In re P.G.: Child-Wishes Review Requires a Statutory Trigger and Preservation; DHS May Prove Disposition Through Adopted Record Evidence

I. Introduction

Case: In re P.G., L.B., M.P., and T.P. (Supreme Court of Appeals of West Virginia, Memorandum Decision issued June 1, 2026).
Parties: Petitioner Mother (R.P.) appealed the Circuit Court of Wood County’s order terminating her parental rights; the Department of Human Services (“DHS”) and the guardian ad litem opposed the appeal.
Core allegations: Mother failed to protect L.B. from the stepfather’s physical abuse and failed to protect P.G. from the stepfather’s sexual abuse over a period of years, including after a disclosure to Mother; P.G. later tested positive for sexually transmitted diseases, and evidence suggested Mother had the same STD contracted from the stepfather.

Issues on appeal: (1) whether the circuit court erred by not hearing/considering twelve-year-old P.G.’s wishes at disposition;
(2) whether denial of a post-adjudicatory improvement period was error; and
(3) whether termination was supported by clear and convincing evidence given DHS’s limited live testimony at disposition.

II. Summary of the Opinion

The Supreme Court of Appeals affirmed the termination order. The Court held that (a) consideration of P.G.’s wishes was not statutorily required because she was under fourteen and Mother neither established nor preserved a claim that the child was “of an age of discretion”; (b) although the circuit court referenced an incorrect standard when denying an improvement period, the record supported denial because Mother did not meaningfully acknowledge her own abusive/neglectful conduct such that an improvement period would likely be futile; and (c) DHS was not required to present evidence in any particular “mode” at disposition, and the circuit court could rely on affirmative evidence in the record—including Mother’s testimony elicited at disposition and the case file—to find no reasonable likelihood of correction and that termination was necessary for the children’s welfare.

III. Analysis

A. Precedents Cited

1. Standards of review

  • In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (Syl. Pt. 1): The Court reiterated the familiar bifurcated appellate review in abuse/neglect cases—factual findings for clear error and legal conclusions de novo—framing a deferential posture toward the circuit court’s factual determinations.
  • In re K.A., 251 W. Va. 626, 915 S.E.2d 520 (2025) (Syl. Pt. 1): Specifically anchored review of improvement-period rulings in “abuse of discretion,” reinforcing that appellate courts do not substitute judgment where the circuit court’s decision is supported by the record.

2. Preservation of error on appeal

  • Shaffer v. Acme Limestone Co., Inc., 206 W. Va. 333, 349 n.20, 524 S.E.2d 688, 704 n.20 (1999): Quoted for the general rule that nonjurisdictional issues raised for the first time on appeal will not be considered. The Court used Shaffer to dispose of Mother’s “child’s wishes” argument because she neither established “age of discretion” in the circuit court nor objected to the absence of such consideration.

3. Improvement periods and the requirement of acknowledgment

  • In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002): Cited for the principle that improvement periods are discretionary and need not be granted when “no improvement is likely.” This precedent supplies the doctrinal bridge between statutory eligibility and practical futility.
  • In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013): Central to the Court’s reasoning on futility: to remedy abuse/neglect, a parent must “recognize and acknowledge” that their conduct constituted abuse; without that insight, services are unlikely to succeed. The Court applied Timber M. to Mother’s minimization and rationalizations (e.g., marrying the alleged perpetrator after disclosure; framing protection as “inconvenient”; shifting focus to her needs at disposition).

4. Dispositional proof and the form of evidence

  • In re K.S., 246, W. Va. 517, 526, 874 S.E.2d 319, 328 (2022) (quoting In re S.C., 245 W. Va. 677, 865 S.E.2d 79 (2021) (Syl. Pt. 1, in part)): The Court emphasized there is no mandatory “manner or mode of testimony or evidence” DHS must present at disposition, so long as DHS presents or adopts affirmative evidence upon which the circuit court may base its decision. This precedent directly defeated Mother’s argument that DHS’s limited live testimony at disposition was legally insufficient.

5. Termination when no reasonable likelihood of correction exists

  • In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (Syl. Pt. 5) (quoting In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980) (Syl. Pt. 2)): Reaffirmed that termination may be employed when there is “no reasonable likelihood” conditions can be substantially corrected. The Court mapped this rule to the statutory definition (W. Va. Code § 49-4-604(d)) and to the circuit court’s findings about Mother’s inadequate capacity to solve the problem even with help.

B. Legal Reasoning

1. The child’s wishes: statutory trigger + preservation

The Court treated the “child’s wishes” claim as a two-step failure:

  • No statutory mandate based on age: W. Va. Code § 49-4-604(c)(6)(C) requires consideration of a child’s wishes if the child is fourteen or older or “otherwise of an age of discretion as determined by the court.” Because P.G. was twelve, the statutory obligation did not automatically attach.
  • No “age of discretion” showing and no preserved objection: The Court found Mother pointed to no record evidence showing she asked the circuit court to determine “age of discretion,” offered proof on that point, or objected to the absence of such consideration. The Court invoked W. Va. R. App. P. 10(c)(7) (pinpoint record citations) and Shaffer (no new issues on appeal) to reject the argument.

