Independent, Case-Specific “Reasonable Efforts” Findings Are Mandatory—Boilerplate Orders Cannot Support Termination

Case: In re K.S. (Justice Ewing, concurring)  |  Court: Supreme Court of West Virginia  |  Date: May 15, 2026

1. Introduction

Justice Ewing’s concurrence in In re K.S. is a pointed warning against a common failure in child abuse and neglect litigation: treating “reasonable efforts” findings as rote, conclusory language rather than a required judicial determination that meaningfully measures the Department of Human Services’ (“DHS”) performance. The concurrence frames “reasonable efforts/no reasonable efforts” findings as among the most consequential tools judges possess because they regulate (1) whether removal was necessary, (2) whether reunification was genuinely pursued, and (3) whether permanency was timely and properly achieved—while also protecting parental due process and ensuring compliance with Title IV-E funding rules.

The immediate controversy is procedural and substantive: the circuit court terminated parental rights while making only perfunctory findings about “reasonable efforts to achieve permanency” and failing to make (and document) the statutorily required determinations regarding DHS’s reunification efforts. Justice Ewing concurs in the majority’s decision to vacate termination and remand, emphasizing that the omission is not a technicality; it is a breach of mandatory statutory safeguards that can convert temporary state intervention into a self-fulfilling path to termination.

2. Summary of the Opinion (Concurrence)

Justice Ewing traces “reasonable efforts” to Title IV-E of the Social Security Act, as amended by the Adoption and Safe Families Act of 1997 (“ASFA”), and explains that federal regulations require judicial (not administrative) verification, explicitly documented in orders and made case-by-case. He then connects federal requirements to West Virginia’s Child Welfare Act, which embeds these determinations at multiple procedural stages.

Applying that framework to the case, the concurrence highlights two failures: (1) DHS’s “glaring failure” to make reasonable efforts to preserve the family (as detailed by the majority), and (2) the circuit court’s failure to hold DHS accountable by making the required findings under West Virginia Code § 49-4-604(c)(6)(C) regarding reunification efforts. Because those findings are prerequisites to termination—not optional language—the concurrence agrees that vacatur and remand are warranted.

3. Analysis

3.1. Precedents Cited

Although the concurrence is policy-forward, it is anchored in West Virginia precedent requiring strict compliance with statutory findings and recognizing abuse and neglect proceedings as remedial (reunification-centered absent exceptions).

