In re S.S.: Imminent Release, Acknowledged Substance Abuse, and Demonstrated Rehabilitation Require Meaningful Consideration of a Post-Adjudicatory Improvement Period

Introduction

In In re S.S. (W. Va. Apr. 24, 2026), the Supreme Court of Appeals of West Virginia reviewed a Randolph County circuit court’s dispositional order that (1) denied a father’s motion for a post-adjudicatory improvement period and (2) terminated his parental rights. The petitioner-father, B.M., had been incarcerated during much of the proceedings and had no contact with the child, S.S., since birth. He stipulated at adjudication to “use/abuse of illegal drugs” negatively impacting parenting and to an inability to provide stable housing/financial support due to incarceration, then sought a post-adjudicatory improvement period.

The central issues on appeal were whether the circuit court abused its discretion by denying the improvement period and whether the termination decision could stand where the denial rested on factual findings that the father (a) could not participate due to incarceration, (b) failed to recognize his substance problem because he would not label himself “an addict,” and (c) had “passed the time” to succeed because the case had been pending and he lacked a bond with the child.

Summary of the Opinion

The Court held that the circuit court abused its discretion in denying the father’s motion for a post-adjudicatory improvement period because the denial rested on clearly erroneous factual findings and improper weighing of relevant considerations. The Court:

  • Reversed in part the dispositional order insofar as it denied the improvement period;
  • Vacated in part the dispositional order insofar as it terminated parental rights; and
  • Remanded with instructions to craft improvement-period terms—coordinated with the multidisciplinary treatment team—that are least disruptive to the now-older child, protect safety, and still provide the father a full opportunity to correct the conditions of abuse and neglect.

The Court emphasized that improvement periods are a reunification-focused mechanism under West Virginia’s abuse and neglect framework and that “best interests” analysis must be anchored in accurate facts and proper statutory criteria, not assumptions or mischaracterizations of the parent’s evidence.

Analysis

Precedents Cited

The opinion builds its result by combining (1) appellate review standards, (2) improvement-period doctrine and statutory interpretation, and (3) best-interests and permanency principles.

1) Standards of review and deference

  • Syllabus Point 1, In re K.A., 251 W. Va. 626, 915 S.E.2d 520 (2025): The Court reiterated that a circuit court’s decision to grant or deny a post-adjudicatory improvement period is reviewed for abuse of discretion. This frames the appeal as challenging the reasonableness of the circuit court’s decision-making process rather than re-trying the case.
  • McCormick v. Allstate Ins. Co., 197 W. Va. 415, 475 S.E.2d 507 (1996), as quoted through Syllabus Point 1, In re S. W., 236 W. Va. 309, 779 S.E.2d 577 (2015) and adopted via Syllabus Point 1, In re Z.D.-1, 251 W. Va. 743, 916 S.E.2d 375 (2025): The Court applied a two-prong deferential standard—abuse of discretion for the ultimate disposition, and clearly erroneous review for underlying factual findings. This mattered because the Court ultimately concluded the critical supporting facts were clearly wrong, rendering the discretionary denial unsustainable.
  • Syllabus Point 1, in part, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996): The Court used the canonical definition of “clearly erroneous” to justify appellate intervention even under deferential review—where the reviewing court has a “definite and firm conviction that a mistake has been committed.”
  • Shafer v. Kings Tire Serv., Inc., 215 W. Va. 169, 597 S.E.2d 302 (2004): The Court invoked Shafer to define “abuse of discretion” as including reliance on improper factors, ignoring material factors, or seriously misweighing proper ones. This is the opinion’s hinge: once the circuit court’s factual predicates were deemed improper/clearly erroneous, the discretionary conclusion fell with them.

