Termination of an Incarcerated Parent’s Rights Without Less Restrictive Alternatives When Longstanding Non-Support and Non-Contact Show a Settled Purpose to Forego Parental Duties

1. Introduction

Case: In re R.D.-1, No. 25-230 (Nicholas County CC-34-2024-JA-106)
Court: Supreme Court of Appeals of West Virginia
Date: January 29, 2026
Type of decision: Memorandum Decision

This abuse-and-neglect appeal concerns whether a circuit court must employ a less restrictive dispositional alternative than termination when a parent is incarcerated and, both before and during incarceration, has effectively disengaged from the child’s life. The petitioner father (R.D.-2) challenged the termination of his parental and custodial rights, arguing (1) the circuit court should have imposed a less restrictive disposition, and (2) termination was not necessary for the child’s welfare—particularly because the child was physically placed with the mother.

The Department of Human Services (“DHS”) filed the petition in November 2024 alleging unsafe and unsuitable housing (the mother’s camper) and the father’s inability to provide care because he was incarcerated with an anticipated release date of June 2028. DHS also alleged financial neglect: the father was in arrears on child support even before incarceration. The father stipulated at adjudication in December 2024. At disposition, the evidence emphasized a decade-long absence: the father had not visited or spoken with the child in approximately ten years, did not know the child’s age, and had no bond with the child.

2. Summary of the Opinion

The Supreme Court of Appeals affirmed the March 10, 2025 termination order. Applying the established abuse-and-neglect framework, the Court held:

  • Less restrictive alternatives were not required because the circuit court properly found “no reasonable likelihood” the neglect conditions could be substantially corrected in the near future under West Virginia Code § 49-4-604.
  • Termination was necessary for the child’s welfare based on the father’s neglect (failure to provide), prolonged voluntary absence pre-incarceration, continuing incarceration, and lack of any bond—despite the child’s physical placement with the mother.
  • The father’s “incarceration alone” argument failed because the termination rested on adjudicated neglect (including non-support and abandonment-like conduct), not merely criminal convictions.
  • A passing argument about DHS failing to provide services did not warrant relief where the record reflected the father was unable to participate due to incarceration and he did not contest that point below.

3. Analysis

3.1 Statutory framework applied

The Court’s disposition turns on West Virginia Code § 49-4-604. Termination is authorized when two findings are made: (1) “there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future,” and (2) termination is “necessary for the welfare of the child.” The Court also referenced § 49-4-604(d)’s definition of “no reasonable likelihood,” focusing on whether the abusing adult has demonstrated inadequate capacity to solve the problems of abuse or neglect “on their own or with help.”

The circuit court anchored “no reasonable likelihood” in a factual pattern the Supreme Court treated as decisive: long-term non-support, long-term non-contact (including years before incarceration), and a present inability to participate in services due to incarceration—together evidencing a “settled purpose to forego” parental responsibilities.

3.2 Precedents cited and how they shaped the decision

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

The Court began by reaffirming the standard of review: factual findings are reviewed for clear error, legal conclusions de novo. This framing matters because the dispositive questions—bond, non-support, duration of absence, and the near-future prospects of correction—were fact-heavy determinations to which the Supreme Court afforded deference absent clear error.

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

These syllabus points supply the key dispositional rule the father sought to overcome: termination may be ordered “without the use of intervening less restrictive alternatives” when there is no reasonable likelihood the conditions can be substantially corrected. The Court used this authority to reject the father’s “less restrictive disposition” argument once the statutory threshold (“no reasonable likelihood”) was satisfied.

In effect, In re Kristin Y. and In re R.J.M. operate as the doctrinal bridge between statutory findings and dispositional discretion: once the circuit court makes and supports the required findings, it need not cycle through incremental steps (e.g., guardianship, custodial allocations, extended improvement periods) that would delay permanency without realistic prospects of parental rehabilitation.

Syl. Pt. 2, State ex rel. Acton v. Flowers, 154 W. Va. 209, 174 S.E.2d 742 (1970)

The father invoked State ex rel. Acton v. Flowers for the proposition that a parent does not forfeit custody merely by being convicted of crimes. The Supreme Court did not dispute that principle; instead, it narrowed the father’s reliance on it by distinguishing “incarceration as a sole basis” from the case at bar, where termination followed an adjudication of abuse/neglect grounded in failure to provide and longstanding disengagement.

The Court thus treated Acton as a limiting principle: incarceration is not automatically disqualifying, but it does not immunize a parent from a finding of unfitness or from termination when neglect is proven and is not correctable in the near future.

Syl. Pt. 5, in part, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973)

The Court paired In re Willis with Acton to underscore a balancing rule: parental rights are fundamental but not absolute. The State may limit or terminate those rights if the parent is proved unfit. Here, “unfitness” was demonstrated through neglect (non-support and absence), not merely the fact of incarceration.

In re Emily, 208 W. Va. 325, 344, 540 S.E.2d 542, 561 (2000)

The father argued termination was unnecessary for permanency because the child was physically placed with the mother. In re Emily directly answers that contention: a fit parent’s presence does not “automatically entitle” the other parent to retain rights if that parent’s conduct endangered the child and conditions are not expected to improve.

The Court applied In re Emily to reject the idea that “placement with the other parent” is, by itself, a less restrictive alternative that must preserve the unfit parent’s rights. Put differently, the child’s immediate physical safety with one parent does not negate the child’s longer-term welfare interest in legal permanency and freedom from a legally recognized parent who has shown an enduring inability or unwillingness to parent.