• In re H.B., 252 W. Va. 350, 922 S.E.2d 350 (2025)
  The concurrence relies on In re H.B. for the proposition that West Virginia Code § 49-4-604 requires the circuit court to consider whether DHS made reasonable efforts prior to terminating parental rights. It also contrasts the typical pattern—courts upholding reasonable-efforts findings where DHS provided services but parents failed to participate—with the present case, where DHS’s efforts were deficient and the court’s findings were incomplete.
• In re M.M., 244 W. Va. 316, 853 S.E.2d 556 (2020)
  Used as a concrete example of what “no reasonable efforts” can look like: DHS failed by refusing to renew an expired special medical card necessary for substance abuse treatment. The case supports the concurrence’s theme that “reasonable efforts” is not abstract—it is measured by whether DHS removes barriers to services.
• In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001)
  This is the concurrence’s principal enforcement authority. First, it is cited for the mandatory nature of statutory requirements: they are “not mere general guidance” and protect due process. Second, it is cited for the specific proposition that termination is insufficiently grounded where the dispositional order fails to state whether DHS made reasonable efforts as required by statute. Justice Ewing uses In re Edward B. to characterize missing findings as reversible legal error, not harmless omission.
• In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996)
  Cited to reinforce that once reunification is the goal, DHS must work diligently to accomplish it. This supports the concurrence’s warning against “passively suggested” services and delayed referrals that functionally prevent reunification.
• In re G.M., No. 19-0844, 2020 WL 3447536 (W. Va. June 24, 2020) (memorandum decision)
  Cited for the proposition that availability for communication with parents is integral to fulfilling reasonable efforts duties—supporting the concurrence’s view that reasonable efforts include day-to-day casework functionality, not just formal case plans.
• In re K.P., No. 25-234, 2026 WL 820824 (W. Va. Mar. 24, 2026) (memorandum decision) and In re R.W., No. 25-337, 2026 WL 688916 (W. Va. Mar. 3, 2026) (memorandum decision)
  Cited as examples where reasonable-efforts findings are upheld when DHS provides case-specific services but respondents do not engage—serving as a foil to the present case.
• In re D.S., No. 21-0798, 2022 WL 710470 (W. Va. Mar. 9, 2022) (memorandum decision)
  Cited to clarify that reasonable efforts do not require granting an improvement period; the parent bears the burden of proving entitlement. This matters because it separates DHS’s service obligation from the court’s discretionary decision on improvement periods.
• In re H.W., 247 W. Va. 109, 875 S.E.2d 247 (2022); State ex rel. L.D. v. Cohee, 247 W. Va. 695, 885 S.E.2d 633 (2022); and State ex rel. C. H. v. Faircloth, 240 W. Va. 729, 815 S.E.2d 540 (2018)
  These cases are invoked to ground the concurrence’s broader thesis: abuse and neglect proceedings are “first and foremost” remedial, with reunification as the central objective when consistent with the child’s best interests. This remedial premise supplies the normative reason that “reasonable efforts” must be real, individualized, and judicially enforced.
• In re D.H., 252 W. Va. 290, 922 S.E.2d 290 (2024); In re A.E., 927 S.E.2d 447 (W. Va. 2026); and State ex rel. W. Va. Dep't of Hum. Servs. v. Redding, Nos. 24-658, 24-659, 2026 WL 1162606 (W. Va. April 29, 2026)
  Cited to describe “intersecting obligations” of executive agencies and courts, and to frame reasonable-efforts findings as a primary, lawful mechanism for judicial oversight “within statutory bounds and within an actual case or controversy.”

3.2. Legal Reasoning

The concurrence’s reasoning proceeds in a structured sequence: source of duty → required timing and documentation → state codification → case-stage triad → consequences of failure.

A. Federal genesis: Title IV-E + ASFA requires judicially documented findings

Justice Ewing emphasizes that “reasonable efforts” is a federal funding condition under Title IV-E (42 U.S.C. §§ 670-679c), as amended by ASFA, requiring states to provide “reasonable efforts … to preserve and reunify families” (42 U.S.C. § 671(a)(15)(B)). Federal regulations (45 C.F.R. § 1356.21) require that courts make the determination, explicitly document it, and do so case-by-case (45 C.F.R. § 1356.21(d)). The concurrence underscores that the verification is intentionally judicial, preventing agencies from self-certifying compliance.

B. West Virginia codification: mandatory findings at removal, disposition/termination, and permanency

West Virginia’s Child Welfare Act incorporates these federal expectations and makes them operational through specific, stage-based statutory commands:

• Removal stage: within 60 days, a judicial finding that remaining in the home is contrary to the child’s welfare and that DHS made reasonable efforts to prevent removal (42 U.S.C. § 672(a)(2)(A)(ii); 45 C.F.R. § 1356.21(b)(1); W. Va. Code § 49-4-602(a)(4)). The concurrence highlights the federal penalty: absent the timely judicial determination, the state “will never receive federal funding for that child” during foster care (45 C.F.R. § 1356.21(b)(1)(ii)).
• Reunification/services during the case (including disposition/termination): DHS must make reasonable efforts to make safe return home possible (42 U.S.C. § 671(a)(15)(B); 45 C.F.R. § 1356.21(b)), and West Virginia requires that termination/guardianship orders state whether DHS made reasonable efforts to preserve and reunify, and describe those efforts (W. Va. Code § 49-4-604(c)(5) and (6), including § 49-4-604(c)(6)(C)).
• Permanency finalization: reasonable efforts to finalize the permanency plan must be judicially determined and documented (45 C.F.R. § 1356.21(b)(2)), with a federal funding penalty for missing months (45 C.F.R. § 1356.21(b)(2)(ii)); mirrored in W. Va. Code § 49-4-608(e)(2).