2) Nature and purpose of improvement periods (reunification tool)

  • In re X.R., 926 S.E.2d 805 (W. Va. 2026) (quoting In re J.D.-1, 247 W. Va. 270, 879 S.E.2d 629 (2022) (quoting In re Emily & Amos B., 208 W. Va. 325, 540 S.E.2d 542 (2000))): The Court reiterated the conceptual baseline: an improvement period is an “opportunity” for the parent to correct conditions of abuse/neglect. By placing this at the start of its substantive discussion, the Court signaled that improvement periods are not peripheral—they are central to the statutory design when reunification remains plausible.
  • W. Va. Dep't of Hum. Servs. v. Peggy F., 184 W. Va. 60, 399 S.E.2d 460 (1990): Cited for the proposition that the improvement period exists to allow parents to remedy problems. The Court later returned to this principle when directing the circuit court on remand to craft remedial measures.
  • In re J.D.-1, 247 W. Va. 270, 879 S.E.2d 629 (2022) and In re M.M., 236 W. Va. 108, 778 S.E.2d 338 (2015): These cases support the burden allocation: the respondent parent must show entitlement to an improvement period, particularly by demonstrating likely compliance. The opinion uses these to clarify that the father bore the burden—but then explains he met it through undisputed evidence of participation in classes, plans for housing/employment, and willingness to drug screen and engage services.

3) Statutory structure and best-interests overlay

  • West Virginia Code § 49-4-610 (2015): The statute sets threshold requirements for a post-adjudicatory improvement period: a written motion and a showing by “clear and convincing evidence” that the respondent is likely to fully participate, with a six-month duration cap (and potential extension under § 49-4-610(6)).
  • State ex rel. West Virginia Department of Health & Human Resources v. Dyer, 242 W. Va. 505, 836 S.E.2d 472 (2019): This is the key doctrinal “overlay.” The Court restated that statutory compliance does not automatically entitle a parent to an improvement period. Under Syl. Pt. 3, Id., an improvement period should be granted only if it does not jeopardize the child’s best interests and the order should contain findings showing lack of prejudice/harm to the child. In In re S.S., the Court found that the circuit court nominally referenced best interests but did so through clearly erroneous factual premises, undermining the best-interests conclusion itself.

4) Acknowledgment of problems; futility rationale

  • W. Va. Dep't of Health & Human Res. ex rel. Wright v. Doris S., 197 W. Va. 489, 475 S.E.2d 865 (1996): The Court recognized the principle that failure to acknowledge the problem can make it “untreatable,” making an improvement period futile. However, the Court distinguished this case: the father did not deny substance abuse—he stipulated to it, pursued recovery classes, and agreed to testing and treatment. The circuit court’s conclusion that he “denie[d] addiction” was based on a narrow semantic exchange and was therefore clearly erroneous.
  • In re K.A., 251 W. Va. 626, 915 S.E.2d 520 (2025) and State ex rel. P.G.-1 v. Wilson, 247 W. Va. 235, 878 S.E.2d 730 (2021): The opinion cited these as examples where denial of an improvement period was affirmed because the parents truly failed to acknowledge problems or continued harmful conduct. By contrasting those records with the father’s record here, the Court underscored that “futility” must be evidence-based, not inferred from an imprecise label.

5) Delay, permanency, and not penalizing parties for procedural lag

  • State ex rel. L.D. v. Cohee, 247 W. Va. 695, 885 S.E.2d 633 (2022), In re J.P., 243 W. Va. 394, 844 S.E.2d 165 (2020), and In re L.G., No. 24-14, 2025 WL 3083931 (W. Va. Nov. 4, 2025) (memorandum decision): These authorities supported the Court’s rejection of the circuit court’s “time already gone” rationale. The Supreme Court emphasized that the father’s paternity was not adjudicated until April 2024 and allegations were not added until September 2024; the father’s improvement-period request was timely after adjudication in November 2024. The Court reiterated that bureaucratic/procedural delays not attributable to a party cannot be used against that party.
  • In re Emily & Amos B., 208 W. Va. 325, 540 S.E.2d 542 (2000): The DHS argued the father sought an impermissible “delayed improvement period.” The Court distinguished In re Emily, where the improvement period was indefinite and effectively extended beyond statutory limits. Here, the father requested an improvement period to begin immediately, with his participation constrained only by imminent release, and within the statutory timeframe.
  • In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991) (Syl. Pt. 1, in part): The Court acknowledged the longstanding concern that unjustified delays harm children’s stability, but concluded that granting the father an improvement period here would not be an “unjustified procedural delay,” especially where the mother was already in an improvement period and the father was not seeking time beyond that contemplated by statute.

