In re S.M.: Dispositional Orders Must Make Evidence-Based Findings on the “Cecil T. factors” and May Not Rely on “Indefinite” Incarceration

1. Introduction

In re S.M. arises from an abuse-and-neglect proceeding in Morgan County involving an infant, S.M. The West Virginia Department of Human Services (“DHS”) filed a petition in January 2024 primarily focused on the mother’s instability and substance use and later amended to allege that petitioner father J.M. had abandoned S.M. and could not provide care because he was incarcerated out of state.

The circuit court held adjudication and disposition across two days (September/October 2024) and terminated the father’s parental rights, emphasizing his lengthy criminal history, repeated probation problems, and his then-current incarceration in Virginia with an “indefinite” duration. On appeal, the father argued the circuit court should have imposed a less restrictive alternative than termination.

The Supreme Court of Appeals vacated and remanded—not because it concluded termination was necessarily unwarranted, but because the dispositional order lacked the required evidentiary findings and analysis when incarceration is the sole circumstance relied upon to show inability to remedy abuse/neglect.

2. Summary of the Opinion

Two justices dissented, asserting (1) the majority improperly granted relief on an issue not raised by the father and (2) the circuit court sufficiently considered the incarceration-related factors and should have been affirmed.

3. Analysis

3.1. Precedents Cited

• Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011)
  Role in this decision: Cecil T. supplies the controlling framework when incarceration is the central circumstance at disposition. The Court quoted syllabus point three requiring consideration of “the nature of the offense,” “the terms of the confinement,” and “the length of the incarceration” (collectively, the “Cecil T. factors”), evaluated against the child’s “paramount need for permanency, security, stability, and continuity.”
  Practical effect here: The majority treated the Cecil T. factors as findings that must be supported by evidence in the record and meaningfully discussed in the order—not assumed from a parent’s general criminal history or the uncertainty of pending criminal matters.
• In re A.F., 246 W. Va. 49, 55, 866 S.E.2d 114, 120 (2021)
  Role in this decision: The Court relied on In re A.F. for the proposition that, when applying Cecil T., a circuit court must address the potential length/nature/terms of incarceration and “cannot primarily rely on the indefinite nature” of incarceration (for example, pretrial detention or unresolved charges).
  Practical effect here: The majority found the circuit court repeated the error identified in In re A.F. by emphasizing “indefinite” incarceration without an evidentiary basis for length and terms.
• In re Emily G., 224 W. Va. 390, 396, 686 S.E.2d 41, 47 (2009)
  Role in this decision: The Court used In re Emily G. to justify the remedy: where “requisite procedure is not followed,” the resulting order should be vacated and remanded for entry of an order satisfying procedural requirements.
  Practical effect here: Even if termination might ultimately be supported, the absence of required findings warranted vacatur rather than affirmance.
• State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621
  Role in this decision: Cited for waiver: issues not raised are not considered on appeal. The majority applied it in a footnote to conclude any objection to an “accelerated dispositional hearing” was waived because the father did not raise it.
  Relationship to the dissent: The dissent invoked a related adversarial principle (party presentation) to argue the majority should not have vacated on a Cecil T.-analysis ground not advanced by the father.
• Greenlaw v. United States, 554 U.S. 237, 243 (2008) (cited in dissent)
  Role in this decision: The dissent argued the majority violated the “party-presentation principle” by granting relief on an unraised issue, depriving DHS of an opportunity to address it. This frames a recurring tension in appellate child-welfare cases: strict party-presentation versus the appellate court’s institutional responsibility to ensure statutory and procedural protections are honored in cases implicating fundamental rights.
• In re B.P., 249 W. Va. 274, 281, 895 S.E.2d 129, 136 (2023) (cited in dissent)
  Role in this decision: The dissent cited In re B.P. to support affirmance, asserting the circuit court’s discussion of criminal history and present incarceration constituted a sufficient Cecil T. analysis.
• Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011) (standard of review cited via)
  In re Cecil T. is not the standard-of-review case here; the Court cited Syl. Pt. 1, In re Cecil T.? In fact, the opinion states: “Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011)” for review standards? It actually cites Syl. Pt. 1, In re Cecil T.? The text reads: “Syl. Pt. 1, In re Cecil T., 228 W. Va. 89...” Correction: the opinion states Syl. Pt. 1, In re Cecil T., 228 W. Va. 89... for standard of review? It actually reads: “Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).” (As provided, the standard-of-review citation is Syl. Pt. 1, In re Cecil T..) Regardless, the Court applied clear error for facts and de novo for law.

3.2. Legal Reasoning

The majority’s reasoning is structured around a procedural-and-evidentiary requirement: when incarceration is the sole basis for concluding a parent cannot remedy conditions of abuse/neglect in the near future, termination must rest on a record that allows meaningful application of the Cecil T. factors. The Court emphasized three related points.

