In re S.W.: Termination for Noncompliance with the Family Case Plan and Best-Interests Limits on Post-Termination Visitation

1. Introduction

In In re S.W., No. 25-108 (W. Va. Jan. 29, 2026) (memorandum decision), the Supreme Court of Appeals of West Virginia affirmed the Circuit Court of Webster County’s dispositional order terminating petitioner-father J.W.’s parental rights to S.W. and denying his request for post-termination visitation.

The case arose after the West Virginia Department of Human Services (“DHS”) filed an abuse and neglect petition in November 2022 alleging, among other things, substance-related concerns and housing instability. Father was adjudicated as a neglecting parent in January 2023 due to inability to care for the child and failure to provide a fit and suitable home (with the circuit court expressly finding insufficient evidence at that time to label him “addicted” to controlled substances). Father later received a post-adjudicatory improvement period (with an extension), but by April 2024 he ceased visitation, stopped drug screening, and stopped communicating with DHS; he was incarcerated in July 2024 for a parole violation and remained incarcerated at disposition.

The appeal presented two principal issues: (1) whether the evidence supported a finding that there was “no reasonable likelihood” father could substantially correct the conditions of abuse and neglect in the near future, justifying termination; and (2) whether the circuit court erred by denying post-termination visitation.

2. Summary of the Opinion

The Court affirmed. Applying the abuse-and-neglect appellate standard of review, it held that the record supported the circuit court’s findings that father failed to follow through with the improvement period (including cessation of visitation and lack of communication), that the underlying conditions persisted throughout the case, and that there was no reasonable likelihood those conditions could be corrected in the near future. Given those findings and the circuit court’s best-interests determination, termination under West Virginia Code § 49-4-604(c)(6) was upheld.

The Court also affirmed the denial of post-termination visitation, emphasizing the controlling inquiry: whether visitation would be detrimental to the child and whether it would be in the child’s best interests. The circuit court found father had not developed a meaningful relationship with S.W. and had only minimal visitation, and that post-termination visitation would be contrary to S.W.’s best interests.

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 the decision: This syllabus point supplies the framework for appellate review in abuse and neglect cases: findings of fact are reviewed for clear error, while conclusions of law are reviewed de novo. In In re S.W., the Court invoked this standard to defer to the circuit court’s factual determinations (e.g., father’s noncompliance and lack of visitation) so long as supported by the record, while independently evaluating the legal sufficiency of termination and denial of visitation.
  • 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))
    Rule reinforced: “Termination of parental rights . . . may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood . . . that conditions of neglect or abuse can be substantially corrected.”
    Role in the decision: Father’s argument implicitly sought a less restrictive alternative to termination. The Court relied on In re Kristin Y. (and its quotation of In re R.J.M.) to confirm that once the “no reasonable likelihood” finding is made, a circuit court is not required to attempt intermediate measures before terminating rights.
  • Syl. Pt. 11, in part, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002) (quoting Syl. Pt. 5, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995))
    Rule reinforced: In considering post-termination visitation, courts should consider factors including whether a “close emotional bond” exists, and “the evidence must indicate that such visitation . . . would not be detrimental to the child’s well being and would be in the child’s best interest.”
    Role in the decision: The Court used In re Daniel D. (and In re Christina L.) as the governing benchmark and upheld the circuit court’s best-interests finding, especially given father’s minimal contact and incarceration for much of the child’s life.

3.2 Legal Reasoning

The Court’s reasoning proceeds in two steps: the statutory basis for termination and the discretionary best-interests assessment for post-termination visitation.

A. Termination: “No reasonable likelihood” plus “necessary for the welfare of the child”

The Court grounded its affirmance in West Virginia Code § 49-4-604(c)(6), which authorizes termination upon two linked findings: (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.

To evaluate “no reasonable likelihood,” the Court pointed to West Virginia Code § 49-4-604(d)(3), which defines such a situation to include when the abusing parent “has not responded to or followed through with a reasonable family case plan or other rehabilitative efforts” designed to prevent neglect. The dispositive facts were father’s failure to comply with the improvement period requirements, his cessation of visits and drug screening, his lack of communication with DHS beginning in April 2024, and his incarceration at the time of disposition following parole-violation proceedings. The Court treated father’s own admissions (relapse, failed drug screen, and disengagement from the case) as powerful corroboration of the circuit court’s findings.

