In re G.M.: Reaffirming Discretion to Deny Improvement Periods and Terminate One Parent’s Rights Independently of the Other Parent
I. Introduction
The Supreme Court of Appeals of West Virginia’s memorandum decision in In re G.M., No. 24‑630 (Nov. 4, 2025), affirms a circuit court’s order terminating a mother’s parental, custodial, and guardianship rights to her newborn child. Although issued as a memorandum decision, the opinion is doctrinally significant because it:
- Reaffirms the broad discretion of circuit courts to deny a post‑adjudicatory improvement period where a parent cannot show a realistic capacity to change, even when the parent is nominally engaged in treatment; and
- Clarifies that a court may terminate one parent’s rights as to an abused and neglected child regardless of the procedural status or adjudication of the other parent, so long as statutory grounds are met.
The case centers on petitioner C.M. (“Mother”), whose parental rights to two older children had already been involuntarily terminated due to substance abuse and failure to protect them from an inappropriate caregiver, M.A., whose own rights had been terminated for sexual abuse of his child. When Mother later gave birth to G.M. in December 2023, the Department of Human Services (“DHS”) immediately investigated whether she had remedied the conditions that led to those earlier terminations.
At the hospital, Mother was enrolled in residential treatment and tested negative for substances; however, DHS discovered that she remained involved with M.A. and lied to a Child Protective Services (“CPS”) worker about his presence and identity. This, together with her history, triggered an abuse and neglect petition alleging imminent danger and failure to correct prior conditions.
After adjudication, Mother sought a post‑adjudicatory improvement period. The circuit court denied that motion and terminated her rights at disposition. On appeal, Mother argued that:
- The circuit court erred in denying her a post‑adjudicatory improvement period because she allegedly demonstrated a likelihood of full participation; and
- Termination of her rights was not “necessary for the welfare of the child,” especially given that the father had not yet been adjudicated, so a “less restrictive alternative” should have been used.
The Supreme Court rejected both arguments, affirming the denial of an improvement period and the termination of Mother’s rights. The decision carefully applies West Virginia Code provisions on improvement periods and termination, and it draws on a suite of prior abuse and neglect precedents.
II. Summary of the Opinion
The Court begins by noting that it decides the case by memorandum decision under Rule 21 of the Rules of Appellate Procedure, without oral argument, and affirms the October 7, 2024 order of the Circuit Court of Wood County.
A. Factual and Procedural Background
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Prior terminations and M.A.’s history. Mother’s parental rights to two older children were involuntarily terminated in March 2023, in part because of her substance abuse and her relationship with M.A., an “inappropriate person” whose own parental rights had been involuntarily terminated in 2022 for sexually abusing one of his children. The Supreme Court had already affirmed both terminations in earlier memorandum decisions:
- In re A.M., No. 23‑242, 2023 WL 7018084 (W. Va. Oct. 25, 2023) (upholding termination of Mother’s parental rights to the older children).
- In re J.A., No. 22‑699, 2023 WL 6144935 (W. Va. Sept. 20, 2023) (upholding termination of M.A.’s rights for, among other things, sexual abuse).
- Birth of G.M. and new petition. When G.M. was born in December 2023, DHS investigated to see whether Mother’s circumstances had changed. She was in a residential treatment program and initially tested negative for substances. However, CPS observed M.A. at the hospital, and Mother lied about his identity. DHS then filed an abuse and neglect petition alleging G.M. was in imminent danger because Mother had not remedied the conditions underlying the earlier terminations.
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Adjudication. At a March 2024 adjudicatory hearing, Mother admitted:
- Her prior involuntary termination regarding two children;
- That one reason for that termination was her failure to protect them from M.A.;
- That she continued her relationship with M.A.;
- That M.A. was at the hospital for G.M.’s birth; and
- That she lied to CPS about his identity.
- Motion for post‑adjudicatory improvement period. After adjudication, Mother moved for a post‑adjudicatory improvement period under West Virginia Code § 49‑4‑610(2)(B).
