“Substantial Change” Required for a Post-Dispositional Improvement Period; Termination Permitted Without Less Restrictive Alternatives When No Reasonable Likelihood of Correction Exists

Case: In re D.S., No. 25-194 (W. Va. Sup. Ct. App. Mar. 3, 2026) (memorandum decision)
Lower court: Circuit Court of Kanawha County, CC-20-2023-JA-279 (Order Feb. 19, 2025)

1. Introduction

In re D.S. arises from an abuse-and-neglect proceeding filed by the West Virginia Department of Human Services (“DHS”) after D.S. was born drug-affected, with allegations that Mother (M.S.) abused marijuana and methamphetamine. The petition emphasized Mother’s history: she previously voluntarily relinquished rights to an older child after continued methamphetamine use and unsuccessful completion of multiple treatment programs.

Mother stipulated at adjudication and received a post-adjudicatory improvement period requiring sobriety, screening, classes, and successful completion of Family Treatment Court (“FTC”). After relapses, leaving inpatient treatment against medical advice and the court’s order, discharge from subsequent treatment for noncompliance, and discharge from FTC following positive methamphetamine screens and missed obligations, Mother sought a post-dispositional improvement period rather than termination.

The appeal presented two core issues:

  • Whether the circuit court erred in denying a post-dispositional improvement period under W. Va. Code § 49-4-610(3)(D).
  • Whether termination was improper because it was not the “least restrictive alternative.”

2. Summary of the Opinion

The Supreme Court of Appeals of West Virginia affirmed. Applying the abuse-and-neglect appellate standard—clear-error review of factual findings and de novo review of legal conclusions (Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011))—the Court held:

  1. No post-dispositional improvement period: Mother failed to demonstrate a “substantial change in circumstances” since her initial improvement period and failed to show she was likely to fully participate as required by W. Va. Code § 49-4-610(3)(D).
  2. Termination affirmed: The circuit court properly terminated parental rights under W. Va. Code § 49-4-604(c)(6) because there was no reasonable likelihood the conditions could be substantially corrected in the near future, and termination was necessary for the child’s welfare.

The Court also rejected any claim that Mother was entitled to a further extension of the post-adjudicatory improvement period, noting that only one extension is authorized (Syl. Pt. 5, State ex rel. P.G.-1 v. Wilson, 247 W. Va. 235, 878 S.E.2d 730 (2021)).

3. Analysis

3.1. Precedents Cited (and How They Shaped the Decision)

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

  • Standard of review: The Court expressly relied on Syl. Pt. 1 for the clear-error/de novo framework governing appellate review in abuse-and-neglect cases.
  • No duty to chase speculative reunification: The Court quoted Syl. Pt. 4, in part, In re Cecil T. (which itself quotes In re R.J.M.) to reinforce that courts need not “exhaust every speculative possibility of parental improvement” where child welfare would be seriously threatened. This principle directly supported rejecting Mother’s “give me more time” request after repeated treatment failures.

In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)

  • Foundational termination principle: Though cited through later cases, In re R.J.M. remains the backbone for the proposition that child welfare can override further speculative parental improvement efforts.
  • Least restrictive alternatives not required in certain findings: Through its later quotation in In re Kristin Y., In re R.J.M. also informs the rule that termination may proceed without intervening less restrictive alternatives when statutory findings are satisfied.

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

  • Discretion to deny improvement periods: The Court used In re Tonjia M. to emphasize that improvement periods are not automatic; circuit courts may refuse them when “no improvement is likely.” This case supplied direct doctrinal support for denying a second (post-dispositional) improvement period given Mother’s noncompliance and relapses.

In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011)

  • Termination without lesser alternatives: Syl. Pt. 5, In re Kristin Y. was the Court’s principal citation for rejecting Mother’s “least restrictive alternative” argument. It restates that termination may occur without intermediate steps when there is no reasonable likelihood the conditions can be corrected.

State ex rel. P.G.-1 v. Wilson, 247 W. Va. 235, 878 S.E.2d 730 (2021)

  • Only one extension: The Court invoked Syl. Pt. 5 to foreclose any argument that the circuit court should have granted additional extensions beyond the one already provided. This precedent converts what might appear to be a discretionary “more time” request into a statutory limit with clear appellate teeth.

3.2. Legal Reasoning

A. Denial of a Post-Dispositional Improvement Period (W. Va. Code § 49-4-610(3)(D))

The Court treated Mother’s request as a second-chance request governed by heightened statutory prerequisites: after an initial improvement period has already been granted, the parent must show (1) a substantial change in circumstances since that initial period, and (2) that because of that change the parent is likely to fully participate.

The Court found the record inconsistent with both requirements. Key facts:

  • Leaving inpatient treatment (Harmony Ridge) against medical advice and contrary to the circuit court’s order.
  • Discharge from Hope Rehab for noncompliance.
  • Discharge from FTC for two positive methamphetamine tests, missed meetings/check-ins/hearings, failure to advance, and evasive/manipulative behavior.
  • A prior relinquishment in another case rooted in the same unresolved methamphetamine addiction and failed treatment history.