Notably, father argued he “substantially complied” because he had employment, a home, and participated in some services before incarceration. The Court rejected that characterization, effectively distinguishing partial or episodic compliance from the sustained follow-through required to demonstrate that conditions can be corrected “in the near future.” In short, the Court read the improvement period as a test of consistent engagement and parental reliability; father’s withdrawal from the process supported the statutory “no reasonable likelihood” determination.

B. No requirement of “less restrictive alternatives” once the statutory findings are made

Using Syl. Pt. 5, In re Kristin Y. (quoting Syl. Pt. 2, In re R.J.M.), the Court reiterated that termination may be ordered “without the use of intervening less restrictive alternatives” once “no reasonable likelihood” is found. This doctrinal point matters because it limits a parent’s ability to argue that the circuit court was required to exhaust additional remedial measures after the parent has demonstrated non-responsiveness to the case plan.

C. Post-termination visitation: bond and best interests (non-detriment)

The Court then applied the In re Daniel D./In re Christina L. standards: while the presence of a close emotional bond is a relevant consideration, the controlling requirement is that visitation must be shown to be non-detrimental and in the child’s best interests. The circuit court found father had not developed a meaningful relationship with S.W. and had minimal visitation, and that continued contact would be contrary to S.W.’s best interests. Given the record (sporadic visitation ending in April 2024, incarceration for a significant portion of the child’s life), the Court found no error.

The opinion also noted—without applying it retroactively—that after the entry of the order, the Court provisionally amended Rule 15(b) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings to “more clearly articulate and adopt appropriate standards for consideration of post-termination visitation.” This observation signals the Court’s broader institutional emphasis on clarifying the decisional framework in this sensitive area, while keeping the disposition anchored to the standards in effect when the circuit court ruled.

3.3 Impact

Although issued as a memorandum decision, In re S.W. is significant in its practical guidance and reinforcement of well-established principles:

  • Improvement periods require sustained engagement, not intermittent compliance. The decision underscores that temporary stability (employment or housing for a period) does not offset a later, wholesale disengagement from services, screening, visitation, and communication with DHS—especially where the parent concedes relapse or failure to participate.
  • Case-plan noncompliance is a direct pathway to a “no reasonable likelihood” finding. By expressly tying the facts to § 49-4-604(d)(3), the Court reinforces that failure to follow through on a reasonable family case plan is itself statutory evidence that correction is unlikely in the near future.
  • Termination can proceed without intermediate alternatives once the statutory threshold is met. The Court’s reliance on In re Kristin Y./In re R.J.M. continues to narrow arguments that a court must attempt additional, less restrictive dispositions after a parent has not responded to rehabilitative efforts.
  • Post-termination visitation remains exceptional and child-centered. The decision confirms that post-termination contact is not a default “consolation remedy.” A minimal relationship, prolonged incarceration, and best-interests concerns will support denial, consistent with In re Daniel D./In re Christina L..

4. Complex Concepts Simplified

  • “Improvement period”: A court-ordered opportunity for a parent to correct problems (e.g., substance use, housing, parenting skills) through specific services and requirements. It is time-limited and is meant to show real, consistent change.
  • “No reasonable likelihood that conditions can be substantially corrected in the near future”: A legal conclusion, supported by facts, that the parent is unlikely to fix the core safety/neglect issues soon enough for the child’s needs. Under § 49-4-604(d)(3), failing to respond to a reasonable case plan can satisfy this standard.
  • “Less restrictive alternative”: A disposition short of termination (for example, continued improvement period, guardianship, or other arrangements). Under In re Kristin Y./In re R.J.M., courts are not required to use such alternatives if “no reasonable likelihood” is found.
  • “Post-termination visitation”: Contact with a child after a parent’s rights have been terminated. It is permitted only when supported by evidence that it is in the child’s best interests and not detrimental, often hinging on whether a genuine, beneficial bond exists.
  • “Clear error” review: On appeal, factual findings stand unless the appellate court is firmly convinced a mistake was made. This deference matters in abuse-and-neglect cases where the circuit court hears testimony and evaluates credibility.

5. Conclusion

In re S.W. reaffirms that a parent’s failure to follow through with a reasonable family case plan—especially where the parent stops visiting the child, stops screening, and disengages from DHS—supports a finding of “no reasonable likelihood” of near-term correction under West Virginia Code § 49-4-604(d)(3), authorizing termination under § 49-4-604(c)(6). The decision also reinforces that post-termination visitation is governed by a strict best-interests/non-detriment inquiry under In re Daniel D. and In re Christina L., and may be denied where the parent lacks a meaningful relationship with the child and contact would be contrary to the child’s welfare.