In re S.S. and L.S.: No “Material Change” for Disposition Modification Based on Reframed International-Travel Concerns

1. Introduction

Case: In re S.S. and L.S., No. 25-306 (W. Va. Mar. 3, 2026) (memorandum decision).
Court: Supreme Court of Appeals of West Virginia.
Parties: Petitioner Father H.S. (through counsel), respondent Mother C.S. (self-represented), the Department of Human Services (“DHS”), and the children’s guardian ad litem (“guardian”).
Posture: Father appealed an order that denied most of his requested Rule 46 modifications to a prior dispositional order in an abuse and neglect proceeding.

The abuse and neglect case arose during an acrimonious divorce. After adjudication by stipulation and successful completion of improvement periods, the circuit court dismissed the abuse and neglect matter and restored a 50/50 custodial schedule consistent with a domestic relations case, while also placing conditions on international travel (including a temporary bar until the children’s next birthdays and advance disclosure of itinerary details).

Months later, Father sought to modify the disposition under Rule 46 and West Virginia Code § 49-4-606(a), asserting heightened concern that Mother—who retained Philippine citizenship—might abscond with the children to the Philippines, a non-signatory to the 1980 Hague Convention. Father presented an expert report recommending multiple “lines of defense,” including passport controls and a near-total prohibition on international travel absent Father’s consent or court order.

Key issue: Whether Father’s additional evidence and refined argument about abduction risk and non-Hague remedies constituted a “material change of circumstances” sufficient to justify modifying a dispositional order under § 49-4-606(a) and Rule 46.

2. Summary of the Opinion

The Supreme Court of Appeals affirmed. It held that the circuit court did not err in denying Father’s requested travel-and-passport restrictions (beyond the modification the circuit court granted specifying West Virginia as the children’s “home state” and the United States as their “habitual residence”).

The Court emphasized two controlling principles:

1. Appellate restraint: the Court will not reweigh evidence about alleged abduction risk where the circuit court considered the expert testimony but found it unpersuasive and made no finding that abduction risk existed.
2. Statutory threshold for modification: modification of disposition requires clear and convincing evidence of a material change of circumstances and that modification is in the child’s best interests. Father’s “continued concern” and more developed presentation of arguments did not satisfy the “material change” prerequisite—particularly where the original disposition already addressed international travel and the only post-disposition development was the passage of time anticipated by the court.

Two justices dissented on procedural/jurisprudential grounds, stating the case should have been set for oral argument and resolved by formal opinion rather than memorandum decision.

3. Analysis

3.1. Precedents Cited

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

In re Cecil T. supplies the standard of review for appeals from final orders in abuse and neglect proceedings: findings of fact are reviewed for clear error, and conclusions of law are reviewed de novo. In In re S.S. and L.S., that framework matters because Father’s arguments largely attacked the circuit court’s assessment of risk (a fact-intensive determination) rather than a purely legal interpretation. The Court treated the circuit court’s risk assessment and its decision not to impose additional restrictions as fact-bound judgments to which appellate deference is owed absent clear error.

State v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995)

Guthrie stands for the general appellate principle that an appellate court does not weigh evidence—credibility and weight are for the trier of fact. The Court used Guthrie to reject Father’s invitation to elevate the expert’s view over the circuit court’s ultimate judgment. Even where the expert testified that the risk of “wrongful detention” was “relatively high” and that remedies would be limited in a non-Hague country, the circuit court was permitted to find the evidence unpersuasive and decline additional restrictions.

In re D.S., 251 W. Va. 466, 472, 914 S.E.2d 701, 707 (2025)

In re D.S. reiterates the same restraint principle in the abuse and neglect context: the Supreme Court “do[es] not reweigh the evidence.” By pairing In re D.S. with Guthrie, the Court reinforced that this is not merely a criminal-law or general appellate maxim but a controlling approach in child welfare appeals as well.