On these facts, the Court concluded Mother’s testimony that she would “commit” if given more time was insufficient—particularly in light of In re Cecil T.’s rule against exhausting speculative possibilities of improvement.

B. Termination as Disposition (W. Va. Code § 49-4-604(c)(6) and (d)(3))

The “least restrictive alternative” argument failed because West Virginia law authorizes termination without lesser alternatives where two conditions are met:

  1. There is no reasonable likelihood the abuse/neglect conditions can be substantially corrected in the near future; and
  2. Termination is necessary for the welfare of the child.

The Court highlighted W. Va. Code § 49-4-604(d)(3), which supports a “no reasonable likelihood” finding when the parent has not responded to or followed through with a reasonable family case plan or rehabilitative efforts. Mother’s repeated failures in treatment and FTC, continued positive screens, and program discharges satisfied that statutory pathway.

Finally, the Court emphasized the child-centered necessity analysis: D.S. was very young, and the record supported the conclusion that safe and stable permanency required termination.

C. Statutory Cap on Improvement Period Extensions (W. Va. Code § 49-4-610(6))

The Court also addressed (in a footnote) an adjacent claim: Mother suggested termination should not have occurred because the court should have extended her post-adjudicatory improvement period. The Court noted the circuit court had already granted a three-month extension and, under Syl. Pt. 5, State ex rel. P.G.-1 v. Wilson, West Virginia law authorizes only one such extension. This reinforces a legislatively chosen endpoint to “additional time” requests.

3.3. Impact

  • Higher bar for second chances: The decision underscores that a post-dispositional improvement period is not a continuation of hope; it is a distinct remedy requiring proof of a substantial and recent change tied to likely full participation. Mere promises at disposition are unlikely to suffice when the record shows repeated noncompliance.
  • FTC participation has legal consequences: By relying heavily on FTC discharge reasons (positive screens, missed check-ins/hearings, failure to advance, evasive behavior), the decision signals that FTC is not merely therapeutic support; performance in FTC can be probative evidence on statutory findings (likelihood of correction, responsiveness to case plans).
  • Reaffirmed pathway to termination without incremental dispositions: The opinion strengthens predictability: once the court finds “no reasonable likelihood” and “necessary for welfare,” termination can proceed without guardianship or other intermediate steps, consistent with In re Kristin Y.
  • Time-limits matter: The citation to State ex rel. P.G.-1 v. Wilson reinforces that improvement periods and extensions are time-bounded tools, not open-ended opportunities—especially salient for infants and very young children where permanency timelines are most pressing.

4. Complex Concepts Simplified

Improvement period (post-adjudicatory vs. post-dispositional)
An improvement period is a court-supervised opportunity for a parent to correct problems (often substance use, unsafe housing, or noncompliance with services). A post-adjudicatory improvement period occurs after the parent is found to have abused/neglected. A post-dispositional improvement period is requested later—when the court is deciding the final outcome (including termination)—and requires heightened proof when a prior improvement period has already been granted.
“Substantial change in circumstances” (W. Va. Code § 49-4-610(3)(D))
This is more than saying “I’m ready now.” It requires evidence of meaningful, demonstrable change occurring after the first improvement period—such as sustained sobriety, successful completion of treatment, consistent compliance, or other objective indicators that future participation is likely.
“No reasonable likelihood” to correct (W. Va. Code § 49-4-604(c)(6), (d)(3))
The question is not whether improvement is theoretically possible, but whether correction is reasonably likely in the near future. A parent’s failure to follow through with a reasonable case plan or rehabilitative efforts is statutory evidence supporting this finding.
“Least restrictive alternative”
In many contexts, courts prefer less drastic options than termination. But West Virginia law allows termination without intermediate steps when the statutory findings are made: no reasonable likelihood of correction and termination necessary for the child’s welfare.
Clear error vs. de novo review
“Clear error” means an appellate court will not reweigh evidence; it will only overturn factual findings that are plainly wrong. “De novo” means the appellate court gives no deference on legal questions and decides them anew.
Family Treatment Court (FTC)
A specialized program typically combining judicial monitoring, treatment, frequent check-ins, and accountability measures for parents whose substance use is a primary barrier to reunification. Failure in FTC can be used as evidence of non-responsiveness to rehabilitative efforts.

5. Conclusion

In re D.S. reinforces a practical and increasingly firm rule in West Virginia abuse-and-neglect jurisprudence: once a parent has received an improvement period, a later request for a post-dispositional improvement period requires concrete proof of a substantial change in circumstances and a demonstrated likelihood of full participation—not aspirational testimony. The decision also reaffirms that termination is legally proper (and need not yield to lesser alternatives) when the parent has not responded to reasonable rehabilitative efforts and the child’s need for safe, stable permanency—particularly for very young children—demands finality.