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Disposition and evidence of non‑compliance. At the August 2024 dispositional hearing, the circuit court considered both disposition and Mother’s motion for an improvement period. DHS and the court appointed special advocate (CASA) recommended termination. Their reports showed:
- Mother was involuntarily discharged from her inpatient rehabilitation program in February 2024 due to lying about her whereabouts and other rule violations;
- She missed seven supervised visits with G.M.;
- She refused to answer questions about her continued contacts with M.A.; and
- She had not communicated with the CPS worker since May 2024.
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Mother’s testimony. Mother testified that:
- After her prior termination, she completed an intensive outpatient program and later entered an inpatient rehabilitation program;
- She was discharged from the inpatient program in February 2024 for non‑compliance, which she attributed to “constantly changing” rules;
- She had three drug‑related misdemeanors in April, July, and October 2023;
- Since April 2023, she had been participating in a Law Enforcement Assisted Diversion (“LEAD”) program but had to restart the program after each new drug charge;
- She was cited one week before the dispositional hearing for “huffing” a can of air duster. She denied actually huffing but:
- Admitted that “cans” were one of her drugs of choice;
- Admitted she possessed a can of air duster and tried to hide it from a police officer; and
- Acknowledged that the officer described her as lethargic and confused.
- She admitted missing supervised visits but blamed a “broken” phone for her failure to attend.
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Circuit court’s factual findings. The circuit court found that:
- Mother’s testimony was “evasive and not credible,” and her cell‑phone explanations were “not legitimate”;
- She had not been “sober or clean for any period of time”;
- She missed multiple visits with the child;
- She failed to complete both the LEAD program and the residential drug treatment program; and
- G.M. needed “continuity in care and caretakers” and a significant amount of time to be integrated into a stable and permanent home environment.
B. Issues on Appeal and Holding
The Supreme Court framed and resolved two key issues:
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Denial of improvement period. Under West Virginia Code § 49‑4‑610(2)(B), a parent seeking a post‑adjudicatory improvement period must show by clear and convincing evidence that he or she is “likely to fully participate” in that period. Relying on In re Tonjia M., 212 W. Va. 443, 573 S.E.2d 354 (2002), the Court reiterated that circuit courts have discretion to refuse an improvement period when “no improvement is likely.”
The Court held that the evidence of Mother’s ongoing substance use, program noncompliance, new drug‑related legal trouble, recent air‑duster citation, missed visits, and lack of candor fully supported the circuit court’s decision to deny an improvement period. The Court underscored its deference to the circuit court’s credibility findings under Michael D.C. v. Wanda L.C., 201 W. Va. 381, 497 S.E.2d 531 (1997), and noted that Mother’s lack of visitation weighed against her capacity to improve under In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996). -
Termination despite father’s unresolved status. Mother conceded the statutory findings underlying termination but claimed termination was not “necessary for the welfare of the child” and that the court should have used a less restrictive alternative because the father had not yet been adjudicated. The Court rejected this argument, pointing to West Virginia Code § 49‑4‑604 and In re Emily, 208 W. Va. 325, 540 S.E.2d 542 (2000), which authorize terminating one parent’s rights while leaving the non‑abusing parent’s rights intact where circumstances warrant.
Citing West Virginia Code § 49‑4‑604(c)(6) and syllabus point 5 of In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (quoting In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)), the Court held that termination without less restrictive alternatives is permissible when there is no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected in the near future and when termination is necessary for the child’s welfare.
Applying these standards, the Court affirmed the circuit court’s order in its entirety.
III. Analysis
A. Precedents Cited and Their Role in the Decision
The Court’s reasoning is closely tied to a line of West Virginia abuse and neglect decisions. Each cited case or statute serves a distinct function.
1. In re Cecil T. – Standard of Review
The Court begins by setting the standard of appellate review, quoting syllabus point 1 of In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011):
- Findings of fact in abuse and neglect cases are reviewed for “clear error”; and
- Legal conclusions are reviewed de novo (from scratch, with no deference).
This framework is key: Mother’s appeal depended heavily on challenging the circuit court’s inferences from the facts—particularly regarding her credibility, sobriety, and likelihood of successful participation in an improvement period. By invoking Cecil T., the Supreme Court signals at the outset that it will be highly reluctant to disturb fact‑finding and credibility determinations supported by the record.
