In re R.W., H.S., and W.S.: Waiver of Rule 32 Timing Claims and “Futility” Justifying Termination After Recurrent Neglect

Court: Supreme Court of Appeals of West Virginia
Date: March 3, 2026
Disposition Below: Termination of Mother H.B.’s parental rights (Ohio County Circuit Court, April 25, 2025)
Decision: Affirmed (memorandum decision)

1. Introduction

This abuse-and-neglect appeal involves petitioner mother H.B. and her three children: R.W., H.S., and W.S. DHS filed a petition in July 2023 alleging unsafe and unsanitary living conditions (including lack of electricity) and—critically—renewed exposure of the children to “inappropriate people” associated with mental health crises, substance abuse, domestic violence, and prior sexual assault. The petition also tied these concerns to a prior 2020 abuse-and-neglect case in which H.B. had been adjudicated, completed an improvement period, and reunified in July 2021—only for similar risk factors to reemerge.

The key issues on appeal were: (i) whether the circuit court violated Rule 32 by not timely commencing disposition; (ii) whether the court should have granted a post-dispositional improvement period or a less restrictive alternative to termination; (iii) whether termination satisfied the statutory requirements (including best interests/necessity for welfare and required findings); and (iv) whether DHS made “reasonable efforts” toward reunification before termination.

2. Summary of the Opinion

The Supreme Court of Appeals affirmed termination. It held that the mother’s Rule 32 timing argument failed because she did not object and the delay stemmed from litigation needs, including her contested improvement-period request, change of counsel, and continuance sought to allow new counsel to prepare. The Court further held that denial of a post-dispositional improvement period was within the circuit court’s discretion because the record supported futility and a poor prognosis for improvement—especially given repetition of the same neglect dynamics after services in the prior case and expert psychological testimony.

The Court also concluded that termination satisfied West Virginia Code § 49-4-604(c)(6): there was no reasonable likelihood of correction in the near future and termination was necessary for the children’s welfare. It rejected the claim that DHS failed to make reasonable efforts, noting services provided in the case and the reasonableness of not expanding services where broader prior services had not resulted in permanent change.

3. Analysis

A. Precedents Cited

• Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011)
  The Court grounded its standard of review in In re Cecil T., emphasizing clear-error review for factual findings and de novo review for legal conclusions—framing the appeal as largely fact-driven and deferential to the circuit court’s credibility and weighing of evidence.
• In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002)
  Cited for the proposition that improvement periods are discretionary and may be denied when improvement is unlikely. This underwrote the Court’s acceptance of the circuit court’s futility determination and its refusal to compel another improvement period.
• 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))
  This line of cases supplies the familiar termination principle: termination can be ordered “without the use of intervening less restrictive alternatives” when there is “no reasonable likelihood” that conditions can be substantially corrected. The Court used it to validate termination notwithstanding evidence of some visitation success or professed willingness to comply.
• State ex rel. W. Va. Dep't of Health & Hum. Res. v. Dyer, 242 W. Va. 505, 520, 836 S.E.2d 472, 487 (2019)
  Dyer was pivotal to the “futility” analysis: where a parent previously received services yet repeats the abusive/neglectful behavior, additional improvement periods may be futile. The Court analogized H.B.’s recurrence of exposing children to inappropriate individuals—despite prior targeted services—to the pattern Dyer warns against.
• Noble v. W. Va. Dep't of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009) (quoting Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999))
  These cases supplied the waiver doctrine: nonjurisdictional issues raised for the first time on appeal are generally not considered. The Court applied this to the mother’s challenge to the timing and admission of psychological-evaluation evidence (complained-of on appeal but not objected to below).
• In re D.S., 251 W. Va. 466, 472, 914 S.E.2d 701, 707 (2025) and State v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995)
  Cited to reinforce appellate restraint: the Supreme Court will not reweigh evidence or reassess credibility. This insulated the circuit court’s decision to credit DHS and expert testimony over the mother’s explanations (e.g., denial of cocaine use; claims that COVID-era services weakened the prior improvement period).
• In re A.P., 245 W. Va. 248, 255, 858 S.E.2d 873, 880 (2021)
  Used to define the “necessary for the welfare of the child[ren]” component as focusing on particular physical and emotional needs. The Court relied on this framework to validate the circuit court’s emphasis on trauma, permanency, and the children’s need for caregivers equipped for their needs.
• In re Jamie Nicole H., 205 W. Va. 176, 184, 517 S.Ed.2 41, 49 (1999)
  This precedent supported the Court’s pragmatic approach to dispositional-order specificity: even if the written order does not “track the language” of the statute, the termination can be upheld if the transcript shows the circuit court reached the required conclusions.
• Syl Pt. 4, in part, In re J.A., 242 W. Va. 226, 833 S.E.2d 487 (2019)
  Addressed the child’s wishes: a circuit court must consider (but is not bound by) the wishes of a child aged fourteen or older; the best interests standard governs. The Court applied this to R.W.’s preference to keep parental rights intact, holding the circuit court appropriately considered it but could still terminate.
• In re K.V., 251 W. Va. 418, 426, 914 S.E.2d 517, 525 (2025)
  Cited for DHS’s statutory obligation to provide services as a prerequisite to termination. The Court used it to frame the “reasonable efforts” inquiry and to uphold the adequacy of services in this case.