In re S.W., 236 W. Va. 309, 313, 779 S.E.2d 577, 581 (2015)

In re S.W. is pivotal on the modification standard. It explains that the modification statute “clearly provides two perquisites to modification of disposition,” starting with a material change in circumstances. In In re S.S. and L.S., the Court treated this first prerequisite as gatekeeping: absent a material change, the court need not (and should not) re-litigate the wisdom of the prior disposition based on the same underlying dispute. Father’s attempt to frame his expert report as “new” information did not transform the dispute into a new circumstance where the underlying travel concern had already been raised and addressed at disposition.

Syl. Pt. 1, in part, In re Cesar L., 221 W. Va 249, 654 S.E.2d 373 (2007)

In re Cesar L. confirms that the plain language of the statute allows a proper party to move for modification “where a change of circumstances warrants such a modification.” The Court used Cesar L. to emphasize that modification is not an open-ended mechanism to revisit a disposition simply because a party later develops better evidence, stronger advocacy, or greater anxiety about a predicted future risk.

In re P.K., 252 W. Va. 253, --, 921 S.E.2d 893, 901-2 (2025)

The Court cited In re P.K. as a recent discussion offering examples of what can qualify as a “material change of circumstances” under Rule 46 and § 49-4-606(a). While the memorandum decision does not list those examples, the citation signals that the “material change” inquiry is substantive and fact-sensitive—and that courts should compare the post-disposition reality to the facts contemplated at disposition. Here, the Court’s application is straightforward: the only notable development was the passage of time and the children reaching birthdays—events the original order anticipated—so the “material change” threshold was not met.

3.2. Legal Reasoning

1. The circuit court heard and considered the expert evidence.
   The Supreme Court underscored that the circuit court was aware the Philippines is not a Hague Convention partner and that remedies would be limited if abduction occurred. The trial judge nonetheless made no finding that the children were at risk of abduction and declined to impose the “five lines of defense.” On appeal, that translated into a classic deference scenario: evidence was presented, weighed, and rejected.
2. The appellate court refused to reweigh the risk evidence.
   Father argued the court “misconstrued” the evidence about passport procurement and underappreciated the non-Hague risk. The Supreme Court treated this as a reweighing request, barred by State v. Guthrie and In re D.S.. Put differently, even if the expert’s risk analysis was plausible, the question on appeal was whether the circuit court clearly erred in rejecting it—not whether the Supreme Court would have decided differently.
3. No “material change of circumstances” was shown under § 49-4-606(a) and Rule 46.
   The Court’s central holding is that Father’s “continued concern” and presentation of “additional (and/or more thorough) arguments” about international travel risks did not establish a new circumstance. The dispositive comparison point was the original disposition: international travel to the Philippines was already in dispute, argument had been heard (though Father did not supply the transcript on appeal), and the court had already crafted conditions (a time bar and disclosure requirements) and warnings. The post-disposition filing did not identify a new event—such as an attempted passport application, an actual travel plan violating the order, a threat, a disappearance risk marker, or other concrete developments—only an enhanced litigation presentation.
4. The prior order’s structure mattered.
   The circuit court emphasized that the prior order included a time-based limitation (no travel until after the next birthdays) and expressed concern that Father was seeking to avoid the previously ordered framework now that the contemplated time had passed. The Supreme Court agreed: passage of time alone—especially time expressly contemplated—does not constitute a “material change.”
5. Practical constraints diminished the need for additional relief.
   The circuit court reasoned that both parents must sign U.S. passport applications, making several additional restrictions unnecessary. Although Father’s expert raised the possibility of unilateral acquisition of Philippine passports, the circuit court did not adopt that as a sufficient basis—on this record—to impose the sweeping restrictions Father requested (including a prohibition until age eighteen and sole legal custody over international travel).