1. Incarceration-only cases trigger a specific evaluative framework.
   The Court treated the proceeding as an incarceration-only disposition. That classification matters because it narrows the permissible justification for termination to what can be established about confinement and its practical consequences for parenting within the relevant time horizon, viewed through the child’s best interests and need for permanency.
2. The Cecil T. factors must be supported by record evidence and addressed in the order.
   At disposition, the father was in Virginia on unspecified probation violations and a new charge for writing a bad check. Yet the parties did not introduce evidence establishing the underlying probation sentences (lengths), the nature of the underlying offenses beyond vague labels, or the terms of confinement. Without those facts, the circuit court could not do the required balancing in a way that is reviewable on appeal.
3. “Indefinite” incarceration is not, by itself, an adequate substitute for the required analysis.
   Citing In re A.F., the Court rejected dispositional reasoning that centers on uncertainty (no release date; unknown outcome of charges) rather than on evidenced constraints (what the parent is actually facing in terms of custodial exposure and conditions). The majority’s core concern was not that the father’s incarceration was irrelevant, but that the order treated “indefinite” as a determinative fact without the concrete underpinnings that Cecil T. demands.

The dissent took a different view of the same record: it argued the circuit court did consider the father’s extensive criminal history, ongoing incarceration, and repeated probation violations, and it criticized the majority for vacating based on an issue (lack of Cecil T. analysis) not raised by the father. That dissent highlights a practical appellate tension: whether ensuring a legally adequate, factor-driven order is a “procedural requirement” the appellate court may enforce even absent party briefing, or whether doing so improperly abandons party presentation in favor of appellate issue selection.

3.3. Impact

1) Higher evidentiary expectations in incarceration-only dispositions. The decision signals that, when incarceration is the dispositive circumstance, circuit courts (and litigants) should build a concrete record: underlying charges, sentences, probation terms, likely custodial exposure, confinement conditions, and timelines that bear on the child’s permanency needs.

2) Order-writing discipline and appellate reviewability. Even where a parent’s criminal history seems overwhelming, In re S.M. reinforces that termination orders must be reasoned and reviewable—showing that the court applied the right factors and explaining how the evidence satisfies them.

3) Litigation strategy consequences. Parties seeking termination may need to present documentary proof (sentencing orders, probation orders, detainers, jail/prison status, anticipated release windows) rather than relying on general testimony that the duration is unknown. Parents, conversely, may be incentivized to develop evidence that incarceration will be brief or that the terms of confinement permit meaningful engagement with services.

4) Continued debate over party presentation in child welfare appeals. The dissent’s reliance on Greenlaw v. United States suggests future arguments that appellate courts should not vacate on unbriefed grounds. The majority’s approach, however, indicates that inadequate factor-findings may be treated as a remediable structural deficiency akin to the procedural lapses addressed in In re Emily G. This tension may shape how parties brief appeals—and how circuit courts insulate orders from reversal.

4. Complex Concepts Simplified

• Adjudication vs. disposition: Adjudication determines whether abuse/neglect occurred; disposition decides the remedy (services, placement, termination, etc.).
• Accelerated dispositional hearing (Rule 32(b)): A procedure allowing disposition immediately after adjudication if certain requirements are met (party agreement, case plan or waiver, notice or waiver). Here, any challenge was deemed waived.
• “No reasonable likelihood” finding: A statutory conclusion (often tied to W. Va. Code § 49-4-604) that the parent is unlikely to substantially correct the conditions in the near future—often a predicate to termination.
• The “Cecil T. factors”: When incarceration is the central issue, the court must consider (at minimum) (1) the nature of the offense, (2) the terms of confinement, and (3) the length of incarceration, then weigh those facts against the child’s best interests and need for permanency.
• Why “indefinite incarceration” is not enough: “Indefinite” describes uncertainty, not a proven timeline. The appellate court requires grounded findings (what sentences/holds exist; what is likely to happen) so the child’s permanency calculus can be evaluated transparently.
• Party-presentation principle: Appellate courts ordinarily decide the issues the parties raise. The dissent argued the majority violated that norm by vacating on a ground not argued by the father.
• Abandonment/neglect definitions (statutory): The dissent emphasized W. Va. Code § 49-1-201 definitions, including abandonment as conduct showing a settled purpose to forego parental duties, and neglect as failure/inability to provide necessities not due primarily to lack of financial means.

5. Conclusion

In re S.M. reinforces a concrete rule of practice in West Virginia child welfare law: when termination is sought based solely on incarceration, a circuit court must create and articulate a record-based analysis of the “Cecil T. factors” and may not rest its decision primarily on the “indefinite” nature of pending or uncertain confinement. The opinion’s practical significance lies less in its immediate outcome (vacatur and remand) and more in its insistence on evidentiary specificity and reviewable reasoning—requirements that shape how DHS, parents, and guardians litigate incarceration-centered abuse-and-neglect cases and how circuit courts draft termination orders to withstand appellate scrutiny.