B. Legal Reasoning

1) Rule 32 timing and the consequences of non-objection.

Rule 32 provides a default expectation that disposition begins within forty-five days after the final adjudicatory order unless an improvement period is granted. The Court did not treat the missed timeline as automatic reversible error. Instead, it emphasized two practical/legal filters:

• Preservation/waiver: the mother did not object below to the delay, weakening her entitlement to appellate relief.
• Causation and reasonableness of delay: the delay was attributable to legitimate case events, including a contested post-adjudicatory improvement-period hearing, substitution of counsel, and a continuance requested to allow new counsel time to prepare.

In effect, the Court’s reasoning aligns Rule 32 with a “case-management” norm rather than a rigid jurisdictional deadline—especially where the parent’s litigation choices contribute to the timeline.

2) Improvement periods: “likely to fully participate” and futility.

Under West Virginia Code § 49-4-610(3)(B), a post-dispositional improvement period requires clear and convincing evidence that the parent is likely to fully participate. The Court accepted the circuit court’s conclusion that the mother did not meet that burden and that further efforts would be futile, relying on:

• Recurrence after prior services: the prior case involved “strikingly similar issues,” and the mother resumed the same core neglect dynamic—exposing children to inappropriate individuals—after reunification.
• Expert psychological evidence: the psychologist described an “extremely poor prognosis for improvement,” lack of insight, externalization of blame, and concern that continued contact would prolong trauma and delay permanency/closure.
• Statutory “no reasonable likelihood” concept: the Court tied these findings to West Virginia Code § 49-4-604(d), concluding the mother demonstrated an inadequate capacity to solve the problems “on [her] own or with help.”

3) Termination without less restrictive alternatives.

The Court applied the In re Kristin Y./In re R.J.M. rule to hold that once “no reasonable likelihood” is found, the circuit court may terminate without employing less restrictive alternatives. The reasoning here is child-centered and time-sensitive: when repeated neglect and trauma are documented and a parent’s capacity for durable correction is discredited by history and expert testimony, the law does not require incremental steps that delay permanency.

4) “Necessary for the welfare” and best interests findings.

The Court clarified that West Virginia Code § 49-4-604(c)(6) requires findings of (i) no reasonable likelihood of near-future correction and (ii) that termination is “necessary for the welfare of the child[ren].” Using In re A.P., it treated “welfare” as addressing particular physical and emotional needs—here, trauma and the need for suitable caregivers.

