In re B.S.: The 15/22-Month Permanency Cap Meaningfully Limits Improvement-Period Extensions; Near-Completion of Treatment Is Not a “Compelling Circumstance”

In re B.S.: The 15/22-Month Permanency Cap Meaningfully Limits Improvement-Period Extensions; Near-Completion of Treatment Is Not a “Compelling Circumstance”

Introduction

In this memorandum decision, the Supreme Court of Appeals of West Virginia affirmed a circuit court’s denial of an extension to a post-dispositional improvement period and the termination of a mother’s parental rights. The case arises from a child abuse and neglect proceeding involving the drug-affected birth of B.S. and the petitioner mother, K.S., whose recurrent substance use, continuing relationship with the child’s father amid a history of domestic violence, and limited parenting progress ultimately led the circuit court to deny further time and terminate parental rights.

The two principal appellate issues were:

  • Whether the circuit court erred by denying an extension of the post-dispositional improvement period under West Virginia Code § 49-4-610(6), in light of the 15-of-22-month foster care cap in § 49-4-610(9); and
  • Whether termination of parental rights under West Virginia Code § 49-4-604(c)(6) was erroneous given the mother’s anticipated completion of treatment.

The Court held that the record supported denial of the extension—principally because the requested extension would exceed the 15-of-22-month permanency cap and no “compelling circumstances” justified an exception—and that termination was warranted due to no reasonable likelihood of timely correction of conditions and the child’s need for permanency.

Summary of the Opinion

After B.S. was born drug-affected in August 2023, DHS filed an abuse and neglect petition. The mother stipulated at adjudication to substance abuse affecting her parenting. She was granted a post-adjudicatory improvement period, during which she relapsed (including once with the child’s father), later returned to treatment, and was found to have substantially complied. The court then granted a post-dispositional improvement period in May 2024. In June 2024, she relapsed again, pushing her anticipated program completion to mid-January 2025.

At the November 2024 dispositional hearing, evidence showed continued cohabitation with the father, dishonesty about that relationship, limited parenting skills in supervised visits, and no progression to unsupervised contact. DHS argued an extension would leave B.S. in foster care at least 17 months, surpassing the statutory 15-of-22-month threshold. The circuit court denied the extension as inconsistent with the child’s best interests and the statutory cap, then terminated parental rights upon findings that (1) there was no reasonable likelihood the mother could substantially correct conditions in the near future and (2) termination was necessary for the child’s welfare.

On appeal, applying clear-error review to factual findings and de novo review to legal conclusions, the Supreme Court affirmed. It held that:

  • The extension would have exceeded the statutory 15/22-month cap under § 49-4-610(9), and no clear and convincing “compelling circumstances” justified an exception;
  • Repeated relapse, cohabitation with the father amid a domestic violence history, dishonesty, and persistent deficits in parenting skills meant the mother did not substantially comply in a manner warranting more time; and
  • Termination was permissible under § 49-4-604(c)(6) and consistent with precedent permitting termination without less restrictive alternatives when there is no reasonable likelihood of timely correction and the child’s welfare requires it.

Analysis

1. Precedents and Authorities Cited

  • In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011): The Court relied on Cecil T. for two interrelated propositions:
    • Standard of review in abuse and neglect appeals: factual findings are reviewed for clear error; legal conclusions de novo (Syl. Pt. 1).
    • Courts “are not required to exhaust every speculative possibility of parental improvement” before proceeding to disposition (Syl. Pt. 4, in part, quoting In re R.J.M.). This principle undercut the mother’s argument that she should be given a short extension to finish treatment.
  • In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980): Longstanding authority for the proposition that the system need not wait on speculative improvement. It informs the Court’s refusal to delay permanency where success remains uncertain and would exceed statutory timelines.
  • In re D.S., 251 W. Va. 466, 914 S.E.2d 701 (2025): Cited for the rule that appellate courts do not reweigh evidence or make credibility determinations. This insulated the circuit court’s fact findings—about dishonesty, ongoing cohabitation with the father, and deficient parenting—from being second-guessed on appeal.
  • In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011): The Court reaffirmed that termination may be ordered “without the use of intervening less restrictive alternatives” when there is no reasonable likelihood the conditions of neglect or abuse can be substantially corrected in the near future and termination is necessary for the child’s welfare (Syl. Pt. 5, quoting R.J.M.).
  • In re B.H., 233 W. Va. 57, 754 S.E.2d 743 (2014): Emphasizes that the best interests of the child control dispositional decisions; the level of parental compliance with an improvement period is but one factor (Syl. Pt. 4). This supports prioritizing a child’s permanency over incremental, uncertain parental progress.
  • West Virginia Code § 49-4-610(6) and (9):
    • Subsection (6) authorizes extension of an improvement period if the parent has substantially complied and the extension is consistent with the child’s best interests.
    • Subsection (9) codifies the “15 of the most recent 22 months” permanency cap: courts cannot allow improvement periods or extensions that cause a child to remain in foster care longer than 15 of 22 months unless there are “compelling circumstances” proven by clear and convincing evidence.
  • West Virginia Code § 49-4-604(c)(6): Authorizes termination “[u]pon a finding that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future and, when necessary for the welfare of the child.” This statutory basis underpinned the termination.