2. West Virginia Code § 49‑4‑610(2)(B) and In re Tonjia M. – Improvement Periods
The governing statute, West Virginia Code § 49‑4‑610(2)(B), requires a parent seeking a post‑adjudicatory improvement period to demonstrate, by clear and convincing evidence, that he or she is “likely to fully participate” in the improvement period. This standard is demanding: it shifts the burden to the parent and requires more than mere promises or partial engagement.
The Court relies on In re Tonjia M., 212 W. Va. 443, 573 S.E.2d 354 (2002), for the principle that:
“The circuit court has the discretion to refuse to grant an improvement period when no improvement is likely.”
This principle prevents improvement periods from becoming automatic or pro forma. The Court uses Tonjia M. to emphasize that an improvement period is not a right that flows from mere request or minimal treatment efforts. It is a discretionary tool to be used only where there is a realistic prospect of parental change within timeframes that are meaningful for the child.
3. Michael D.C. v. Wanda L.C. – Deference to Credibility Determinations
A central feature of this case is the circuit court’s express finding that Mother’s testimony was “evasive and not credible.” The Supreme Court cites Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997):
“A reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely situated to make such determinations and this Court is not in a position to, and will not, second guess such determinations.”
By invoking Michael D.C., the Court underscores that Mother’s various explanations (about program discharges, “constantly changing” rules, the air‑duster incident, and the “broken phone”) are not reweighed on appeal. Once the circuit court found those explanations not credible, the Supreme Court’s role is limited to confirming that the record reasonably supports that conclusion; it does not substitute its own assessments.
4. In re Katie S. – Visitation as a Proxy for Capacity to Improve
The Court cites footnote 14 of In re Katie S., 198 W. Va. 79, 90 n.14, 479 S.E.2d 589, 600 n.14 (1996), which explains that:
“[T]he level of interest demonstrated by a parent in visiting his or her children while they are out of the parent's custody is a significant factor in determining the parent's potential to improve sufficiently and achieve minimum standards to parent the child.”
Applied here, Mother’s missed supervised visits—seven noted in the reports, plus others acknowledged at the hearing—count heavily against her. Under Katie S., visitation is not merely a service box to check; it is concrete evidence of a parent’s willingness and ability to prioritize the child, maintain a relationship, and engage with the system. The Court uses this precedent to validate the circuit court’s reliance on missed visits as a predictor of poor prospects for future improvement.
5. West Virginia Code § 49‑4‑604 and In re Emily – Termination of One Parent’s Rights
Mother’s second argument—urging a less restrictive alternative because the father had not been adjudicated—runs squarely into West Virginia Code § 49‑4‑604 and In re Emily, 208 W. Va. 325, 540 S.E.2d 542 (2000). The Court quotes Emily:
[Section] 49-4-604 “permits the termination of one parent's parental rights while leaving the rights of the nonabusing parent completely intact, if the circumstances so warrant.”
This precedent is important in several respects:
- It rejects the notion that both parents’ rights must be treated symmetrically or resolved on the same timetable;
- It allows the court to focus on the conduct and capacity of the parent before it, without being constrained by the unresolved status of the other parent; and
- It undercuts Mother’s argument that the unresolved adjudication of the father somehow legally barred the court from terminating her rights or required a “less restrictive” option like temporary custody changes without termination.
6. West Virginia Code § 49‑4‑604(c)(6), In re Kristin Y., and In re R.J.M. – Termination Without Less Restrictive Alternatives
Termination of parental, custodial, and guardianship rights is authorized under West Virginia Code § 49‑4‑604(c)(6) when:
- There is no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected in the near future; and
- Termination is necessary for the welfare of the child.
Syllabus point 5 of In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), as quoted from syllabus point 2 of In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980), makes clear that:
Termination of parental rights is permissible “without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood that conditions of neglect or abuse can be substantially corrected” and termination is necessary for the child’s welfare.