As to the mother’s argument that the order lacked statutory specificity (e.g., why reunification/continuation in the home were not in the children’s best interests), the Court relied on In re Jamie Nicole H. to hold that the lack of perfect statutory phrasing is not fatal where the record shows the circuit court made the required determinations.

5) Child’s wishes (R.W.)—considered but not controlling.

West Virginia Code § 49-4-604(c)(6)(C) requires consideration of a child’s wishes if the child is fourteen or older. The Court, applying In re J.A., held the circuit court appropriately considered R.W.’s preference but permissibly credited competing evidence (notably the psychologist’s recommendation of no contact) in determining best interests.

6) DHS “reasonable efforts” in context, not in the abstract.

Invoking West Virginia Code § 49-4-604(c)(7) and In re K.V., the Court held DHS provided reasonable services in the present case (including supervised visitation and drug screening). Crucially, the Court assessed “reasonableness” against the procedural history: because the mother had already received more comprehensive services in the 2020 proceeding (therapy and parenting classes) without achieving lasting change, DHS was not required to replicate or expand services indefinitely before seeking termination.

C. Impact

• Rule 32 delays are unlikely to reverse outcomes absent preservation and prejudice.
  The decision reinforces that a parent must timely object to dispositional scheduling issues and that appellate courts will consider whether delay was justified by case events and party requests.
• Repeat-case context meaningfully strengthens “futility” and “no reasonable likelihood” findings.
  When a parent relapses into the same pattern after prior improvement services, courts may treat additional improvement periods as presumptively doubtful—especially with expert testimony about prognosis and insight.
• “Reasonable efforts” can be calibrated to history.
  The Court signaled that DHS’s reunification efforts are not evaluated as an ever-escalating checklist; they can be deemed reasonable where prior robust services failed to produce durable safety.
• Orders need not be stylistically perfect if the record supports the statutory findings.
  By leaning on In re Jamie Nicole H., the Court reduces the likelihood that termination orders will be reversed for drafting omissions when the transcript shows the correct analysis occurred.
• Older children’s wishes matter, but best interests govern.
  The decision underscores that a child’s stated preference does not override evidence-based best-interests findings—particularly where the child has significant trauma or mental-health concerns linked to the parent’s conduct.

4. Complex Concepts Simplified

• Adjudication vs. disposition: Adjudication decides whether abuse/neglect occurred. Disposition decides the remedy (services, custody arrangements, or termination).
• Improvement period (post-adjudicatory / post-dispositional): a structured timeframe with services to correct problems. A post-dispositional improvement period is harder to obtain because the case is already at the stage of selecting the final outcome.
• “Clear and convincing” evidence: a higher standard than “more likely than not,” requiring a strong showing—here, that the parent is likely to fully participate.
• “No reasonable likelihood” of correction (W. Va. Code § 49-4-604(d)): a legal conclusion drawn from evidence that the parent cannot or will not fix the problems in a timeframe consistent with the child’s needs, even with help.
• “Necessary for the welfare”: focuses on the child’s physical and emotional well-being (safety, stability, trauma recovery, permanency), not merely the parent’s effort or affection.
• Waiver/preservation: if a party does not object in the trial court, appellate courts usually will not consider the complaint later—because trial courts must be given a chance to correct errors in real time.
• Reasonable efforts: DHS must generally provide reunification services, but “reasonable” is context-dependent; it does not require endless or duplicative services when history shows they do not produce durable safety.

5. Conclusion

In re R.W., H.S., and W.S. is a reaffirmation of West Virginia’s child-welfare jurisprudence emphasizing permanency where neglect is recurrent and resistant to services. The Court’s most consequential signals are practical: Rule 32 timing complaints must be preserved; improvement periods are not obligatory when history and expert evidence show futility; termination can proceed without less restrictive alternatives once statutory findings are supported; and DHS’s reasonable efforts are evaluated in light of what has already been tried—and failed—in prior proceedings. In combination, these principles strengthen the durability of termination orders in repeat-neglect cases where the record demonstrates entrenched unsafe judgment and a poor prognosis for near-term correction.