The statutory permanency cap reflects federal policy in the Adoption and Safe Families Act (ASFA), which prioritizes timely permanency. The decision applies that policy faithfully: the child’s timeline governs, and speculative parental progress does not warrant prolonging foster care absent compelling, clearly proven reasons.

2. The Court’s Legal Reasoning

a. Improvement-Period Extension and the 15/22-Month Cap

The mother sought an extension to complete treatment. The circuit court—and the Supreme Court—focused on two independent but mutually reinforcing barriers:

  • Statutory time limit: An extension would have kept B.S. in foster care at least 17 months, exceeding § 49-4-610(9)’s 15-of-22-month cap.
  • No “compelling circumstances” by clear and convincing evidence: The mother’s near-completion of treatment, standing alone, was insufficient—especially given:
    • Two relapses during the case, including one while in treatment and while with the father;
    • Ongoing cohabitation with the father amid a history of domestic violence;
    • Dishonesty about the relationship with the father; and
    • Persistent deficits in parenting at supervised visits and no transition to unsupervised visitation, meaning reunification would still be months away even after treatment completion.

Layered over these facts was the best-interests analysis. Even if some compliance occurred, the controlling question remained whether extending time would serve the child’s best interests. The combination of statutory time limits and the child’s need for permanency eclipsed speculative parental progress. The Court also invoked Cecil T./R.J.M. to reject the argument that trial courts must wait to see if late-stage progress materializes.

b. Termination of Parental Rights

The Court affirmed termination under § 49-4-604(c)(6) after concluding there was no reasonable likelihood of substantial correction in the near future and that termination was necessary for the child’s welfare. The factual foundation included:

  • Repeated relapse—even during treatment—undermining confidence in imminent sobriety stability;
  • An ongoing relationship and cohabitation with the father notwithstanding a history of domestic violence and shared substance use;
  • Dishonesty about that relationship, which undermined service-provider and judicial trust; and
  • Limited parenting skills in supervised settings, with no advancement to unsupervised contact, making near-term reunification unrealistic.

Drawing on In re Kristin Y., the Court reiterated that when the statutory “no reasonable likelihood” criterion is met and termination serves the child’s welfare, courts may terminate without resorting to less restrictive alternatives. And under In re B.H., degrees of compliance do not control outcome; the child’s best interests do.

3. Doctrinal Clarifications and Practical Impact

a. The Permanency Cap Is a Real Constraint

In re B.S. underscores that § 49-4-610(9)’s 15-of-22-month cap is not aspirational; it is enforceable and will foreclose extensions absent “compelling circumstances” proven by clear and convincing evidence. Importantly, being “close” to completing a program does not by itself constitute a compelling circumstance, particularly where:

  • Relapse risk remains significant;
  • Critical safety issues continue (e.g., domestic violence dynamics or cohabitation with the offending partner); and
  • Parenting capacity has not progressed to unsupervised or trial-home settings that would make reunification feasible within the child’s timeline.

b. Substance-Use Progress Must Be Integrated with Safety and Parenting Capacity

The Court’s analysis looks holistically at reunification readiness. Program completion is necessary but insufficient if:

  • The parent remains in a risky relationship or environment;
  • There has been deception that undermines case planning and safety assessment; or
  • There is no demonstrated ability to parent safely without supervision.