Doctrinal significance: The opinion underscores that “age of discretion” is not self-executing for children under fourteen; it must be determined by the circuit court, and the party seeking the determination must create and preserve the issue in the record.

2. Improvement period: wrong standard may be harmless where futility is shown

The governing statute, W. Va. Code § 49-4-610(2)(B), permits a post-adjudicatory improvement period only when the parent proves by clear and convincing evidence that they are likely to fully participate. The Court noted the circuit court cited an incorrect standard in its written rationale. Nonetheless, relying on In re Tonjia M. and In re Timber M., the Court concluded the record supported denial because Mother did not demonstrate the insight and accountability necessary for an improvement period to have a realistic prospect of success.

Note on the text’s internal inconsistency: The opinion includes the sentence, “As such, we conclude that the circuit court did abuse its discretion in denying the petitioner an improvement period,” but the decision ultimately affirms and repeatedly states “no error.” Read in context (and consistent with the affirmance), the sentence appears to be a drafting/clerical mistake and should be understood as “did not abuse its discretion.”

3. Termination: DHS can rely on affirmative evidence without extensive live testimony at disposition

Mother argued DHS presented “essentially no testimony” at disposition and therefore failed to prove the termination elements by clear and convincing evidence under W. Va. Code § 49-4-604(c)(6). The Court rejected a formalistic requirement for live witnesses from DHS, invoking In re K.S. (and In re S.C.) to reiterate that DHS may meet its burden through any adequate evidentiary presentation, including adopting evidence already admitted and developing testimony through the parent called at disposition.

The Court emphasized the circuit court’s reliance on: (1) the extensive adjudicatory record (forensic interviews, corroboration of abuse locations, school and CPS observations of bruising, STD evidence); (2) Mother’s admissions; and (3) Mother’s dispositional testimony, which the circuit court found unpersuasive as to meaningful change or protective capacity. This supported both findings required for termination: no reasonable likelihood of substantial correction (W. Va. Code § 49-4-604(d)) and necessity for the children’s welfare (W. Va. Code § 49-4-604(c)(6)).

C. Impact

  • Child-wishes arguments will fail absent a record request for an “age of discretion” determination: For children under fourteen, litigants must affirmatively raise and develop the issue in the circuit court; appellate courts will not entertain it as a new theory after termination.
  • Harmless-error framing in improvement-period rulings: Even if a circuit court articulates an imperfect standard, denial can be affirmed where the record shows the parent lacks acknowledgment/insight, making improvement unlikely.
  • Dispositional proof is substance-over-form: The decision reinforces that DHS need not “put on a show” of multiple witnesses at disposition if affirmative evidence exists in the record and is properly adopted/relied upon; calling the parent and developing the evidentiary basis through that testimony may suffice.
  • Non-abusing parent liability for failure to protect: The opinion continues a strict approach where a caregiver’s inaction in the face of sexual abuse—especially accompanied by minimization and continued relationship choices—supports findings of inadequate protective capacity and “no reasonable likelihood” of correction.

IV. Complex Concepts Simplified

  • Adjudication vs. disposition: Adjudication decides whether abuse/neglect occurred; disposition decides the remedy (services, improvement period, or termination).
  • Post-adjudicatory improvement period: A structured opportunity (services, therapy, compliance requirements) after adjudication; it is not automatic and requires proof the parent is likely to fully participate.
  • Clear and convincing evidence: A high level of proof—more than “more likely than not,” less than “beyond a reasonable doubt”—used for improvement periods and termination findings.
  • “No reasonable likelihood” of correction: Defined by statute (W. Va. Code § 49-4-604(d)) to include a parent’s inadequate capacity to solve the problems of abuse/neglect, even with help.
  • Preservation of error: To argue an issue on appeal, a party typically must raise it in the circuit court, obtain a ruling (or object to the lack of one), and cite where it occurred in the record.
  • “Age of discretion” under W. Va. Code § 49-4-604(c)(6)(C): A discretionary judicial determination that a child under fourteen is mature enough for the court to consider their wishes regarding termination; it must be requested and developed in the trial court record.

V. Conclusion

In re P.G. affirms termination where a parent failed to protect children from severe abuse and did not demonstrate insight into her own neglectful conduct. The decision’s enduring takeaway is procedural and practical: (1) consideration of a child’s wishes at termination is required only when the statutory age threshold is met or when “age of discretion” is affirmatively established and preserved; and (2) DHS’s dispositional burden is not tied to any particular presentation format—what matters is whether the circuit court had affirmative, reliable evidence to support findings of no reasonable likelihood of correction and necessity for the children’s welfare.