The Court leans heavily on this principle to reject Mother’s request for a less restrictive disposition. Once the circuit court made express findings of no reasonable likelihood of correction and necessity for the child’s welfare—findings Mother did not challenge on appeal—the law allowed the court to proceed directly to termination without experimenting with intermediate dispositions such as continued improvement periods, extended supervision, or guardianship arrangements.
B. The Court’s Legal Reasoning
1. Denial of the Post‑Adjudicatory Improvement Period
Under West Virginia Code § 49‑4‑610(2)(B), the parent bears the burden to prove, by clear and convincing evidence, that she is likely to fully participate in an improvement period. The Court evaluated Mother’s proof against her history and recent conduct.
Key aspects of the Court’s reasoning include:
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Continuing substance abuse and instability. Mother had:
- Three drug‑related misdemeanor charges in 2023 (April, July, and October);
- Been involuntarily discharged from residential treatment in February 2024 for lying and rule violations; and
- A new citation just one week before the dispositional hearing for allegedly “huffing” air duster, involving a substance she admitted was one of her drugs of choice.
- Lack of candor and credibility. The circuit court found Mother’s explanations—that treatment rules were “constantly changing,” that she had not actually huffed the air duster, and that a “broken” phone caused her missed visits—unpersuasive and lacking credibility. Under Michael D.C., the Supreme Court deferred to these credibility findings.
- Missed visitation and disengagement from services. Mother missed at least seven supervised visits and had ceased communication with CPS since May 2024. Under Katie S., this lack of visitation is a strong indicator that she was not ready or willing to meet the minimum standards required to parent G.M.
- Ongoing association with M.A. and failure to protect. Mother continued her relationship with M.A., who had lost his parental rights for sexually abusing his own child. She had him present at the hospital for G.M.’s birth and lied to CPS to conceal this. These facts show that she did not correct one of the central conditions underlying her prior terminations: failure to protect her children from a known abuser.
Against this factual backdrop, the Court concluded that Mother had not shown, by clear and convincing evidence, that she was likely to fully participate in an improvement period. The mere fact that she had participated to some extent in outpatient and residential treatment, or that she was enrolled in LEAD, did not outweigh the pattern of relapse, new charges, program failures, and non‑engagement. Thus, under Tonjia M., the circuit court properly exercised its discretion in denying an improvement period because “no improvement [was] likely.”
2. Termination of Mother’s Rights Despite Father’s Procedural Status
Mother’s second argument was more structural than factual: she alleged that termination was not “necessary for the welfare of the child” because the father had not yet been adjudicated, and therefore the court should have pursued a less restrictive alternative.
The Court’s reasoning proceeded in steps:
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Mother did not challenge the statutory predicates for termination. Mother did not dispute the findings that:
- There was no reasonable likelihood she could substantially correct the conditions of abuse or neglect in the near future; and
- Termination was necessary for the welfare of the child.
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Termination of one parent is legally permissible and independent. Citing § 49‑4‑604 and In re Emily, the Court reaffirmed that the statute permits termination of one parent’s rights while leaving the nonabusing parent’s rights intact. This principle is logically broad enough to cover situations where the second parent’s rights are intact because:
- He or she is non‑abusing and capable; or
- His or her adjudication is unresolved but does not change the analysis of the other parent’s conduct.
- No obligation to employ less restrictive alternatives. Under Kristin Y. and R.J.M., once the statutory no‑reasonable‑likelihood and necessity findings are made, the circuit court is not required to try lesser measures first. The Court expressly noted that termination may proceed “without the use of intervening less restrictive alternatives” in those circumstances.
Therefore, Mother’s “less restrictive alternative” argument failed as a matter of law: her eligibility for termination turned on her demonstrated unfitness and poor prognosis, not on the incomplete procedural status of the father.
3. Emphasis on Permanency and Child‑Centered Analysis
Throughout the decision, both the circuit court and the Supreme Court emphasize:
- G.M.’s need for “continuity in care and caretakers”; and
- The “significant amount of time” needed to integrate the child into a stable, permanent home.
Even though G.M. was an infant at the time of proceedings, the Court implicitly rejects any notion that the system should wait indefinitely while a parent cycles through treatment failures, criminal charges, and tenuous sobriety. Child‑welfare law in West Virginia prioritizes timely permanency; parental efforts that do not produce concrete, sustained change within a child‑centered timeframe do not forestall termination.