Even substantial compliance in some areas cannot overcome deficits that make reunification unsafe or infeasible within the statutory timeframe.

d. Best Interests Trump “Last-Minute” Compliance

Consistent with In re B.H., the Court privileges the child’s best interests and permanency needs over incremental parental progress that does not readily translate into safe reunification within the child’s timeframe. This is aligned with ASFA’s policy that a child’s need for a permanent family is paramount, and that prolonged foster care is disfavored.

e. Appellate Deference to Fact-Finding

The citation to In re D.S. signals deference to credibility assessments and factual determinations by circuit courts. On appeal, arguments that essentially ask the Supreme Court to reweigh evidence will not succeed. Trial courts should therefore make thorough, specific findings regarding substance-use history, domestic violence dynamics, honesty and engagement, visit quality, and permanency timelines.

f. Practical Guidance for Future Cases

  • For parents and counsel:
    • Address domestic violence and unsafe relationships explicitly and early. Demonstrate separation, safety planning, and sustained independence with corroboration.
    • Move visitation from supervised to unsupervised as quickly as safely possible; lack of progression can be dispositive.
    • Document not only program participation but functional change (parenting capacity, stability, housing, sobriety supports) that makes reunification feasible in the near term.
    • If seeking to exceed the 15/22 cap, marshal “compelling circumstances” with clear and convincing evidence (e.g., identifiable, immediate reunification pathway; exceptional factors like medically necessary delays coupled with relative placement and a defined, short horizon to permanency).
  • For DHS and GALs:
    • Build a record on permanency timelines, visit progression, and concrete steps needed between treatment completion and reunification.
    • Document safety risks from intimate partner violence and cohabitation with offending partners, and any dishonesty that impedes case planning.
    • Tie recommendations to the statutory cap and the best-interests analysis; identify why further delay will not translate into timely reunification.
  • For courts:
    • Make explicit findings on the 15/22-month calculation, whether “compelling circumstances” exist by clear and convincing evidence, and the best-interests ramifications of delay.
    • When terminating, articulate the specific bases for concluding there is no reasonable likelihood of correction in the near future and why termination is necessary for the child’s welfare.

Complex Concepts Simplified

  • Improvement Period: A court-ordered period during which a parent is given services and time to remedy conditions. Post-adjudicatory follows the adjudication (finding of abuse/neglect); post-dispositional follows initial disposition. Extensions are possible but limited by statute.
  • 15/22-Month Permanency Cap (§ 49-4-610(9)): A child should not remain in foster care for more than 15 of the most recent 22 months. Courts cannot extend improvement periods past this limit unless “compelling circumstances” exist and are proven by clear and convincing evidence, and extension is in the child’s best interests.
  • “Compelling Circumstances” (Clear and Convincing Evidence): A high evidentiary threshold requiring specific, persuasive proof of exceptional reasons to exceed the cap—more than mere optimism or proximity to program completion.
  • No Reasonable Likelihood of Correction (§ 49-4-604(c)(6)): A legal finding that a parent cannot substantially correct the conditions of abuse or neglect in the near future, considering issues like repeated relapse, ongoing unsafe relationships, and failure to progress in parenting.
  • Best Interests of the Child: The paramount consideration guiding dispositional decisions, including whether to extend an improvement period or terminate parental rights. Permanency and safety are central to this assessment.
  • Termination Without Less Restrictive Alternatives: When the statutory standard is met, courts may terminate parental rights without first attempting measures like guardianship if such alternatives would not address safety, permanency, or timeliness concerns.

Conclusion

In re B.S. is a clear reaffirmation that West Virginia’s statutory permanency framework has teeth. The decision underscores three key principles: (1) the 15/22-month cap is a meaningful limit on improvement-period extensions, (2) near-completion of treatment—especially in the face of repeated relapse, ongoing unsafe relationships, and lack of parenting progression—does not constitute “compelling circumstances” to exceed that cap, and (3) when there is no reasonable likelihood of timely correction and the child’s welfare requires it, termination is permissible without resort to less restrictive alternatives.

For practitioners, the case is a caution against relying on late-stage, speculative progress to justify further delay. For courts, it provides a template for integrating statutory timelines, safety realities, and functional parenting capacity into a rigorous best-interests analysis. Above all, it centers the child’s right to a safe, permanent home within a timeframe that meets the child’s developmental needs.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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