3.3. Impact

• Rule 46/§ 49-4-606(a) is not a vehicle for “do-over” litigation.
  The decision reinforces a strict threshold: a party must show a post-disposition “material change,” not merely repackage preexisting concerns with more expert support. Practitioners should treat disposition as the critical stage for fully developing the record on anticipated risks (including international travel).
• International-travel risk arguments must be tied to concrete developments.
  The Court did not hold that non-Hague travel restrictions are impermissible; rather, it affirmed denial because the statutory prerequisite was not met and the trial court was unpersuaded on risk. Future litigants seeking restrictions should be prepared to present objective, post-disposition facts (e.g., passport applications, imminent travel bookings, threats, violations, concealment, instability, or other abduction risk indicators) to satisfy “material change.”
• Appellate outcomes can turn on the record provided.
  The Court noted key omissions: Father did not include the abuse/neglect petition, his stipulation, or adjudicatory materials; and he did not provide the dispositional hearing transcript. Where the “material change” analysis depends on what was argued and known at disposition, an incomplete record can be fatal.
• Clarifying “home state” and “habitual residence” can be granted without broader restrictions.
  The circuit court did add those declarations. The Supreme Court’s affirmance suggests such clarifications may be viewed as permissible, targeted modifications even where broader relief fails—especially when the parties do not oppose the clarification and it supports jurisdictional certainty.
• Institutional note: dissent flags concern with memorandum treatment.
  The dissent did not address the merits in detail but criticized the use of a memorandum decision. This signals potential judicial sensitivity around issues of international abduction risk and the adequacy of appellate process, even when the majority deems the case controlled by settled standards.

4. Complex Concepts Simplified

Disposition / Dispositional order

The court’s final set of directives resolving the abuse and neglect case—covering custody, services, conditions, and related protections. Here, the disposition dismissed the case after improvement periods and restored a 50/50 custodial schedule while imposing conditions on international travel.

Improvement period

A structured opportunity for parents to correct conditions of abuse/neglect under court oversight. Successful completion can lead to dismissal or reunification-related outcomes.

Rule 46 modification

A procedure allowing modification/supplementation of prior abuse-and-neglect orders, but only if statutory requirements are met—most importantly, a “material change of circumstances.”

Material change of circumstances

A meaningful new development after the prior order—something that alters the factual landscape the court relied on. In this case, the Court held that deeper worry, better expert support, or a more developed argument about a known risk does not itself become a new circumstance.

Clear and convincing evidence

A high evidentiary standard—more than “more likely than not,” less than “beyond a reasonable doubt”—requiring a firm belief in the truth of the allegation. Under § 49-4-606(a), it applies to proving both a material change and that modification is in the child’s best interests.

Best interests of the child

A child-centered evaluation of safety, stability, welfare, and development. Even if circumstances change, a court must also find the proposed modification benefits the child.

Home state

A jurisdictional concept commonly used in interstate custody disputes (e.g., UCCJEA context), typically referring to where the child has lived for a defined period and which state has primary jurisdiction. Here, the court specified West Virginia as the children’s home state.

Habitual residence

A concept often associated with international child abduction disputes (including Hague Convention analysis), reflecting the child’s usual, settled place of living. Here, the court specified the United States as the children’s habitual residence.

1980 Hague Convention

An international treaty that creates procedures to seek the prompt return of children wrongfully removed or retained across international borders between participating countries. The expert emphasized that the Philippines is not a signatory with the U.S., meaning Hague return remedies would not be available through that treaty framework.

Wrongful detention/retention

Keeping a child in another country in violation of custody rights. The expert used this concept to describe a scenario where a permitted visit turns into an extended, unauthorized stay.

Memorandum decision

A shorter appellate disposition used when the court deems the case does not require a full published opinion. The dissent argued this case warranted a formal opinion and oral argument.

5. Conclusion

In re S.S. and L.S. solidifies a practical, restrictive lesson about post-disposition practice in West Virginia child welfare cases: to modify a dispositional order under West Virginia Code § 49-4-606(a) and Rule 46, a movant must prove—by clear and convincing evidence—an actual material change of circumstances, not merely present enhanced evidence or refined argument about a concern already litigated at disposition.

The decision also underscores appellate limits: when the circuit court considers expert testimony but finds it unpersuasive and makes no risk findings, the Supreme Court will not reweigh that evidence. For litigants concerned about international abduction risk, the opinion signals that the most effective strategy is to fully develop the record at the original disposition and, if seeking later modification, to ground the request in concrete, post-disposition developments rather than anticipatory fears alone.