In re N.S.: Strict Enforcement of Written Motions for Improvement Periods, GAL Reporting, and Termination Without Identified Placement

This commentary analyzes the Supreme Court of Appeals of West Virginia’s memorandum decision in In re N.S., No. 25-64 (Nov. 25, 2025). It is for informational and educational purposes only and does not constitute legal advice.

I. Introduction

In In re N.S., the Supreme Court of Appeals of West Virginia affirmed a Harrison County circuit court order terminating the parental rights of the mother, R.S., to her infant child, N.S. The decision arises from an abuse and neglect proceeding involving a newborn who was “born drug affected,” a mother with extensive substance abuse history, prior treatment attempts, and a prior involuntary termination of parental rights to an older child.

The case is procedurally significant and doctrinally important in several respects:

It strictly enforces the statutory requirement that a written motion is a prerequisite for a post-adjudicatory improvement period, rejecting reliance on an oral request alone.
It confirms that the absence of a written guardian ad litem report before disposition does not, without more, warrant reversal—especially in light of recent rule amendments moving toward oral reporting.
It reiterates that termination of parental rights may occur even before an adoptive placement is identified, consistent with the permanency timelines in the Rules of Procedure for Child Abuse and Neglect Proceedings.
It applies established principles concerning prior involuntary terminations, aggravated circumstances, and the standard of “no reasonable likelihood that conditions of neglect or abuse can be substantially corrected in the near future,” especially for very young children.

Although issued as a memorandum decision under Rule 21 (that is, without oral argument and without new syllabus points), the opinion is an important application and clarification of existing law that will guide practitioners and lower courts in abuse and neglect cases, particularly those involving incarcerated parents and addiction-based neglect.

II. Factual and Procedural Background

A. Underlying Facts

In July 2024, R.S. was incarcerated while approximately twenty-nine weeks pregnant. She tested positive for amphetamines, THC, cocaine, and fentanyl.
When admitted to the hospital to give birth in September 2024, she tested positive for Subutex (a prescribed medication) and fentanyl.
The newborn, N.S., was “born drug affected.”
R.S. had previously had her parental rights to another child involuntarily terminated on the basis of her substance abuse.

The Department of Human Services (“DHS”) filed an abuse and neglect petition alleging substance abuse during pregnancy, the child’s drug-affected birth, and R.S.’s incarceration as preventing her from caring for the child.

B. Adjudication

At the October 2024 adjudicatory hearing, the circuit court considered:

The sentencing order from R.S.’s criminal case, showing a 1–15 year sentence for felony possession of heroin with intent to distribute, with incarceration to continue until at least April 2025.
The baby’s birth records documenting the drug-affected condition.
The dispositional order from R.S.’s prior abuse and neglect case, confirming the prior involuntary termination of her parental rights.

The circuit court found:

R.S. was incarcerated and thus unable to care for N.S.
She abused multiple controlled substances during pregnancy.
She previously had parental rights terminated due to substance abuse, and she had not sufficiently remedied that problem, as demonstrated by recurring substance abuse.
Aggravated circumstances existed, based on the prior involuntary termination and ongoing substance abuse.

R.S. was adjudicated as an abusing and neglecting parent with respect to N.S.

C. Disposition

At the November 2024 dispositional hearing:

The court took judicial notice of the adjudicatory evidence and findings.
R.S. testified that she was in a substance abuse treatment program in the jail, expected to be completed in April 2025. She acknowledged having been in treatment about eight times before but claimed she was approaching sobriety differently this time.
R.S. orally requested a post-adjudicatory improvement period.
A CPS worker testified that DHS sought termination based on:
- R.S.’s incarceration and its uncertain end date,
- Uncertainty whether she would complete the treatment program, and
- The child’s very young age, as well as the lack of any emotional bond due to R.S.’s incarceration.

The circuit court found:

R.S. had not remedied the substance abuse issues arising from her prior case; these problems continued for years and persisted until close to the child’s birth.
There was no guarantee of treatment completion or release in April 2025.
R.S. had never parented N.S. and would not be able to do so until, at the earliest, April 2025.
There was no reasonable likelihood that the conditions of neglect or abuse could be substantially corrected in the near future.
Termination was necessary for N.S.’s welfare, given her young age.

The circuit court denied R.S.’s request for a post-adjudicatory improvement period and terminated her parental rights. The unknown father’s rights were also terminated, and the permanency plan was adoption in the current placement.

III. Summary of the Supreme Court’s Opinion

On appeal, R.S. raised three principal issues:

The denial of a post-adjudicatory improvement period;
The termination of her parental rights; and
The failure of the guardian ad litem (“GAL”) to file a written report before disposition.