Syl. Pt. 3, In re B.P., 249 W. Va. 274, 895 S.E.2d 129 (2023)

The Court cited In re B.P. to clarify that incarceration can constitute neglect when it results in the inability to provide necessary care (food, clothing, shelter, medical care, education, or supervision) under the statutory definition of a neglected child in West Virginia Code § 49-1-201.

This citation was pivotal because it rebuts a common misconception that “incarceration is not neglect.” The Court’s use of In re B.P. reinforces that incarceration can be a factual mechanism through which neglect manifests—especially when coupled with pre-incarceration failures such as child-support arrearages and years of voluntary noninvolvement.

3.3 Legal reasoning: how the Court reached the result

(A) “No reasonable likelihood” and the rejection of less restrictive alternatives

The Supreme Court upheld the circuit court’s “no reasonable likelihood” finding because the record supported multiple, mutually reinforcing facts:

  • Longstanding non-contact and absence: the father admitted he had not been involved since the child’s first two to three years and had not spoken to or visited the child for roughly a decade.
  • Lack of bond: the guardian reported the then-fourteen-year-old “barely kn[ew]” the father and had “no wishes or feelings” about his parental rights—evidence the relationship was functionally nonexistent.
  • Non-support predating incarceration: the father acknowledged child-support arrearages and unemployment before arrest, undermining any claim that incarceration alone caused the neglect.
  • Present inability to engage services: continued incarceration prevented participation in services and the creation of a viable near-term plan to correct neglectful conditions.
  • Speculative future rehabilitation: even if released before the child reached majority, the likelihood of building a relationship and providing support was speculative given the father’s voluntary pre-incarceration absence.

With these facts, the Court applied In re Kristin Y. (quoting In re R.J.M.) to hold the circuit court was not required to attempt less restrictive alternatives before termination.

(B) “Necessary for the welfare of the child” despite placement with the mother

The father’s necessity argument relied on two themes: (1) incarceration should not cause forfeiture of rights, and (2) termination was unnecessary because the child was with the mother. The Court rejected both:

  • Not incarceration alone: relying on In re Willis and distinguishing State ex rel. Acton v. Flowers, the Court emphasized that termination followed from adjudicated neglect and unfitness, not merely conviction.
  • Placement with a fit parent is not dispositive: applying In re Emily, the Court held the mother’s fitness and placement did not preserve the father’s rights when his own unfitness and the persistence of neglectful conditions justified termination.

The Court also treated the father’s “father figure/support” argument as internally inconsistent: the record showed the father himself had deprived the child of support and a paternal relationship for years, including when he was not incarcerated.

(C) Services and improvement period considerations

Although the father suggested DHS failed to provide services, the Supreme Court noted the record from the improvement period hearing reflected that both DHS and the guardian represented he could not participate in services due to incarceration, and he did not contest that representation. The Court therefore found no basis for relief on that point.

3.4 Impact

Although framed as application of settled law, the decision meaningfully clarifies how West Virginia courts are likely to treat a particular pattern: incarceration combined with long pre-incarceration disengagement.

  • Incarceration-plus is decisive: the case reinforces that courts will look beyond incarceration to pre-incarceration conduct (child-support compliance, visitation/contact efforts, and demonstrated commitment) when assessing “no reasonable likelihood.”
  • Time-to-majority and bond matter: where a child is nearing adulthood and the parent-child bond is absent, courts may view “near future” correction as unrealistic and prioritize legal finality.
  • Fit-parent placement does not bar termination: the decision solidifies the continued relevance of In re Emily in rejecting the argument that one parent’s fitness automatically warrants preserving the other parent’s rights.
  • Neglect can be established through non-support and noninvolvement: consistent with In re B.P., inability to provide due to incarceration can constitute neglect, especially where the record also reflects earlier failures to support.
  • Record preservation: the Court’s treatment of the “services” claim signals that arguments not meaningfully contested below (or contradicted by the record) will not gain traction on appeal.

4. Complex Concepts Simplified

  • Adjudication vs. disposition: adjudication determines whether a parent committed abuse/neglect; disposition determines the remedy (e.g., improvement period, custody changes, or termination).
  • Improvement period: a court-ordered opportunity for a parent to complete services to correct abusive/neglectful conditions; it may be denied when compliance is not feasible or prospects of correction are poor.
  • “No reasonable likelihood … substantially corrected in the near future”: a statutory threshold meaning the court, based on evidence, does not reasonably expect the parent to fix the problems within a child-centered timeframe.
  • Less restrictive alternatives: dispositions short of termination (e.g., custody with a parent/relative, guardianship, or continued supervision). Under In re Kristin Y., courts need not employ these when “no reasonable likelihood” is found.
  • Clear error vs. de novo review: appellate courts rarely overturn fact findings unless clearly mistaken; legal conclusions are reviewed independently.
  • Guardian ad litem (“guardian”): an attorney appointed to represent the child’s best interests and report relevant facts and recommendations to the court.
  • Permanency plan / concurrent plan: the primary goal (here, reunification with the mother) and a backup plan (here, adoption) to avoid prolonged uncertainty for the child.

5. Conclusion

In re R.D.-1 affirms that West Virginia courts may terminate parental rights—without resorting to less restrictive alternatives—when the evidence demonstrates no reasonable likelihood that neglectful conditions can be corrected in the near future and termination is necessary for the child’s welfare. The decision is especially instructive for cases involving incarceration: while incarceration alone does not mandate termination, a lengthy, voluntary pre-incarceration absence, non-support, and absence of bond can establish unfitness and render future rehabilitation too speculative to delay permanency, even where the child is physically safe with the other parent.