C. The concurrence’s enforcement point: “reasonable efforts” cannot be reduced to “permanency” boilerplate

The key legal critique is not merely that the circuit court’s orders were thin; it is that they were legally incomplete. The circuit court found “reasonable efforts to achieve permanency” and that the case was “properly managed,” but failed to include the findings required by W. Va. Code § 49-4-604(c)(6)(C) regarding reasonable efforts to preserve and reunify the family. Justice Ewing treats these as prerequisites to termination. Relying on In re Edward B., he frames the omission as an error that undermines due process and the statutory architecture (termination must be based on inability to improve “despite reasonable efforts,” consistent with W. Va. Code § 49-4-604(d)).

D. Substantive content: what courts must examine

Because neither federal nor state law defines “reasonable efforts,” the concurrence supplies functional criteria for judicial evaluation, drawn from federal guidance and practice materials: timeliness and adequacy of referrals; tailoring to family needs; barrier reduction (transportation, disability, treatment access, housing); active facilitation of visitation and services; and evidence-based findings rather than conclusory reporting.

3.3. Impact

Justice Ewing’s concurrence is likely to influence practice in three ways.

• Stronger appellate vulnerability for boilerplate orders: By linking missing reunification-efforts findings to In re Edward B. and to due process, the concurrence supplies a ready framework for challenging termination orders that discuss permanency but omit reunification-efforts determinations and descriptions required by statute.
• Earlier, stage-specific litigation of “reasonable efforts”: The concurrence warns that waiting until termination to raise reasonable efforts places courts under inertia and permanency pressure. Its logic encourages parties and courts to litigate reasonable efforts at removal, during MDT reviews, at review hearings, and at disposition—when remediation is still realistically possible.
• Institutional accountability (and funding consequences) as a judicial function: The concurrence makes explicit that reasonable-efforts findings are not merely child-welfare “best practices”; they are compliance checkpoints with real consequences (including Title IV-E reimbursement loss) and are “the exclusive means” of ensuring agency performance (quoting Judge Edwards’ work).

4. Complex Concepts Simplified

• “Reasonable efforts”: The legally required, good-faith actions DHS must take—tailored to the family—to prevent removal when safe, to help fix the conditions that led to removal, and to support safe reunification or timely alternative permanency. It is not satisfied by generic referrals or paperwork alone.
• Title IV-E / ASFA: Federal statutes that fund foster care and condition reimbursement on state compliance, including court-documented findings that DHS made reasonable efforts.
• “Explicitly documented” judicial determination: The court must write the finding in its order, case-by-case, not assume it or allow it to be implied from agency reports.
• “Aggravating circumstances”: Severe statutory conditions that can relieve DHS of the obligation to make reasonable reunification efforts (42 U.S.C. § 671(a)(15)(D)), incorporated into West Virginia law (e.g., W. Va. Code § 49-4-602(d); § 49-4-604(c)(7)). The concurrence notes they were not present here.
• Nunc pro tunc order: An order entered “now for then.” The concurrence (via cited commentary) notes reasonable-efforts findings cannot be backfilled after the 60-day federal window.
• Improvement period: A structured time for a parent to complete services. The concurrence notes (citing In re D.S.) that reasonable efforts do not automatically require granting one; the parent must prove entitlement, but DHS still must make reasonable efforts where required.
• Permanency plan: The long-term placement goal (reunification, guardianship, adoption, etc.). “Reasonable efforts” also require DHS to finalize the chosen plan timely.

5. Conclusion

Justice Ewing’s concurrence in In re K.S. reframes “reasonable efforts” findings as a central due-process and accountability mechanism, not ceremonial language. The opinion’s practical rule is clear: courts must independently scrutinize DHS performance and must make explicit, case-specific, statutorily complete findings at each key stage. Where a termination order omits required reunification-efforts determinations—especially when DHS’s efforts were deficient—the order is legally vulnerable, and remand may be necessary. In the broader legal landscape, the concurrence strengthens the expectation that West Virginia courts will treat reasonable-efforts determinations as mandatory adjudicative work that shapes outcomes, safeguards families, and ensures the child welfare system remains remedial rather than defaulting into automatic termination.