C. Potential Impact on Future Cases and on West Virginia Child‑Welfare Law
Although In re G.M. is a memorandum decision, it reinforces and concretizes several important themes in West Virginia abuse and neglect jurisprudence.
1. Improvement Periods Will Be Denied Where Recent Conduct Shows Ongoing Risk
This decision underscores that circuit courts may — and arguably should — deny post‑adjudicatory improvement periods where:
- The parent has a recent and repeated pattern of substance abuse, including legal consequences close in time to disposition;
- There are failed treatment efforts, especially involuntary discharges for dishonesty or rule violations;
- The parent is disengaged from caseworkers and misses scheduled visits; and
- Credibility issues undermine the parent’s explanation for non‑compliance.
Attorneys representing parents should recognize that “being in treatment” is not, by itself, enough to secure an improvement period. Courts will look to:
- Completion (not just enrollment) of programs;
- Sustained sobriety (not just a negative test at admission or an isolated clean period); and
- Consistent visitation and communication with service providers.
2. Visitation as a Critical Indicator of Parental Commitment
The Court’s reliance on Katie S. to highlight missed visits as a “significant factor” signals to practitioners that visitation records will carry substantial evidentiary weight in future improvement‑period and termination decisions.
- For DHS and guardians ad litem, meticulous documentation of missed and attended visits will be crucial.
- For parents, consistent visitation is not just emotionally important for the child; it functions as legal evidence of their potential to improve.
3. Termination Independent of the Other Parent’s Status
By applying In re Emily to a situation where the father had not yet been adjudicated, the Court confirms that:
- A parent cannot rely on the unresolved status of the other parent to delay or avoid termination; and
- Circuit courts are free to sever one parent’s legal relationship with the child even while the other parent’s path is still under evaluation.
This promotes individualized, parent‑specific adjudication and prevents procedural limbo for children where one parent is clearly unfit but the system is still determining the status of the other.
4. Ongoing Relationships with Known Abusers Remain a Central Concern
Mother’s continued relationship with M.A., whose rights were terminated for sexual abuse, and her lying about his presence at the hospital, are central to both adjudication and disposition. The case reinforces a well‑established but crucial principle:
- Failure to protect children from known abusers — especially where the parent actively conceals the abuser’s presence — will be treated as a serious and persisting condition of abuse/neglect.
- Even where substance abuse appears better controlled, ongoing association with a dangerous partner can independently justify findings of ongoing risk and uncorrected conditions.
5. Deference to Circuit Court Credibility and Fact‑Finding
Finally, the reliance on Michael D.C. underscores a persistent reality in abuse and neglect appeals: once the circuit court has made explicit credibility findings, reversal on appeal is extremely unlikely. For practitioners:
- It is critical to develop a full factual record and address credibility issues at the circuit court level;
- On appeal, arguments that hinge on re‑weighing testimony will generally fail unless the findings are entirely unsupported by the record.
IV. Complex Concepts Simplified
Several technical concepts in the opinion can be explained in more accessible terms:
1. “Abusing and Neglecting Parent” and “Abused and Neglected Child”
- An “abusing or neglecting parent” is a legal term used when a court finds that a parent has harmed or seriously endangered a child or has failed to provide necessary care and protection.
- An “abused and neglected child” is a child who has suffered harm or been placed at serious risk through abuse, neglect, or failure to protect.
In In re G.M., Mother’s admissions about her prior terminations, ongoing association with M.A., and dishonesty with CPS led the circuit court to conclude that she fit this definition, and that G.M. was an abused and neglected child even though he was an infant taken into care shortly after birth.
2. “Adjudicatory Hearing” vs. “Dispositional Hearing”
- An adjudicatory hearing answers the question: Did the abuse or neglect occur, and is the parent an abusing or neglecting parent? It is essentially the “liability” phase. In March 2024, the court adjudicated Mother based on her admissions.
- A dispositional hearing comes after adjudication and asks: Given that abuse or neglect has been established, what should the court do about custody, services, and parental rights? In August 2024, the court decided whether to grant an improvement period, place the child, or terminate Mother’s rights.