Applying the standard of review from In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (clear-error review of factual findings; de novo review of legal conclusions), the Supreme Court:

Affirmed the denial of an improvement period, holding R.S. could not obtain one because she had never filed the statutorily required written motion under W. Va. Code § 49‑4‑610(2). An oral request at disposition was insufficient in light of State ex rel. P.G.-1 v. Wilson, 247 W. Va. 235, 878 S.E.2d 730 (2021).
Affirmed termination of parental rights, concluding that:
- R.S. had not remedied the issues underlying her prior termination and continued to abuse substances up to her incarceration; thus there was no reasonable likelihood that conditions could be substantially corrected in the near future (§ 49‑4‑604(c)(6), (d));
- Termination was necessary for the child’s welfare, especially given N.S.’s infancy and the need for permanency; and
- The absence of an identified adoptive placement at the time of disposition did not bar termination, consistent with Rule 43’s allowance of up to twelve months to secure permanent placement.
Rejected the GAL-report assignment of error, holding that:
- R.S. failed to cite authority requiring reversal for lack of a GAL written report;
- She failed to show how disposition would have been different had a report been filed; and
- In any event, subsequent amendments to Appendix A now emphasize an oral report at disposition rather than a mandatory written report, underscoring that the omission of a written report alone is not inherently prejudicial.

The Court therefore affirmed the December 27, 2024, dispositional order in full.

IV. Analysis

A. Precedents and Authorities Cited

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

Syllabus point 1 of Cecil T. supplies the familiar standard of review:

In an abuse and neglect case, this Court reviews the circuit court’s findings of fact under a clearly erroneous standard and its conclusions of law de novo.

The Court uses this standard to frame its review of both the denial of the improvement period and the termination decision. It does not disturb the circuit court’s factual findings regarding R.S.’s ongoing substance abuse, incarceration, and lack of improvement, but independently evaluates whether those findings meet the legal standards for denial of an improvement period and for termination.

Later in the opinion, the Court also invokes syllabus point 4 of Cecil T.:

[C]ourts are not required to exhaust every speculative possibility of parental improvement . . . where it appears that the welfare of the child will be seriously threatened, and this is particularly applicable to children under the age of three years . . . .

This principle underpins the Court’s conclusion that it was proper to terminate rights without awaiting the uncertain outcome of R.S.’s incarceration and treatment.

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

The Court relies heavily on syllabus point 4 of P.G.-1, which holds that a circuit court cannot grant a post-adjudicatory improvement period in the absence of a written motion:

Circuit courts are prohibited from granting post-adjudicatory improvement periods in the absence of a written motion requesting the same.

This case is central to the Court’s conclusion that R.S. was ineligible for an improvement period as a matter of law. The Supreme Court further pairs P.G.-1 with Rule 10(c)(7) of the Rules of Appellate Procedure, which requires appellants to identify with specificity where issues were raised below. Because R.S. neither filed a written motion nor could cite any record reference to one, her claim failed.

3. In re George Glen B., 205 W. Va. 435, 518 S.E.2d 863 (1999)

Syllabus point 4 (in part) of George Glen B. states:

In cases involving prior involuntary terminations of parental rights to other children, prior to the lower court’s making any disposition regarding the petition, it must allow the development of evidence surrounding the prior involuntary termination(s) and what actions, if any, the parent(s) have taken to remedy the circumstances which led to the prior termination(s).

The Supreme Court uses this precedent to confirm that the circuit court correctly:

Considered the prior termination order, and
Developed evidence regarding whether R.S. had remedied the issues that caused that prior termination.

The record showed that R.S. had not remedied those issues: she continued abusing controlled substances through pregnancy, leading to another drug-affected newborn. This supports the finding of “no reasonable likelihood” of substantial correction.

4. In re T.W., No. 21-0574, 2022 WL 123562 (W. Va. Jan. 12, 2022) (mem. dec.)

In response to the GAL-report argument, the Court cites In re T.W., which held that proceeding to disposition without a GAL’s written report did not, on the facts of that case, require reversal—especially where the parent failed to show specific prejudice.

The Court uses T.W. to underscore that:

A technical failure by the GAL does not automatically void a dispositional hearing, and
An appellant must articulate how the outcome could have been different had the report been filed.

5. In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011), and In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)

Syllabus point 5 of Kristin Y., quoting syllabus point 2 of R.J.M., provides:

Termination of parental rights . . . may be employed 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.