6) Visitation, bonding, and the role of contact during cases

  • Belinda Kay C. v. John David C., 193 W. Va. 196, 455 S.E.2d 565 (1995): The Court cited this case to highlight that visitation is the mechanism through which a parent-child bond can develop. Because S.S. was removed at birth, the Court reasoned that visitation during the case was the only realistic means for bonding—making it improper to use lack of a bond (driven by incarceration and case posture) as a reason to deny the very process that could allow bonding to occur.

7) Best interests as “polar star,” but integrated with reunification purpose

  • In re L.M., 235 W. Va. 436, 774 S.E.2d 517 (2015): Reaffirmed that a child’s best interests are the “polar star.” The Court did not diminish this principle; rather, it held that best-interests findings must be grounded in correct facts and appropriate consideration of rehabilitation evidence.
  • State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 470 S.E.2d 205 (1996), In re H.W., 247 W. Va. 109, 875 S.E.2d 247 (2022), and State ex rel. C. H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540 (2018): These cases were used to articulate the system’s “ultimate goal”: repair conditions and reunify when consistent with best interests. The Court used this doctrinal frame to critique the circuit court’s statement that the abuse-and-neglect case was “not as much about [the father’s] rehabilitation,” explaining that rehabilitation is central to whether reunification can safely occur.
  • In re J. G., 240 W. Va. 194, 809 S.E.2d 453 (2018) and Peggy F., 184 W. Va. 60, 399 S.E.2d 460 (1990): On remand, the circuit court’s discretion must be used to craft tailored remedies for complex family circumstances—here, an improvement period designed to be “least disruptive” while ensuring safety.

Legal Reasoning

The Court’s reasoning proceeds in a disciplined sequence: (1) identify the governing legal standard; (2) examine whether the statutory threshold and best-interests overlay were applied; (3) test the factual predicates underlying the circuit court’s discretionary decision; and (4) correct the disposition where discretion was exercised on clearly erroneous facts.

  1. Statutory gateway + best-interests overlay. The Court reaffirmed that under W. Va. Code § 49-4-610, a post-adjudicatory improvement period requires a written motion and “clear and convincing evidence” of likely full participation. Per Syl. Pt. 3, State ex rel. ... v. Dyer, the court must also ensure the improvement period does not jeopardize the child’s best interests.
  2. Four core factual errors undermined the denial. Applying clearly-erroneous review to the underlying findings, the Court identified four mistakes that drove the denial:
    • Incarceration as categorical non-participation: The circuit court found the father “cannot participate” due to incarceration. The Supreme Court rejected that as clearly erroneous because release was undisputedly imminent (two months away), the father requested an immediate improvement period within the statutory cap, and the statute allows up to six months (and potentially a three-month extension under W. Va. Code § 49-4-610(6)).
    • Semantic “addict” label treated as denial: The circuit court treated the father’s reluctance to call himself “an addict” as denial of a drug problem. The Supreme Court held this was clearly erroneous given the father’s stipulation to “use/abuse of illegal drugs,” his participation in recovery classes, and his willingness to test and engage services.
    • Improper attribution of elapsed time to father: The circuit court referenced “so much time already gone.” The Supreme Court held that delays stemming from paternity establishment and the timing of amended allegations were not attributable to the father and could not be weighed against him, citing State ex rel. L.D. v. Cohee, In re J.P., and In re L.G..
    • Lack of bond used as a reason to deny the mechanism that creates bonding: The father had no contact due to incarceration and the child’s removal at birth. The Supreme Court found it improper to treat the absence of a bond as determinative, especially where no evidence showed that supervised, structured contact during an improvement period would jeopardize the child.
  3. Ignoring a material factor: documented rehabilitation efforts. While the circuit court praised the father’s efforts as “impressive,” it discounted them as relevant only to the criminal case. The Supreme Court held that was legal error in weighting: rehabilitation is a “material factor deserving significant weight” (Shafer v. Kings Tire Serv., Inc.) because correction of conditions and safe reunification are the statutory aim in appropriate cases.
  4. No evidence of jeopardy to the child from an improvement period. Notably, the dispositional hearing featured only the father’s testimony. The Supreme Court stressed the record lacked evidence that granting an improvement period—with appropriately tailored terms—would prejudice S.S.’s welfare. The best-interests conclusion, therefore, could not stand on erroneous assumptions.