3. “Post‑Adjudicatory Improvement Period”
A post‑adjudicatory improvement period is a court‑ordered period (often up to six months, sometimes extendable) during which a parent receives services (like treatment, parenting classes, supervised visitation) to correct the problems that led to the abuse/neglect finding.
- It is not automatic; the parent must show by clear and convincing evidence that they are likely to participate fully.
- The court may deny it if the parent’s history and recent conduct suggest that additional time will not lead to meaningful change.
In this case, despite some treatment efforts, Mother’s ongoing substance issues, new charges, missed visits, and lack of credibility persuaded the court that an improvement period would not be productive.
4. “Clear and Convincing Evidence”
Clear and convincing evidence is a higher standard of proof than “more likely than not” but lower than “beyond a reasonable doubt.” It requires evidence that makes the fact at issue highly probable.
Mother needed to meet this standard to show she was likely to fully participate in an improvement period. The Court found she fell short.
5. “No Reasonable Likelihood That the Conditions … Can Be Substantially Corrected in the Near Future”
This statutory phrase, used in § 49‑4‑604(c)(6), essentially asks:
- Given the parent’s history and current behavior, is it realistic to expect the parent to fix the underlying problems (such as substance abuse or failure to protect) within a timeframe that makes sense for the child’s development and need for stability?
In In re G.M., the court concluded that the pattern of repeated drug charges, failed programs, and recent alleged inhalant abuse—along with Mother’s dishonesty and lack of visitation—meant the answer was “no.”
6. “Less Restrictive Alternatives”
In dispositional terms, a less restrictive alternative to termination might include:
- Temporary legal custody to someone else while leaving parental rights intact;
- Placement with the other parent while keeping the first parent’s rights suspended but not terminated; or
- Guardianship arrangements or continued improvement periods.
However, under Kristin Y. and R.J.M., the court is not required to try these alternatives when the statutory standard for termination is satisfied. That is what happened here—the court lawfully chose the most drastic disposition because the evidence supported it.
7. Law Enforcement Assisted Diversion (LEAD)
The opinion references the LEAD program, described in the cited state materials as:
“an evidence-based pre- and post-arrest program aimed at redirecting low level offenders away from incarceration and into treatment centers to receive care for their underlying substance use disorder.”
Mother’s need to restart LEAD after each new drug charge showed that she had not yet leveraged that program to achieve sustained sobriety or stability.
V. Conclusion
In re G.M. stands as a clear reaffirmation of several core principles in West Virginia child‑welfare law:
- Improvement periods are discretionary and evidence‑driven. A parent must do more than express a desire to change; she must demonstrate—through sustained sobriety, program compliance, honest engagement, and consistent visitation—that improvement is realistically likely. When the recent record shows continuing substance abuse, program failures, and disengagement, denial of an improvement period is legally proper.
- Termination can proceed independently for each parent. The unresolved or different procedural status of the other parent does not insulate an unfit parent from termination. Under § 49‑4‑604 and In re Emily, one parent’s rights may be terminated while the other parent’s rights remain intact, are later adjudicated, or follow a separate path.
- Child permanency and safety are paramount. When there is no reasonable likelihood that the conditions of abuse or neglect can be substantially corrected in the near future, and termination is necessary for the child’s welfare, courts are not obliged to experiment with less restrictive alternatives. Timely permanency, particularly for young children like G.M., takes precedence over open‑ended opportunities for parental rehabilitation.
- Credibility and visitation matter enormously. The decision highlights that appellate courts defer strongly to circuit courts on credibility, and that a parent’s diligence (or lack thereof) in visiting the child will powerfully influence the analysis of their potential to improve.
In sum, In re G.M. does not radically change West Virginia law but provides a concrete and instructive application of existing principles to a familiar pattern of facts: a parent with a history of substance abuse and prior terminations, some treatment efforts, but persistent relapse, dishonesty, and failure to disengage from a known abuser. The Court’s decision underscores that under such circumstances, circuit courts may deny improvement periods and move directly to termination in order to serve the child’s best interests and need for permanency.
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