The Court relies on this line of authority to affirm termination without imposing lesser alternatives such as temporary custody or additional improvement services. Once the circuit court found “no reasonable likelihood” of correction in the near future, termination was a permissible—and in the Court’s view, appropriate—disposition.

6. Statutory and Rule Provisions

W. Va. Code § 49‑4‑610(2)(A)-(B): Governs post-adjudicatory improvement periods, requiring a written motion and proof by clear and convincing evidence that the parent is likely to fully participate.
W. Va. Code § 49‑4‑604(c)(6): Authorizes termination 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.
W. Va. Code § 49‑4‑604(d): Defines “no reasonable likelihood” as circumstances where the parent has demonstrated “an inadequate capacity to solve the problems of abuse or neglect on their own or with help.”
Rule 43, Rules of Procedure for Child Abuse and Neglect Proceedings: Provides that permanent placement may take up to twelve months after entry of the final dispositional order, and even longer upon a finding of extraordinary reasons. This rule refutes the argument that termination must await a confirmed adoptive placement.
Rule 10(c)(7), W. Va. R. App. P.: Requires appellate briefs to contain both legal authority and precise citations to the record showing how and when issues were raised below.
Rule 18a and Appendix A, Rules of Procedure for Child Abuse and Neglect Proceedings: Previously required GALs to file written reports; the Court notes a January 21, 2025 amendment to Appendix A now requires an oral report at disposition instead, unless the court or GAL deems a written report necessary.
Rule 21, W. Va. R. App. P.: Authorizes memorandum decisions without oral argument when a full opinion is unnecessary.

B. Legal Reasoning

1. Denial of Post-Adjudicatory Improvement Period

The mother’s challenge to the denial of an improvement period fails at the threshold because she did not comply with the statutory procedural requirement: a written motion.

Under § 49‑4‑610(2), a parent may receive a post-adjudicatory improvement period only if:

The parent files a written motion requesting the improvement period; and
The parent demonstrates by clear and convincing evidence that he or she is likely to fully participate.

In P.G.-1 v. Wilson, the Court transformed this statutory language into a clear prohibition: circuit courts may not grant improvement periods unless a written motion is on file. In re N.S. rigorously applies that rule.

The Supreme Court notes that:

R.S. did not point to any place in the record showing she filed a written motion; and
The record itself contained no such motion.

Under Rule 10(c)(7), her failure to provide a record citation is fatal; under P.G.-1, the circuit court would have been prohibited from granting an improvement period even if it had wanted to. Her oral request at the dispositional hearing could not cure this defect.

Thus, the Court’s reasoning is twofold:

Procedural bar: Without a written motion, R.S. was not eligible for an improvement period, making her argument legally untenable.
Appellate preservation: Her failure to identify any written motion in the record meant she could not show the circuit court erred at all.

The Court does not need to reach the substantive question whether she showed “clear and convincing evidence” of her likelihood to participate; the procedural default is dispositive.

2. Termination of Parental Rights

The core of the decision lies in affirming termination under § 49‑4‑604(c)(6). Two statutory conditions must be met:

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.

a. “No Reasonable Likelihood” of Correction

The Court weighs several facts:

History of substance abuse: R.S. had long-standing substance abuse, including during pregnancy, with drugs such as amphetamines, cocaine, THC, fentanyl, and prescribed Subutex.
Prior involuntary termination: She previously lost parental rights to another child due to substance abuse.
Failure to remedy prior conditions: Despite roughly eight prior treatment attempts, she relapsed, including while pregnant, demonstrating “an inadequate capacity to solve the problems of abuse or neglect on [her] own or with help” (§ 49‑4‑604(d)).
Recent incarceration: She was sentenced to 1–15 years for heroin possession with intent to distribute, with incarceration continuing until at least April 2025, two months after the child’s birth and several months beyond the dispositional hearing.

Against this backdrop, R.S. argued she was “approaching sobriety differently” while in jail and was participating in treatment. The circuit court regarded this as speculative: there was no guarantee of:

Completion of the treatment program; or
Release in April 2025 (the earliest possible date).

The Supreme Court defers to the circuit court’s assessment of credibility and prognosis. It emphasizes that potential future improvement, especially in the context of multiple past failures and recent severe relapse (during pregnancy, leading to a drug-affected newborn), is insufficient to undermine a finding of “no reasonable likelihood” in the near future.

Importantly, the Court notes that the circuit court complied with George Glen B. by developing evidence about the prior termination and R.S.’s post-termination conduct. That evidence showed no meaningful remediation—indeed, a repetition of the same harmful pattern.

b. Necessity of Termination for the Child’s Welfare

R.S. argued that termination was not necessary because:

N.S. was not yet in an adoptive placement; and
Her permanency, therefore, would not be immediately affected by termination.

