In re N.M.: Case-Plan Delay Is Not Reversible Without Prejudice Where Abuse/Neglect Is Untreatable, and Unobjected Hearsay Is Waived on Appeal

1. Introduction

In In re N.M. (W. Va. Aug. 25, 2026) (memorandum decision), the Supreme Court of Appeals of West Virginia affirmed the Randolph County Circuit Court’s July 14, 2025 order terminating mother J.W.’s parental rights to N.M. The underlying abuse-and-neglect petition alleged that J.W. failed to protect then-six-year-old N.M. by allowing J.W.’s husband, R.W.—a registered sex offender subject to probation terms barring contact with minors—to supervise and have contact with the child, resulting in sexual abuse.

On appeal, the mother primarily challenged (1) the admissibility of the child’s out-of-court disclosures as hearsay, arguing “plain error” despite no contemporaneous objection, and (2) the circuit court’s handling of her motions concerning “reasonable efforts” prior to removal and the Department of Human Services’ (DHS) statutory duty to file a unified child and family case plan within sixty days of foster-care placement.

2. Summary of the Opinion

The Court affirmed on three principal grounds:

  1. Hearsay challenge waived: because the mother did not contemporaneously object to testimony recounting the child’s disclosures, she waived the issue on appeal and was not entitled to plain-error relief.
  2. Reasonable-efforts hearing satisfied: the mother’s claim that the circuit court failed to hold a “reasonable efforts” hearing under West Virginia Code § 49-4-105 lacked merit because a preliminary hearing (which the mother did not attend) found imminent danger and found that DHS made reasonable efforts to preserve the family and prevent removal.
  3. Case-plan timing error not prejudicial: although DHS did not file the unified case plan within sixty days under West Virginia Code § 49-4-408(a), DHS did timely file a post-adjudication case plan under West Virginia Code § 49-4-604(a) and Rule 29 of the Rules of Procedure for Child Abuse and Neglect Proceedings. Given the mother’s continued denial and failure to acknowledge the abuse and protect the child—rendering the conditions “untreatable”—the Court held the statutory timing violation was not prejudicial error warranting relief.

3. Analysis

3.1. Precedents Cited

(a) Standard of review: In re K.S.

The Court reiterated the familiar abuse-and-neglect appellate framework from Syl. Pt. 1, In re K.S., -- W. Va. --, 930 S.E.2d 400 (2026): substantive rulings are reviewed for abuse of discretion, factual findings for clear error, and legal issues de novo. This allocation shaped the decision: the hearsay/waiver issue was treated as a legal and preservation question; the “reasonable efforts” issue turned on what the circuit court actually did; and the case-plan issue turned on whether statutory noncompliance caused prejudice in the specific factual setting.

(b) Preservation and waiver on appeal: Wheeling Dollar Sav. & Tr. Co. v. Leedy and State Rd. Comm'n v. Ferguson

The Court applied the preservation rule from Syl. Pt. 7, Wheeling Dollar Sav. & Tr. Co. v. Leedy, 158 W. Va. 926, 216 S.E.2d 560 (1975) (citing Syl. Pt. 1, State Rd. Comm'n v. Ferguson, 148 W. Va. 742, 137 S.E.2d 206 (1964)): non-jurisdictional objections not raised in the trial court will not be considered on appeal. In practical effect, these precedents supplied the doctrinal basis for rejecting the mother’s after-the-fact hearsay challenge, even though the testimony concerned a sensitive subject (child sexual abuse disclosures).

(c) Purpose and content of case plans: In re Desarae M. and State ex rel. W. Va. Dep't of Hum. Servs. v. Cheryl M.

In addressing DHS’s failure to meet the 60-day filing deadline in West Virginia Code § 49-4-408(a), the Court quoted Syl. Pt. 2, In re Desarae M., 214 W. Va. 657, 591 S.E.2d 215 (2003) (quoting Syl. Pt. 5, State ex rel. W. Va. Dep't of Hum. Servs. v. Cheryl M., 177 W. Va. 688, 356 S.E.2d 181 (1987)): the plan’s purpose is to set out an organized, realistic method of identifying problems and steps for resolving or lessening them. The Court used these cases to frame the plan requirement as functionally remedial—aimed at guiding reunification services—thereby making “prejudice” the decisive question when the plan is late or imperfect.

(d) “Acknowledgment” and untreatable conditions: In re Timber M. and In re Charity H.

The Court relied heavily on In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re Charity H., 215 W. Va. 208, 217, 599 S.E.2d 631, 640 (2004)) for the proposition that “[i]n order to remedy the abuse and/or neglect problem, the problem must first be acknowledged,” and that failure to acknowledge “results in making the problem untreatable.” This precedent did the key work in the Court’s prejudice analysis: if the parent denies the abuse and continues the exposing relationship (here, remaining married to R.W. and denying abuse despite probation restrictions and disclosures), then delayed planning is not what drives termination— the parent’s stance renders services futile.

