obtain improvement periods and must present concrete, contemporaneous evidence of their capacity to participate—especially when incarcerated. For courts, it provides a clear template: apply the time-of-filing rule at adjudication, document incarceration-related factors at disposition, and prioritize the child’s need for permanency, security, stability, and continuity. For children like A.S., the ruling advances timely permanency where a parent’s prolonged incarceration and unremedied substance-use issues make near-term reunification unrealistic.