The Court rejects this argument on both legal and practical grounds.

Legally:

Rule 43 specifically anticipates that permanent placement may take up to twelve months after the final dispositional order, and even longer in extraordinary circumstances.
Nothing in the statutory scheme or rules makes an already-identified adoptive placement a precondition to termination.

Practically:

N.S. is an infant, a group the Court recognizes as particularly vulnerable to harm caused by instability, delayed permanency, and multiple placements (drawing on Cecil T.).
The child had no emotional connection to R.S. due to incarceration; R.S. had never parented her.
Waiting to terminate while R.S. pursued uncertain treatment and parole would delay permanency, contrary to the child’s best interests.

By citing Kristin Y. and R.J.M., the Supreme Court reinforces that once “no reasonable likelihood” of correction is properly found, termination is permissible without trying less restrictive alternatives such as continued DHS involvement or temporary custody arrangements. For a very young child, speculative possibilities of future improvement need not be exhausted.

3. GAL Written Report and the 2025 Amendment

R.S. also claimed the circuit court erred by terminating her rights without requiring the GAL to file a written report as contemplated by Rule 18a and former Appendix A.

The Supreme Court disposes of this argument on multiple grounds:

No supporting authority: R.S. cited no statute, rule, or case law stating that failure to obtain a written GAL report requires vacating the dispositional order.
No objection below: She did not object in the circuit court to the absence of a written report, undermining preservation of the alleged error.
No showing of prejudice: She did not explain how a written report would have changed the outcome, a requirement emphasized in In re T.W..

Beyond the case-specific reasoning, the Court notes an important systemic development:

After the circuit court’s disposition, the Court amended Appendix A (January 21, 2025 order in No. 24-601).
The amendment removed language requiring a GAL to file a written report before disposition.
Instead, it now requires the GAL to provide an oral report at disposition, unless a written report is ordered by the court or deemed necessary by the GAL.

This amendment signals a clear shift:

The GAL’s obligation is focused on substantive input—usually oral—at the dispositional hearing; and
A written report is not the default and certainly not a jurisdictional prerequisite to valid termination orders.

Although the amendment post-dates the circuit court’s order in this case, the Court’s reliance on it, along with T.W., suggests that even under the prior framework, a missing written report was not in itself reversible error absent demonstrated prejudice.

C. Impact and Practical Significance

1. Strict Procedural Compliance for Improvement Periods

The most immediate practical lesson from In re N.S. is that:

A post-adjudicatory improvement period is unavailable without a written motion filed in the circuit court, and
An oral request—even if transcribed—is insufficient to meet the statutory requirement.

For practitioners, this has concrete implications:

Parents’ counsel must file a timely written motion under § 49‑4‑610(2) if they intend to seek an improvement period.
Counsel must also ensure the record clearly reflects the motion and any evidence offered to show likely full participation.
Failure to do so will not only bar the circuit court from granting the improvement period but will also foreclose effective appellate review.

2. Continued Emphasis on Prior Terminations and Recidivist Substance Abuse

The decision reinforces that a prior involuntary termination is not a mere background fact but a central feature of the analysis:

Circuit courts must develop evidence of what, if anything, the parent has done to remedy the prior conditions (George Glen B.).
If the same or similar conduct reappears—here, chronic substance abuse culminating in a drug-affected newborn—courts are justified in finding “no reasonable likelihood” of correction.

In cases involving addiction, In re N.S. underscores that:

Multiple past treatment attempts followed by relapse, especially during pregnancy, weigh heavily against reunification.
Incarceration-based treatment close to the time of disposition, without a proven track record after release, is typically viewed as too speculative to override these concerns.

3. Incarcerated Parents and Timing of Permanency

The case also illustrates the Court’s approach to incarcerated parents:

Incarceration itself is not the sole basis for termination, but it is a critical factor when combined with ongoing substance abuse, prior terminations, and the need for prompt permanency for infants.
The Court views a possible release date months in the future as not “near future” where a newborn is concerned, especially when release and treatment completion are uncertain.

For parents and counsel, this underscores the importance of:

Presenting concrete evidence of completed programming and realistic, near-term plans for stable sobriety and parenting; and
Recognizing that courts will not delay permanency indefinitely in the hope that incarceration and treatment will end favorably.