(e) Comparative authority on causation/prejudice: In re M.Z.-1

The Court cited In re M.Z.-1, No. 15-0818, 2016 WL 1456024, at *3 (W. Va. Apr. 12, 2016) (memorandum decision), for the common-sense distinction that termination may result from a parent’s noncompliance rather than a deficient case plan. The citation supports the Court’s conclusion that any planning irregularity did not cause the outcome here.

3.2. Legal Reasoning

(a) The hearsay issue was resolved as a preservation problem, not an evidence problem

The mother’s appellate theory attacked the circuit court’s reliance on third-party testimony describing the child’s statements (from a DHS worker, the foster parent, and the child’s therapist). Rather than litigate whether particular child-hearsay exceptions applied, whether the statements bore sufficient indicia of reliability, or whether a specific rule governed disclosures in abuse-and-neglect proceedings, the Court treated the issue as waived because the mother did not object at the time of testimony. Under Wheeling Dollar Sav. & Tr. Co. v. Leedy, that waiver foreclosed appellate review absent a jurisdictional defect; the Court declined to re-open the issue under “plain error.”

(b) “Reasonable efforts” and imminent danger: the preliminary hearing mattered

West Virginia Code § 49-4-105 generally requires a court hearing to determine whether “reasonable efforts” were made to stabilize and maintain the family before removal, but permits a post-removal substitute hearing where the child is in imminent danger. The Court found the mother’s argument meritless because the circuit court held a preliminary hearing and made the required findings: imminent danger justified removal and DHS made reasonable efforts to preserve the family and prevent removal. The mother’s absence from that hearing did not negate the existence of the findings.

(c) The late unified case plan was error, but not reversible error on these facts

The Court acknowledged DHS’s noncompliance with West Virginia Code § 49-4-408(a)’s 60-day deadline. It then emphasized two contextual points: (1) DHS did timely file a plan after adjudication as required by West Virginia Code § 49-4-604(a) and Rule 29, and (2) the mother’s denial and failure to protect rendered the conditions “untreatable” under In re Timber M.. The Court’s reasoning is essentially a causation/prejudice analysis: even if DHS had filed a unified plan earlier, the mother’s stance and conduct made reunification efforts futile, so the statutory violation did not warrant relief.

3.3. Impact

(a) Appellate practice in abuse-and-neglect cases: preservation is outcome-determinative

In re N.M. reinforces that evidentiary challenges—particularly to testimony repeating a child’s disclosures—must be made contemporaneously. Waiting to file a post-hearing motion to exclude (here, filed months after the adjudicatory hearing concluded) risks complete forfeiture on appeal. The case thus places a premium on trial-level litigation discipline in abuse-and-neglect proceedings.

(b) DHS compliance with planning statutes: the remedy turns on prejudice, not mere noncompliance

The decision signals that West Virginia Code § 49-4-408(a) violations will not automatically yield reversal or remand. Where the record supports that parental behavior makes the case “untreatable,” and where DHS otherwise files a post-adjudication plan meeting disposition timing rules, courts may treat late filing as harmless.

(c) Substantive child-protection policy: denial and continued exposure can eclipse procedural defects

By tying harmlessness to “untreatability,” the Court strengthens a doctrinal path that prioritizes child safety and permanency when the parent refuses to acknowledge sexual abuse and continues relationships that expose the child to risk. Future litigants should expect courts to closely examine whether alleged procedural shortcomings actually impeded the parent’s ability to correct conditions—especially where the parent denies the foundational facts.

4. Complex Concepts Simplified

  • Adjudication vs. disposition: “Adjudication” determines whether the child is abused/neglected; “disposition” decides what happens next (services, placement, or termination).
  • Hearsay: an out-of-court statement offered to prove the truth of what it asserts. Many exceptions exist, but they generally must be invoked and tested through timely objections.
  • Contemporaneous objection / waiver: to preserve an issue for appeal, counsel must object when the evidence is introduced; otherwise, appellate courts typically treat the issue as waived.
  • Plain error: a narrow doctrine allowing review of some unpreserved issues; the Court declined to apply it here.
  • Reasonable efforts: DHS and the court must consider and often attempt services to prevent removal or promote reunification, but urgent safety threats (imminent danger) can justify immediate removal with findings made in a prompt post-removal proceeding.
  • Unified child and family case plan: a structured plan identifying family problems and steps/services to fix them. It is designed to guide reunification efforts and judicial oversight.
  • Untreatable conditions: when a parent refuses to acknowledge the core abuse/neglect problem, services may be deemed futile because the foundational barrier to change is not being addressed.

5. Conclusion

In re N.M. underscores three practical rules in West Virginia abuse-and-neglect litigation: (1) evidentiary complaints—especially hearsay-based challenges to testimony about a child’s disclosures—must be raised contemporaneously or they will be waived on appeal; (2) “reasonable efforts” arguments will fail where the circuit court has already made imminent-danger and reasonable-efforts findings at the preliminary stage; and (3) DHS’s failure to meet the 60-day unified case plan deadline under West Virginia Code § 49-4-408(a), while error, will not justify relief absent prejudice—particularly where the parent’s denial and ongoing conduct render the conditions of abuse and neglect “untreatable” and remedial efforts futile.