Impact

In re S.S. is likely to be influential in improvement-period disputes involving incarcerated or recently incarcerated parents and in cases where circuit courts rely on shorthand indicators (labels, elapsed time, absence of bond) rather than record-based findings tied to statutory criteria.

  • Incarceration is not a per se bar to a post-adjudicatory improvement period when release is imminent and participation can realistically occur within the statutory timeframe. Circuit courts must assess actual ability to participate, not assume impossibility.
  • “Acknowledgment” findings must be evidence-driven. A parent’s reluctance to adopt a stigmatizing label (“addict”) cannot substitute for an evidentiary finding that the parent denies the underlying substance abuse condition—especially where the parent stipulated to use/abuse and engaged in treatment activities.
  • Procedural timeline arguments must be fairly allocated. Courts may not attribute delays from paternity testing, amendment timing, or systemic lag to a parent when deciding whether “time has passed” for an improvement period.
  • Lack of bond cannot automatically justify termination or deny remedial opportunities where the case’s circumstances prevented bonding and the improvement period could safely introduce structured visitation.
  • Dispositional practice change: The opinion implicitly encourages fuller evidentiary development at disposition (beyond conclusory assertions), because appellate courts will scrutinize whether denial/termination rests on supported facts—particularly when the respondent is the only witness and the record contains minimal corroboration of alleged criminal history or current risk.

Complex Concepts Simplified

Post-adjudicatory improvement period
A court-ordered window (generally up to six months under W. Va. Code § 49-4-610) after a parent has been adjudicated as abusing/neglectful, during which the parent receives services and must comply with conditions (treatment, testing, parenting education, visitation rules) to correct problems and work toward reunification.
Clear and convincing evidence
A heightened proof standard—stronger than “more likely than not,” but not as strict as “beyond a reasonable doubt.” Here, it applies to whether the parent is likely to fully participate in the improvement period.
Abuse of discretion vs. clearly erroneous
“Abuse of discretion” reviews whether the judge made a reasonable decision given proper factors. “Clearly erroneous” reviews whether key factual findings are plainly mistaken when viewed against the whole record. In In re S.S., the Supreme Court found the facts supporting the denial were clearly wrong, which made the discretionary decision an abuse.
Best interests of the child
The guiding principle in child welfare cases. But it is not a slogan: courts must connect best-interests conclusions to supported facts, including whether an improvement period would actually harm or prejudice the child, consistent with Syl. Pt. 3, State ex rel. ... v. Dyer.
Termination of parental rights
The most severe dispositional outcome—ending the legal parent-child relationship. Because it is irreversible in practice, appellate courts closely examine whether termination followed a fair process and accurate, evidence-based findings.

Conclusion

In re S.S. re-centers improvement-period analysis on accurate factual findings and faithful application of W. Va. Code § 49-4-610 as informed by Syl. Pt. 3, State ex rel. West Virginia Department of Health & Human Resources v. Dyer. The Supreme Court of Appeals made clear that circuit courts may not deny a post-adjudicatory improvement period—and proceed to terminate parental rights—based on (1) mischaracterizing imminent-release incarceration as categorical inability to participate, (2) equating refusal to adopt a label with denial of substance abuse, (3) blaming a parent for procedural delays not attributable to them, or (4) using lack of bond as a substitute for the statutory inquiry.

The decision’s broader significance is its insistence that “best interests” determinations must be evidence-based and that parental rehabilitation efforts—especially undisputed, self-initiated steps—are legally material to whether reunification can be safely pursued. On remand, the circuit court must design an improvement period that protects the child and minimizes disruption while finally providing a meaningful opportunity for the father to demonstrate correction of the conditions of abuse and neglect.