4. Clarification on Permanency and Adoptive Placement

By rejecting the argument that termination must await an identified adoptive placement, the Court:

Reaffirms that the focus at disposition is on the child’s welfare and the parental capacity, not on the status of the permanency plan.
Emphasizes that Rule 43 already contemplates a post-disposition period for locating and finalizing permanent placements.

This has system-wide implications:

Circuit courts can confidently terminate parental rights when statutory standards are met, even if an adoptive resource is still being developed.
Agencies and GALs can proceed with recruitment and matching after termination, without fear that lack of an immediate placement undermines the court’s authority to terminate.

5. GAL Practice After the 2025 Amendment

The Court’s discussion of the Appendix A amendment signals:

A shift from mandatory written reporting to a more flexible oral reporting model at disposition.
A focus on substance over form: what matters is that the GAL provides a meaningful report—oral or written—to inform the court’s decision.

For GALs and trial courts:

GALs must be prepared to orally summarize their investigation, recommendations, and the child’s best interests at disposition.
Circuit courts may still require written reports in complex or contested cases, but the absence of such a report will not automatically invalidate the proceedings.

V. Complex Concepts Simplified

1. Abuse and Neglect Proceeding

An abuse and neglect proceeding is a court case in which the state seeks to protect a child from harm or risk of harm due to a parent’s acts or omissions. It can lead to temporary or permanent removal of a child from the parent’s custody and, at the extreme, termination of parental rights.

2. Adjudicatory vs. Dispositional Hearings

Adjudicatory hearing: The court determines whether the allegations of abuse or neglect are true. If so, the parent is “adjudicated” as an abusing or neglecting parent.
Dispositional hearing: After adjudication, the court decides what to do: return the child, order services, grant an improvement period, or terminate parental rights.

3. Post-Adjudicatory Improvement Period

An improvement period is a court-approved timeframe during which a parent receives services and must correct the conditions of abuse or neglect. A post-adjudicatory improvement period occurs after the court has already found abuse or neglect.

To get one, a parent must:

File a written motion, and
Show by clear and convincing evidence that they can and will fully participate in services.

4. Aggravated Circumstances

“Aggravated circumstances” refer to serious conditions that can justify faster termination of parental rights and relieve the state of some obligations to make reunification efforts (such as where a child has been subjected to severe abuse, or where there have been prior involuntary terminations). In this case, R.S.’s prior involuntary termination and ongoing substance abuse constituted such circumstances.

5. “No Reasonable Likelihood” of Correction

This phrase, from § 49‑4‑604, means that the parent is not realistically expected to fix the problems causing abuse or neglect in the near future, even with help. It focuses on:

The parent’s history;
Response to past services; and
Current capacity and prognosis.

6. Guardian ad Litem (GAL)

A GAL is a lawyer appointed to represent the child’s best interests in court. The GAL investigates, participates in hearings, and makes recommendations to the court. Historically, GALs often filed written reports; recent rule changes now emphasize oral reports at hearings unless a written report is specifically required.

7. Clear and Convincing Evidence

This is a high standard of proof used at key points in abuse and neglect cases. It requires that the evidence be substantially more likely than not to be true—stronger than the “preponderance of evidence” standard, but not as stringent as “beyond a reasonable doubt.”

VI. Conclusion

In re N.S. is a robust reaffirmation and clarification of several critical principles in West Virginia child abuse and neglect law:

Procedural rigor for improvement periods: A post-adjudicatory improvement period cannot be granted without a written motion, and an oral request is insufficient. Counsel must treat this requirement as jurisdictional in practice.
Substantive weight of prior terminations and chronic substance abuse: Where a parent repeats the very behavior that led to a prior involuntary termination—here, serious substance abuse producing another drug-affected baby—courts are justified in finding no reasonable likelihood of near-term correction.
Child-centered permanency, especially for infants: Courts need not wait for speculative improvements by an incarcerated, repeatedly relapsing parent when an infant’s need for stability and attachment is at stake.
Termination without an identified adoptive placement: The law allows termination to occur before an adoptive home is identified, with permanency planning to follow within the Rule 43 timeline.
GAL reporting flexibility: The absence of a written GAL report does not automatically undermine a dispositional order, particularly under the updated rules emphasizing oral reporting and the need to show actual prejudice.

Although issued as a memorandum decision, In re N.S. provides a clear, practice-oriented roadmap for trial courts, agencies, GALs, and counsel on how West Virginia’s statutory framework and rules operate in difficult cases at the intersection of incarceration, addiction, and infant safety. The opinion underscores that the paramount consideration remains the child’s welfare and timely permanency, even when that means terminating parental rights in the face of uncertain future rehabilitation.